Published Online: February 26, 1997

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High Court Weighs Religious-Freedom Measure

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Washington

Congress went beyond its powers in a 1993 law that makes it more difficult for government to infringe on religious practices, the lawyer for a Texas city told the U.S. Supreme Court last week.

The high court is using a church's historic-preservation dispute with the city of Boerne, Texas, to weigh the constitutionality of the Religious Freedom Restoration Act.

The law is "the worst of legislative overreaching," argued Marci A. Hamilton, the lawyer for Boerne, a city near San Antonio that cited historic preservation in refusing a Roman Catholic parish permission to expand its 74-year-old church.

The religious-freedom measure restored a level of constitutional protection for religion that the court took away in a 1990 decision, Employment Division v. Smith. In that 5-4 ruling, the court said there is no religious exemption to laws that happen to burden religious groups or practices.

Congress tried to undo the ruling by restoring the highest level of constitutional scrutiny for any federal, state, or local law or policy that infringes on religious actions. Under the law, government at any level may not "substantially burden" religious activity without showing a compelling governmental interest.

The law has enjoyed strong support from President Clinton and a broad coalition of religious, civil liberties, and education groups, including those representing Christian schools and home-schooling parents.

However, the National School Boards Association has expressed reservations that religious groups will cite the law to be excused from school rules or from parts of the curriculum.

"We have a concern about opening up the floodgates [to religious challenges] on issues such as safety and curriculum," said Gwendolyn H. Gregory, the deputy general counsel of the NSBA.

In one prominent case, a federal appeals court ruled that a California school district had to allow three Sikh students to carry religiously significant knives known as kirpans to school despite the district's zero-tolerance policy for weapons.

The U.S. Court of Appeals for the 9th Circuit ruled in 1995 that the Livingston, Calif., district failed to provide the "least restrictive alternative" to infringing on the students' religious faith.

The district was ordered to allow the children to wear the ceremonial knives under their clothes as long as they were secured to sheaths.

Broad Authority

During arguments last week in City of Boerne v. Flores (Case No. 95-2074), Justice Sandra Day O'Connor appeared to allude to the Livingston case.

She wondered whether the religious-freedom law would allow students to make the claim that "their religious beliefs require them to take weapons to school."

Lawyers defending the law argued that Congress has broad authority to pass laws enforcing religious freedom. "Because minority religions often lack the political power to obtain accommodations, Congress concluded that legislation was needed to preserve for them the same religious freedom enjoyed by more established faiths," Solicitor General Walter Dellinger argued in a brief filed on behalf of the Clinton administration.

A decision is expected by July.

Service Case Declined

After a four-week recess, the justices took a number of other actions last week. The court:

  • Ruled unanimously in Robinson v. Shell Oil Co. (No. 95-1376) that under Title VII of the Civil Rights Act of 1964, former employees can bring retaliation claims against old employers.
  • Declined to hear a challenge to a North Carolina district's community-service requirement for students. Lower federal courts upheld the Chapel Hill-Carrboro City district's requirement that students complete 50 hours of service for high school graduation. Parents had challenged the requirement as a form of involuntary servitude.

The appeal was Reinhard v. Chapel Hill-Carrboro City Board of Education (No. 96-848.)

  • Refused to get involved again in a long-running dispute over whether Mississippi followed federal voting-rights law when it adopted a new districting law in 1986.

The high court in Dupree v. Moore (No. 96-669) refused to review a ruling by a federal district court in Mississippi that allows the state to seek approval of the districting law from the federal district court in Washington.

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