Supreme Court challenge to RFRA generates concern in Jewish world

WASHINGTON, Feb. 19 (JTA) — The Supreme Court heard arguments this week in a constitutional challenge to a federal law that the Jewish community has heralded as one of the most important developments for religious liberty this century. The justices began grappling Wednesday with questions of whether Congress exceeded its legislative authority in adopting the Religious Freedom Restoration Act — a law that says government cannot “substantially burden” a person’s religious freedom unless there is a compelling government interest. Jewish groups across the gamut, together with a broad coalition of religious and civil rights organizations, were instrumental in pushing the legislation through Congress in 1993. With RFRA, as the legislation is commonly known, now under constitutional scrutiny, more than 60 religious groups forming the Coalition for the Free Exercise of Religion have defended legal challenges to RFRA at the state level. They also joined in a friend-of- the-court brief urging the Supreme Court justices to uphold the law. The case before the court, City of Boerne vs. Flores, stems from a historic landmark preservation dispute between Boerne, Texas, and a local Roman Catholic Church. The case arose after city officials denied an application from the church to expand into the city’s historic district. The church contended that without enlarging its building, it would be unable to accommodate its members and fulfill its mission. The Catholic archbishop of San Antonio sued, charging that the city’s action violated RFRA. The city responded by arguing that the federal law was unconstitutional. A U.S. district judge agreed, but the ruling was reversed by the 5th U.S. Circuit Court of Appeals. In taking up the case, the Supreme Court will rule only on RFRA’s constitutionality. After that is decided, the case will be sent back to a Texas trial court to rule on the specifics of the case. In her oral arguments before the Supreme Court, attorney Marci Hamilton, representing Boerne, said, “The case is not about religious freedom. This case is about federal power.” “How far can Congress go to ensure constitutional guarantees?” she said. “Our argument is it certainly can’t go to the point where Congress can reinterpret the meaning of the Constitution.” University of Texas Professor Douglas Laycock, representing the church, defended RFRA, calling its impact “a mile wide and an inch deep.” Congress, he said, “has always understood it has the right to protect constitutional rights.” Acting U.S. Solicitor General Walter Dellinger also supported the law, saying that it was needed to protect the rights of minority religious groups. The law, passed by a near-unanimous margin in Congress and signed into law with strong support from President Clinton, was aimed at encouraging governments to accommodate religious practices. Under the law, federal, state and local governments must show a “compelling” interest before interfering with the practice of religion. The law, which created a much higher standard for government regulation, was enacted in response to a controversial 1990 ruling by the Supreme Court that said government could interfere in religious practice with impunity provided that religion is not targeted, according to Jewish legal experts. At issue for the justices is whether Congress overstepped its authority in adopting RFRA by usurping power from state and local governments and from the Supreme Court itself. The law has also been challenged on the grounds that it violates the First Amendment by giving religion exclusive privileges over other expressions of conscience. During oral arguments, several justices questioned whether the law could be used by religious institutions to free themselves from other government rules. Other lines of questioning focused on the reaches of the 14th Amendment’s guarantee of equal protection under the law, Establishment Clause implications and the separation of powers between the various branches of government. Representatives from several Jewish organizations attended Wednesday’s session. “What’s at play here is the most important law protecting religious freedom since the First Amendment itself — a law that’s especially important and dear to minority religions and those who are going to have a more difficult time seeing their rights protected” if it is struck down as unconstitutional, said Mark Pelavin, associate director of the Religious Action Center of Reform Judaism. In addition to concerns about religious liberty, Marc Stern, co-director of the legal department of the American Jewish Congress, sees other critical issues at stake in the case. “If the court writes an opinion narrowing Congress’ power to protect civil rights and civil liberties, it’s going to be a transforming decision,” said Stern, who authored the religious coalition’s brief. Such a move, he added, would undermine the role a “national forum” has long played in “overcoming local prejudices.”
The Supreme Court is expected to issue its decision by the end of its term this summer.

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