Free Exercise restricted.

In a move that could have far-reaching implications for religious liberty in America, the Supreme Court struck down the Religious Freedom Restoration Act (RFRA) by a 6-3 vote June 25.

Declaring the act a violation of the constitutional separation of powers, the high court voided the three-year-old law that was designed to restore religious freedom protections place in jeopardy by the Supreme Court several years ago.

In the lead opinion, written by Justice Anthony M. Kennedy, the court majority declared that Congress had overstepped its bounds in passing RFRA.

"Our national experience teaches," wrote Kennedy, "that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches .... RFRA was designed to control cases and controversies ... but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control."

The Supreme Court's City of Boerne v. Flores ruling was a blow to a broad cross section of religious and public policy groups that worked to pass the legislation. Calling themselves the Coalition for the Free Exercise of Religion, the groups, which included Americans United, saw RFRA as the vehicle to restore religious, freedom rights lost seven years ago.

The Coalition formed shortly after the high court handed down Employment Division v. Smith on April 17, 1990. In that ruling, a five-justice majority voted to scrap the court's long-standing test for determining when a law or government action violates an individual's religious freedom rights.

Prior to Smith, government at all levels could not enforce laws that infringed on religious liberty without first proving two things: that the law furthered a "compelling state interest" and the law was the "least restrictive means" of achieving the government's goals.

In Smith, the court majority, led by Justice Antonin Scalia, jettisoned that standard and declared that henceforth, laws that were "generally applicable and neutral" would be considered constitutional, even if their practical effect was to eviscerate a religious practice.

RFRA was an attempt to force government to abide by the pre-Smith standard. In the view of the Coalition, Scalia's new rules gave too much power to the state and almost guaranteed that when a religious believer came into conflict with a government regulation, the believer would lose. RFRA was not designed to ensure that the believer would win every time, but to simply even the playing field.

After three years of hard work by the Coalition, both chambers of Congress passed RFRA by wide margins in the fall of 1993, and in November President Bill Clinton signed the measure into law.

Given the bipartisan support RFRA received in Congress, it's no surprise that reaction to the high court's Flores ruling was swift.

"This decision means government will have more power and individuals will have less," said Barry W. Lynn, executive director of Americans United. "The justices have dealt a serious blow to the legal safeguards protecting legitimate religious freedom claims."

Continued Lynn, "Congress should have the ability to expand the American people's religious freedom rights if it chooses. This law was by no means radical. It simply tried to protect religious practices from excessive government regulation."

The day of the Flores decision, congressional leaders held a press conference at the U.S. Capitol to denounce the ruling and discuss options for responding to it. Several reporters asked about the possibility of a constitutional amendment.

Some influential Republicans seemed open to the idea. "You have to look at all aspects, including the possibility of a constitutional amendment," said Sen. Orrin Hatch (R-Utah). "We will look at it. We think we can do it statutorily, and naturally we'd prefer to do that. On the other hand, if it takes a constitutional amendment and that's the final conclusion, we're going to have one out as quickly as we can and push it as hard as we can."

But several Democrats expressed caution. Rep. Charles E. Schumer, a New York Democrat who helped push RFRA through Congress, suggested other avenues. "I would much prefer to find a statutory solution," Schumer said.

The prospect of a constitutional amendment could cause a rift in the Coalition for the Free Exercise of Religion. The Coalition is remarkably diverse and contains conservative Christian groups alongside organizations that advocate church-state separation. The groups put aside their disagreement on issues such as school prayer and religious school vouchers to draft RFRA.

Some Religious Right groups in the Coalition are gung-ho for an amendment. Church-state separationists, however, have announced opposition to amending the Bill of Rights. At a July 14 hearing before the House Judiciary Committee's Subcommittee on the Constitution, the Rev. Oliver S. "Buzz" Thomas, an attorney for the National Council of Churches, warned that constitutional amendments can he dangerous.

"There is a problem with all constitutional amendments," Thomas said. "They are broad. They are general. They are risky."

Complicating matters is the fact that TV preacher Pat Robertson's Christian Coalition, which has never been a member of the Coalition for the Free Exercise of Religion, is using the Flores ruling to drum up support for a radically anti-separationist constitutional amendment already introduced in the House of Representatives.

Rep. Ernest J. Istook (R-Okla.) has proposed a so-called "Religious Freedom Amendment" that critics see as a full frontal assault on church-state separation. H.J. Res. 78 would allow official programs of worship and indoctrination in public schools, require government at all levels to fund religious activities and permit government agencies to erect sectarian symbols and promote religion generally.

The day of the Flores ruling, Christian Coalition President Don Hodel issued a statement criticizing the high court and demanding passage of the Istook amendment. "When power over freedom of religious expression passes from the people to a majority of unelected Supreme Court Justices," said Hodel, "then it is time to change the Constitution so the voice of the people can be heard."

AU's Lynn charged that the Istook amendment would do nothing to address the problems raised by the Supreme Court's 1990 Smith decision and accused the Christian Coalition of playing politics with the issue of religious liberty. The Christian Coalition, he pointed out, did nothing to help pass RFRA and is now merely using the Supreme Court's rejection of the law to promote Istook's extreme proposal.

"The Christian Coalition should stay out of this discussion until it has something constructive to add," Lynn said.

Meanwhile, lawyers affiliated with the various organizations that backed RFRA (including Americans United Legal Director Steve Green) are examining the Flores decision, looking for clues to help them draft new laws that will meet court objections.

The task will be complicated by the unusual high court alignment in the Flores case. Joining Kennedy in striking down the law were Chief Justice William H. Rehnquist, John Paul Stevens, Ruth Bader Ginsburg, Clarence Thomas and Antonin Scalia. Justice Sandra Day O'Connor wrote a dissent in which Justice Stephen Breyer joined most of. Justice David Souter wrote a separate dissent.

In her dissent, O'Connor criticized the 1990 Smith ruling, charging it was "wrongly decided." Observed O'Connor, "If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty." (O'Connor's dissent spurred Scalia to write a separate concurring opinion defending his 1990 ruling.)

Somewhat lost in all of the post-Flores debate and analysis was the original case that brought RFRA before the highest court in the land. The controversy came about because a Roman Catholic congregation in Boerne, Texas, wanted to expand its sanctuary and was told by government officials it could not due to a local historic preservation ordinance. The church sued, citing RFRA and other religious freedom protections in its defense.

Leaders at St. Peter the Apostle Catholic Church say they are disappointed with the ruling, but announced plans to continue their legal fight even with RFRA off the books. A few weeks later a compromise settlement was reached, allowing the church to expand without destroying its historic facade.

Americans United's Lynn said the organization will continue to monitor developments and remain active in the coalition for the Free Exercise of Religion. "The Flores decision is a setback for religious liberty, but it's not the final word," he said. "At some point in the future, religious liberty will regain the protections it was always intended to enjoy."