Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Time to Amend the Constitution

James Skillen


July 7, 1997

One step ahead, one leap backward. Among the many important decisions the U. S. Supreme Court handed down at the end of June, in the hectic final week of its 1996-97 term, were two key church-state rulings. In the Agostini case, by reversing its own earlier decision, the Court curbed anti-religious discrimination. However, in its other ruling, which trashed a sweeping corrective law backed by a united Congress and religious community, the Court reestablished a pernicious and cramped concept of religious liberty.

The Agostini decision overturned the 12-year-old Aguilar v. Felton ruling forbidding public school teachers from entering religious schools to give remedial help. Now kids won't have to trudge off to trailers located on "secular" ground in order to get federally funded assistance. For this result, the Court had to change its mind. "Interaction between church and state," it now admits, is "inevitable," and most of the justices no longer believe religion to be so toxic that the merest brush with it corrupts public purposes. Neutrality, the Court affirmed, is what the First Amendment requires when government deals with religious and nonreligious institutions.

Incredibly, however, in its other church-state ruling, City of Boerne v. Flores, the Court twisted the principle of neutrality into a noose by ruling that government need not make space for religion so long as its laws treat everyone the same. As if religious liberty is not as surely curtailed by a law forbidding everyone from handing out literature on the street as by a government diktat against distributing evangelistic tracts!

This case concerned zoning restrictions on a Catholic Church, but the real battle was about the Religious Freedom Restoration Act. RFRA, adopted in 1993, was Congress' attempt to overcome the Supreme Court's turn against religious liberty in its 1989 Smith decision. In Smith, the Court had abandoned its rule that a law infringing religious liberty is only valid if a compelling government interest is at stake and if the least burdensome means to achieve it is chosen. The Smith Court instead pronounced the First Amendment satisfied so long as the law treats all alike, not targeting religious people and practices.

Rightly fearing that this interpretation of neutrality would allow government to run roughshod over any religious deviation from the secular common denominator, RFRA was drafted and enacted in a unique show of bipartisan and interfaith consensus. It gave no sweeping exemption of religious people from the laws of the land but only reasserted the First Amendment rule that government must affirmatively honor religious liberty.

With its Boerne ruling, the Court has restored the constricting Smith version of neutrality as the law of the land, ignoring Justice O'Connor's warning that RFRA is what the Constitution requires. To a majority of her colleagues, RFRA was merely Congress' attempt to usurp the Court's right to say what the Constitution means.

If that's the game, there is but one remedy: a constitutional amendment making clear government's positive responsibility to ensure religious liberty. The goal is not privilege for "religion" but justice for the whole public. Bring on the amendment proposals!

—Stanley Carlson-Thies, Senior Fellow
   Center for Public Justice

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”