Special Rights For Religion

Position Paper

The United States Constitution, through the Free Exercise and Establishment Clauses, protects our freedom of conscience, and it is the mission of the judiciary branch to interpret the Constitution. The so-called religious freedom acts, the Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA), passed by the Congress and signed by the president, are unfair to all Americans, threaten the rights protected and the balance of governmental powers in our Constitution. These acts are unfair to all Americans and threaten the balance of the Constitution's religious freedom clauses by privileging specific religious sects over other religious groups and the nonreligious. These acts declare that any law which infringes on a religious practice has the presumption of being invalid; however, this presumed exemption applies only to those specific religious practitioners. These acts threaten the balance of powers in our federal system by allowing the legislative branch to interpret the Constitution, a function that rightly belongs to an independent judiciary, and impose federal authority on purely local issues.

Unfair to all Americans

From endangering the character of neighborhoods to the sacramental use of illegal drugs, RFRA and RLUIPA are unfair to all Americans. Among other privileges, RLUIPA allows religious groups to disregard local zoning codes to build wherever and whatever they desire. All across the nation, religious groups are challenging local residential zoning regulations to build churches, synagogues, soup kitchens, daycare centers, parking garages, and other structures associated with their religious organizations. Homeowners and local governments fight an uphill battle in the face of RLUIPA, to prevent religious groups from building structures that violate the character of their local communities.

"Home ownership is a cornerstone of the American dream, but in too many communities across the country, those dreams have become nightmares of traffic, noise and congestion as buildings owned by religious groups are situated alongside single family homes without concern for the impact on the community," said Larry Faigin, a plaintiff in a failed attempt to prohibit a RLUIPA exemption in his neighborhood. "Homeowners expect their government to apply regulations consistently and not to jettison local zoning laws to give special consideration to religious or any other groups" (Business Wire - July 10, 2003).

Similarly, RFRA allows specific religious sects to challenge any federal law from the use of illegal drugs to hunting endangered species, simply by invoking a claim of religious freedom.

Our Constitutional tradition

The Constitution, in providing for the freedom of conscience and the separation of church and state, presents a bold and successful experiment in American liberty. Due to these protections, our nation has a vast diversity of religious and secular beliefs. The First Amendment states in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." The first portion of the phrase is referred to as the Establishment Clause and the latter half as the Free Exercise Clause. Taken together, they form a unitary protection of the freedom of conscience: the Establishment Clause prohibits government actions imposing religious beliefs on its citizens, or favoring certain beliefs, or even favoring belief over nonbelief; the Free Exercise Clause bars government actions prohibiting its citizens from holding various beliefs. As intended by the Founders, under the Free Exercise Clause beliefs were to be unchallenged by government; however, actions resulting from these beliefs could be regulated to protect public safety. By the 1960s the Supreme Court developed the "compelling state interest test" to be used to determine which laws inappropriately infringed on religious liberty. This test placed the burden on the government, rather than the religious plaintiff, to prove that the application of the law was constitutional. Two types of challenged laws came before the Court: laws that appeared to target a specific religious group to prohibit the practice of their religion, and laws that were generally applicable to all citizens but whose enforcement incidentally infringed on certain religious practices. For example, in 1993 the Court struck down city ordinances in Church of the Lukumi Babalu Aye, Inc. v. Hialeah that were designed specifically to prevent Santeria animal sacrifice rituals, and in 1986 the Court ruled that military regulations, which applied to all military officers, could prohibit Jewish military officers from wearing a yarmulke while on duty (in Goldman v. Weinberger). The military regulations in question were modified following this ruling.

Congress intervenes

The compelling state interest test proved to be an effective and consistent tool for religious plaintiffs seeking to overturn laws found to be targeting specific religious practices. However, the utility of this test for generally applied laws diminished over the years as the Court gradually changed its jurisprudence due to the vast number and variety of cases that it heard. Concerned by the diminished power of the test in generally applied laws, Congress intervened to impose its interpretation of the Free Exercise Clause on the Court.

In 1993 Congress enacted the Religious Freedom Restoration Act (RFRA) in response to the 1990 Supreme Court decision in Employment Division v. Smith, in which two Native Americans were denied unemployment benefits after being fired from their jobs for using peyote in a religious ceremony. This case marked the conclusion of a shift in jurisprudence regarding the relevance of the compelling state interest test in cases seeking a religious exemption to laws that govern the activities of all Americans. In interpreting the First Amendment Free Exercise Clause, the Smith Court held that laws targeting specific religions and religious practices could still be challenged using the compelling state interest test, thereby putting the burden on the government to prove that a law was constitutional. However, the Court declared that because of the vast diversity of religious expression in America "we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order." Therefore, with Smith, the burden of proof for a constitutional violation in generally applied laws was put on the religious plaintiff, rather than the government.

RFRA's sole purpose was to restore the compelling state interest test as a principle of adjudicating laws under the Free Exercise Clause, by placing the burden on the government to demonstrate its necessity to enforce the law. With the passage of RFRA, any law that infringes on a religious practice has the presumption of being invalid, but this presumed exemption applies only to those specific religious practitioners.

RFRA and RLUIPA give too much power to religious sects

By privileging the practices of religious Americans over generally applied laws, RFRA will riddle the legal code with exemptions for specific religious sects, while leaving other religious groups and the nonreligious in a state of second-class citizenship. For example, in February 2006 the Supreme Court ruled unanimously in O Centro Espirita Beneficente Uniao do Vegetal (UDV), et al v. Gonzalez that the members of the UDV religious sect could ingest tea containing a substance that is regulated by the Controlled Substances Act during their ceremonies. Enforcing the RFRA statute, the Court concluded that the government did not have a compelling interest in the uniform application of the Controlled Substances Act to regulate this religious practice. Logically, one would have to wonder why, if there is no compelling interest in regulating the small quantities of a controlled substance for use by this religious group in their ceremonies, there should be a compelling interest to regulate similar use by nonreligious or religiously unaffiliated people. There can be no compelling reason to imprison a nonreligious or religiously unaffiliated person for doing the same act as a person from this religious sect. The Equal Protection Clause of the 14th Amendment prohibits such blatant favoritism. Granting special statutory protection for religion and religious institutions beyond those already granted by the First Amendment violates applicable Establishment Clause jurisprudence, which recognizes that government must remain neutral and disinterested in matters of religion.

Appropriate and nondiscriminatory exemptions

This does not mean that all exemptions should be prohibited. However, exemptions must be carefully crafted and pertain to all individuals in similar circumstances. For example, the client confidentiality privilege for medical and legal professionals also appropriately includes the clergy, and conscientious objector status allowing combat exemptions for pacifist Quakers and the Amish also provides exemptions to individual atheists, humanists, and agnostics whose deeply held beliefs leave no room for war.

As a core principle of the First Amendment, the freedom of ideas is absolute, but the freedom to act on those ideas is not. The government has the mandate to ensure that actions (whether based on religion or not) do not endanger our society or specific individual members of our society. For example, the Christian Identity Movement is founded on white supremacist theology and because of the First Amendment its ideas are not illegal; however, it is common sense that if its racist theology produces actions that incite or cause harm, these actions cannot be exempted under the claim of religious freedom. Regrettably, RFRA blurs this line between ideas and actions and gives the members of religious groups the license to defy any law if they believe it infringes on their religious freedom. As Tim Gordinier, a professor at SUNY - Potsdam and former Director of Public Policy and Education at the Institute for Humanist Studies, explains, "The Free Exercise Clause only meant that you couldn't single out religious people for discriminatory treatment -- not that they had the special privilege to ignore laws the rest of us are bound to obey." RFRA allows members of religious groups to violate the law based on their theological beliefs; however, violation of the law for some other worthy, yet nonreligious, moral, political, philosophical, medical, or artistic reason does not get the same consideration.

The Supreme Court developed the compelling state interest test in 1963 with the case Sherbert v. Verner, which allowed a Seventh-day Adventist, Adele Sherbert, to receive unemployment benefits even though employment opportunities were available to her. Sherbert would not accept employment that required her to work on Saturdays, which is the Sabbath for her religion. The Court ruled that since Sherbert's "conscientious objection to Saturday work" was not "conduct within the reach of state legislation," any law that resulted in an incidental burden to her free exercise rights must be justified by a "compelling state interest in the regulation of a subject within the State's power to regulate." In other words, the state must have a compelling reason to force a person to contravene their religious beliefs. If there is no compelling state interest, then the government must make special accommodations so as not to infringe on these beliefs. In 1972 the Court, again using the compelling state interest test, gave special privilege to the Old Order Amish by allowing the Amish, and only the Amish, to remove their children from mandatory school attendance at the age of 14 to protect them from "worldly influences." In both these cases, the Court gave privileges to religious individuals over those of other religious groups and the nonreligious.

Because of the preferential treatment given to religion in these two cases, many more religious freedom cases were brought to court. As more cases reached the Supreme Court seeking additional religious exemptions, the Court's jurisprudence began to change. In a series of cases in the 1980's, the Court denied Free Exercise claims and limited the use of the compelling state interest test. The Court found that a challenged law had to significantly burden a sincerely motivated religious practice, and increasingly the Court labeled generally applicable laws as having a compelling interest even if significant burdens were found. This change in jurisprudence culminated with the 1990 Smith case prompting an overwhelming bipartisan Congressional intervention which produced RFRA. Fortunately, RFRA's influence was reduced shortly after it was enacted when in the City of Boerne v. Flores (1997) the Supreme Court held that Congress lacked the power to extend such broad protections to actions of the states. Regrettably, 13 states have subsequently passed their own RFRA statutes.

Congress intervenes again and the Court approves

In 2000, Congress again codified the compelling state interest test focusing on the religious liberty of inmates and land use by religious organizations (including local zoning laws) in the awkwardly named Religious Land Use and Institutionalized Persons Act (RLUIPA). The Supreme Court upheld the constitutionality of RLUIPA in cases involving prisoner rights in Cutter v. Wilkinson (2005), but has yet to hear a case on the land use component. In 1997, the Court ruled in City of Boerne (see above) that religious organizations were not exempted from local zoning law restrictions.

The County of Boulder, Colorado's loss against a RLUIPA claim that a sixth expansion of a church must be permitted in contravention to Boulder's long history of careful land use planning designed to preserve open space. The litigation demonstrates the inability of local governments to enforce any land use regulations in the face of a religious organization's challenge based on RLUIPA.

The success of religious privilege in the UDV case will again spur religious sects to seek exemptions from the law. It is too soon to tell what these exemptions may be. Perhaps Sikh children might be allowed to carry knives to school; fundamentalist Christian landlords might be allowed to violate fair housing laws by refusing to rent apartments to unmarried straight or gay couples; fundamentalist Muslim elders might be allowed to force their daughters to undergo female genital cutting; Espiritismo, Santeria, and Voodoo practitioners might be allowed to carry charms containing mercury in public and to sprinkle mercury around their children's beds or inside their cars for protection; and various religions that believe in vigorous faith healing techniques might be allowed to physically abuse children under the justification of releasing demons.

While it may be too soon to foresee which of these and untold other religious actions will obtain exemptions under RFRA and RLUIPA, it is not too soon to prevent the onslaught of cases. Now is the time act. RFRA and RLUIPA must be modified.

What needs to be done

At a minimum, RFRA and RLUIPA need to be limited so that if a religious practice is deemed safe and appropriate to qualify as an exemption under a law, then that exemption should be available to all Americans in similar situations. The Equal Protection Clause of the 14th Amendment prohibits the government from treating religious citizens more favorably than nonreligious citizens. Without such a limitation, the Supreme Court's unanimous decision in UDV will encourage our nation's multitude of religious sects to seek special exemptions from any law that they believe infringes on their religious practices. Our legal code could become riddled with exemptions for religious sects.

Religious sects could find that government exemption to a law is a powerful tool in gaining converts. For example, a person suffering from cancer is prohibited from using medical marijuana even in states that have passed legislation to permit such use. If ingestion of small amounts of a hallucinogen might ease a patient's pain, the U.S. government, through RFRA, may be encouraging suffering patients to practice the UDV religion.

To prevent further strain on our judicial system and confusion in our legal code, the preferable course of action is the revision of RFRA and RLUIPA. As intended by our nation's founders, the Supreme Court should have the final word on the interpretation of the First Amendment. Thus, RFRA and RLUIPA are improper intrusions by Congress into the powers of the judiciary branch. The First Amendment should be interpreted, as the Court correctly decided in Smith, to prohibit laws that discriminate against specific religious sects, but not to allow the Free Exercise Cause to be used to privilege these sects over other religious sects and the nonreligious.

Revision of these laws will be a difficult task. When enacted, both pieces of legislation enjoyed the support of a diverse coalition of organizations who are usually at odds on church-state policies. These organizations include the American Center for Law and Justice, American Civil Liberties Union, American Humanist Association, Americans United for Separation of Church and State, Anti-Defamation League, Baptist Joint Committee, Becket Fund, Christian Legal Society, National Council of Churches, People for the American Way, Southern Baptist Ethics & Religious Liberty Commission, and U.S. Conference of Catholic Bishops. Some of these organizations like the ACLU and AU now understand the danger of Free Exercise claims trumping the rights protected under the Establishment Clause in RFRA, but they still support RLUIPA. The American Humanist Association changed its position after seeing the effects of these laws, and now opposes both RFRA and RLUIPA. The Secular Coalition for America will work to educate organizations and the public regarding the impropriety and discriminatory nature of RFRA and RLUIPA to build momentum to revise these laws.

Perhaps easing the burden of convincing the public and their elected officials that these laws should be revised is recent publicity about the negative effects of RFRA and RLUIPA (e.g., "As Exemptions Grow, Religion Outweighs Regulation", New York Times, October 8, 2006).

Lori Lipman Brown, Founding Director Emeritus of the Secular Coalition for America, stated, "These laws are outrageously discriminatory, unfairly giving protections to certain religious sects over the rest of society. They also threaten the constitutional balance of powers. RFRA and RLUIPA allow the legislative branch to interpret the Constitution, a function that rightly belongs to an independent judiciary, and imposes federal authority on purely local issues. Equality is an abiding American value, and it calls out for revision of these unjust laws."

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