NEWS ANALYSIS Supreme Court ruling prompts question: Where to go from here?

WASHINGTON, June 30 (JTA) — The Supreme Court”s ruling striking down the Religious Freedom Restoration Act has left American religious leaders fumbling around in a sort of post-traumatic daze, trying to figure out where to go from here. In what one Jewish leader described as one of the “worst mistakes this court has ever made,”” the justices last week struck down as unconstitutional a 1993 federal law that protected religious practice from government interference. In its last week of session, the high court ruled 6-3 that Congress overstepped its bounds and usurped judicial authority by enacting the Religious Freedom Restoration Act, commonly known as RFRA. “It”s back to the drawing board,”” said Richard Foltin, legislative director and counsel for the American Jewish Committee. “The trouble is, it”s hard to find where the drawing board is.”” The decision on RFRA came only two days after the high court, in another closely watched church-state case, ruled that public school districts can send teachers into parochial schools to offer remedial instruction. But unlike the decision in Agostini vs. Felton, which may indicate greater acceptance among the justices for other forms of federal aid to religious schools — school vouchers, for example — the ruling on RFRA provides no further insight into the court”s attitude toward church-state issues, legal analysts said. The decision, instead, was limited to questions surrounding the nature of federalism and the separation of powers. “The only common denominator”” between the two court decisions “is that they”re going to let state and local officials do what they want,”” said Marc Stern, co-director of the American Jewish Congress” legal department. Michael McConnell, a professor of constitutional law at the University of Utah, agreed that the rulings on RFRA and remedial instruction — together with the justices” decisions against physician-assisted suicide and against a key provision of the Brady gun control law — show that “the general position of the court is in favor of decentralized democracy.”” But it was clearly the decision on RFRA that most troubled Jewish observers of the court. The court action wiped out a law that religious leaders had hailed as one of the most important developments for religious liberty this century. In practical terms, religious leaders said, for example, that it would be harder to make the case for excusing Jewish students from school Christmas productions, opposing a law prohibiting state employees from wearing hats or head coverings in the workplace, or fighting a city that attempts to use its zoning power to shut down a church”s homeless feeding program.
The decision also struck a devastating blow to one of the broadest coalitions of religious and civil rights groups ever assembled around a legislative effort. The drive to enact RFRA saw Jewish organizations across the political and religious spectrum join with such diverse groups as the National Association of Evangelicals, the Southern Baptist Convention and the American Muslim Council. All told, 75 groups formed the Coalition for the Free Exercise of Religion. Now, in the wake of RFRA”s invalidation, finding a way to hold that diverse coalition together may prove just as difficult a task as battling to restore the protections for religious practice in America. In restoring the protections, several possible courses of action have already begun to emerge: a constitutional amendment, a legislative fix, state religious freedom statutes and another case with which to challenge the Supreme Court precedent on the issue. In the immediate aftermath of the ruling, several key lawmakers floated the possibility of a constitutional amendment as a remedy for the court”s decision. Only a constitutional amendment, which requires the approval of two-thirds of Congress and three-quarters of the states, can overturn a constitutional ruling of the Supreme Court. Most coalition members, however, see that course fraught with many pitfalls. “We think that is an extraordinarily dangerous path that the Congress can follow right now, one which we would vigorously oppose,”” said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism. Specifically, most Jewish activists and church-state watchdogs fear any measure resembling Rep. Ernest Istook”s (R-Okla.) “Religious Freedom Amendment,”” which goes far beyond the issues at hand in RFRA. The so-called Istook amendment, which has the support of the House leadership and about 120 co-sponsors, would give the go-ahead to government subsidy of religion, prayer in schools and other forms of religious expression on public property. In a sign that momentum may be building for the measure, House Speaker Newt Gingrich (R-Ga.) last week said in a television interview that the Supreme Court”s decision on RFRA “is making it clear we need to pass a constitutional amendment”” along the lines of the Istook amendment. Jewish activists flatly oppose the measure, calling it both unnecessary and dangerous. Should certain members of the RFRA coalition latch onto the Istook proposal or any similar amendment, “it would tear the coalition apart and divide the country along sectarian lines in a way that we have rarely seen,”” said Saperstein, who also teaches church-state law at Georgetown University. While the business of amending the constitution remains largely unpalatable to most in the Jewish community, some Jewish leaders said they were not ready to rule out the possibility. They emphasized, however, that they would only consider supporting a measure that is narrowly crafted to address RFRA. Although the court”s action appeared to rule out the possibility of a legislative fix, some lawmakers nonetheless said they would try to determine if a rewritten law could pass constitutional muster. Turning away from Congress, some religious leaders and lawmakers say they would look to the possibility of states enacting religious freedom statutes similar to RFRA. A handful of states have already adopted some protections. Another possible course is getting the Supreme Court to re-examine the precedent it set in a controversial 1990 ruling that prompted the entire dispute. The constitutional merit of RFRA itself was not at issue in last week”s ruling. Instead, the court limited its opinion as to whether or not it was appropriate for Congress to pass the legislation to begin with. Congress adopted RFRA in 1993 in response to the Supreme Court”s 1990 ruling in Employment Division vs. Smith. That 5-4 decision held that Native Americans had no constitutional right to use the illegal hallucinogen peyote in their religious rituals. The court said laws that were neutral toward religion could be valid even if they infringe on some people”s religious beliefs. Religious leaders viewed the ruling as hostile to religious practice, saying it weakened the First Amendment”s protection of “the free exercise of religion.”” Under the law, which was enacted with strong support from President Clinton, federal, state and local governments were required to show a “compelling”” interest before interfering with the practice of religion. Even then, the law required governments to adopt the least restrictive means possible. The Supreme Court, however, threw down the gauntlet of judicial authority last week when it ruled in Boerne vs. Flores. The justices said Congress overstepped its authority when it sought to overturn the court”s 1990 ruling. Following the court”s action, some supporters of RFRA said they would begin to look for a case in the lower courts that could be used as a vehicle to challenge the precedent the court set in the 1990 case. Justices Sandra Day O”Connor and Stephen Breyer, who dissented from the court”s opinion, called for reconsidering that ruling. Indeed, McConnell believes that “there are probably four votes for overruling it outright.”” Despite the various possible avenues to remedy the court”s action, none offers a quick fix, proponents of RFRA cautioned. The process of passing a constitutional amendment, getting each state to adopt its own statute, or waiting for the court to revisit its prior ruling would all likely involve considerable time. Given the long road that lies ahead, Jewish activists say that keeping the RFRA coalition both focused and united remains all the more critical.