Religion and the Constitution in the 1990s

The U.S. Constitution says Congress shall make no law:

1. Respecting an Establishment of religion.
2. Prohibiting the Free Exercise of religion.

The Establishment clause received most of the attention early in the country's history. Only in recent years has the Free Exercise clause received much attention and become controversial. In this talk, Dr. Canon of the University of Kentucky Department of Political Science dealt with recent developments concerning the Free Exercise clause. Problems occur when a religious practice would conflict with otherwise legitimate law.

Important examples of Free Exercise controversies include:

• prohibiting polygamy among Mormons,
• prohibiting animal sacrifices by some Haitian sects,
• prohibiting very long hours for children selling religious material,
• an employer requiring work on Saturdays (against a religion),
• requiring Amish children to attend school beyond the 8th grade,
• prisoners asking provision for peculiar rituals,
• using peyote in American Indian ritual practices,
• zoning restrictions on church buildings and activities.

The courts had concluded in a 1990 decision that government restrictions on religious practices were valid as long as they were evenly applied reasonable means to achieve a legitimate social policy. This decision eased the earlier interpretation that the government had to show that the restriction was a compelling state interest that was being served by the least restrictive means possible.

In response to objections that religious freedom had been weakened by the 1990 decision, the U.S. Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to return to the harder compelling state interest criteria. However, the RFRA was declared invalid in 1997 as an attempt by congress to substitute its own interpretation of the Constitution for the courts interpretation.

Now attempts are being made to restore the RFRA. Some states (but not Kentucky) have passed their own RFRAs, and congress is considering another attempt.

Some more detail is available in an article in U.S. News describing the controversies which led to the overturn of the RFRA.

The PCUSA expressed its concern in 1998 at the 210th General Assembly (see below). It cited two recent zoning cases restricting Presbyterian churches: one church could not operate a soup kitchen in their building, another could not demolish a structure in a historic district.

Whereas, the Presbyterian Church (U.S.A.) has a long-standing policy and tradition of protecting and promoting religious liberty, especially as it is enshrined in the First Amendment to the U.S. Constitution; and

Whereas, the protections provided in the First Amendment were seriously eroded, if not actually abrogated, by the U.S. Supreme Court in its decision Oregon V. Smith; and

Whereas, the 202nd General Assembly (1990), joining with the National Council of Churches in responding to that decision,

expresses its extreme outrage and distress that the Supreme Court of the United States has in effect nullified the Free Exercise Clause of the First Amendment by ruling in Oregon V. Smith, April 17, 1990, that:

(a) religiously motivated conduct can be punished under any law of general application without the government's being required to justify such punishment by a "compelling state interest" that can be served in no less burdensome way; government need show only a "reasonable means" to achieve a legitimate purpose -- the same standard required where no constitutionally protected rights are at stake (Minutes, 1990, Part I, p. 827); and

Whereas, the 200th General Assembly (1988) declared in its policy "God Alone Is Lord of the Conscience":

As with any other constitutionally protected activity the government must first show a genuinely compelling state interest in order to justify any intrusion into religious activity at all. Even when such an interest is demonstrated, such as the need to enforce the criminal laws, government must be limited to the least intrusive means by which to accomplish the stated purpose. (Minutes, 1988, Part I, p.553)

Churches have a right of autonomy by the Free Exercise clause of the First Amendment. Each worshiping community has the right to govern itself and order its life and activity free of government intervention. (p.555)

The government must assert a compelling interest and demonstrate an imminent threat to public safety before the right of autonomy may be set aside in specific instances and government permitted to interfere with internal church activities. (p.555); and

Whereas, the Religious Freedom Restoration Act (RFRA), adopted by the U.S. Congress in 1993, was a strong, bipartisan attempt to restore legislatively the freedoms traditionally associated with the First Amendment, which legislation was broadly advocated by members of the religious community, including the Presbyterian Church (U.S.A.) because of its congruence with General Assembly policies; and

Whereas, the District Court in the Washington, D.C., circuit utilized RFRA to find on behalf of the Western Presbyterian Church in its dispute with the District of Columbia's refusal to allow the congregation to continue its soup kitchen at a new location; and

Whereas, the U.S. Supreme Court has subsequently struck down the primary provisions of that legislation as unconstitutional in its Flores v. City of Boerne decision; and

Whereas, after RFRA was struck down, First Presbyterian Church of Ypsilanti, Michigan's challenge to a historic district order was denied; and

Whereas, the order directed the church to rehabilitate and open for public use a structure the church wished to demolish to expand a memorial garden; and

Whereas, the church must now attempt to prove that, even under a less stringent standard, the church has overstepped its bounds; and

Whereas, that will be much more difficult;

Therefore, the 210th General Assembly (1998) of the Presbyterian Church (U.S.A.):

1. Reaffirms its support of the Historic Free Exercise of Religion as guaranteed prior to the 1990 Employment Division V. Smith decision requiring all governments to demonstrate a compelling state interest and that its proposed restriction on the free exercise of religion is the least restrictive means of accomplishing what is truly a compelling governmental interest.
    
2. Directs the Washington Office of the Presbyterian Church (U.S.A.) and the Stated Clerk of the General Assembly to continue their participation in and support of the Coalition for the Free Exercise of Religion in advocating a new federal Religious Freedom Restoration Act in the Congress, one that restores the Compelling Interest/ Least Restrictive Means Test, that contains a broad definition of "exercise of religion," and that provides for the protection of the religious practices of all persons.
    
3. Directs the Washington Office and the Stated Clerk to assist lower governing bodies and individual congregations in advocating that states adopt their own RFRA statutes that restore the Compelling Interest/ Least Restrictive Means Test, that contain a broad definition of "exercise of religion," and that provide for the protection of the religious practices of all persons.
    
4. Directs the Stated Clerk to continue to join in amicus curiae briefs in support of Religious Freedom Restoration Act's continued applicability to the federal government.  
5. Directs the Stated Clerk to continue to collect data demonstrating the effects upon the ministries of PCUSA congregations of not having RFRA protection.