The battle of Boerne

"The battle of Boerne" Continued...

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

But it's not a perfect law, and one religious liberties group, The Rutherford Institute, was initially leery. "The Supreme Court has chosen to tamper with the delicate constitutional balance of the First Amendment," Rutherford founder John Whitehead wrote in 1993, as the law was being debated. "The present necessity is to attempt to restore that balance without creating mutations that could further erode the right to religious liberty. It is important to avoid hasty fixes to complex constitutional problems. If legislation is a solution, it is imperative that it be properly worded and narrowly tailored."

It wasn't.

As it passed through the Senate, RFRA picked up a small but significant qualifying phrase: "substantially burden." The state may not substantially burden a person's religious freedom without showing a compelling state interest. But what is the definition of a "substantial" burden? That's the rub.

One court-the California Supreme Court-has said that forcing a California woman, Evelyn Smith, to allow an unmarried couple to rent a home from her was not imposing a substantial burden, because she had the choice of getting out of the rental business.

Another problem with RFRA is that it's simply impolitic. Many judges see it as an example of Congress' stepping on the judiciary's toes. In 1995, a federal judge ruling on the Boerne case said he was "convinced of Congress' violation of the doctrine of separation of powers by intruding on the power and duty of the judiciary."

That's the issue the Supreme Court will decide.

And finally, RFRA has lost popularity because of the number of prison cases it has sparked. More than half of the nearly 300 RFRA rulings so far have been prison-related. Here are four examples:

**red_square** Two Native Americans in a Virginia prison have sued, contending that they need eagle feathers for their worship services.

**red_square** In a Wyoming prison, a group of "Luciferians" asked for and received permission to use the prison chapel for their services. Then, "in an apparent burst of religious enthusiasm, they burned Christian hymnals and Bibles," according to the state attorneys who defended the prison when it revoked the group's future access to the chapel.

**red_square** An inmate in Hawaii sued because prison officials forced him to cut his hair and denied him religious items, including peyote and a sweat lodge.

**red_square** And in Virginia, a death row inmate wanted to be baptized by immersion, rather than by sprinkling. Unlike the previous four examples, this inmate eventually won, with the help of the Rutherford Institute.

Boerne is a town that trades on its history, City Manager Ron Bowman says, and the church zoning fight is nothing personal. "The City Council is trying to preserve its heritage," says Mr. Bowman. "Our industry here is recreation and tourism. From the council's perspective, this isn't about religion."

But the battle has scarred the town. Case in point: Mr. Bowman and his family no longer attend St. Peter the Apostle Catholic Church, though they're still members. "I tried to keep a low profile," he admits, "But it just became too awkward."

The church's congregation has lost a few dozen families, acknowledges pastor Tony Cummins. And a group of still-active members has actually raised money to help the city with its legal bills. "There are families that aren't talking, friendships that have ended, and I know of marriages that have broken up over this," says Kit Danley, editor of the Hill Country Recorder, one of the two local newspapers.

A compromise was nearly reached in September; the church and the city shared the cost and hired an architect to design an addition to the church that would preserve its historic look. That look, by the way, is really the only thing about the building in question that is historic. The "mission-revival" building dates back only to 1929; the original 19th-century church building, the one constructed by Emil Fluery, sits off to the side, under huge oak trees.

The design the architect delivered would have preserved about 70 percent of the existing building-but the City Council rejected the compromise after members of the Historical Landmark Commission said they were "disappointed" the city would seek a compromise when it was on the brink of the Supreme Court decision.

Neither church nor city officials would say how much has been spent on this legal battle so far.

John W. Alexander
John W. Alexander


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