Religious freedom ruling angers Jews

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WASHINGTON — Jewish leaders have decried the U.S. Supreme Court's decision to declare unconstitutional a 1993 federal law aimed at curbing governmental interference in religious practice.

They called it a devastating blow to Jews and other religious communities.

The justices, in a 6-3 decision Wednesday, said Congress usurped power from state and local governments — and from the Supreme Court itself — when it enacted the Religious Freedom Restoration Act, also known as RFRA.

"It's sort of like one of your children getting killed," said Marc Stern, co-director of the American Jewish Congress' legal department.

"There is now no more federal protection for religious practice," he added. "That hasn't been the case in two generations."

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, called the decision one of the "worst mistakes this court has ever made."

The decision arose from a dispute between a small Texas town and a Roman Catholic church that wanted to tear down part of its 70-year-old sanctuary and build an addition.

Town officials challenged the church's decision in what began as a landmark-preservation battle. The church argued that the city's refusal to issue a permit was an example of governmental restriction on a religious group.

The Supreme Court move upholding the town government seemingly wipes out one of the Jewish community's crowning legislative achievements.

Jewish organizations across the political and religious spectrum had been instrumental in pushing the legislation through Congress, and they had hailed its enactment as one of the most important developments for religious liberty this century.

Still, word of Wednesday's decision hit Jewish leaders both locally and nationally — indeed, religious leaders and civil rights advocates everywhere — with unusually blunt force.

Until now, legislators had to consider the needs of religious institutions, including those of Jews, explained Mark Schickman, chair of the S.F.-based Jewish Community Relations Council.

"In a lot of localities, we don't have the political clout or the ear of the public policy-makers. So for somebody like us, it was all the more important that this protection was here," added Schickman, who is also co-chair of the national Jewish Council for Public Affairs' task force on the Bill of Rights.

Without the protections afforded under RFRA, it will be more difficult to claim that actions taken by government improperly restrict religious freedom, experts say.

AJCongress, for example, had used the RPRA to press prisons to supply kosher food to both Jewish and Muslim inmates.

Under the act, AJCongress' Bob Kane added, government employees could ask for time off work for religious holidays, such as Rosh Hashanah and Yom Kippur. Observant Jews also could ask not to work on Shabbat.

"It affects Jews who have practices that aren't in line with majority practices," said Kane, who is AJCongress' Northern Pacific region president.

The Anti-Defamation League noted that "neutral laws regarding the drinking age and medical procedures could be enforced against Christian communion and Jewish circumcision rituals."

It will also be harder to make the case for excusing Jewish students from school Christmas productions, opposing a law prohibiting state employees from wearing hats or head coverings in the workplace, or fighting a city that attempts to use its zoning power to shut down a church's homeless feeding program.

"Between 1990 and 1993, we lost some 60 religious freedom cases that we would have had a good chance of winning under RFRA," Saperstein said.

Wednesday's Supreme Court decision came two days after the high court, in another closely watched church-state case, ruled that public school systems can send teachers into parochial schools to offer remedial instruction.

But unlike the decision in Agostini vs. Felton, which may indicate greater acceptance among the justices for other forms of federal aid to religious schools, the RFRA ruling provides no further insight into the court's attitude toward church-state issues, legal analysts said.

The decision, instead, was limited to questions surrounding the nature of federalism and the separation of powers.

"We take comfort in the fact that, in light of the decision in the Agostini case, the court does appreciate the role of religion in American society and that it apparently viewed" the RFRA case "as one strictly confined to the separation of powers in our federal system," said Nathan Diament, director of the Orthodox Union's Institute for Public Affairs.

The RFRA decision centered on the case Boerne vs. Flores, which involved a dispute between the town of Bourne, Texas, and the local Roman Catholic Church. The church had invoked RFRA after city officials denied an application for the church to expand into the city's historic district.

City officials responded by launching a constitutional attack on RFRA.

Under the 1993 law, passed nearly unanimously in Congress and signed into law with strong support from President Clinton, federal, state and local governments were required to show a "compelling interest" before interfering with the practice of religion. Even then, the law requires governments to adopt the least restrictive means possible.

Congress enacted the law in response to a 1990 Supreme Court ruling, which said laws that otherwise are neutral toward religion can be valid even if they may infringe on some people's religious beliefs.

Kane considered the Religious Freedom Restoration Act an example of minority religions working in coalition with majority religions. In effect, he said, the Supreme Court eliminated the ability of minority religions to turn to legislation for help.

"The problem with all these cases — they don't recognize that being a minority in a democracy is a very fragile thing. Minorities either have to work in coalition with other groups or rely on the courts to protect their rights," Kane said.

Schickman is particularly concerned that the latest decision may be part of a trend.

"It's not that we care so much about whether this particular church gets to expand or not. But we care a great deal whether the value of religious expression and religious freedom will be put at least on par with things like local zoning ordinances," he said.

In its ruling this week, the high court decided that Congress had overstepped its legislative authority and usurped judicial authority.

Writing for the court majority, Justice Anthony Kennedy said, "Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of other branches."

"RFRA," he added, "contradicts vital principles necessary to maintain separation of powers and the federal balance."

Kennedy was joined by Chief Justice William Rehnquist and Justices John Paul Stevens, Clarence Thomas, Ruth Bader Ginsburg and Antonin Scalia.

Justices Sandra Day O'Connor, David Souter and Stephen Breyer dissented.

O'Connor and Breyer, for their part, called for reconsidering the court's 1990 ruling.

In the wake of RFRA's invalidation, however, Jewish legal experts seemed at a loss in trying to figure out where to go from here.

"The fact that it was a 6-3 vote, so broadly cast, would lead me to believe that it is not going to be easy to find a federal legislative fix," Stern said.