February 21, 2006
by Rev. N. J. L'Heureux, Jr.

The U.S. Supreme Court, in a unanimous decision written by Chief Justice John Roberts, today affirmed the constitutionality of the Religious Freedom Restoration Act of 1993 as it applies to federal law and regulations. In the case, Gonzales v. O Centro Espírita Beneficiente União Do Vegetal, the Court affirmed the decision of lower courts declaring that the government must permit exception to general laws which burden religion unless it shows a "compelling interest" that cannot be achieved with less restrictive means. It found that the government failed to show significant danger to society in permitting this New Mexico congregation with Brazilian roots to import its sacramental beverage, hoasca (pronounced wass-ca) tea, which contains a natural hallucinogen included on the federal list of controlled substances.

Over the years, the Supreme Court developed the "strict scrutiny" test – requiring the government to bear to the burden of proving a compelling interest (one of the "highest" order, generally affecting health or safety) and no less restrictive means – whenever a Constitutionally-protected right is implicated. In the Free Speech arena, for example, the right to yell "fire" in a crowded theater is restricted on the basis that the government has a compelling interest in preventing the resulting panic. In cases going back to Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), the Court applied this test to claims of individual burdens on the free exercise of religion. In Sherbert, the Court ruled that unemployment benefits could not be withheld from Adele Sherbert, a Seventh-day Adventist, who was fired for refusing to work on her Sabbath. In Yoder, the Court permitted Amish students to be excused from compulsory high school attendance for religious reasons, notwithstanding a clear governmental interest in compulsory schooling.

In 1990, the Court's divided ruling in Employment Division v. Smith (authored by Justice Antonin Scalia and joined by four of his colleagues) denied unemployment benefits to two Native Americans, Alfred Smith and Galen Black, who had been fired as drug counselors for using peyote in a religious sacramental rite. The Court effectively set aside the Sherbert test and held that the Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws. Many saw this as a fatal blow to religious freedom. Congress responded by enacting the Religious Freedom Restoration Act of 1993 (RFRA) which requires the Sherbert strict scrutiny test be applied in all cases where a religious practice is inhibited by a law or regulation. An extraordinarily broad coalition of religious and secular groups interested in religious freedom – representing the spectrum from liberal to conservative – campaigned for the adoption of RFRA.

At its first opportunity, the U.S. Supreme Court declared RFRA to be unconstitutional as applied to state and municipal laws (City of Boerne v. Flores, 1997), finding that Congress overreached its authority with so sweeping a law aimed to affect, at least potentially, every law of every state. Boerne left open, however, the question of RFRA's applicability to federal law. Today's decision in Gonzales answers the question: RFRA does apply with explicit force to all federal laws and regulations!

Congress, meanwhile, responded to the Boerne decision by adopting the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), applying the same language and standards of judgment as in RFRA, but more narrowly focused on local and state laws affecting land use (zoning and landmarking) and the religious rights of incarcerated and hospitalized persons. In Congressional hearings throughout the 1990s, these were the two arenas where the most conflict had been identified. Last year, the Court rejected an Establishment Clause challenge to RLUIPA in the case of Ohio prisoners denied access to religious literature and ministerial services (Cutter v. Wilkerson).

Today's decision in Gonzales v. O Centro Espírita Beneficiente União Do Vegetal very effectively strengthens religious liberty on the federal level, but it does so explicitly on the basis of a statutory right in RFRA and not on the basis of a Constitutional right. Among the several enumerated rights in the First Amendment – religion, speech, press, assembly – only religion is treated in this diminished way as a result of the 1990 Smith decision. Today's decision also augers well for future rulings on RLUIPA cases as they eventually make their way to the U.S. Supreme Court.

The Queens Federation of Churches often joins amicus briefs in religious liberty cases. Along with other ecumenical and denominational bodies, the QFC joined briefs in this case both before the U.S. Supreme Court and in the earlier proceeding before the Tenth Circuit Court of Appeals.

Queens Federation of Churches
Rev. N. J. L'Heureux, Jr., is Executive Director of the Queens Federation of Churches. He is also moderator of the Committee on Religious Liberty of the National Council of Churches USA.