Time: Tue Jul 08 07:53:18 1997
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Date: Tue, 08 Jul 1997 04:20:35 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: George Will: "Still Free" (6/29/97) (fwd)

>Still Free
>By George F. Will
>Sunday, June 29, 1997; Page C07
> The Washington Post
>The overheated title Congress gave to the Religious Freedom Restoration 
>of 1993 causes some excitable people to conclude that the Supreme Court's
>overturning of it means that religious freedom is in peril. Actually, it
>primarily means that Congress cannot dictate what the Constitution means.
>In declaring RFRA unconstitutional the court simply declined to share the
>power it has wielded since 1803. That was when Chief Justice John 
>in Marbury v. Madison, grounded judicial review in the insistence that it 
>"emphatically the province and duty of the judicial department to say what
>the law is."
>In Boerne, Tex., an archbishop was denied a permit to enlarge a church
>because it is in a historic preservation district. The archbishop said the
>city was violating RFRA, which prohibits government from "substantially"
>burdening the free exercise of religion, even if the burden results from a
>rule of general applicability, unless the rule is the "least restrictive
>means" of serving a "compelling" government interest.
>Congress, in enacting RFRA, threw down a gauntlet that the court had to
>pluck up. Congress said it was enacting RFRA because in a 1990 case the
>court had misconstrued the First Amendment's guarantee of the free 
>of religion.
>In that case, members of the Native American Church said their free 
>right was unconstitutionally burdened by an Oregon statute that 
>the use of the hallucinogenic drug peyote, which they used sacramentally.
>The court sided with Oregon, holding that an individual's obligation to 
>generally applicable laws prohibiting socially harmful conduct is not
>contingent on the laws coinciding with the individual's religious beliefs.
>Congress provoked the court by saying in RFRA that this 1990 ruling
>"virtually eliminated the requirement that the government justify burdens 
>religious exercise imposed by laws neutral toward religion." Now the court
>has replied to Congress: We did no such thing and, anyway, construing the
>Constitution is not part of Congress's job description.
>Congress says RFRA is merely an exercise of its 14th Amendment power "to
>enforce, by appropriate legislation" protection of constitutional 
>But the court, voting 6-3 (a majority with an unusual composition --
>Rehnquist, Stevens, Scalia, Kennedy, Thomas, Ginsburg), says:
>Congress has asserted its own definition of what those liberties are,
>claiming a power to make a substantive change in constitutional 
>This claim is attested by RFRA's explicit denunciation of, and vow to
>rectify, the court's 1990 definition. The court says that if Congress 
>do that, the Constitution would not be "superior paramount law, 
>by ordinary means." It would be as changeable as the mood of Congress.
>The 1990 peyote case was not much of a constitutional novelty. In 1879 the
>court upheld a general prohibition on polygamy, even though it was
>burdensome to many Mormons. Since then the court has upheld universal
>issuance of Social Security numbers even though some people have religious
>objections to such entanglement with the state. It has sustained military
>rules against the wearing of religious garb while in uniform, and rules
>denying prison inmates exemption from work requirements for religious 
>Granted, the court sided with Amish parents who objected on religious
>grounds to Wisconsin's mandatory school attendance law. However, the court
>stresses that it did so because that case was a compound of considerations
>-- those of free exercise of religion, and of parental rights to control
>children's education.
>Since enactment, RFRA has been the basis of many challenges to basic
>exercises of states' traditional powers, ranging from highway improvements
>to health and safety regulations, that brush up against the activities of
>religious individuals and institutions. There have been about 200 
>in cases brought by prison inmates claiming that the RFRA protects their
>rights pertaining to drug use (the "Church of Marijuana"), dress and
>grooming requirements, and even the "satanic right" to burn Bibles.
>Some people who are happiest when hysterically unhappy predict local
>governments will now inflict on religions the death of a thousand cuts.
>Conservatives who make that prediction should consider how RFRA encourages
>the opportunistic manufacture of ersatz religions. Furthermore, when
>conservatives express fear of local governments, they refute their 
>praising the American people and decentralization of power.
>Actually, RFRA discouraged neighborly accommodation by casting, in the
>modern manner, all disputes between civil authorities and religious
>individuals and institutions in the absolutist language of clashing 
>Regarding the expansion of the hardly historic church -- a 1923 imitation 
>a Spanish mission -- Boerne, its power vindicated, is reportedly prepared 
>get on with what legislation like RFRA, and the angry litigation it 
>discourages: neighborly compromise.
>Copyright 1997 The Washington Post Company

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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