A church in Texas: religious freedom before the court.

May the government keep Catholics from attending Mass? The answer is "yes" if the government in question is the Crown in Elizabethan England or the Communist party in the former Soviet Union. But in our constitutional republic the answer should be a resounding "no." Yet this very question has become problematic thanks to a case currently before the Supreme Court.

The City of Boerne, Texas, has not passed a municipal ordinance targeting Catholics for discriminatory treatment, nor has it expressly forbidden anyone from taking part in the Eucharist. But the city has insisted that its ordinance creating a historic district gives it - and not the archbishop of San Antonio - the power to control the architecture of an early twentieth-century "mission revival" church. Archbishop Patrick Flores wants to enlarge the existing building to accommodate a rapidly growing Catholic population. Thus the effect of the city's policy is to deprive many Catholics in that city of the Mass.

What should be an easy constitutional question has been made problematic because the Court itself made a serious mistake in 1990 when it ruled in Employment Division v. Smith that the free-exercise clause of the First Amendment does not require governments to accommodate religious conduct in conflict with laws that appear to be neutral, nondiscriminatory, and generally applicable to all. In the wake of the Smith decision, Congress held hearings, and documented several outlandish violations of religious freedom stemming from "neutral" laws of general applicability. Congress then enacted - with broad bipartisan support (unanimous in the House, 97-3 in the Senate) - a statute known as the Religious Freedom Restoration Act (RFRA), which President Bill Clinton signed in 1993.

Now the Supreme Court is in the process of deciding the validity of RFRA. In City of Boerne v. Flores, the city is pressing three questions about the constitutionality of the statute. First, does RFRA exceed the power of Congress to enforce the requirements of liberty and equality in the Fourteenth Amendment? Second, does RFRA violate the doctrine of separation of powers by attempting to override the Court's decision in Smith? Third, does RFRA violate the establishment clause by privileging religion over other expressions of conscience?

None of these questions is difficult. First, RFRA is well within the plain meaning of section 5 of the Fourteenth Amendment, which reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The history of the adoption of the Fourteenth Amendment also supports the validity of RFRA, for two reasons. First, Congress thought of itself as the government branch best capable of determining the appropriateness of legislation. Second, the framers of this provision expressly intended to give Congress broad authority to protect against violations of religious liberty by state laws. For example, the Fourteenth Amendment made it unconstitutional for states to use purportedly "neutral" curfew or zoning laws to hinder religious expression, and state laws that prohibited teaching African-Americans to read were struck down as infringements on their religious liberties.

Recent cases construing the enforcement power of Congress also confirm the view that section 5 authorizes Congress to exercise broad discretion in enacting legislation to secure the guarantees of the Fourteenth Amendment. For example, in Lassiter v. Northhampton County Bd. of Elections (1959), the Court ruled unanimously that literacy tests for the franchise do not violate the equal-protection clause. In the Voting Rights Act of 1965, however, Congress prohibited the use of literacy tests to prevent persons educated in non-English speaking schools from voting. The Court sustained this legislation in Katzenbach v. Morgan (1966), thus confirming that the Congress may enact rules broader than those the judiciary thinks are required by the Constitution. In short, if the Court invalidates RFRA, it will undermine the validity of decades of civil rights legislation upon which the Court has never cast the slightest shadow of a doubt.

The city of Boerne's second argument is a rerun of its first, but dressed up as a violation of separation of powers. In effect, the city imagines that, if Congress were to behave consistently with the text of the Fourteenth Amendment, the history surrounding its adoption, and the cases construing it, that would erode the independence of the judiciary. The city invokes the venerable case of Marbury v. Madison, the 1803 ruling that established the power of the judiciary to nullify legislation inconsistent with the Constitution. But, in fact, nothing in RFRA threatens the Court's responsibility to establish a constitutional floor beneath which no official may go. But at the same time, as already noted, the political branches of the federal government are free to erect higher standards or set stricter limits on their own power. Thus RFRA no more "reversed" Smith than the Voting Rights Act "reversed" Lassiter. In both instances, Congress responded to a judicial decision by affording greater statutory protection than the Court found necessary.

The city's third argument - that RFRA is an establishment of religion - is hardly credible. To argue that any accommodation of religion constitutes an impermissible establishment of religion effectively eliminates the free-exercise clause from the First Amendment. And it does so in complete reversal of the historic purpose of disestablishing religion: to protect voluntary or free exercise of religion by guaranteeing that the government would have no power to coerce the beliefs or practices of any particular religion.

RFRA has none of the typical attributes of an impermissible establishment. It neither confers a benefit nor imposes a burden unevenly on any particular religious community. It simply leaves some religious conduct unregulated, when the government cannot identify a serious reason for regulating it or when the government has a less restrictive means of doing so. RFRA reflects a powerful legislative consensus that the government does not need to regulate religion more stringently than was the case before the Court's misguided 1990 Smith decision. In so doing, RFRA does not advance any particular religion; it advances religious freedom. And that is not an establishment of religion.

Edward McGlynn Gaffney is dean of the Valparaiso University School of Law.