The Home School Court Report
VOLUME IX, NUMBER 6
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NOVEMBER / DECEMBER 1993
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H. R. 6
SPECIAL REPORT


Cover Stories
Religious Freedom Restored

Features

Across the Provinces

French Family Update
Across the States

C O V E R   S T O R Y

Religious Freedom Restored: President Clinton Signs RFRA Into Law

Religious freedom regained significant protection on November 16, as President Clinton signed into law the Religious Freedom Restoration Act of 1993 (RFRA). Home School Legal Defense Association president Michael Farris was one of the original drafters of the bill. HSLDA had worked diligently over a three year period for RRFA’s passage.

Among those in attendance at the ceremony for the signing of the RFRA in the White House Rose Garden, was Doug Phillips, Director for Government Affairs for the National Center for Home Education. Phillips attended in the place of Farris, who was out of town and unable to attend. After the signing, President Clinton spoke with Phillips and extended his gratitude for the role Farris played in the RFRA drafting and coalition-building process. “Tell Mike, I really appreciate the work he did drafting [the RFRA],” President Clinton told Phillips.

The RFRA became necessary in April 1990 when the United States Supreme Court substantially reduced religious liberty under the First Amendment with its decision in Employment Division v. Smith, sometimes known informally as the “peyote decision.” In that case, two American Indian drug counselors for the state of Oregon were fired from their jobs because they violated their signed pledge not to take drugs by ingesting peyote during an Indian religious ritual. After being denied unemployment compensation because of why they were fired, the Indians sued the state agency that pays unemployment compensation, claiming that they were denied payments because of the exercise of their religious beliefs.

After several trips up and down the court system, the Supreme Court rejected the Indian drug counselors’ religious liberty claim. But the Supreme Court went well beyond what was need to decide that case, and in the words of HSLDA attorney Jordan Lorence who was in the court room that day, “The Supreme Court swatted a fly with an atom bomb.” Justice Antonin Scalia, writing for the majority, took the opportunity to change (and reduce) the standard legal test to evaluate claims raised under the Free Exercise of Religion Clause under the First Amendment. A five member majority of the Supreme Court shocked observers by shrinking religious freedom with the new test. No party to the lawsuit had asked the Supreme Court to change the underlying legal test for free exercise claims.

Under the old test, once someone showed that he had sincere religious beliefs that were burdened by governmental action, the government then had to show that it had a compelling state interest that could not be satisfied by any least restrictive means. The government had to show that the challenged action was essential to fulfilling the compelling governmental interest.

That all changed with the Smith (peyote) decision which placed severe limitations on when courts could use the compelling state interest test. The Supreme Court said that if a law was neutral on its face (that is, it did not single out religious beliefs or practices) and it applied generally to everyone, then someone could not challenge that law under the compelling state interest test.

Within a few months, lower courts applied the new Smith decision in harsh ways. Courts in New York and Washington, for example, said that the Free Exercise Clause offered no protection to churches who had been ordered by city landmark commissions to stop renovating their buildings which have been designated as historic landmarks. In two cases, a Jewish family and a Hmong family could not challenge government-ordered autopsies on their children in violation of the families’ religious beliefs, because the relevant law was neutral and applied generally to everyone. A federal appeals court in the Midwest said that under the Smith decision, the religious freedom of regular citizens had been downgraded to the level of protection granted to prison inmates.

Constitutional experts from across the ideological spectrum criticized the Smith decision. Michael Farris, along with other religious liberty attorneys, drafted the Religious Freedom Restoration Act which, in essence, restores the compelling state interest test. Worded somewhat differently than the old constitutional test, the RFRA provides that if the government substantially burdens someone’s sincerely-held religious beliefs, the government must show that its actions promote a compelling governmental interest that is implemented by the least restrictive means.

Mike Farris and others also organized a broad coalition of groups to support it. HSLDA, Concerned Women for America, the Christian Legal Society and the National Association of Evangelicals supported the RFRA, as did the American Civil Liberties Union, People for the American Way, the Baptist Joint Committee and others.

The campaign for the RFRA ran into some unexpected roadblocks. Some pro-life groups feared that the RFRA would extend women’s legal rights to get abortions, if the women claimed that their religion required them to get an abortion. Many other pro-life legal experts disagreed, saying that it would be extremely unlikely that the RFRA would be read that broadly. The abortion issue became tragically moot in June 1992 when the Supreme Court affirmed the right to abortion in Casey v. Planned Parenthood.

Other lawmakers were concerned that prison inmates would gain the ability to flood the courts with frivolous lawsuits, claiming that their religious beliefs were being violated. Congress studied those concerns, and ultimately allowed the RFRA to be applied to prisons.

In the few weeks which have passed since the RFRA was signed into law, HSLDA attorneys have found it helpful in advancing religious freedom claims. Scott Somerville cited the RFRA as an important Virginia home school case. Jordan Lorence cited it in a non-HSLDA case in Chicago, involving a Christian landlord who was sued for discrimination because he refused to rent an apartment to an unmarried couple.

The RFRA restores First Amendment constitutional protections of individuals with a free exercise of religion claim against the coercive power of the State. Lorence said that as American culture and public policy grow more and more hostile to Biblical concepts and practices, the RFRA will help shield Christian families, and all other peoples of faith, from having to choose between surrendering their religious beliefs or suffering loss for standing true to their beliefs. For those who home school because of their religious principles, their home schools are now more secure.