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The battle of Boerne

National | Zoning dispute becomes Supreme Court fight over RFRA

Issue: "Social Security," Jan. 11, 1997

from Boerne, Texas

This isn't the first time the central Texas town of Boerne (pronounced Bernie) has shown itself to be a little less than religiously tolerant. In the mid-19th century, this settlement of German-born Free Thinkers (followers of anarchist poet/teacher Ludwig Boerne) posted a sign at the town's border, the Cibolo Creek. "Ministers and Priests," it read, "Don't let sundown catch you in this town."

Emil Fleury, a young French priest recruited to brave Indians and Free Thinkers and start a mission in Boerne, wisely picked a spot on the opposite bank of the Cibolo.

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The chapel he built still stands, as does the larger church built half a century later, but the Free Thinkers aren't gone. A new showdown between the church and city fathers is taking place not on Haupte Strasse (Main Street in nearly bilingual Boerne) but before the Supreme Court.

The congregation of St. Peter the Apostle Catholic Church wishes to expand the church, which now seats about 220 people; the church's membership list includes more than 1,000 families. But the congregation has clashed with the city's strict zoning regulations, which restrict changing the appearance of structures deemed historical. The right combination of issues and timing has made this the test case for the 1993 Religious Freedom Restoration Act.

Briefs are due to the high court later this month, and oral arguments are slated for March. By July, the Supreme Court should rule whether RFRA, supported by everyone from the Southern Baptist Convention to the ACLU, is constitutional. Another question-perhaps the greater question for Christians who are concerned about increased government jurisdiction over matters of faith-is whether RFRA is wise.

Here's the problem: Religious practice, the Supreme Court suddenly decided in 1990, should be treated like every other kind of activity. But prior to that decision (Employment Divison, Oregon Department of Human Resources v. Smith), the court had always held that religion must be treated more than equitably, that it should be given the broadest freedom possible. The court looked to the Free Exercise clause of the First Amendment, which was designed to exempt believers from civil laws when obedience would violate their beliefs. Unless the state had a "compelling interest" (the strictest legal test), then civil law must give way to religious belief. That's called the "Sherbert test," named for a 1963 case concerning a woman denied unemployment benefits because she wouldn't work on the Sabbath (she won back the benefits).

Rulings made under this principle include Walker v. First Orthodox Presbyterian Church (1980), in which a San Francisco church fired a church organist because he was a homosexual-he sued under the city's gay rights ordinances-and Smith v. Ricci (1982), which allowed students to be exempted from sex education classes that went against their religious beliefs.

The 1990 Smith case seemed relatively minor. Two drug counselors in Oregon, both Native Americans, regularly smoked the hallucinogenic drug peyote in religious ceremonies. The state said that was incompatible with the nature of their jobs. The Supreme Court went beyond merely agreeing and even revamped the test it uses. Now, according to Smith, the state need not show a "compelling interest." Instead, all it has to show is that a law is neutral toward religion. Only where the government singles out religion does it need to show "compelling interest."

To use Boerne as an example, the zoning laws concerning the city's historical district do not single out religion. Everyone who tries to build or improve structures within the district must meet with the approval of the zoning board and the Historical Landmark Commission. St. Peter's isn't the first group to be turned down. Therefore, the law is neutral, and St. Peter's must obey it like everyone else.

When the Smith ruling came down, religious groups, civil libertarians, and even members of Congress were outraged. "The implications of this ruling are staggering," said then-Rep. Stephen Solarz (D-N.Y.). "Minors may no longer be permitted to participate in religious rituals involving wine. Those religions that require special articles of clothing or strict standards of modesty could be penalized by workplace and schoolhouse dress codes. Even the practice of ritual circumcision could be outlawed if certain elements viewing it as unnecessary prevail upon state legislation to ban it."

Not everyone was angered, however. George Will wrote praising the "cool realism and secularism" of the founding fathers. "A central purpose of America's political arrangements is the subordination of religion to political order, meaning the primacy of democracy."

Mr. Will was historically wrong and decidedly out of touch with contemporary feelings as well. The Smith decision gave rise to RFRA, an attempt to give statutory protection to religious freedoms after the Supreme Court had taken away constitutional protection.

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