A little town in Texas has just landed itself in the biggest First Amendment case now before the Supreme Court. The case challenges the Religious Freedom Restoration Act of 1993. Whether the high court upholds the act or strikes it down, some formidable history will be made.
The town is Boerne (population 4,274, pronounced Bernie), about 25 miles northwest of San Antonio. The facts are not in dispute.In 1923, the town's Catholics built St. Peter's Church, a modest edifice seating about 250 communicants. The fieldstone church is built in the style of a 17th century Spanish mission. It looks old, but there's nothing especially "historic" about it.
In 1991 the archbishop of San Antonio authorized the congregation to build a 700-seat replacement of the 1923 sanctuary. Boerne's City Council reacted by adopting a Historic District ordinance that embraces the church property. The law forbids destruction of any building within the Historic District. The church applied for a special permit. The city said no, and the church went to court. In the U.S. Court of Appeals for the 5th Circuit the church won and the town lost. The Supreme Court accepted the case. Argument has been tentatively scheduled for January.
St. Peter's makes an excellent case on the merits. Its congregation has grown to 1,050 families. Because the existing church is so small, Mass must be celebrated in the nearby Rainbow Senior Citizens Center. By effectively denying the congregation an opportunity to worship in a church of its own choice, the church contends, the town has imposed a substantial burden on the free exercise of religion.
The town responds that localities historically have exercised a power to zone for public purposes. In the council's view, the town has a compelling governmental interest in preserving the 1923 structure intact. By refusing to let it be razed, the town has adopted the least restrictive means toward that end. The congregation can build a modern sanctuary someplace else.
A strong possibility exists that the case may never get to oral argument before the Supreme Court. The town already has run up $175,000 in legal fees; the church is thought to have spent nearly as much. Architects have prepared a compromise plan that would preserve about two-thirds of the original structure. There is strong sentiment in favor of calling the whole thing off. If the suit fizzles, the high court presumably would dismiss the appeal.
The important questions raised in Boerne vs. Flores will not go away. Congress adopted the Religious Freedom Restoration Act three years ago in an effort to overturn a controversial Supreme Court decision. That 1990 decision held that members of the Native American Church may not escape Oregon's anti-drug law by pleading a right to the free exercise of religion. The Indian ritual involves ingestion of peyote, a hallucinogen derived from cactus buds.
Speaking through Justice Antonin Scalia, the court held (5-4) that there is no private right to ignore laws of general application. Mormons may not engage in polygamy; conscientious objectors must register for the draft; the Amish must pay Social Security taxes. Oregon's drug law was not aimed specifically at the Indians' religious rites. The law makes it a felony for ANYONE to possess peyote. Oregon could exempt a sacramental use, as other Western states have done, but the free exercise clause does not require Oregon to do so.
Because Scalia's opinion appeared to abandon the "compelling interest" test, Congress indignantly adopted the Religious Freedom Restoration Act. The act attempts to restore the test. Under the act, Boerne must demonstrate a compelling interest in preserving the church from destruction. Absent such a demonstration, the church must be permitted to pursue its own building plans.
Is the Restoration Act constitutional? Did Congress violate the principle of separation of powers by undertaking to tell the Supreme Court how to decide a free exercise case? So far, lower federal courts have held uniformly that the act is appropriate legislation.
My own feelings, for whatever they may be worth, are mixed. A municipality must have some power to control the architectural ambience of its historic district. If St. Peter's had proposed a modernistic monstrosity in Boerne, the town might justify its action. But for a town to forbid a church to build according to its own plans strikes me as a serious intrusion upon the free exercise of religion.
I hope the Boerne case goes to argument. The church-state conflict epitomized by this case is too important to be left in limbo.