Law on Bended Knee

By John Cloud

Every first-grader learns that the Pilgrims came here to practice their religion the way they wanted. So you would think that the debate over freedom of religion was settled long ago.

It wasn't. This week the Senate is expected to consider a bill called the Religious Liberty Protection Act, whose turgid name suggests that what the Pilgrims held dear is threatened in the very nation they founded. Supporters believe that government officials disrupt religious activities even today, despite the First Amendment's crystal-clear language: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The bill's backers say cities pass zoning laws that keep churches out. They say children cannot wear the Star of David to school because of regulations meant to ban gang symbols. They say coroners perform autopsies on those whose faith holds that the corpse is sacred. In short, without the Religious Liberty Protection Act, says Marc Stern of the American Jewish Congress, "you send a message to the state [authorities] that they have carte blanche to interfere with religious practices."

The bill has broad support. It sailed through the House in July. President Clinton has said he will sign it. That support is fraying in Washington, however, as more people begin to realize that the bill's big ambitions could create unintended results.

Proponents of the law say people like Father Timothy Mockaitis need it. In April 1996, Mockaitis went to the Lane County, Ore., jailhouse to hear the confession of Conan Wayne Hale. Authorities had charged Hale with murdering three teenagers. District Attorney F. Douglass Harcleroad, thinking Hale might break down and tell all, had secretly arranged to bug the confession.

The Eugene, Ore., Register-Guard learned about the recording and reported it. Oregonians were outraged. The Vatican sent a note of protest. Mockaitis sued, and won a $25,000 settlement after a federal court said the taping was wrong, in part because it violated the 1993 federal Religious Freedom Restoration Act. The reasoning was that the D.A. had interfered with Mockaitis' religion by taping a sacrament. But in 1997 the Supreme Court struck down that law, saying it was too broad; Congress could not dictate terms of religious conduct to every community with a single law. So the new bill, an effort to achieve the same goals within more limited boundaries, applies only to individuals or institutions that receive federal funds or engage in interstate commerce.

Constitutional scholars disagree over whether the new bill is still too broad, and it will surely face a Supreme Court test if it passes. But there is a more basic problem: the law may not be needed. Mockaitis, for instance, did not need the religious-liberty law to win his case. The federal court that ruled in his favor said the taping violated both the Fourth Amendment, which bans unreasonable searches and seizures, and the federal Civil Rights Act, which prohibits discrimination based on religion. (Hale, as it turned out, was convicted of the three murders, and the tapes, which contained only his professions of innocence, were not used in court.)

What about other reasons cited for the law? Stern of the American Jewish Congress, who helped write the bill, says Orthodox Jewish and Native American families should not have to beg officials not to perform autopsies on their relatives. He cited a case in Eagle Pass, Texas, in which a federal judge ruled in favor of an autopsy on a member of the Kickapoo tribe who justice of the peace Martha Chacon believed might have been murdered. The judge said the state's interest in finding the truth trumped the tribe's religious concerns. In the end, though, Chacon decided not to order the autopsy; she determined that the woman had probably killed herself.

Such bureaucratic decisions may be best kept at the local level, where officials are better equipped to weigh the complex mix of a community and individual interests. Consider the case of a Jewish student in Gulfport, Miss., who was told he could not wear a Star of David to class. School officials said the star was sometimes used by gangs, and they did not want any such imagery in classes. The case infuriated supporters of the Religious Liberty Protection Act. Once again, however, no federal intervention was required. The local school board decided after more careful consideration to reverse itself.

There is no doubt that the supporters of the bill have good intentions. And they are right in thinking that for most of the nation's history, courts have generally favored religious claims. Judges have ruled that Amish kids couldn't be forced to attend school and that Seventh-Day Adventists do not have to work on Saturdays. But that approach changed in 1990, when conservative Justice Antonin Scalia wrote a Supreme Court decision that angered and frightened many religious people. In Employment Division v. Smith, Scalia said religious claims cannot be used to justify violating laws as long as those laws apply to everyone of every faith, neutrally. In the case at hand, Scalia wrote that Native Americans do not have the right to break antidrug laws even though peyote use is part of some Indian faiths.

Liberals fretted that the decision would make it easier for the government to trample on minority religions. Conservatives were worried that the Smith ruling would erode the autonomy of all religious institutions--making it easier, for instance, for a Catholic woman to sue her church to become a minister. The coalition that eventually formed in support of a new religious-freedom law includes centrist groups such as the Baptist Joint Committee on Public Affairs, Christian-right groups such as Focus on the Family and left-leaning organizations such as Americans for Democratic Action.

This odd grouping, however, is having trouble staying united. The American Civil Liberties Union, which helped draft the current bill, as well as the 1993 law, now opposes it unless an amendment makes clear that religious claims cannot be used to defeat civil rights laws. Civil rights advocates are concerned about such groups as the World Church of the Creator, for example, which claims a religious belief in promoting the white race. Gay lawyers say the bill would allow conservative Christian landlords to refuse to rent to gay people even in states with laws protecting lesbians and gays from housing discrimination.

Religious-liberty laws are in effect in seven states--Governor George W. Bush signed one in Texas in June--and they are leaving their mark on the judicial system. Last fall, for example, the State of Florida charged the Church of Scientology with criminal neglect in the death of Lisa McPherson, 36, a Scientologist in Clearwater, Fla. McPherson was in the care of church staff members for 17 days in 1995 before dying from a blood clot. Members of McPherson's family have also sued the church. Church lawyers have denied the allegation, saying injuries McPherson suffered in a car accident caused her death and the church had nothing to do with it.

Scientology is known for its aggressive litigating style. But the church's most powerful legal weapon could be Florida's religious-freedom act. After the law glided through the legislature last year, church lawyers used it to argue that the criminal charges are illegal because they unduly burden the church and impair its right to practice religion. The lawyers have also used the law in the civil case to prevent the family from seeing notes taken by Scientology counselors who interviewed McPherson. The church's lawyers say the notes are religious material protected by the statute; the family believes the notes may help explain her death.

The Scientology case will probably drag on for years, but opponents of the religious-liberty bill say the case illustrates the law's unintended consequences. "It opens the door for all kinds of religious entities and individuals to make creative claims," says Marci Hamilton, a constitutional-law professor at Emory University. "[Supporters] say it's just a simple bill, but it ends up being a deep political problem that reveals deep divides in our culture."