Constitutional Opinions: Supreme Religious Revival

...Two years ago, for example, in Rosenberger v. Regents of the University of Virginia, the Supreme Court, by the narrowest of majorities, held that U.Va...

...After a quick review of the published opinions from the lower courts, I am not sure there is such a case...

...The law itself stipulated that nothing in its provisions should be seen as challenging anything in the Court's rulings on the Establishment clause...

...In City of Boerne v. Flores, the Court struck down the Religious Freedom JEREMY RABKIN is a professor of government at Cornell University...

...We will thrash this out in political debate—for the NEA and still more for public museums at the state and local level...

...In truth, the deepest objection to RFRA is that, while trying to challenge one part of the Court's jurisprudence on religion, it simultaneously endorsed (and to that extent encouraged) the most objectionable aspects of the Court's approach to religion...

...In other words, the law effectively authorized federal judges to sit in judgment on any law that a religious person might find constraining or inconvenient...

...It may be tempting, then, to see this sort of activist balancing act in the Court's two major rulings on religion in the term just past...

...In fact, RFRA seems to have provided as little comfort to religious dissidents as affirmative action did for white ethnics...

...S o it is understandable that many groups on the religious right have sought special protection in legislation...

...But it is silly to pretend that the Court is "activist" whenever it strikes down a federal law...

...Justice Kennedy's opinion for the six-justice majority in Boerne was on solid ground in finding that the Constitution nowhere gives Congress the power to put state and local governments under such open-ended supervision by federal courts...

...Indeed, two of the dissenters in Boerne also dissented in Agostini, insisting that it does too violate the Constitution to send public school teachers into parochial schools...

...Such a program would offer general public benefit by encouraging competition in education, which might prompt real improvements in public schools...

...If the current Congress wants to challenge the Supreme Court's approach to religion, it would do far better to challenge the Court's continuing attachment to an inflated version of the Establishment clause...

...The "activist" charge is particularly unconvincing coming from defenders of RFRA, moreover, because the law itself took such an adulatory view of past Supreme Court rulings...

...Rather than attacking the exaggerated view of the Establishment clause that has generated—or provided an excuse for—so much anti-religious (or anti-Christian) animus in public institutions, organizations of the religious right were settling, in RFRA, for a token side payment...

...As this 1994 congressional enactment had been strongly supported by the religious right, the Court's ruling in Boerne was, to say the least, much less well received in that quarter...

...The Court cheered many liberals, for example, by striking down federal restrictions on the Internet under the Communications Decency Act, then delighted many conservatives by striking down federal impositions on state and local police under the Brady Gun Control Act...

...The American Spectator September 1997 49...

...These efforts often amount to petty harassment of religion...

...It may help in understanding this pattern to recall that extreme approaches to both the Establishment clause and the Free Exercise clause were largely developed from the late 196o's to the early 1980's...

...This same period saw the Court endorsing extreme remedies against racial disparities, such as forced busing for school integration and employment quotas to achieve "balanced" workforces...

...Justice O'Connor (who has gone back and forth in this area) captured this outlook some years ago when she explained that the real problem with government "endorsement" of religion is not that it offends some abstract norm but that it may leave people of minority faiths or of no faith feeling "excluded...

...The law invokes—by name and in the text of the statute—Court decisions from the 1960's and 70's on the Free Exercise clause of the First Amendment (decisions that, at the time, were a considerable departure from anything in constitutional history...

...The cases supported all-out struggle against racial discrimination, even against indirect or unintended or "institutional racism" — and simultaneously allowed explicit racial preferences for minorities...

...48 September 1997 • The American Spectator Incongruous as it may seem, the voting pattern here follows a well-worn path...

...It may be that few people will be entirely satisfied with the resulting compromises, but no citizen need feel "excluded" from the debate, so long as the final policy is subject to review by elected representatives...

...There are quite a few cases, however, in which federal judges have wrestled earnestly with the claims of drug dealers to receive exemption from drug laws as ministers of some new religion of chemical happinessor in which prison inmates claim sexual privileges in accord with some new religion of sensual gratification...

...Yet she did not cite a single case in which RFRA had been used to relieve a religious person from an improper imposition...

...And perhaps most tellingly, all of the justices who dissented in Boemeurging that the Court reconsider its current view of the Free Exercise clause rather than reject Congress's attempt to revise it—have generally insisted on extreme applications of the Establishment clause...

...This is bound to make those who attend religious schools feel "excluded...

...So why accuse the High Court of "judicial activism...

...As O'Connor herself noted in Agostini, refusing to allow public remedial-reading services into parochial schools—lest this offend devoted secularists—suggests that religious schools have some sort of offensive "taint...

...Surely it depends on the law—and RFRA was not just any law...

...To be sure, Congress is not required to accept each new Court decision as the last word in constitutional interpretation...

...But it was naive to suppose that RFRA would be much help...

...Only the majority or dominant religion—or something that might become such in some state or locality—can threaten the Establishment clause...

...How extensive this reach might be is illustrated by the actual case that came to the Supreme Court, where a local church in Boeme, Texas, sought an exemption from the town zoning code on the grounds that the code would limit the church's capacity to enlarge its building and that restriction would "burden religion...

...RFRA purported to allow anyone to claim an exemption from any state or local law (as well as federal law) that in any way "burdened" the challenger's "free exercise of religion," unless the relevant government could show a "compelling interest" in uniform enforcement and then show that the law or policy in question was the "least restrictive means" to secure this "compelling interest...

...The university, along with two lower courts and four dissenting justices, insisted that the Christian magazine had to be denied funding in order to avoid a violation of the Establishment clause...

...Just this sort of "excluding" is indeed regularly generated by efforts to comply with the Court's own past approach to the Establishment clause...

...Restoration Act (RFRA...

...Of course many others, while sympathizing with protests against the funding of such "art" works as a crucifix in a jar of urine, think the NEA should be reformed but not abolished...

...The decision was a welcome repudiation of the Court's own 1985 ruling— involving the same program in the same city, with the same plaintiffs—that had required parochial students to leave their own schools and take remedial classes at separate facilities to avoid any possibility that public authorities could be seen as giving "aid" to "religion...

...was wrong to deny funding to a Christian student magazine when it funded a whole range of other student publications (including those of Jewish and Muslim student groups...

...If the majority of the Court still finds such a program unconstitutional, that ruling might provoke a debate on judicial activism that would really be worth having...

...RFRA had received unusually broad support in Congress because the groups that normally oppose the agenda of the religious right, such as the ACLU, were all in favor of it...

...But that view is quite mistaken, I believe—most of all in relation to the religion rulings, both of which should be welcomed by constitutional conservatives...

...No one, however, has yet argued that Congress should pass a law that allows religious people to file suit against the funding of any particular grant that offends them...

...For some critics it only made things worse that the justices seemed to be doling out their favors, in the manner of a congressional budget committee, with a little something for every side...

...The liberal justices, those most insistent on strict separation of Church and State in other contexts, have also been most solicitous of claims for religious exemptions from the law under the Free Exercise clause...

...Giving special dispensations to marginal or odd sects—the Amish, say, or Seventh Day Adventists —would not be the sort of "aid to religion" prohibited by the Establishment clause, as the liberal justices saw it, but would instead qualify as a commendable gesture toward equality...

...Instead of protesting anti-religious discrimination, they sought a special preference of their own — rather as some whites, angered by racial preferences, tried in the 197o's to claim affirmative action preferences for themselves on the basis of Italian or Polish ancestry...

...Let Congress offer money for school voucher programs in which parochial schools can participate...

...Justice O'Connor's dissent in Boerne offered a catalogue of wrongly decided cases to illustrate her claim that the Court should restore a broad reach to the Free Exercise clause...

...The Supreme Court did the right thing by insisting that people who have religious objections to particular laws take their turn with everyone else in urging that such laws be changed...

...CONSTITUTIONAL OPINIONS by Jeremy Rabkin Supreme Religious Revival The Supreme Court provoked renewed mutterings about "judicial activism" when it struck down three different pieces of congressional legislation in the space of a few weeks this past spring...

...So perhaps a majority of the Court would be encouraged by the right program to rethink past scruples and accept a well-designed voucher program...

...The liberal wing of the Court seems to have persuaded itself of something similar in relation to religion...

...But if Congress wants to assert a different view, it should assert its own position and go with that, rather than picking and choosing among Supreme Court decisions and telling the Court, in so many words, that Congress prefers a particular earlier ruling to some later one...

...We know that the four dissenters in Agostino will find this a shocking violation of the Establishment clause...

...The law then directs federal courts to follow these preferred decisions rather than a 1990 decision that limited their reach...

...Some academic casuists were quick to explain that there was nothing contradictory here: Since racial injustice, in the true meaning of the term, can only be imposed by the dominant group, white victims of reverse discrimination cannot be said to suffer real injustice...

...But majority opinions of the Court have already supported public grants to religious colleges and aid to parochial schools at the elementary and secondary level when the aid has been channeled through the students...

...And refusing to accept a vast increase in judicial authority is not the sort of decision that is well described as "judicial activism...

...Meanwhile, a number of religious conservatives have been urging Congress to abolish the National Endowment for the Arts because it gave grants to artists whose work is particularly offensive to religious people...

...But as the Court's own stumbling record indicates, there is no way to ensure that no one feels "excluded...

...In Agostini v. Felton, the Court held that the public school system of New York City could send remedial reading teachers into parochial schools without violating the First Amendment's Establishment clause...