c. 1997 Religion News Service

WASHINGTON _ The U.S. Supreme Court heard oral arguments Wednesday (Feb. 19) in a landmark church-state case that religious groups across the theological spectrum believe could have far-reaching implications for freedom of religion.

At issue is the constitutionality of the 1993 Religious Freedom Restoration Act (RFRA), which mandates that governments show a strong or”compelling”reason before enacting laws that”substantially burden”some religious believers.

The case, City of Boerne vs. Flores, centers around St. Peter the Apostle Roman Catholic Church in Boerne, Texas. The church was denied permission to expand its facilities to better accommodate its growing congregation. City officials said because St. Peter’s is in a historic district, renovations would violate local preservation laws.

St. Peter’s sued the city, arguing the code violated RFRA by hindering the church’s ability to freely exercise its religion.

But in Wednesday’s arguments, attorney Marci Hamilton, representing the city, said Congress went beyond its constitutional authority when it adopted RFRA.

The law was passed in the wake of the Supreme Court’s controversial 1990 Oregon Employment vs. Smith decision. In that ruling, the justices said state anti-drug rules could be applied to religious use of peyote, a hallucinogenic drug, in American Indian religious ceremonies.

Religious groups claimed the High Court had”gutted”First Amendment guarantees of the free exercise of religion. After aggressive lobbying from the religious community, Congress passed RFRA by a near unanimous margin in 1993.

But Hamilton said that with RFRA, Congress inappropriately attempted to”reinterpret the meaning of the Constitution”on religious freedom cases. “This is the worst of legislative overreaching,”she said, adding that RFRA had”dramatically”shifted the”balance of power”to favor churches.

Also arguing against RFRA was Jeffrey Sutton, state solicitor of Ohio, who said the law violates”an etiquette of federalism”by calling every state law and action into question.”It’s totally global in nature,”he said. In a friend-of-the-court brief, Ohio and 12 other states urged the justices to strike down RFRA.

However, attorney Douglas Laycock, representing St. Peter’s, argued RFRA is entirely consistent with congressional civil rights legislation such as the Voting Rights Act. “This is not such a dramatic power grab,”Laycock told the justices.

The Clinton administration also urged the justices to uphold RFRA. Acting U.S. Solicitor General Walter Dellinger said that without RFRA the practices of small, minority religions would be especially vulnerable to legislative discrimination by the majority.

Both sides were vigorously questioned on a variety of issues. Justice Clarence Thomas was the only justice who did not ask a question.

At a news conference after the arguments, attorneys and religious leaders highlighted their concerns about the implications of the case.”Religious freedom is threatened in America. People aren’t going to concentration camps, but religious practices are being stopped or being interfered with or burdened repeatedly,”Laycock told reporters.

Laycock said historical landmark and zoning cases are one of the most frequent ways religious groups are burdened by the state. “Churches are 42 times more likely to be landmarked than any other kind of building,”Laycock said. “(RFRA) is the most important religious liberty law in the history of America,”said Rabbi David Saperstein, speaking on behalf of the Coalition for the Free Exercise of Religion, an umbrella group of more than 60 religious and civil rights organizations.

The coalition filed a friend-of-the-court brief urging the Court to uphold RFRA. The coalition represents Christians from numerous denominations, Jews, Muslims, Buddhists, America Indians, Sikhs, as well as advocacy groups from the politically liberal American Civil Liberties Union to the conservative Concerned Women for America.

Several observers said they were surprised at the aggressive questioning by the justices.”It was a slug fest at times,”said Steve McFarland, director of the Christian Legal Society’s Center for Law and Religious Freedom.

McFarland said he was particularly troubled by a line of questioning by Justice Anthony Kennedy, a key swing vote on church-state cases, who appeared to suggest that granting legislative exemptions to religious organizations violated the First Amendment’s Establishment Clause.

Currently, religious organizations are exempt from following some laws that violate their beliefs. For example, churches that believe homosexuality is a sin may not be forced to hire gay pastors, even in jurisdictions prohibiting discrimination based on sexual orientation.”All of that is at stake,”McFarland said.

Some religious leaders cautioned against reading too much into the spirited questioning.”One thing I’m completely certain of is that the arguments rarely bode anything,”said Mark Pelavan of the Religious Action Center of Reform Judaism.

However, Pelavan added,”The argument demonstrated what we knew: that there is a lot going on with this case.” He said he believes this is”a pivotal term”for the Supreme Court on religion issues. Later this term, the Court will hear a case that questions the parameters of what constitutes government”establishment”of religion.

A decision in the RFRA case is expected by the end of June.

MJP END LAWTON