Commentary Magazine

The Worst Decision Since

Few pieces of congressional legislation in recent years have aroused less initial controversy than the Religious Freedom Restoration Act (RFRA), a 1993 bill designed to overturn a Supreme Court ruling that appeared to many to threaten religious liberty. An almost surreal array of leaders from across the full spectrum of American religious institutions and practices—established and novel, liberal and orthodox, mainstream and fringe—endorsed the bill, and some of the bitterest antagonists in today’s culture wars, including diehard secularists, were willing to lay down their arms and make common cause in promoting it. RFRA then swept through Congress like a prairie fire, encountering only three nays in the Senate and none in the House. The ever-attuned President Clinton enthusiastically signed it into law.

That RFRA touches upon issues of overwhelming importance to many Americans may help explain the widespread alarm and even outrage this past summer when the Supreme Court, in a 6-3 decision, City of Boerne v. Flores, voted to strike it down. The normally staid Christian Science Monitor, whose mother church had supported RFRA, editorialized that the Court had “lobbed a figurative bomb into the middle of this nation’s already-hot debate over religious rights.” “Every church and synagogue, every religious person in America will be hurt by this decision,” protested Reverend Oliver Thomas of the National Council of Churches, while David Saperstein of the Union of American Hebrew Congregations declared that the decision would “go down in history with Dred Scott and Korematsu among the worst mistakes this Court has ever made.”

Politicians were not far behind, with Senator Orrin Hatch, the conservative Republican from Utah, declaring that “the Court has once again acted to push religion to the fringes of society” and Representative Charles Schumer, the liberal Democrat from New York, adding heatedly that Flores forces citizens “to choose between their government and their God.” Most impressive of all, in some ways, was Justice Sandra Day O’Connor’s passionate dissent in the case, which she read aloud from the bench to emphasize the strength of her contrary view.

Is Flores really as cataclysmic in its implications as the critics say? To answer this question requires a little background.

RFRA was, as I have mentioned, a direct legislative attempt to topple another controversial Court decision, Employment Division v. Smith (1990). In that case, the Court rebuffed’ the claim of two Oregon men who were seeking unemployment benefits; they had been fired from their drug-counseling jobs for using peyote, a hallucinogen, as part of what they maintained were “sacramental” rites. In writing for the majority in Smith, Justice Antonin Scalia repudiated the doctrine that government requires a “compelling interest” to burden the free exercise of religion afforded by the First Amendment. (The “compelling-interest” doctrine, itself first established in a 1963 case, had dramatically raised the barrier to any government interference with religious exercise.) Instead, Scalia allowed for the possibility that the free exercise of religion might be legitimately limited by a general law, so long as the limitation was an “incidental effect” rather than the product of a clear intent to target an individual or his faith.

To many observers, particularly those affiliated with some of the more prominent religious communities, Scalia’s formulation seemed too dismissive of the claims of religious liberty. Their anger quickly gave rise to the strange-bedfellows’ alliance that in turn produced RFRA, a measure explicitly designed to restore the more stringent standard.

Proponents of RFRA claimed at the time that it fell well within Congress’s purview to pass this law, since the Fourteenth Amendment gives Congress the right to “enforce” the First Amendment at state and local levels. Yet the language of the Act itself sounded less like an enforcement provision than a proclamation of fundamental law. RFRA stipulated that in the absence of that famous compelling interest, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” These words, aimed specifically at Scalia’s ruling in Smith, were a direct legislative rebuke of the Court.

That threw down a gauntlet. Since the task of constitutional interpretation has always belonged to the highest tribune of the judicial branch, it was hardly likely that the Court would submit to such a frontal raid on its powers and perquisites. And indeed the Flores decision, written by Justice Anthony Kennedy and joined by both the most liberal and the most conservative members of the Court, scarcely addressed itself to issues of religious liberty at all, focusing instead on RFRA’s violation of the constitutional separation of powers, and its damaging effects upon federalism and state power.

In the majority opinion, Kennedy brushed aside any claim that the Act had been designed to correct a serious problem involving repression of religion. Rather, he argued, the law represented a substantive attempt to end-run the Court’s decision in Smith. From the point of view of the Constitution, Congress had simply exceeded its powers. In the process, it had also begotten a dangerously “sweeping” and disproportionate Act, one likely to have countless unforeseen consequences, “displacing laws and prohibiting official actions of almost every description and regardless of subject matter.”



On this last point, Kennedy’s view tends to be confirmed by an examination of the facts of Flores, a case that arose not out of any state-sponsored persecution of heretics but out of a lowly zoning dispute. St. Peter the Apostle Church, a Roman Catholic parish in Boerne, Texas, wished to expand its 74-year-old church building to accommodate a swelling congregation. But the church building, a mission-style structure of middling charm, was clearly protected by the city’s 1991 historic-preservation ordinance. On that basis, Boerne’s landmark commission and city council refused to issue a permit to make the desired alterations.

Of such conflicts are local politics made, and normally the conflicts are settled by a process of mutual accommodation that the world little notes nor long remembers. But with RFRA’s provisions on the books, the church, and the Catholic Archdiocese which championed it, no longer had to accept even a partial defeat. Instead, it claimed it had been discriminated against, that the historic-preservation ordinance substantially burdened its congregants’ free exercise of religion, and that the First Amendment had thereby been traduced.

This was, of course, opportunism of the most naked sort—but precisely the kind of behavior to which RFRA had opened the door. In the wake of the Act’s passage, other cases like this one had begun to pop up in jurisdictions across the country. Prison inmates claimed the right to use drugs as part of their religious rituals; an Amish group in Wisconsin claimed, and won, an exemption from a requirement to post orange safety triangles on its members’ horse-drawn buggies; a Presbyterian church in Washington, D.C., fought successfully to establish a food program for the homeless over the objections of city zoning officials.

Such cases opened the prospect that state and local governments would be rendered powerless to avert multiplying claims of “burdened” religious expression. Small wonder, then, that sixteen states joined with the city of Boerne in challenging RFRA. All of them faced the possibility of seeing their legal and regulatory structures undermined by religion’s imperious claims—and of an ocean of litigation brought by those with sufficient enterprise and brass to try the “sacramental” angle when all else failed. Instead of alleviating public distrust of religion, RFRA was exacerbating it.

In passing RFRA, certainly, Congress seems to have given scant consideration to what it was setting loose. To the contrary, RFRA was one of those carelessly conceived, crowd-pleasing efforts that have become the legislative branch’s spécialité de la maison. Seizing on a Good Thing and elevating it to an abstract status, sponsors of such legislation blithely ignore the probability that the single-minded pursuit of any Good Thing will inevitably come into conflict with the pursuit of another Good Thing, or foreclose the ability to sustain many other Good Things.

Under RFRA, virtually any local law or regulation could be made vulnerable to the scrutiny of federal courts on the grounds that it unintentionally burdened religious exercise. This makes a potential mockery of American federalism, whose genius is to allow localities to fight these things out themselves. Indeed, after the Supreme Court handed down Flores, that is just what happened in the city of Boerne. Deprived of the fuel of RFRA, the Archdiocese and the city council had no choice but to sit down and settle their differences; in August, two months after the Supreme Court ruling, they did so.



But aside from all the practical benefits of relying whenever possible on concrete, local precedents and traditions, there are also other considerations, flowing from the fact that “religion” is such an exceptionally difficult concept to define. Although the First Amendment establishes a rough baseline, it goes no further than that, and there are good grounds for distrusting any particular court’s universal formulation—particularly if that formulation is to carry legal weight. Precisely because a satisfactory one-size-fits-all definition cannot be found, there is every reason to prefer the rough diversity of understandings made possible by federal arrangements, which subdivide authority and power in ways that are closer to, and more respectful of, the actual communities and institutions in which genuine, well-established religious faiths are practiced.

RFRA moved matters in the opposite direction, threatening the establishment of a national standard for “religion” and the “burdening” thereof, just as the Department of Agriculture (USDA) does for levels of the E.-coli bacillus in the slaughterhouse. In particular, RFRA construed the concept of “burden” strictly in terms of “a person’s exercise” (emphasis added), thereby leaving the clear impression that the free exercise of religion was primarily an individual matter. Such a presumption virtually ensured that, say, a Church of Marijuana, and any number of ersatz cults and exotic new revelations, could plausibly command an equal standing with established faiths.

Aside from its palpable absurdity, such a development would codify a false understanding of religion, which is not just another word for an individual’s collected metaphysical musings. By implicitly defining religion in these terms, RFRA played directly into our pernicious tendency to emphasize the autonomous, unencumbered, and unhistorical self as the building block of social and political reality. This tendency was evinced memorably by the Court itself in its 1992 Casey abortion decision, which identified liberty as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Given such proclivities at the highest levels of our legal culture, it is perhaps understandable that RFRA’s drafters chose to couch its claims in the language of self-actualization and individual rights. But what such a formulation leaves utterly out of account is that religion is a social and institutional phenomenon, embodied in historically rooted communities of faith that not only share a highly elaborated and codified system of beliefs but embrace and transmit to others, children in particular, a discipline that reaches into the deepest crevices of their physical, mental, and moral lives. Unless religious communities are free to create and sustain a distinctive moral universe powerful and plausible enough to shape the souls of their adherents, religious liberty will devolve into little more than spiritual consumerism.

Of course, many of our mainstream religious leaders are themselves guilty of encouraging or pandering to just such consumerism, and of failing to transmit their own traditions faithfully. But the greatest legal danger to religious freedom in years to come will arise not from that quarter, or, for that matter, from the suppression of peyote-users and aspiring church architects. It will come from the more general erosion of the rights of private association at the hands of the very federal government that RFRA would have made into religion’s USDA.

Religious liberty means very little unless religious communities have defensible boundaries. But it is not at all fanciful to imagine, for example, that RFRA could eventually have been invoked by embittered or opportunistic individuals to undermine the authority of their own denominations, on the grounds that these institutions imposed an orthodoxy that “burdened” religious exercise by failing, say, to affirm their life-style, or by prohibiting them from being ordained. By conceiving of religious liberty in strictly individual terms, RFRA contributed to the very problem it sought to solve.

If, in the next round of the battle, defenders of religious liberty raise a different banner, one that respects the integrity and independence of religious groups, and builds upon the unique advantages offered by a federal system, they will have a smaller, less diverse coalition to call upon. They will probably not be joined, as they were in 1993, by People for the American Way and the American Civil Liberties Union. But they will have a far better cause, and they may find a Court that is far more willing to listen to them.


About the Author

Wilfred M. McClay, who holds the SunTrust Chair of Excellence in the Humanities at the University of Tennessee at Chattanooga, contributed “Is Conservatism Finished?” to the January COMMENTARY. His latest book is Figures in the Carpet: Finding the Human Person in the American Past.

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