Pass the peyote: the Religious Freedom Restoration Act.

Last November the president signed the Religious Freedom Restoration Act, or RFRA, a piece of legislation that a virtually unanimous Congress (three senators voted against it) designed to set stronger limits on governmental authority than the Supreme Court thought necessary in a 1990 case known as Employment Division v. Smith. In Smith, the Court denied unemployment compensation benefits to two drug counselors who had been fired for consuming a controlled substance. If this were just another drug case, the result would be completely predictable. But the case was really about penalizing religious worship, for the "drug" in question was peyote used sacramentally in a ceremony of the Native American Church.

The reverence that Native Americans have for the buds of this cactus plant is tied to the centuries-old belief that it contains the presence of the deity and has healing power. Recognizing these realities, Congress and nearly half of the state legislatures expressly exclude this sacred use of peyote from their prohibition of illicit drugs. At the time of the Smith case Oregon did not have such an exemption (it now does), so a bare majority of the Court reasoned that America could no longer "afford the luxury" of giving any special consideration to religious conscience when it comes into conflict with a generally applicable rule of law.

Prior to Smith, the Supreme Court had repeatedly taught that the Free Exercise Clause requires that the government may not enforce a law or policy that burdens the exercise of a sincere religious belief unless (1) the law is based on a supreme public necessity, not an ordinary public interest, and (2) there is no less restrictive alternative to the burden that the law places on religious freedom. By abandoning these two requirements, Smith radically diminished the protection afforded to the exercise of religion, and RFRA has now restored these two standards for limiting governmental power over matters of religious belief and action.

In its ringing Declaration on Religious Freedom, Vatican II proclaimed: "All persons are to be immune from coercion on the part of individuals or of social groups and of any human power, so that in matters religious no one is to be forced to act in a manner contrary to his own beliefs. Nor is anyone to be restrained from acting in accordance with his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits." Although this text did not resolve the particular issue of whether religious freedom should be protected by a judicial test such as the one we have had in American law since 1963, it provided sufficient motivation for the United States Catholic Conference to join with civil liberties organizations and with Americans of every religious faith in a broad-based political coalition that supported RFRA.

What united the USCC with the National Council of Churches and a host of Jewish organizations, the American Civil Liberties Union with the National Association of Evangelicals, Concerned Women for America with People for the American Way in this coalition was expressed well in the Williamsburg Charter, a bicentennial document: "Religious liberty finally depends on neither the favors of the state and its officials nor the vagaries of tyrants or majorities. Religious liberty in a democracy is a fight that may not be submitted to vote and depends on the outcome of no election. A society is only as just and free as it is respectful of this fight, especially towards the beliefs of its smallest minorities and least popular communities."

Although this statement resonates with earlier Supreme Court decisions involving the Jehovah's Witnesses, a bare majority of the Court in Smith indicated that if religious claimants wanted protection for their convictions, they would have to turn to the political branches of government for legislative and executive exemptions. There have been times when this advice has been beneficial to religious minorities. For example, in 1986, Jews effectively lobbied Congress to overturn a remarkably insensitive opinion of the Supreme Court that had held that the military could dismiss an observant Jew for wearing a yarmulke.

As a general proposition, however, the advice that minorities without political clout should resort to the political process for protection of their civil liberties is useless. Imagine the Jehovah's Witnesses going hat in hand to the very legislatures in the 1940s that were doing their level best to put them out of business, at least within their states. Or imagine any other religious community when it was a vulnerable minority--and all religious communities were in this condition at some point in their histories--and you will understand why the provisions of the Bill of Rights were meant to apply generally to set limits on all forms of governmental power, and why--within our polity at least--these rights must be judicially enforceable. It was for this reason that Justice Harry Blackmun wrote in his dissent in Smith: "I do not believe the Founders thought their dearly bought freedom from religious persecution a 'luxury,' but an essential element of liberty." We can breathe a little easier now that RFRA has put religious freedom back where it belongs, at the top of the list of all of our precious civil liberties.