Too Much Freedom?
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JIM LEHRER: Now, to NewsHour regular Stuart Taylor of the American Lawyer and Legal Times. And, of course, Stuart, the court ruled today in favor of the City of Boerne, right?
STUART TAYLOR, The American Lawyer: It did.
JIM LEHRER: On what grounds?
STUART TAYLOR: It held that the–this 1993 law exceeded Congress’s power by usurping the authority of the Supreme Court to say what the Constitution means, in this case say what the appropriate portion of the First Amendment protecting the free exercise of religion means and doesn’t mean and also by invading the reserve powers of state and local governments.
The specific provision that Congress was relying on as giving it power to try and overturn this prior Supreme Court decision, in essence, was Section 5 of the 14th Amendment, the enforcement clause of this–the 14th Amendment, which incorporates a lot of the provisions of the Bill of Rights. And the court answered one of the big question marks of constitutional law because during the civil rights era the court upheld a lot of fairly far reaching laws, as Congress has broad power to enforce this, and the question has been: Does that power go so far as to let them overturn prior Supreme Court precedents, in effect, and the answer from the court today was pretty clearly no.
JIM LEHRER: And it was clear, was it not, that the majority opinion was written by Justice Kennedy. What did he say? Were the words strong and direct?
STUART TAYLOR: Yes. He was very strong and direct, and, in fact, exceeds Congress’s power–were words straight from the opinion–there wasn’t dramatic rhetoric in the opinion, but it was very firm in saying the Supreme Court decides what the provisions of the Constitution mean, and if we say, as they did in this 1990 decision, that it does not create a duty on the part of government to give religious exemptions, to accommodate religions from generally applicable laws–that’s what they held in this 1990 peyote case–Congress can’t come along and say, well, we think it should, so we’re going to change it under the guise of enforcing the 14th Amendment.
Justice Kennedy said there’s a tricky line drawing exercise but Section 5, the enforcement clause, does allow Congress to create remedies or to try and prevent violations and to legislate prophylactically and, for example, to ban literacy tests, which are found by Congress to be as engines of voting discrimination.
But here, Kennedy said, they’re imposing this sweeping nationwide obligation, and there’s no evidence, he said, that there’s a big problem of religious persecution in this country that needs to be solved by having a prophylactic law.
JIM LEHRER: Now, there were three dissenters, and Justice Sandra Day O’Connor was particularly outspoken in her dissent, was she not?
STUART TAYLOR: Yes, but the ground of her dissent was not that she thinks Congress has power to change the meaning of the Constitution. She said, “I agree with the majority on that.” She said, “I think the Smith decision, the Peyote decision in 1990, was wrong. I thought so then.
I thought so now. I think the First Amendment to the Constitution, the free exercise clause, was intended by the framers”–and she went into a lot of history– “to create a duty to create religious exemptions to accommodate religious practice from generally applicable laws, so that Jehovah’s Witnesses don’t have to swear loyalty oaths if it violates their religion, or so that Jewish soldiers don’t have to take off their yamikas if it violates some hat regulations.”
And there are lots of examples. And she said, “For that reason, I think we should have this case reargued and overruled, that 1990 decision, on our own. And if we do that, this law will either be unnecessary, or will be merely a statement or something close to a restatement of what the court’s own doctrine holds.”
JIM LEHRER: Now, of course, when the Supreme Court makes a ruling, like it did today, there’s no place to go for redress, except back to Congress or a constitutional amendment, is that right?
STUART TAYLOR: I think there are a number of options. One is to try and get Congress to pass a narrower law. I mean, one of the, of course, objections here was to–this law basically just said–just said we wish, you know–we hereby say that anytime any generally applicable law burdens religion it’s unconstitutional, as it can be justified by compelling state interest and as a least restrictive means.
Basically they said we want to overrule what the Supreme Court did. And everywhere in the country, applicable to every state and local government, every zoning dispute could get into it, every prison can have people suing about how long their hair can be.
The court said that there isn’t a big problem that we need to solve that way. If, for example, you can show that Rastifarians are being persecuted for trying to grow their hair long, or that there’s some problem and legislate more narrowly, the court might uphold it. Also, this still leaves states and local governments totally free to pass legislation of this kind, because all the court is saying here is Congress can’t do it, can’t impose it on state and local governments.
JIM LEHRER: I see. Okay, Stuart, don’t go away. Marci Hamilton argued before the Supreme Court on behalf of the city of Boerne, Texas. She’s a professor at Cardozo School of Law in New York City. Rabbi David Saperstein is head of the Religious Action Center for Reformed Judaism; he teaches at Georgetown University Law School. Rabbi Saperstein, what will be the practical effect of this
RABBI DAVID SAPERSTEIN, Religious Action Center: It means that every religious person, every religious institution, church, synagogue, mosque, temple, will now be at risk; that any officially neutral government law that interferes in very real terms with their religious liberty, there will no longer be any constitutional protection for that religious liberty. This is a devastating blow to the concept of fundamental rights in America and to religious freedom in America.
JIM LEHRER: Marci Hamilton, a devastating blow?
MARCI HAMILTON, Cardozo School of Law: Not at all. This case is, in fact, a blow for liberty because it stands for the proposition that Congress cannot at the urging of interest groups amend the Constitution without going through the usual constitutional procedures.
This is a decision that protects the people from congressional action that will subvert their liberties. I deeply disagree about that particular characterization, and the question of whether or not under the Smith rule, which was the peyote decision rule, we will have more or less religious liberty simply hasn’t been answered. We don’t know the answer to that question yet because RFRA, the Religious Freedom Restoration Act, was passed so quickly after the Smith rule became the law.
RABBI DAVID SAPERSTEIN: Well–
JIM LEHRER: Yes, Rabbi.
RABBI DAVID SAPERSTEIN: Well, that’s not really so. There were scores of cases that we likely would have won in-between the Smith decision and the passage of RFRA. And since, RFRA, we’ve been winning a number of cases, some of which were cited in your earlier reports. And this will have a real impact on religion. Let me take some real examples here.
If the state of Connecticut passed a regulation saying that people could not wear–state employees cannot wear hats indoors, and traditional Jews could wear yamikas under the Constitution, if the state of Tennessee raises its drinking age to 21, and without an exemption for religious practice, then a 20 year old Catholic could not take wine and communion; a 13 year old boy cannot use wine at his bar mitzvah.
Well, those are real examples that actually happened at an earlier stage. I could give you scores of examples where people would not be able to live out their religious lives.
JIM LEHRER: Marci Hamilton, are those real examples? Are those real risks that now are there as a result of what happened today?
MARCI HAMILTON: Those are ridiculous examples of what might happen. The political process won’t let those sorts of things happen, and we know that because after the Smith or peyote decision came down, we saw both the federal government and the state governments in many states providing for exemption.
The complaint about the fate of religious liberty has really nothing to do with the case that came down today. Today the court said only that Congress does not have the authority to alter the Constitution unilaterally. It said nothing today–the Supreme Court said nothing–about the particular fate of religious liberty. And as I said before, we don’t know the fate of the Smith decision because we haven’t had enough time to assess it.
JIM LEHRER: Well, Marci Hamilton, how would you interpret today’s ruling–the effect today’s ruling would have on the two examples that the Rabbi just mentioned?
MARCI HAMILTON: Well, it’s not clear right now. If there were a raising of a drinking age for the purpose of suppressing a particular religion, that, of course, would be unconstitutional under the court’s decision in Church of Lakumi Babaluai.
JIM LEHRER: That’s a specific case, right?
MARCI HAMILTON: That’s a specific case.
JIM LEHRER: Okay.
MARCI HAMILTON: In which the Supreme Court has said you may not discriminate against religion in any way, shape, or form. So the protection against discrimination remains very strong. The question is whether or not the political process can fix the potential for some cases not to be protected by the Constitution. And, as I said, we don’t know the answer to that because Smith was not the law for very long.
RABBI DAVID SAPERSTEIN: Let’s be clear. Marci just acknowledged it wasn’t a ridiculous example. If the intent wasn’t to suppress religion but they just passed the law and the effect was to limit religion, Marci just acknowledged that religion would be limited. Let me explain what this is really about. Our fundamental constitutional rights, our fundamental liberties in America, are not subject to majoritarian view.
They are not subject to the majority vote of the legislature. I think the vast majority of Americans would hold to the belief that freedom of speech, freedom of the press, and freedom of religion, our most cherished liberties, should not be subject to majoritarian rule and the government shouldn’t be able to intervene unless there was an extraordinary reason to do so. That’s what this battle is about. We tried to restore on a legislative grounds the kind of protection that constitutionally had existed before.
JIM LEHRER: What about Ms. Hamilton’s argument that this case was really about congressional power versus court power, not religious freedom?
RABBI DAVID SAPERSTEIN: There is a whole history of the Supreme Court saying there is a floor of protection given by the Constitution; if you want higher protection, go and pass it legislatively. That’s what we did.
For technical reasons–Marci made a very eloquent argument before the court–for technical reasons, that got struck down here. But we can now go out to the states and pass state legislative protections and constitutional protections. We can re-litigate this and bring Smith back. It’s interesting to note that in response to Sandra Day O’Connor saying it’s time to overturn Smith, only Scalia and Stevens joined in a concurrence answering that. We may well be able to re-litigate Smith, and I would presume that Marci wouldn’t have a problem with that. I don’t–I would hope she wouldn’t be on the other side–
JIM LEHRER: Let’s ask her.
RABBI DAVID SAPERSTEIN: –of saying our fundamental rights should have the highest level of protection.
JIM LEHRER: Ms. Hamilton.
MARCI HAMILTON: I think we have reached a point when we need a national debate about the appropriate level of religious liberty, and the appropriate relationship between church and state. We did not have that because when the Religious Freedom Restoration Act was passed, Congress simply responded to pressure to overturn the Supreme Court decision and did not ask the question of what’s the state of religious liberty. I do not know for a fact what the state of religious liberty is in the United States and whether or not we need the sort of overbearing protection that strict scrutiny provides over and against the people’s elected representatives.
JIM LEHRER: Ms. Hamilton, let me reverse this. You represented the city of Boerne.
MARCI HAMILTON: I did.
JIM LEHRER: All right. After this decision today, let’s say that the Catholic Church in Boerne still wants to move ahead. As a result of this decision, how might it go about doing that?
MARCI HAMILTON: If it still does not want to negotiate?
JIM LEHRER: No. I mean, if they want to go ahead and build that building, is there some other avenue available to them through–
MARCI HAMILTON: Well, let me–
JIM LEHRER: –state procedures in Texas, or something like that?
MARCI HAMILTON: Well, my understanding is that the city has already asked them if they would sit down at the negotiating table, now that the decision is down, and to come to an amicable solution. So I’m hoping this will be solved without RFRA in the picture by reasonable minds getting together and doing what’s best for everybody.
And the problem with the Religious Freedom Restoration Act, of course, was that it told churches and synagogues, et cetera, that they had a right not to get along with the community. What happens now, I hope, is that people will come to the table and resolve these very important issues amicably and that they won’t have to go back to the court. I think that’s unnecessary.
JIM LEHRER: Rabbi Saperstein, do you believe that a church like that one in Boerne, Texas, should have the right to ignore city zoning, as they did, because they’re a church?
RABBI DAVID SAPERSTEIN: Unless–
JIM LEHRER: Because they’re a church?
RABBI DAVID SAPERSTEIN: Yes. Unless there is a compelling interest that the government has. Let’s say that the zoning–the expansion would so overwhelming the neighborhood as to make it dysfunctional and impossible to maneuver there. Just for the sake of historical preservation they–I don’t think that you should be–that churches should be limited to change a church in order to accommodate its parishioners.
The fact that now that church cannot hold Mass in the church because of this government regulation–that doesn’t have a compelling interest–is to me absurd. And in terms of Marci’s point about a national debate, RFRA didn’t sneak through the Congress. It had wall to wall support of every religious group in America, the religious right, the religious center, the religious left.
And it took three years of intensive, detailed debate before it passed. And after that debate, the Congress passed it almost unanimously. The Congress, the religious groups in America, the civil liberties groups in America, on the right and left, they all agree what the standard ought to be for fundamental rights. Religious freedom is a cherished history in America. We should restore it.
JIM LEHRER: What are you going to do now, Rabbi, you and folks who feel the same way you do?
RABBI DAVID SAPERSTEIN: Well, we are going to go to the states–one of the holdings in the case we–the federal government can’t impose this burden on the states–so we’re going to go to the states.
And as a number of states have already responded to the Smith decision by passing a RFRA type amendment, or having its court rule under its constitution–Massachusetts, Minnesota, and others–we’re going to ask the 50 states to pass RFRA’s. We’re going to go back to the court and re-litigate the underlying Smith decision and perhaps we’ll look, as Stuart suggested, at specific, particularly harsh abuses that result from this ruling, and pass more narrowly tailored federal legislation.
JIM LEHRER: Marci Hamilton, what do you think of that approach?
MARCI HAMILTON: I think every one of those points is exactly the way to go. I think that they ought to go to the states and speak to the states directly. I think that the people of the United States ought to be alerted to what’s going on; that there is a claim that there is a deficiency in religious liberty; and they ought to have a say in it. So I would say that all of those would be good ideas.
I do not think that we need an amendment to the Constitution, which has been suggested, but I don’t–as I understand it, the relevant interests aren’t united enough to get one particular amendment proposal up, so I would doubt that we would have an amendment in any event.
JIM LEHRER: Thank you both very much. Just back to Stuart before we go. Is it–is it correct to read the decision of the court today one way or the other about what it believes about the deficiency of religious freedom in the country?
STUART TAYLOR: Well, certainly the majority thinks that there’s enough religious freedom; we don’t have to worry about it being stamped out. Part of the background of this is when there are big mainstream groups like the Catholic Church, or mainstream Jewish denominations, usually they’ll be able to get what they want from local authorities.
Don’t hold your breath for any raids of people taking communion, where even if there is a 21 liquor law. The strongest argument for the dissent here was look at small religious groups that do things like animal sacrifice, or smoking peyote, that the majority doesn’t identify with. How are they going to get any help from the state legislatures?
And that’s the argument against where the court went in Smith and where the court stayed today, and sooner or later, that argument could possibly prevail in an effort to overturn Smith. But it’s clear a majority of the court said if Smith’s going to be overturned–they were 7-0 on this with 2 not commenting–if we’re going to overturn this rule, we’re going to overturn it. Congress isn’t going to overturn it.
JIM LEHRER: All right. Well, Ms. Hamilton, gentlemen, thank you.
MARCI HAMILTON: Thank you.