The Recorder, July 9, 1997, page 4
The U.S. Supreme Court's June 25 decision in City of
Boerne v. Flores, 97 C.D.O.S. 4904, dramatically shifts the
balance of power toward government and away from the individual
in matters of religious freedom. Lawyers representing members of
religious minorities are going to have a much tougher time
winning exemptions from government rules and practices that have
severe, albeit sometimes unintended, consequences for their
clients.
The Religious Freedom Restoration Act, which the 6-3 majority in Flores held unconstitutional, was a potent weapon in the arsenal of civil liberties lawyers. The 1993 federal law prohibited government at every level -- federal agencies and city councils alike -- from placing any "substantial burden" on an individual's religious exercise unless the government could prove that the burden was "in furtherance of a compelling governmental interest" and was "the least restrictive means of furthering" that interest.
The power of RFRA was exemplified in California by Cheema v. Thompson, in which the Livingston Union School District's strict "no weapons" policy clashed with the religious needs of three students, whose Sikh religious beliefs required them at all times to wear "kirpans," small ceremonial knives. In 1994, after the district refused to let the Cheema children attend while wearing kirpans, their parents kept them home and sued the district in federal court, relying on RFRA.
The school district, asserting an interest in maintaining safety, refused to discuss any meaningful accommodation -- such as the Cheemas' proposal to wear shorter kirpans sewn tightly into their sheaths. The trial court initially rebuffed the Cheemas' request for a preliminary injunction, but in September of 1994, the Ninth Circuit ordered the district judge to work out a plan of accommodation to allow the children to return to school pending trial. The court acknowledged that the school district had "a compelling interest in the safety of its schools" and admitted that the no-knife policy furthered that interest, but held that the district had not sustained its burden, under RFRA, of showing that this was "the least restrictive means to further its interest." The court noted evidence that "numerous other school districts" in the United States and Canada allowed children to wear kirpans, as well as the lack of evidence that kirpans had ever been involved in school-related violence.
The Cheema children returned to school, kirpans and all. And after nearly three years of further litigation -- including a second Ninth Circuit opinion -- the parties settled the case last month. The Recorder reported June 12 that the settlement allowed each of the children to wear a dulled kirpan blade no more than 2½ inches long, in a special safety pouch and sewn into its sheath ("ACLU, School Settle Suit Over Sikh Knives," In Brief). Only 15 days after the settlement was approved by the school board, the Flores decision held RFRA unconstitutional.
The Cheemas were lucky, for if their case arose today, the school district would have little legal motivation to make this long-overdue, common-sense accommodation. The First Amendment wouldn't help; the free-exercise clause is now virtually useless to someone seeking an exemption to a generally applicable law, thanks to the U.S. Supreme Court's 1990 decision in Employment Division v. Smith, 494 U.S. 872, which RFRA was designed to counter. Smith held, 5-4, that a law which isn't specifically aimed at religion passes constitutional muster, regardless of any burden it places on religious exercise, so long as the law is reasonably related to any legitimate government interest. The statute involved in Smith was an Oregon drug law that was used to deny unemployment benefits to workers fired for ingesting peyote as part of Native American religious ceremonies. A ban on weapons in school surely would satisfy the Smith test, being reasonably related to an interest in safety.
It isn't hard to imagine other mischief that could be, and will be, worked by this rule. A church serving sacramental wine to parishioners could run afoul of alcohol laws. A court's local rule against wearing hats could be used to deny admittance to a Jewish attorney or litigant whose religious beliefs require him to wear a yarmulke.
Lest this seem far-fetched, the reader may recall a Recorder story about a Jewish expert witness from San Francisco who was forced by a Texas judge to choose between removing his yarmulke and not testifying ("Attorney Flips His Lid Over Hats-Off Order From Judge," Oct. 7, 1996). Justice Sandra Day O'Connor's dissent in Flores described some of the government practices that were upheld in cases decided in the interim between Smith and the passage of RFRA, such as performing an autopsy on a son over the religious objections of his parents. There will be more such cases now. And incarcerated people seeking religious exemptions to prison rules won't have a prayer, which should please the producers of a recent hysterical report on ABC-TV's 20/20 about perceived abuses of RFRA by inmates.
What's even more frightening about Flores is that it could give credence to claims by some groups of the religious right that a constitutional amendment is needed to protect religious freedom. The major proposals of the past few years, including this year's "Religious Freedom Amendment" (H.J. Res. 78) by Rep. Ernest Istook, R-Okla., have had little to do with free exercise and everything to do with undermining the establishment clause, particularly by allowing government-sponsored school prayer and government funding of religious education. (The Supreme Court is already doing enough to undermine the establishment clause, with decisions such as last month's Agostini v. Felton, 97 C.D.O.S. 4765, holding that public school teachers can be sent into private religious schools to give remedial instruction at taxpayers' expense.)
In the wake of Flores, there have been some calls for a genuine religious freedom amendment -- one that would address only the free-exercise problem created by Smith and Flores. Tinkering with the First Amendment is not a good idea, however, and there are better ways of addressing the problem. For example, free-exercise provisions in state constitutions can be interpreted, or amended, to provide the same level of protection for religious exercise that RFRA provided.
In California, it is unsettled whether the free exercise language in article I, § 4 of the state constitution provides a level of protection akin to RFRA's or the minimal level of protection the First Amendment affords under Smith. The state Supreme Court examined both possibilities, but did not decide the question, in the coincidentally named Smith v. Fair Employment & Housing Commission, 12 Cal.4th 1143 (1996). In that case, the court decided that no substantial burden was placed on the religious exercise of a Chico landlady who was prohibited from discriminating against unmarried couples, even though she believed it would be a sin to rent to them. The decision was troubling, with regard to free exercise, because the court found it unnecessary even to consider whether a compelling government interest in preventing discrimination justified the burden on Mrs. Smith. The U.S. Supreme Court denied certiorari June 27.
There is other help for religious minorities. In some cases, anti-discrimination laws, such as Title VII of the federal Civil Rights Act, will require religious accommodations. RFRA presumably will continue to protect religious minorities against actions of federal agencies, as to which there was no question in Flores about Congress' power to legislate. People can, of course, seek legislative exemptions to laws that affect their religious exercise, although this option is unlikely to be of much help to small or controversial religious groups.
Finally, there is the hope that the U.S. Supreme Court will eventually repudiate the Smith doctrine. The three dissenting justices in Flores called for reconsidering Smith; and only two justices, including the author of Smith (Justice Antonin Scalia), wrote to defend it against the dissenters' attack. The court will be presented with many opportunities to reconsider Smith, and I predict that, after one or two more personnel changes, the court will restore the greater protection afforded to religious minorities before Smith.
In sum, Flores will surely make times tougher for religious minorities. But supporters of free-exercise rights can minimize the impact by making full use of the religious liberty protections that remain, by lobbying for changes in state and local legislation where necessary, and -- in the long term -- by presenting the U.S. Supreme Court with opportunities to overrule Smith.
Martin Kassman practices appellate litigation and First Amendment law in San Francisco. He volunteers with Americans United for Separation of Church and State and the American Jewish Congress, both of which helped draft the Religious Freedom Restoration Act. His e-mail address is [an e-mail address, no longer current, appeared here].
© Martin Kassman 1997, 2004, 2005 Reprinted with The Recorder's editorial enhancements, by permission. Hyperlinks to case reports added February 10, 2004.