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Justices say law may undo religious freedom rulings Hearing examines roles of court and Congress


WASHINGTON -- Supreme Court justices expressed worry yesterday that Congress might undo some major constitutional rulings if a 1993 law that would rewrite a court ruling on religious freedom is upheld.

In a spirited hearing that delved into the separate roles the Constitution gives the court and Congress, the justices rigorously questioned the lawyers in a case involving a historic church in a San Antonio suburb.

At issue is the constitutionality of the Religious Freedom Restoration Act. Congress passed the law nearly four years ago to try to give religious groups more protection against government controls than the court had granted in a 1990 ruling. Relying on the law, a Roman Catholic church in Boerne, Texas, challenged a local preservation law that required it to preserve a church that has become too small for its congregation.

The Catholic church contended that Congress had ample authority under the Constitution to give religious groups and individuals greater protection from government action, such as zoning restrictions. The church won on that argument in a lower court.

Marci A. Hamilton, a lawyer for the town of Boerne, argued yesterday against the 1993 law. She said it amounted to "a brazen attempt by Congress to reinterpret" the Constitution and impose its views on the Supreme Court. If upheld, she said, the law would "shift the balance of power dramatically" from the court to Congress.

Her challenge appeared to stir a sympathetic response from justices of varying philosophies.

If the law stands, moderate Justice Sandra Day O'Connor wondered aloud, would Congress then have permission to undercut the court's rulings on women's abortion rights, by imposing a constitutional standard different from the one the court has laid down?

Justice John Paul Stevens, a liberal, asked whether a precedent would be set that would enable Congress, in the interest of protecting "the white majority," to bar affirmative action programs.

Justice Anthony M. Kennedy, a moderate, said the 1993 law would mean that "every law, every ordinance, every regulation in the United States" would have to exempt religious groups. Kennedy said that would run sharply counter to Supreme Court rulings requiring the government to avoid favoritism of religion.

Justice Antonin Scalia, a conservative, said Congress might conceivably follow up the 1993 law with "a massive enlargement" of its power to enforce provisions in the entire Bill of Rights.

The only justice to energetically defend Congress on the 1993 law was Stephen G. Breyer, a liberal. Another liberal, David H. Souter, made passing sympathetic remarks about Congress' power to enforce constitutional rights.

The 4-year-old law was passed at the urging of religious groups in an effort to restore constitutional protection for religion that the Supreme Court scaled back in 1990.

In that decision, the court said new laws could be passed to restrict individuals' conduct, even if those laws interfered with religious practices. If the laws treated everyone the same, and did not discriminate against religious groups, they would be valid, the court said in a case involving Native Americans' use of peyote, an illegal drug, in religious rituals.

Congress disagreed. It passed a law ordering the courts to use the strictest constitutional measure in judging government restrictions on religion. The law has been used by churches to challenge city laws that require them to preserve historic structures, by inmates seeking to worship or wear forbidden religious garb, by landlords seeking to bar homosexuals as renters and by students opposing health fees that pay for abortions.

Pub Date: 2/20/97

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