TOPICS > Politics

Shouting’s Okay

February 19, 1997 at 12:00 AM EDT

MARGARET WARNER: The first Supreme Court action we examine tonight is a decision in an abortion protest case from New York State. The decision changes the rules of engagement between abortion protesters on one side and abortion clinic workers and their clients on the other. Here to explain the ruling is NewsHour regular Stuart Taylor, correspondent with “The American Lawyer” and “Legal Times.” Welcome back, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

MARGARET WARNER: Briefly, what’s the background of this case?

STUART TAYLOR: Beginning in about 1990 Operation Rescue and other anti-abortion groups started protesting outside some clinics in Western New York State near Buffalo and Rochester. And there was lots of obstructive conduct, lots of abusive, intimidating conduct, as well as traditional free speech type protests the court found today.

The federal district judge, entertaining a lawsuit by the clinics and women seeking abortions, found that it was necessary to order, to issue an injunction ordering various forms of protest stopped.

No obstruction, he said, no intimidating gauntlets, and those provisions are not challenged in the court today, but he also found that it was necessary, given the history of behavior, to have two so-called “buffer zones.”

One was a so-called 15-foot “fixed buffer zone” around clinic and driveway entrances; that protesters just couldn’t come closer than that. The other was a so-called 15-foot “floating buffer zone,” sort of an invisible circle around every person walking into the clinic or walking out, every car coming in and coming out, and that protesters weren’t allowed within that area, with an exception.

Both buffer zones, he said, up to two so-called “sidewalk counselors,” could come into those areas, hand out leaflets, try to talk to people, but they would have to cease and desist and retreat to beyond 15 feet if the people said get out of my face, I don’t want to talk to you.

MARGARET WARNER: So what did the court say today?

STUART TAYLOR: The court upheld part of it and struck down part of it. They struck down the so-called 15 foot floating buffer zone in its entirety by a vote of eight to one. And the main rationale was it restricted more speech than necessary to serve the objective of making it possible for people to enter and leave the clinics without being obstructed or harassed.

And in particular, Chief Justice Rehnquist, who wrote the opinion, stressed that sidewalk protests, leafleting, is at the heart of the First Amendment, is protected activity, people have a right to do it, and that it would be very difficult for someone who wanted to do that to know exactly where he could be and where he couldn’t be when people are walking in and out of these clinics all the time. So he’s following someone from a distance of 15 feet. Somebody else comes out; suddenly you can’t be there. So they struck that down.

A different majority of the court, also with Rehnquist writing the opinion, ruled six-three that the so-called “fixed buffer zone” was okay; that they basically held that the pattern of obstruction and harassment in the past showed that it was necessary to just keep these people a certain distance from the entrances in order to let people enter and leave without being obstructed.

MARGARET WARNER: Did the court address how close a protester can come to a clinic worker or a patient? If there’s no longer this bubble, this floating buffer zone, how close can a protester come?

STUART TAYLOR: They can come as close as they want, short of obstructing and harassing, which gets to be a subject of judgment at some point, if you’re sitting there, screaming in somebody’s face, except for they have to stay 15 feet away from the entrances, and with the exception of the two sidewalk counselors unless they’re asked to leave. The court did not lay down any kind of rule–15 feet is always okay if it’s fixed, never okay if it’s floating. It was very dependent on the background of the case, the kind of behavior that had gone before, and the–sort of the geography of the layout. Fifteen feet made sense under the circumstances.

MARGARET WARNER: So, in other words, this court ruling doesn’t say that every abortion clinic in the country is automatically entitled to a fixed buffer zone?

STUART TAYLOR: It certainly does not. And the court emphasized two competing values. One of them is the right of protesters to protest and speak and make themselves heard by people who don’t want to hear them. The other is the right of people seeking abortions or anybody else who wants to carry on lawful activity not to be obstructed and harassed. And in each case, they will draw lines, depending on the facts.

MARGARET WARNER: Okay. Now let’s look at a second case in which the court heard oral arguments today. This closely-watched case was brought by the archbishop of San Antonio against a small town in Texas. We start with this backgrounder from Charles Krause.

CHARLES KRAUSE: The controversy began when St. Peter the Apostle Church, located in Boerne, Texas, just outside San Antonio, outgrew its 230-seat sanctuary several years ago. What it hoped to do was tear down all but the facade of its Spanish-style church built in 1923 to construct a new building triple the size. The city authorities objected, saying the structure was a historic one, and denied the church a zoning permit. But the archdiocese decided to fight, claiming the city’s decision under a local preservation law was unfair and in violation of a 1993 federal law called the Religious Freedom Restoration Act.

FATHER TONY CUMMINS, St. Peter the Apostle Church: We feel they are applying the ordinance to the church unlawfully. I mean, their ordinance, itself, is fine, but when they apply it to the church, it’s unlawful.

CHARLES KRAUSE: For its part, the town contends that the federal law cited by the archdiocese is unconstitutional.

MAYOR PATRICK HEATH, Boerne, Texas: Our position, of course, is that it is not constitutional, and that religious freedom is adequately guaranteed by the First Amendment to the Constitution.

CHARLES KRAUSE: The Religious Freedom Restoration Act that’s now at the heart of the Supreme Court case was passed by Congress and signed by the President in 1993. It was an effort to limit the government’s powers to infringe on religious freedom.

PRESIDENT CLINTON: The one thing that’s happened since I’ve been President, the one thing that’s happened that has–that got all the Christians together, the evangelicals and non-evangelicals, that got all the–every other religious group in America, all the strong support from the Jewish community, from the Muslims, and from others, was our attempts to pass the Religious Freedom Restoration Act which basically changed a Supreme Court decision and says, again, that if a government of this country is going to restrict anybody’s religious practice, it has to have an extraordinarily good reason for doing so; otherwise, the presumption is leave the religion alone.

CHARLES KRAUSE: It was an Oregon case that was the genesis for the 1993 law. Two state drug counselors were fired from their jobs for eating peyote. They were members of the native American church, and they argued that peyote, even though illegal, was central to their religion. But in 1990 the Supreme Court ruled that the state did, indeed, have a right to fire them.

That ruling was extremely controversial because religious leaders from many faiths said it narrowed constitutional guarantees that protect freedom of religion. Since then, the 1993 law that resulted from the peyote dispute has been invoked in nearly 300 cases, more than half of them by prison inmates demanding such things as special clothing, food, and even feathers from bald eagles for religious purposes.

One convict argued for conjugal visits, saying the Bible ordered him to multiply. At Lorton Federal Penitentiary outside Washington, D.C., prisoners asked for visitors by missionaries who later turned out to be drug smugglers. Despite some abuses, many cases that have arisen from the religious freedom law are far more substantial. In Chico, California, a landlady contends her religion prevents her from renting an apartment to an unmarried couple, despite California law prohibiting such discrimination.

EVELYN SMITH, Landlady: I’m a Christian, and even though it said that you can’t discriminate for marital status, is that more important than my value of my Christian faith? It just seems to me that in the constitution of both California and the United States that I have some rights too, and they’ve been violated.

CHARLES KRAUSE: Ken Phillips, who tried to rent Mrs. Smith’s apartment, disagrees.

KEN PHILLIPS, Renter: Obviously she doesn’t want to rent because she feels that renting to an unmarried couple is a sin, but there’s a lot of things that can be considered sinful. It depends upon what religion you are, or what interpretation you have in your religion. Some people consider drinking to be sinful; some people consider divorce to be sinful, for example; some people consider the consumption of pork or beef to be sinful. So when you start thinking about that, if Mrs. Smith were to be able to get this right to discriminate based upon a religion, where does it stop?

CHARLES KRAUSE: In another case the city of Washington, D.C., tried to prevent a Presbyterian church from running a soup kitchen in a downtown residential neighborhood after neighbors objected to the soup kitchen which serves the homeless. A federal judge cited the 1993 religious freedom law when he ruled against the city, saying the soup kitchen was a theological issue the city has no business deciding. Whether the law is constitutional is what the Supreme Court will now decide. Meanwhile, in Boerne, Texas, the old St. Peter the Apostle Church still stands but Masses for the congregation, which now numbers close to 5,000, are being held in a nearby gymnasium.

MARGARET WARNER: Now we’re back to Stuart Taylor. Stuart, this started, this case, when the archbishop of San Antonio sued the town, and it’s gone through a number of permutations since then. Just give us briefly the path it took to get to the Supreme Court.

STUART TAYLOR: The archbishop in his lawsuit said that the Religious Freedom Restoration Act passed by Congress means that we ought to be able to tear down our church and build a new and bigger one if we want to, and the heck with the historic preservation district. That was the basis of this suit.

The district court did not reach the question whether that was a correct interpretation of the act of Congress. He found the act of Congress unconstitutional as an invasion of the Supreme Court’s authority to say what the free exercise clause of the First Amendment means. That was appealed by the other side, and the court of appeals reversed that decision, finding the law was constitutional. And the city has now appealed that to the Supreme Court, and the issue in the Supreme Court is, is this law constitutional or not?

MARGARET WARNER: And each side has picked up coalitions along the way.

STUART TAYLOR: That’s correct. There’s a huge coalition supporting the constitutionality of the law, as there was when Congress passed it almost unanimously in 1993. Just about every religious group in the country is supporting it–Senators and Representatives from the far left to the far right of the political spectrum. Civil rights groups are concerned that some laws that they like could be in jeopardy if this one is struck down.

On the other side there’s a smaller coalition of historic preservation groups in the state of Ohio and twelve other states that filed a friend of the court brief saying we want to protect religious exercise, but the federal government shouldn’t be telling us how to do it.

MARGARET WARNER: All right. And then since the Religious Freedom Restoration Act’s constitutionality is at the heart of this, what exactly really does that law say? What was it designed to do?

STUART TAYLOR: It was designed to–

MARGARET WARNER: In legal terms.

STUART TAYLOR: It was designed to give religions, especially minority religions, more protection than they’re getting under the Supreme Court’s current interpretation of the First Amendment under this peyote case we saw earlier. The Supreme Court said the First Amendment doesn’t give any special protection to religious groups from generally applicable laws that everybody else has to obey. There isn’t a First Amendment right to an exemption.

MARGARET WARNER: You’re talking about laws, tax laws, zoning laws.

STUART TAYLOR: Vagrancy laws, health laws, and there are often religious groups that will have one objection or another. Some say, I don’t want a Social Security number. Some will say I don’t want my children subjected to medical treatment just because they’re dying–and prisoners and so forth. Congress wanted to give more protection to religious exercise than the Supreme Court was given.

And the method they chose was to create an additional statutory level of protection, and it’s a very sweeping law that basically says any law that substantially burdens religious exercise must be relaxed, given exemption, unless it is necessary to further compelling interest and unless it is the least restricted means to further compelling interest. That is basically the legal test that Congress wishes the Supreme Court had applied. Since the Supreme Court wouldn’t give that kind of protection, Congress said, okay, we’ll do it.

MARGARET WARNER: Okay. Let’s go to today now. What did the attorney say first for the town argue?

STUART TAYLOR: The city and the state of Ohio arguing as a friend of the court basically attacked the law on at least three separate grounds, at least the city did. First, they said this is a hostile takeover of the free exercise clause of the First Amendment, that basically Congress has usurped the role of the Supreme Court as the final arbiter of what the Constitution means, including the First Amendment.

Second, they said it’s a massive usurpation of state’s rights in violation of the 10th Amendment because every state and local law in the country is now subject to some religious group saying, hey, I shouldn’t have to comply with that law–land use, whatever–I shouldn’t have to comply with that law because I’m a religious group. And third, they said, or at least the city said, it’s an establishment of religion.

And Justice Kennedy seemed sympathetic to that line of argument that this creates a preference for religions under every law in the country and that violates the neighboring clause in the First Amendment that says no law respecting an establishment of religion shall be ordained by Congress.

MARGARET WARNER: And then what was the gist of the arguments of the attorneys for the other side?

STUART TAYLOR: Douglas Laycock, representing the Church, claimed that Congress’s power to pass this law was established by an unbroken tradition going back to the 14th Amendment itself and, again, in particular Section 5 of the 14th Amendment, which says, “Congress shall have power to enforce the provisions of this article.”

He interprets that as meaning that any time Congress thinks the Supreme Court is not protecting a right–a right guaranteed by the 14th Amendment aggressively enough, that Congress can step in and give it more protection. Now, the 1st Amendment, of course, is not the 14th Amendment, but Congress–the court has held that all of the provisions of the Bill of Rights are most of them, including free exercise of religion, are incorporated by the 14th Amendment in the sense that now they can be enforced against the states through the 14th Amendment.

MARGARET WARNER: And that’s the way, for instance, Congress has justified passing say the Voting Rights Act, which forces states to recognize individual rights.

STUART TAYLOR: The Voting Rights Act in particular, and any number of other civil rights laws, have been passed on the ground that, okay, we don’t think the Supreme Court in the guise of interpreting the Constitution is doing enough to stop various forms of discrimination against minorities, so we’re going to do more. So, for example, the Voting Rights Act bars any practice that has the effect of diluting minority votes, whereas, the Supreme Court had said it only bars laws having a purpose of doing that.

MARGARET WARNER: All right. So what could you tell from–what did the Justices–how did they respond today?

STUART TAYLOR: Several of the Justices seemed very uncomfortable with the law and not to like the law, but it was impossible to predict whether five of them would agree to strike it down as unconstitutional.

There are many profound issues here, and certainly the biggest of them is the concern that Justice Scalia and others seemed to pick up from–from the city that if Congress can do this, maybe Congress can, in effect, overrule the Supreme Court on all kinds of constitutional issues because you can always say, well, we don’t think they’re protecting this right enough, and, therefore, we’re going to protect it a little bit more.

And the 14th Amendment covers almost the entire waterfront of constitutional rights. Justice O’Connor raised various concerns, in particular frivolous prisoner suits. She mentioned a case in which a SEEK student in a high school was allowed to take a ceremonial knife into school in spite of a general rule against weapons. And she’s concerned about frivolous and dangerous suits. Justice Kennedy was concerned that this might be an establishment of religion.

I think they’re going to have a very hard time figuring out what to do and agreeing on any particular rationale for it. So even if they strike it down, it’s possible that they’ll have several opinions as to what was wrong with it.

MARGARET WARNER: And in any event, a ruling here doesn’t necessarily decide this case involving St. Peter’s Church?

STUART TAYLOR: It does not. If the Supreme Court upholds the Religious Freedom Restoration Act, the case goes back to the district court, and then they decide whether, in fact, what the city of Boerne was doing by restricting the church violates the Religious Freedom Restoration Act. And it’s not at all clear that it does.

MARGARET WARNER: So–but if they–if they strike down the law, then–

STUART TAYLOR: If they strike down the law, that’s the end of this case. And one little wrinkle is that it’s not at all clear that there are five members of the Supreme Court who still like the original decision. They want the Congress overruled.

MARGARET WARNER: Well, thanks, Stuart. Thanks very much.