Time: Tue Jul 08 07:53:18 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id EAA05929; Tue, 8 Jul 1997 04:20:50 -0700 (MST) by usr01.primenet.com (8.8.5/8.8.5) with SMTP id EAA03079; Tue, 8 Jul 1997 04:20:41 -0700 (MST) 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) <snip> > >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 >Act >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 >Marshall, >in Marbury v. Madison, grounded judicial review in the insistence that it >is >"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 >exercise >of religion. > >In that case, members of the Native American Church said their free >exercise >right was unconstitutionally burdened by an Oregon statute that >criminalized >the use of the hallucinogenic drug peyote, which they used sacramentally. >The court sided with Oregon, holding that an individual's obligation to >obey >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 >on >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 >liberties. >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 >protections. >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 >could >do that, the Constitution would not be "superior paramount law, >unchangeable >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 >reasons. > >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 >decisions >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 >rhetoric >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 >rights. >Regarding the expansion of the hardly historic church -- a 1923 imitation >of >a Spanish mission -- Boerne, its power vindicated, is reportedly prepared >to >get on with what legislation like RFRA, and the angry litigation it >foments, >discourages: neighborly compromise. > >Copyright 1997 The Washington Post Company > <snip> ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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