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SUPREME COURT SHOULD BACK RELIGIOUS FREEDOM ACT

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The U.S. Supreme Court has accepted a case this term with momentous implications - one that could have an impact on the doctrine of the separation of powers and the authority of Congress.

The case, P.F. Flores, Archbishop of San Antonio vs. City of Boerne, Texas, pits Congress' idea of religious liberty against this court's stingier concept.Can Congress expand the Supreme Court's notion of liberty? That's the issue.

The original lawsuit arose out of a simple request by church officials to rebuild and expand a part of its St. Peter Catholic Church in Boerne.

Professor of law and constitutional scholar A.E. Dick Howard of the University of Virginia says that although this case is about religious liberty, "a larger question remains in the wings. The decision could very well put limits on the power of Congress to expand a zone of rights."

In 1990, the high court severely limited the traditional understanding of the First Amendment's Free Exercise of Religion Clause with its decision in Oregon Employment Division vs. Smith.

The court said there is no exemption from a neutral law that restricts religious activity.

This ruling hacked down the traditional approach to religious liberty.

Before the Smith decision, if a government entity passed a law that substantially limited a religious practice, it had to show a compelling reason and had to achieve that end by the least restrictive means.

If government could not, the law fell to the more fundamental liberty interest - religious freedom.

In 1993, Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA) to restore the traditional interpretation of the Free Exercise of Religion Clause. President Clinton quick-ly signed it into law.

The act is necessary to shield religions from laws and regulations that unnecessarily hinder them.

Churches have been prohibited from feeding the homeless or providing shelter for them by local zoning laws.

Using RFRA in federal courts opened the door for the churches to help those in need.

The requirement to sign a loyalty oath in order to work in the California community college system conflicts with Jehovah's Witnesses' religious beliefs. RFRA was used to successfully challenge the college system's pre-employment requirement.

American citizens who are Amish, Sufi and Shi'ite Muslims, members of Nation of Islam, Christians and members of minority religions have all found elements of their worship protected by RFRA.

Part of St. Peter Catholic Church is located in an historic district in Boerne. The city denied permits for the church's expansion.

Archbishop Flores sued in a federal district court asserting that the city's historic landmarks law violated the church's religious liberty under RFRA.

The city, in turn, claimed the act is unconstitutional. The city won.

U.S. District Court Judge Lucius Bunton ruled that Congress had intruded on the power and the duty of the judiciary and thereby violated the doctrine of separation of powers when it passed RFRA to expand the meaning of the Free Exercise of Religion Clause.

The archbishop appealed - and won.

The U.S. Court of Appeals for the 5th Circuit decided that RFRA is constitutional.

Boerne city fathers asked the U.S. Supreme Court to hear the case. The archbishop made the same request.

According to religious liberty expert Douglas Laycock of the University of Texas Law School in Austin, who represented the Catholic Church in court, there were issues for the church that were not settled by Fifth Circuit's ruling.

"Both sides want finality," he added.

So far three federal appeals courts have ruled that Congress was within its authority to pass RFRA.

No appellate court has disagreed.

Nevertheless because of its significance, the high court granted review.

Congress claims the Fourteenth Amendment gives it the authority for RFRA.

The 14th Amendment guarantees that no state may restrict a citizen's right to due process or equal protection under the law. In the past, Congress has used Section 5 of the Amendment to enforce those rights.

Can Congress go further - into religion?

Professor Howard explains: "The question has emerged in the last 30 years of whether Congress can, in fact, add something to the substance of rights.

"And it has come to be thought that Congress may use that Section 5 power in a substantive way - to actually enlarge the zone of rights.

"That's the question which I see hovering in the wings."

But there's a conflict: A majority of the court has already ruled against a broader interpretation of religious liberty. Now the issue is thrown back at them.

Will they take a different view?

When William Rehnquist appeared before the Senate Judiciary Committee as a nominee for the chief justice in 1986, he asserted that the high court was the final voice on the meaning of the Constitution.

Not all Supreme Court justices agree - some, like Justice Anthony Kennedy, feel that Congress and the presidency also share that responsibility.

Rehnquist and Kennedy will help decide the RFRA case.

And so will Justice Antonin Scalia, who wrote the decision that limited the meaning of the Free Exercise Clause.

"I can imagine a dialogue between two Scalias," said Professor Howard.

"One would be the Scalia who has a natural instinct to protect his own opinion.

"The other is the Scalia who has, in general, preferred that the court defer to Congress in tackling tough social and political questions. That Scalia would be inclined to say, `Well once Congress steps in, we should defer to that.' My guess is it's the second Scalia that wins."

Concerning the Chief Justice, Professor Howard mused: "Though Rehnquist may take the position that the court has the last word on the Constitution, he is not inclined to enlarge the scope of judicial authority.

"I think Rehnquist's instinct is going to be - to the extent that these questions lie on the margin of constitutional power - they ought to be decided in favor of Congress."

A wise court would yield to Congress on this issue and uphold RFRA - without a single dissent.