High court upsets religious freedom law Congress cannot create new constitutional rights, 6-3 majority says

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court, chastising Congress for using power it does not have, struck down yesterday a 4-year-old federal law that seeks to protect religion from government interference.

Dividing 6-3, the court nullified the Religious Freedom Restoration Act because it said Congress had passed the law to create more rights of religious freedom than the Supreme Court allowed in a 1990 ruling.

The decision strikes down a law that Congress passed with few dissenting votes in 1993, at the request of religious groups from across the spectrum of belief and practice. Those groups have defended it in nearly 300 court cases since then.

The law instructed the courts on how to handle claims that the government was intruding upon religious freedom. Any intrusion that places a "substantial burden" on religious rights was to be struck down unless it had the strongest possible justification, according to the law.

That protection has been used by churches stymied by preservation ordinances that bar them from expanding, by college students who did not want to contribute fees to causes of which they disapproved, and by prison inmates who wanted to engage in religious exercises that wardens opposed.

Congress, the court ruled, had no power to pass that law in the face of a Supreme Court decision that provided less protection. While Congress has power to enforce the Constitution, it cannot add new constitutional rights, the court said.

"It is this court's precedent, not [the 1993 act], which must control" the level of religious freedom that the Constitution provides, the court declared. "The power to interpret the Constitution remains in the judiciary.

"If Congress could define its own powers by altering [the Constitution's] meaning, no longer would the Constitution be superior paramount law, unchangeable by ordinary means," Justice Anthony M. Kennedy wrote for the majority.

Congress passed the law with the intent of undoing the court's 1990 decision allowing states to ban Indians' ritual use of a drug, peyote, so long as the ban extended to everyone. In that decision, the court significantly diminished the government's duty to justify rules that interfere with religious practices. Otherwise valid laws cannot be struck down, the court said, solely because they infringe on religious activity.

Yesterday's ruling came in a case involving St. Peter the Apostle Roman Catholic Church in Boerne, Texas. The church invoked the Religious Freedom Restoration Act against the city after the denial of a permit to enlarge its mission-style church. Under a historic-preservation law, the building was designated a landmark, a status that, the church contended, kept it from growing to serve its parishioners' religious needs.

In that case, a federal appeals court upheld the federal law.

A similar case in Maryland led to a federal judge's ruling that the 1993 act was unconstitutional. The case involved a preservation dispute in Cumberland over a monastery at St. Peter and Paul's Roman Catholic Church. The church eventually used a different constitutional argument, rather than the federal law, to gain the right the city had denied it to demolish the monastery.

Kennedy's main opinion was keyed to the division of power between Congress and the court in defining constitutional rights. But Kennedy also suggested that Congress had little evidence of religious bigotry to justify the wide-ranging protection the law provided.

Joining in the majority were Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg, Antonin Scalia, John Paul Stevens and Clarence Thomas. Dissenting were Justices Stephen G. Breyer, Sandra Day O'Connor and David H. Souter.

The outcome upset many in the religious community. The court, said J. Brent Walker, general counsel of the Baptist Joint Committee on Public Affairs, "has turned out to be the most dangerous branch for those who value religious freedom."

The National Trust for Historic Preservation, however, called the ruling "a major victory for America's historic religious properties."

The author of a pending proposal for a new constitutional amendment, Rep. Ernest J. Istook Jr., an Oklahoma Republican, said: "This ruling proves that a constitutional amendment is the only way possible to ensure protection of our rights to religious freedom."

Istook's amendment would also allow prayers in public schools and would allow governments to do more to aid religion. Some critics of yesterday's decision reacted by saying the remedy is not a new amendment.

In Maryland, there were signs that new state legislation would be sought. Del. Samuel I. Rosenberg, a Baltimore Democrat, said he plans to introduce a religious freedom measure next year.

Pub Date: 6/26/97

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