Religious liberty: Supreme Court agrees to consider federal religious liberty law.

When President Bill Clinton signed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, he issued a ringing endorsement of the principle undergirding the bill.

"Religious liberty," he said, "is a constitutional value of the highest order, and the Framers of the Constitution included protection for the free exercise of religion in the very first amendment. This act recognizes the importance the flee exercise of religion plays in our democratic society."

Now, just over lout years later, the U.S. Supreme Court has agreed to decide whether that federal religious liberty law is constitutional.

In October, the justices took for review three cases involving the religion clauses of the First Amendment, providing the high court with more opportunity to shape the debate over how hutch religious freedom our Constitution is set up to protect. Two cases that have received extensive news media coverage involve government display of the Ten Commandments.

But the high court also agreed Io hear a more complex case challenging RLUIPA, a federal law that many Americans argue is necessary to ensure religious freedom for all. RLUIPA proponents, including law professors, lawyers, civil rights advocates and watchdog groups, maintain that the constitutional guarantee of religious freedom is strong enough to encompass all beliefs, even those loathed and misunderstood by a majority. They argue that the First Amendment's protections mean that not only can government not favor religion, but that it must not enforce laws or take actions that significantly burden Americans' right to freely exercise their religious beliefs.

RLUIPA has an interesting history. It is a successor to an earlier and much broader federal law that the Supreme Court invalidated in a 1997 decision, Boerne v. Flores. The new federal statute states that in certain situations, land use regulations, such as zoning laws, and prison regulations cannot substantially burden religious liberty, unless the government can prove those regulations support a compelling interest. The regulations must also be enforced in ways least restrictive to religious freedom. (The earlier federal law, called the Religious Freedom Restoration Act, was much broader, applying to all government laws and actions.)

Both houses of Congress passed RLUIPA by unanimous consent. Supporters argued that without the federal law, zoning regulations that impose substantial burdens on houses of worship would too often be upheld and that prisoners, detainees and institutionalized mental health patients faced major burdens in practicing their religious beliefs.

Prominent legislators on both sides of the aisle hailed congressional enactment. Sen. Orrin Hatch (R-Utah) called the measure "one of the most important bills of this new century." Fellow sponsor Ted Kennedy (D-Mass.) called religious liberty a "bedrock principle" and praised the act for addressing "two of the most obvious threats to religious liberty."

The case the high court will review comes from the 6th U.S. Circuit Court of Appeals and will only deal with the part of RLUIPA that applies to prisoners and other institutionalized persons.

Inmates belonging to non-mainstream religions brought a lawsuit against the Ohio Department of Rehabilitation and Corrections arguing that prison officials had infringed on their religious liberty by denying them access to religious literature, ceremonial items and group worship. The minority religions represented by the inmates included, Wicca, a pre-Christian religion focusing on nature; Asatru, a polytheistic religion including Thor as one of its gods; the Church of Jesus Christ Christian, a religion calling for the races to be separated; and Satanism.

Ohio officials responded to the inmates' lawsuit by arguing that RLUIPA unconstitutionally favors religious liberty over other fundamental rights.

A three-judge panel of the 6th Circuit agreed, ruling in Cutter v. Wilkinson in November 2003 that RLUIPA violates the First Amendment principle of church-state separation. The 6th Circuit held that the federal law has the effect of favoring religion "by giving greater protection to religious rights than to other constitutionally protected rights."

However, three other federal circuits, the 4th, 7th and 9th, have upheld the constitutionality of RLUIPA. The differing decisions are likely what prompted the Supreme Court to wade into the debate.

The most recent ruling, from the 4th Circuit, found in favor of an inmate in a Virginia prison who had been denied kosher meals. In Madison v. Riter, the appellate panel concluded that Congress could create a law accommodating religion without violating the separation of church and state.

"RLUIPA is not designed to advance a particular religious viewpoint or even religion in general, but rather to facilitate opportunities for inmates to engage in the free exercise of religion," the 4th Circuit wrote in its December 2003 decision.

Americans United for Separation of Church and State, which supported passage of both RLUIPA and its broader predecessor, plans to file a friend-of-the-court brief urging the high court to uphold the federal law as a constitutionally sound way to ensure religious liberty.

"This is a reasonable law that requires prisons to meet the religious needs of inmates while still respecting the security concerns of correctional institutions," said Barry W. Lynn, executive director of Americans United.

An array of advocacy groups, some of whom are rarely in agreement on constitutional issues, have come together to urge the federal courts to uphold RLUIPA, including the Becket Fund for Religious Liberty, the ACLU, the American Jewish Congress, the Baptist Joint Committee on Public Affairs, the Christian Legal Society, People For the American Way, and the Union of Orthodox Jewish Congregations of America.

Charles Haynes, the Freedom Forum's senior scholar, said in late October that if the First Amendment is "interpreted to mean that government can't accommodate our freedom to practice religion, then religious freedom doesn't mean very much in this country."

Of course the First Amendment's free exercise clause does allow, and sometimes mandates, government to accommodate religious practices. But the federal courts have wrangled over just how much accommodation is constitutionally required.

In 1963 and again in 1972, the U.S. Supreme Court issued rulings that generally concluded government had to show a compelling interest in laws or actions that substantially restricted religious freedom.

In the 1963 case, Sherbert v. Verner, a Seventh-day Adventist lost her job because she would not work on Saturday, her faith's sabbath. South Carolina officials then denied her unemployment benefits on the ground that she refused "without good cause" to show up for work. Adell Sherbert sued the state arguing that its reason for denying her unemployment benefits infringed on her religious freedom.

Writing for the high court, Justice William Brennan concluded that the government had placed a "substantial burden" on Sherbert's religious exercise. Brennan wrote that the state's actions forced Sherbert "to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand."

The 1972 high court ruling in Wisconsin v. Yoder ruled that the state's compulsory education laws could not be applied to parents in Amish communities who refused to send their children to school upon reaching a certain age. The Amish parents were convicted of violating the law, after which they brought suit against the state arguing that their First Amendment right to religious freedom had been violated. The high court noted that the Amish parents' objections were grounded in their religious concepts, such as the community's desire to live a Christian life with as little contact with modern culture as possible.

The decisions in Sherbert and Yoder appeared to establish precedent that laws placing substantial restrictions on religious practice must be justified with a strong government interest, even if the laws are applicable to nonreligious conduct as well.

"A regulation neutral on its face, in its application, nonetheless offends the constitutional requirement for governmental neutrality if it unduly burdens the flee exercise of religion," Justice Warren Burger wrote in Yoder.

Those high court decisions, however, did not mean that religious practices would always be free from government regulation. There have been a string of court rulings where government regulation triumphed over religious practices.

Indeed, in 1982, the Supreme Court ruled in United States v. Lee that the federal government had a compelling interest in requiring an Amish employer to withhold social security taxes from his employees' wages and to pay his shale of such taxes. The farmer, citing religious beliefs mandating the religious community to provide for its own, argued that it was sinful to support the social security system. The court in Lee said the government's interest in "assuring mandatory and continuous participation in and contribution to the social security system is very high."

The following year, the high court upheld the Internal Revenue Service's decision to yank tax-exempt status from private religious schools that practice racial discrimination. The court ruled in Bob Jones University v. United States that the federal government definitely had a very important goal of avoiding government support of discrimination.

In 1986, the court ruled in Goldman v. Wemberger that the Air Force could enforce a regulation barring an Orthodox Jewish officer from wearing a yarmulke, citing the need for military discipline.

In 1990, the Supreme Court issued a decision essentially overturning Sherbert and Yoder, concluding that the Constitution did not require government to prove a compelling interest in laws that infringe, even substantially, on religious freedom.

Justice Antonin Scalia, writing for the majority in Employment Division v. Smith, concluded that "neutral laws of general applicability" that burden religious freedom do not need much justification from the government. According to Scalia, the high court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."

The Smith ruling provoked a groundswell of opposition from religious liberty groups, lawyers, academics and others who maintained that protections for free exercise had been dramatically weakened. Fueled by animus toward the decision, Congress passed the Religious Freedom Restoration Act in 1993. The Supreme Court, however, invalidated that law in 1997, declaring that Congress had overstepped its authority.

Justice Anthony Kennedy wrote the majority decision for the 6,3 court Justices Sandra Day O'Connor, Stephen Breyer and David Souter dissented.

O'Connor chided the court for not taking the opportunity to reverse the "wrongly decided" Smith decision.

Aiming her fire at Scalia's handiwork in that ruling, she observed, "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."

Using the high court opinion as guidance, Congress tried again, this time creating a narrower law, reaching only land use regulations, and prisons that receive some federal funding. In 2000, RLUIPA's passage was supported by many of the same groups that backed the earlier measure, including Americans United.

The Anti-Defamation League, supporter of both federal laws, lauded the passage of RLUIPA, noting that Congress had round "evidence of arbitrary and frivolous restrictions on the religious practice of institutionalized persons within prisons, mental hospitals, and other government institutions."

The three federal appeals court rulings validating RLUIPA will undoubtedly be cited heavily in briefs urging the Supreme Court to uphold the law. All three of those decisions concluded that the First Amendment principle of church-state separation is not undermined by a federal law intended to accommodate religious practices.

The 7th Circuit, citing frequently from the 9th Circuit's 2002 decision in Mayweathers v. Newland, concluded that RLUIPA "seeks to remove only the most substantial burdens States impose upon prisoners' religious rights, while giving States' penological interests due consideration. The statute does not promote religious indoctrination, nor does it guarantee prisoners unfettered religious rights, and not every challenge under RLUIPA will be deemed valid."

The 7th Circuit's 2003 ruling in Charles v. Verhagen found that a Muslim inmate in a Wisconsin prison who had requested, but was denied, the ability to use prayer oil in his cell, could succeed in a lawsuit based on RLUIPA. The appeals court panel wrote that the Supreme Court has held that "the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."

Moreover, the court found that RLUIPA "follows in the footsteps of long-standing tradition of federal legislation that seeks to eradicate discrimination and 'is designed to guard against unfair bias and infringement on fundamental freedoms.'"