High Court Set to Weigh Reach of Religious Liberty

The old Spanish-style church of weathered stone, perched proudly on a rise above this town’s main street, sits at the center of a dispute that is likely to determine the reach of religious liberty in this nation.

In the narrow sense, the battle here is over zoning. Although picturesque from the street, St. Peter’s Catholic Church is cramped and plain inside.

“We can’t fit in it anymore. It seats 220 people and we have 1,050 families,” Father Anthony Cummins said.

But when the parish proposed to greatly enlarge the church, the city’s historic-preservation council blocked the move. The stone buildings lining the main street “are what gives this community its charm,” said Mayor Patrick Heath, whose town outside San Antonio has become a weekend stop for tourists and antique shoppers.

This week, the dispute between a church and a town comes before the U.S. Supreme Court--not to decide a zoning issue but to resolve a much broader legal question: When religion and government clash, who wins?

The principle of religious freedom was established as fundamental from the beginning of this nation. The 1st Amendment says the government can “make no law . . . prohibiting the free exercise of religion.” Without question, that means the government cannot punish people for their beliefs or bar them from worshiping.

The matter gets complicated, however, when those beliefs or church practices come into conflict with a law that has nothing to do with religion.

Such conflicts are surprisingly common. Consider the landlady from Chico, Calif., who says her strong Christian beliefs forbid her to rent an apartment to an unmarried couple. California law prohibits housing discrimination based on marital status. The California Supreme Court upheld the state law last year, but the landlady has appealed to the nation’s highest court. Her appeal is pending, awaiting the outcome of the Texas dispute.

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In Los Angeles, the issue has arisen in the dispute over the Cathedral of St. Vibiana, the seat of the Roman Catholic diocese, damaged in the 1994 Northridge earthquake.

Cardinal Roger M. Mahony had wanted to raze the old cathedral and build a new one on the site. Thus far, he’s been blocked from doing so, however, by the Los Angeles Conservancy, which wants to save the 120-year-old structure, and he has since decided to build elsewhere downtown.

In court, Mahony’s lawyers argued, unsuccessfully, that the landmark-protection laws violate the church’s religious freedom.

The Supreme Court has been divided for decades over how to decide such disputes. In its opinions, the court spoke of the importance of religious liberty and said government cannot infringe on this right, except when it has a “compelling” need to do so.

Despite this grandly invoked formula, the court’s decisions involving religious freedom seem unpredictable, even haphazard.

For example, the court ruled in 1879 that the government can make polygamy a crime for Mormons, even though it is a central tenet of their faith. In 1972, the justices said the government could not compel the Amish to send their children to high school. A decade later, the court ruled the Amish can be compelled to pay taxes.

Acknowledging the confusion, the Supreme Court in 1990 disavowed its earlier opinions and announced a new approach. From now on, wrote Justice Antonin Scalia for a 5-4 majority, religious adherents will not be given “exemptions” from “generally applicable laws.”

In the case before the court that year, two Native Americans were contesting being fired as Oregon state drug counselors for having chewed peyote, an illegal narcotic. The two insisted peyote is central to their religious practices.

Too bad, Scalia said. “Any society would be courting anarchy,” he wrote, if people can claim a “religious exemption” from its laws involving taxes, crime, the military, schools and public safety. “The 1st Amendment’s protection of religious liberty does not require this,” he concluded in Oregon vs. Smith.

That decision, however, appeared to satisfy no one. Instead, it set off an uproar among religious activists, including many who normally agree on little.

Most religion cases that come before the Supreme Court concern the other clause of the 1st Amendment, which bans an “establishment of religion” by the government. In these cases involving school prayer or a creche in the public square, liberal groups such as the American Jewish Congress, the American Civil Liberties Union or People for the American Way regularly oppose the public mixing of religion and government.

On the other side, conservative groups such as the Christian Legal Society, Concerned Women for America and the National Assn. of Evangelicals are likely to back more religious observance in public.

In what some of them jokingly called a true miracle, all of these groups from across the spectrum joined together in a coalition that pressed Congress to write a federal law overturning the Supreme Court’s 1990 decision.

The Religious Freedom Restoration Act won near-unanimous approval in the House and Senate and was signed into law Nov. 16, 1993.

It restored the approach that was jettisoned by the justices. “Government shall not substantially burden a person’s exercise of religion,” it says, except to further “a compelling governmental interest.” Under this formula, religious adherents will usually, but not always, win in a conflict with the government, its sponsors said.

Religious freedom “is perhaps the most precious of all American liberties,” President Clinton proclaimed in signing the law. Its restored protection for the free exercise of religion “is far more consistent with the intent of the founders of this nation than the Supreme Court decision.”

Not surprisingly, the passage of the law is not the end of the story.

City and state officials complain that because of it they have been hit with hundreds of lawsuits, many of them from inmates. In Virginia, for example, inmates Randall “Lone Wolf” Mullins and William “Two Eagles” Martin say they need the feathers of endangered bald eagles for their religious ceremonies.

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The issue has come back to the Supreme Court in the case that began at St. Peter’s Church.

“They have been very hard-nosed with us,” Cummins said of city officials. “They have certainly shown no sensitivity to the fact we are a church. We could have been a department store in their eyes.”

After their first building plan was rejected, church officials came up with one that preserved the facade and two towers. A large addition would be attached to the rear.

The city rejected this proposal too. “It was a great, massive building that overpowers the existing structure,” said Heath, who is also an ordained Methodist minister.

“They have other space on their property where they could build” without disturbing the old church, he added.

St. Peter’s seems to be admired far more by city officials than by its parishioners.

Built in 1923, the “beautiful stone church . . . is a striking example of mission-revival architecture . . . that speaks directly of the history of this city and its people,” attorneys for the city say in their brief to the high court.

Emily Hartigan, a St. Mary’s University law professor who attends Mass at St. Peter’s, finds that description laughable.

“It’s imitation Spanish outside, with fake Art Deco inside,” she said. Although the city is anxious to appeal to tourists, it is “oblivious to the sacred. . . . This is a commercial enterprise to them. It is not history as it was. This is history as a charm to attract tourists.”

After protracted negotiations failed, the church filed suit on behalf of Archbishop P.F. Flores of San Antonio, charging the city with violating the Religious Freedom Restoration Act.

In response, the city contended that the law was unconstitutional. A federal judge agreed, but the U.S. 5th Circuit Court of Appeals upheld the law. The Supreme Court agreed to hear the case, known as City of Boerne vs. Flores, 95-2074, to resolve the question.

The Coalition for the Free Exercise of Religion that formed to press for the law defends it as essential to religious liberty.

“This is the most important church-state case ever to come before the Supreme Court,” said Oliver Thomas, an attorney for the National Council of Churches. “It affects every single religious person and every religious organization in America.” The Clinton administration has joined the case in support of the law.

But city and state officials argue just as strongly that the 1993 measure should be struck down as unfair and unworkable.

In their brief, city attorneys deride the law as “a bold and unprecedented example of federal social policy engineering that commandeers the states to accommodate religion more than the Constitution requires.”

They cite three reasons for striking it down. First, Congress lacks the authority to legislate for the states on such matters. Second, it violates the separation of powers for Congress to overturn a Supreme Court ruling on a constitutional matter. And third, the law forces the states to bestow benefits on dubious “religions” such as “Satanism, Wicca and Asatru.”

The outcome is hard to predict, notes Marc D. Stern of the American Jewish Congress, because the issue tugs at crosscurrents for several justices. He notes that Justices Anthony M. Kennedy, Clarence Thomas and Scalia are conservative Catholics who might be expected to side with the church, yet they also are the justices most inclined to side with state officials in constitutional cases.

The ruling, due by July, will not finally resolve the zoning dispute in Boerne, but it will tilt the scales heavily in favor of one side.

As Heath said: “One way or the other, it will pretty much tell us how to proceed.”