A Policy Statement Adopted by the House of Delegates, North Carolina Council of Churches, October 28, 1998
Religious liberty is sometimes called the “first freedom.” While this is not the place to debate the relative worth of our many freedoms, the simple fact is that, when you begin to read our Bill of Rights, what you read first are the religious liberty clauses of the First Amendment. Many of us in the religious community feel that religious freedom is a hallmark of American liberty and that it has made possible a vibrancy and diversity in religious life unlike that in most other countries, without the religious turmoil found in many parts of the world.
What we call religious liberty (or the “separation of church and state,” using language of Thomas Jefferson, not language of the First Amendment) is actually two separate rights. The First Amendment says, “Congress shall make no law regarding the establishment of religion nor prohibiting the free exercise thereof. . .” The Establishment Clause (really the No-Establishment Clause) prohibits government from lending its weight either to support or to discourage religion in general or a specific religion in particular. The Free Exercise Clause prohibits government from interfering in the practice of religion.
Decisions by the United States Supreme Court earlier in this decade have left the Free Exercise Clause greatly weakened, a shadow of its former self, no more than a “puff of smoke,” in the words of a state court in Ohio.
Prior to the 1960’s, there were very few court cases to flesh out what the Free Exercise Clause really meant. A case from the 1870’s had upheld a federal law banning polygamy, even when practiced by Mormons for whom it was based on religious belief. The Court in effect said that the First Amendment could not prohibit Mormons from believing that polygamy was acceptable. But, when they began to put belief into practice, government could restrict that practice because of the overwhelming importance of traditional family structures.
In 1963, the Court heard a case involving a Jehovah’s Witness who had been fired for refusing to work on Saturday. The Court came down on the side of the Jehovah’s Witness and set up a legal standard which governed Free Exercise law for the next 30 years. It said that government could not interfere in the practice of genuinely-held religious beliefs unless there were a “compelling state interest” in doing so. In later cases, a refinement was added to the “compelling state interest” test: Even if there were such an interest that justified the state infringing on someone’s religious beliefs, that infringement must be in the “least restrictive” way possible.
This standard for free exercise cases seemed reasonable and workable. It protected practices of small and/or unpopular religious groups. (Free exercise claims rarely arise if you have the political clout to prevent the enactment of laws which could interfere with the practice of your religion.) But it also provided a way to prevent the First Amendment from being used as a justification for violating laws which were truly critical to the functioning of society. (For example, an Amish employer who had refused to pay Social Security and unemployment taxes lost in a 1982 case. The Court feared for the “fiscal vitality” of Social Security and didn’t want to open the door to the withholding of “war taxes.”)
In 1990, the Supreme Court took up a case involving the use of peyote by Native Americans in worship services, a religious practice in conflict with laws regarding the use of illegal drugs. The Court not only came down opposed to the religious use of peyote but also overturned the compelling state interest test, even though neither of the parties to the case had argued for the Court to do so. The 5-4 majority wrote that the old standard was a “luxury” and said that the burdens its new standard could impose on small religions was an “unavoidable consequence” of democracy. The Court’s new standard was a “general applicability” test: A law of general applicability (i.e., not directed specifically at religion or at one religion) will not be overturned just because it happens to infringe on someone’s religious beliefs or practices. So, for example, a law banning the wearing of hats in schools, which only incidentally prohibits Jews from wearing yarmulkes, would not be a violation of the Free Exercise Clause. Of course, most laws which limit religious liberty are not direct; they do not say “yarmulkes are prohibited.”
The hue and cry which immediately erupted from religious groups, both large and small, led to the passage by Congress, almost unanimously, of the Religious Freedom Restoration Act (RFRA) in 1993. RFRA attempted merely to reestablish the compelling state interest/least restrictive alternative test in Free Exercise Clause cases. Last year, the Supreme Court ruled RFRA unconstitutional, saying that Congress had exceeded its authority in trying to define a Constitutional right for the states. One justice even argued that the compelling state interest test gave religious groups a right not enjoyed by non-religious groups in similar circumstances and was therefore a violation of the Establishment Clause. (This argument, of course, would completely destroy the Free Exercise Clause, since it would seem that no one but religious individuals or groups could say that their free exercise of religion had been infringed.) Even the justices who opposed the changed standard in the peyote case agreed that Congress had gone too far.
This is where the issue stands today. Federal and state courts, in determining what the Free Exercise Clause permits states to do, must use the “general applicability” standard. (A recent lower court case suggests that RFRA is still valid as it applies to federal, not state, laws.) The following list of governmental policies, all of which seem to involve laws of general applicability, illustrates why people of faith, regardless of which faith and regardless of how influential that faith, should be concerned.
- A mandatory autopsy law forces the autopsy of an Orthodox Jewish victim of an automobile accident, in conflict with the religious beliefs of the family. Another case overrides Hmong religious objections to autopsy.
- A prosecutor attempts to force a minister to divulge the contents of a penitent’s confession.
- Certain fire and police departments have a blanket “no-beards” rule, interfering with the religious practice of Muslim firefighters and police officers who wear beards as part of well-established Muslim tradition.
- Prison officials attempt to use a state law prohibiting the carrying of alcoholic beverages into prison to block the use of sacramental wine in religious services.
- Despite testimony that a congregational meeting had “no discernible impact” on the neighborhood, a city council denies a special use permit to an Orthodox Jewish congregation, whose members must walk to Sabbath services. This makes the neighborhood effectively off-limits to Orthodox Jews.
- A city zoning board tries to shut down the homeless feeding ministry of a church.
- A municipal historical commission refuses to permit a church to demolish a dilapidated building the church owns.
- An immigration law which requires employers to verify the immigration status of all employees is upheld when challenged by the American Friends Service Committee.
- Non-discrimination laws are used to prohibit landlords, motivated by religious beliefs, from refusing to rent to unmarried, cohabiting tenants.
While we may not all agree on how these cases should come out, and some of these actions might survive a “compelling state interest” test, the point is that the “general applicability” standard affects a host of religious beliefs and activities and makes it much more difficult to protect those beliefs and activities. Note, too, especially in the case involving the Orthodox Jewish congregation, that conceivably governmental policy makers could draft laws and regulations so that they appear to be generally applicable but still have more impact on certain targeted religions.
Recommendations
We support the building of a strong coalition to work for the passage of a state law, comparable to the Religious Freedom Restoration Act, which would prohibit restrictions on religious freedom unless the state is using the least restrictive way to achieve a compelling state interest. While the best solution to this national issue would be a reversal of the Supreme Court’s decision regarding the “compelling state interest” test, that may not happen in the near future. The Court’s RFRA decision left open the possibility of states taking this matter into their own hands. Several states have already done so.
Our support, however, is only for a “pure” RFRA-like statute, not one that provides weaker protections or that exempts certain populations or that adds other questions of religion (such as the prayer in schools question). Only if a strong coalition can be built for such a statute would we support its introduction.
At the federal level and in some of the states that have considered RFRA, arguments have been made to exclude prisoners from these free exercise rights. Supporters of a prisoner exemption argue that prisoners will use it to bring frivolous suits or to engage in practices dangerous to prison life.
We oppose a prisoner exemption for at least these reasons:
- We believe that religious liberty is an inalienable right and should not be denied to any category of people. If the law leaves out one politically uninfluential group (prisoners), it could leave out others.
- The evidence is clear that religious programs and ministries can have a significant positive impact on prisoners. A prisoner exemption would make it easier for prisons to limit access to legitimate and significant religious programs, especially those of politically insignificant faiths.
- For most of the past forty years, free exercise law has been determined by the compelling state interest test. Dire predictions now offered by supporters of a prisoner exemption are not backed up by the experiences of those years. In fact, courts have had a good deal of experience in spotting sham religions, identifying supposedly religious claims not based on genuinely-held religious beliefs and prohibiting practices dangerous to prison life. A state RFRA would only return free exercise law to where it has been for most of the past forty years.
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