Two cases significant in terms of religious liberty now pend in the Supreme Court. The court’s decision in City of Boerne v. Flores will have a crucial effect on the religious freedom of all Americans since it involves the validity of Congress’s 1993 Religious Freedom Restoration Act (RFRA), on which San Antonio Archbishop Paul F. Flores had relied in opposing a religiously restrictive city ordinance. The decision in the other case, Agostini v. Felton has the potential of advancing religious freedom for many since it may revise the confused Supreme Court jurisprudence of the past half-century on church-state separation.
Our “Watch” of March 1996 had focused on the Flores case as it relates to the problem of separation of powers—i.e., whether Congress may override the Supreme Court’s interpretation of the Constitution. Today we explore its greater significance. The case is the fourth in a chain of legal developments in our day which have governed our exercise of religious liberty: (1) the Supreme Court’s decision in Wisconsin v. Yoder (1972) involving Amish parents, where the court held that the Constitution forbids government to burden religion unless it proves its action to be the least burdensome way by which it can meet some supreme public necessity; (2) the court’s decision in Employment Division v. Smith (1990), where the court scrapped that holding and said that government may indeed limit the exercise of religion if the limitation is simply what it called “religiously neutral” (doesn’t expressly target religion) and “generally applicable” (doesn’t single out religious groups); and (3) the RFRA (in 1993), by which Congress legislated restoration of the Yoder rule, thus overriding the Smith override.
As the day of oral argument in Flores approached, the court was papered with amicus briefs. Attorneys general of sixteen states attacked the RFRA as exceeding the authority of Congress and inviting multitudes of phony religious litigations. Dozens of religious organizations, including U.S. Catholic Conference and the Catholic League for Religious and Civil Rights, filed briefs supporting the RFRA. The American Civil Liberties Union and People for the American Way likewise urged that the RFRA be upheld. The conservative-liberal mix on both sides of the issue reflects, in a way, the division within the Supreme Court where conservatives had joined liberals in the Smith decision and in dissenting from it.
So as the country faces a confrontation between its Congress and its Supreme Court, religious supporters of RFRA say that what is involved—religious liberty—is the very heartbeat of our national existence. RFRA critics, to the contrary, say that the matter is not one of heart but of head—i.e., rational, as opposed to sentimental, polity; order, as opposed to the shredding of order through “rights” assertions.
There is, however, great good sense in the Yoder-RFRA requirement that if government seeks to burden religion, it must, like any other litigant, come into court to prove its contention that a supreme public interest justifies its action and that it has no other means to protect that interest.
That test, properly applied in religious cases, worked no discernible harm to the public order in the decades prior to the Smith decision. It is strange that the Supreme Court in its opinion discarding it, and predicting all manner of difficulties under that test, managed to cite not a single case in which the court itself had found it troublesome to apply. By the Smith test, government is awarded power with very little limitation.
Underlying the Smith opinion (and possibly motivating it) is a Benthamite utilitarianism. Its claim of freeing judges from the “troublesome” factual difficulties of resolving the bona fides of religious claims, the sincerity of witnesses, the “compellingness” of the governmental interest, is one aspect of this. But a darker aspect is found in the Smith court’s testily warning against indulging the “luxury,” in a nation made up of people of myriad religious preferences, of applying the Yoder-RFRA test in the case of every religious objector. The Church indeed has stated in its Declaration on Religious Freedom: “Society has the right to defend itself against possible abuses committed on the pretext of freedom of religion.” But only a gross misapplication of the RFRA contradicts that principle.
The Flores case brings strongly to mind how dependent we have become on the Supreme Court, accepting it as the final and sole determiner of our liberties. In a sense, those who ask the court to uphold the RFRA are by that very fact contributing to the image of an imperial judiciary and will thus be thought to be promoting the demise of democracy itself. The Amish, in their amicus brief in Flores, do not speculate on these higher considerations. They are grateful that Congress has restored the rule that their case, in 1972, had achieved for them and for the nation.
In the Agostini case the court has decided to reconsider a decision it made in 1985 (Aguilar v. Felton) wherein indeed it showed itself as an imperial judiciary at its most imperial. There the court had barred public school teachers from coming on the premises of religious (mostly Catholic and Jewish) schools to provide, under the federal Elementary and Secondary Education Act (ESEA), remedial instruction to underachieving children from low-income families. This the court, in a 5-4 decision, held to constitute an establishment of religion. The opinion, authored by Justice William J. Brennan Jr., spoke in near-hysterical terms of the contaminating atmosphere of the religious school and dangers to church-state separation inherent in the program—none of which had been manifest in the nineteen years it had been successfully in effect.
Two years ago parents in Brooklyn went to court with the plea that Aguilar be reconsidered and overruled. They grounded their unique plea on the fact that several current Supreme Court justices since 1985 have sharply criticized the Aguilar ruling. The parents also point to the fact that New York City was forced, after Aguilar, to lease more than one hundred vans, at an annual cost of $100,000 each, as religiously sanitized classrooms that children in religious schools are forced to attend if they are to get ESEA help. The Clinton administration, in another of its broad conservative gestures, has joined in the plea to overrule Aguilar.
What will now ensue? The New York Times, on the day the court agreed to take a new look at Aguilar, posted a headlined on page one: “COURT TO CONSIDER REVERSING DECISION ON PAROCHIAL AID.” The specific program in Aguilar/Agostini, however, does not involve “parochial school aid” (which no one is seeking) nor even what is now widely sought—financial benefits directly to parents (e.g., voucher programs) aiding economic freedom of educational choice. Revisiting Aguilar will afford the court the chance not only to jettison the secularist ideology expressed in many of its prior decisions under the Establishment Clause, but also to expand and build upon its 1993 ruling in the Zobrest case, where it indeed held that a publicly paid teacher (a sign language interpreter) could serve deaf children on religious school premises without constitutional violation.