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Historic decision.

St. Peter the Apostle Catholic Church in Boerne, Texas, faces a problem houses of worship don't mind having: Its congregation is fast outgrowing its building.

More than 1,050 families belong to St. Peter's, located in a rapidly growing the church of San Antonio, but the church sanctuary can accommodate only 220 worshippers. As a result, it's impossible to hold services in the church most of the time. Only a Saturday evening mass occurs in the sanctuary. The three masses on Sunday morning, which draw the most worshippers, are held in the gymnasium of an adjacent senior citizen's center.

The Rev. Anthony Cummins, pastor of St. Peter's, acknowledges that the situation is not ideal. "It's not the best, but the plus side of it is...that everyone can get in and be seated," he says. "It's not a great situation, but we're able to accommodate everyone."

Officials with the Catholic Archdiocese of San Antonio decided the only way to solve the problem was to rebuild the church. But as they began drawing up plans in 1993, municipal authorities in Boerne (pronounced "Bernie") stepped in and brought things to a screeching halt.

St. Peter's Church, members of the Boerne Landmarking Commission declared, could not be touched because it sits near the city's historic district. The commission ruled that the church's 1920s-era architectural style, which imitates a Spanish mission, was worthy of preservation and refused to issue the congregation a building permit.

Archbishop Patrick F. Flores and church leaders tried to fashion a compromise. Perhaps, they suggested, the church could be enlarged while keeping its facade intact. Boerne officials again said no and advised the archdiocese to construct an entirely new building at a different location.

The dispute over St. Peter's has now reached the U.S. Supreme Court, where the case has taken on added importance. The City of Boerne v. Flores case will determine the fate of the Religious Freedom Restoration Act (RFRA), a three-year-old piece of federal legislation that has been hailed as the most significant advance for religious liberty in America since adoption of the First Amendment.

Signed into law by President Bill Clinton in 1993, the RFRA gives heightened judicial clout to religious freedom claims. During the legal wrangling over St. Peter's, church officials cited it to buttress their argument that local government has no right to tell the archdiocese what to do with its own church.

With the RFRA on the books, St. Peter's should have had an easy win. But U.S. District Judge Lucius Bunton III ruled against the congregation on March 13, 1995. Furthermore, in handing down his decision, Bunton also struck down the RFRA, holding that congress lacks the authority to put the measure into law.

Less than a year later, a federal appeals court overturned Bunton's ruling and upheld the RFRA. The U.S. 5th Circuit Court of Appeals in January of 1996 declared the RFRA constitutional and in the process said the San Antonio archdiocese is under no obligation to save St. Peter's.

Officials at St. Peter's and many of the religious and public policy groups that sided with the church may have thought that was the end of the controversy. But Boerne officials refused to give up and filed a further appeal before the Supreme Court. On Oct. 15, the high court agreed to hear the case. City of Boerne v. Flores will be argued this month. So far, it is the only Free Exercise case the Supreme Court has accepted for this term.

No matter which way it comes down, chances are good that the Flores decision will be a landmark ruling that could set the tone for how religious freedom cases are decided in federal and state courts well into the next century. With so much at stake, it's no surprise that the case is being closely watched by legal scholars, religious leaders and others interested in church-state relations.

The Supreme Court's decision to examine the Flores lawsuit surprised some court watchers. Normally the justices accept a legal controversy only after lower federal appeals courts have issued conflicting decisions. That's not the case with the RFRA. Three federal appellate panels, the 5th, 7th and Washington, D.C. Circuits, have examined the RFRA and all have declared it constitutional.

Back in Boerne, the clergy and members of St. Peter's had no idea they were sparking a constitutional showdown with national implications when they brought the case. They simply wanted to retain control over their own building.

"They are laypeople," said Thomas Drought, attorney for the Archdiocese of San Antonio. "The average layman doesn't focus too much on constitutional issues. They were interested in enlarging their church; that was the critical issue for them. They had to find some way to do it. When the city would not issue a building permit, the logical thing to do was file a lawsuit."

Even today, with the case headed for the highest court in the land, the issue of local control remains close to the hearts of the parishioners of St. Peter's, although most recognize the broader implications.

"Our area is populated by people of high intelligence, professional people," says Pastor Cummins. "They are very much aware of the broader issue. There are some who are just very provincial, but I would think the majority of our parishioners are very much aware of what is at stake."

The Supreme Court will not rule directly on the question of the constitutionality of landmarking statutes applied to churches. Instead, the justices will determine the constitutionality of the RFRA and return the rest of the case to a lower court for disposition. However, if the high court upholds the RFRA, the church's case will be significantly stronger.

City officials, meanwhile, insist they should have the right to regulate historic structures. Founded by German settlers in the mid 19th century, Boerne is studded with historic buildings and promotes itself as a tourist destination. "The city council is trying to preserve its heritage," City Manager Ron Bowman told the evangelical magazine World in January. "Our industry here is recreation and tourism. From the council's perspective, this isn't about religion."

But outside of Boerne, the larger issues presented by the case have taken on a greater significance. In Washington, D.C., and around the country, dozens of religious groups, public policy agencies and civil liberties organizations are following the Flores case with keen interest.

Many of these same organizations backed the RFRA six years ago, when the bill was first drafted. They endorsed the legislation, advocated for it and followed its progress through Congress for three years until it became law in 1993. Now, four years later, the groups, including Americans United, are hoping the RFRA survives high court scrutiny.

The coalition that birthed the RFRA was unusual in its religious and ideological scope. Organizations that normally do not see eye to eye on church-state issues joined forces to back the RFRA, calling themselves the Coalition for the Free Exercise of Religion. Church-state separation organizations such as Americans United, the American Civil Liberties Union and the Baptist Joint Committee on Public Affairs worked alongside conservative religious groups such as concerned Women for America, the National Association of Evangelicals and the Christian Legal Society.

That spirit of cooperation was reflected in the House and Senate, where conservative Republicans and liberal Democrats joined forces to push the RFRA through Congress. In the Senate, for example, the bill was cosponsored by Sens. Edward Kennedy (D-Mass.) and Orrin Hatch (R-Utah), two members of Congress who might be considered the quintessential polar opposites.

The First Amendment guarantees the right to "free exercise" of religion, so why was it necessary for Congress to pass a special law protecting what is supposed to be an innate freedom of the American people? The answer to that question goes back to a 1990 Supreme Court ruling in an Oregon case called Employment Division v. Smith.

In Smith, the justices gave government greater authority to restrict religious practices. Under the judicial standard used by the courts before Smith, government at any level could not restrict a person's religious freedom without first demonstrating a "compelling state interest." Government was also required to show that it had used the "least restrictive means" in passing or enforcing a law that might suppress religious practices.

The Smith ruling, authored by Justice Antonin Scalia, wiped that standard off the books and said that instead all "generally applicable" statutes would be constitutional, even if their effect was to eviscerate religious practices. Only laws that specifically targeted religious practices for suppression would be unconstitutional.

Scalia conceded that the new approach could place religious minorities at a "relative disadvantage" in comparison with majority faiths. But that, he said, is an "unavoidable consequence of democratic government."

To the layperson, the legal terms at the heart of the judicial debate over the reach of the First Amendment's Free Exercise Clause may sound abstract and confusing. The bottom line is that many religious liberty advocates believed that the Smith ruling gave government too much power over religion and handed the state a dangerous new weapon it could use to restrict religious practices.

The decision alarmed many in the religious community because it was clearly a huge step backward for religious liberty. A coalition of organizations quickly pulled together to ask the court to re-hear Smith. When that failed, the groups began to contemplate legislation that would restore the standard that had existed prior to the Oregon ruling.

It took three years, but late in 1993 the RFRA became law. For a time the proposed legislation was held up in a bitter dispute over abortion. Lobbyists for the Roman Catholic hierarchy feared that the law would be used to establish a new, religious freedom-based right to abortion. Church pressure brought RFRA to a standstill. But eventually compromise language was included, and the legislation started moving again.

Once on the books, federal and state judges began looking to the new law as a standard for deciding religious freedom conflicts. A number of cases were also filed challenging the RFRA's constitutionality most judges upheld the RFRA,but a few struck it down.

As the cases made their way through the courts, the Coalition for the Free Exercise of Religion, which now includes more than 80 organizations, remained together to defend the law by filing briefs in key cases.

The Coalition's friend-of-the-court brief in Flores was delivered to the Supreme Court Jan. 10. It was drafted by Marc Stern, an attorney with the American Jewish Congress who specializes in religious liberty issues, after input from attorneys with other coalition members, including Americans United Legal Director Steven K. Green.

Some religious right organizations have filed separate briefs supporting the RFRA. Although neither the Rutherford Institute nor TV preacher Pat Robertson's American Center for Law and Justice are members of the Coalition for the Free Exercise of Religion and did not endorse the legislation, both groups filed friend-of-the-court briefs asking the high court to uphold the RFRA. Rutherford's brief goes on to ask the justices to re-evaluate the wisdom of the Smith decision.

But not everyone is enthusiastic about the RFRA. Opposition comes primarily from the criminal justice community and state attorneys general. Corrections officials claim that prison inmates are using the RFRA to clog the court system with frivolous lawsuits.

RFRA proponents reply that the fears of the criminal justice community are overblown. They note that some prison inmates are notoriously litigious and file lawsuits as a harassing technique, not because they believe they have a legitimate claim. These people will file suits whether the RFRA exists or not. (An analysis of the prisoner lawsuits filed under the statute shows that most have not been successful.)

There have been a lot of prison cases, and a lot of them are frivolous," says Douglas Laycock, a University of Texas law professor who will defend the RFRA before the Supreme Court. "That has nothing to do with RFRA. [Inmates) would file those cases if there were no RFRA."

In their attack on the RFRA, opponents also argue that Congress lacks the authority to pass the statute and claim it violates the constitutional separation of powers by usurping judicial authority. Laycock does not find this argument terribly persuasive and counters that Congress is free to expand constitutional rights if it chooses. He points to the Voting Right Act, which Congress passed in the 1960s to ensure that blacks in the South were given the right to vote, as an example.

"We will have in our brief a list of 17 statutes in which Congress in enforcing a constitutional right has gone beyond the court's decision," he said. "That is by no means exhaustive.... There has been a lot of fuss, but this is just not an unusual thing that Congress has done."

Can the RFRA prevail at the Supreme Court? As he prepared for the oral argument last month, Laycock told Church & State that he is optimistic. "To strike down RFRA would be a judicial revolution," says the law professor. "The court may do that, but I don't think so. They would have to overrule a lot of stuff to strike down RFRA." (The Supreme Court's ruling in Flores is expected by early July at the latest.)

Religious liberty advocates are also guardedly optimistic.

"Six years ago, the Supreme Court eviscerated religious freedom protections in the Smith case," says Barry W. Lynn, executive director of Americans United. "This challenge to the Religious Freedom Restoration Act presents the court with an opportunity to partially correct that injustice. We certainly hope the justices take it."
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Title Annotation:Supreme Court's impending judgement in the City of Boerne v. Flores case
Author:Boston, Rob
Publication:Church & State
Date:Feb 1, 1997
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