RELIGIOUS FREEDOM: INHERENT RIGHT OR GIFT FROM GOVERNMENT?

Religious freedom won a round in the Supreme Court last week -- but
only because the justices deigned to let Congress restore through
legislation what the court took away under the First Amendment.

The case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal,
should have been decided under the free-exercise clause of the First
Amendment -- but it wasn't. Instead, the court relied on the Religious
Freedom Restoration Act, a 1993 federal law prohibiting the government
from burdening a person's religious practice unless a compelling state
interest justifies the restriction.

In O Centro Espirita, a unanimous court ruled that the government
failed to demonstrate a "compelling interest" for banning the
religious use of hoasca, a hallucinogenic tea used by a small
Brazilian-based church known as Uniao Do Vegetal. The ruling leaves in
place a preliminary injunction against the ban, allowing the church to
continue using the sacramental tea -- at least until a lower court
trial gives the government another chance to make the case for
enforcing the federal drug law against the church.

Why did UDV members appeal to RFRA instead of invoking their right to
free exercise of religion under the First Amendment? Because almost 16
years ago, in Employment Division v. Smith, the Supreme Court decided
that the free-exercise clause doesn't give religious people the right
to seek relief from laws that substantially burden their faith.

Before Smith, the court often ruled that the First Amendment required
government to demonstrate a compelling state interest before denying a
religious exemption to a law or regulation. After Smith, the
government no longer had to worry about accommodating religious
practices that are in conflict with general laws.

Congress reacted to Smith by passing RFRA to restore the
compelling-interest test. Four years later, the Supreme Court struck
back by declaring RFRA unconstitutional as applied to the states --
ruling that Congress had overreached its powers. But the court was
silent on whether or not RFRA still applied to the federal government.
Now, in the O Centro Espirita case, the Court has answered that
question in the affirmative.

Many Americans may be surprised to learn that Congress had to
"restore" religious freedom -- a right that is supposed to be
protected by the First Amendment. In fact, the very purpose of the
Bill of Rights was to place certain rights beyond the reach of popular
opinion or majority votes.

But these days if you need relief from state laws or regulations that
keep you from practicing your faith, forget about the First Amendment
- -- you have to hope that the majority of some legislature will grant
an exemption (or you can try invoking the free-exercise protection of
your state constitution). If you belong to a minority religion, good
luck.

On the federal level, however, religious groups can appeal to RFRA for
relief. Now the Supreme Court has not only upheld RFRA, but applied it
strongly to protect the religious practice of UDV.

What these legal twists and turns mean for religious Americans is
this: The First Amendment no longer does much to protect free exercise
of religion from government laws that apply to everyone. Yet a federal
law allows religious groups to argue for an exemption -- but only when
the federal government is involved.

Since few Americans drink hoasca -- and arcane acronyms like "RFRA"
are confusing -- the news media hasn't done much to inform the public
about the outcome of O Centro Espirita. Only when government actions
hit home -- when laws or regulations are enacted that burden one's own
religious practice -- do most people start thinking about the
free-exercise clause. But when that happens to you, don't bother to
invoke the First Amendment if you need an exemption in order to
practice your faith. On the federal level, appeal to RFRA. Otherwise,
go to the state legislature and start lobbying for votes.

The good news from O Centro Espirita is that RFRA still applies -- at
least to the federal government. The bad news is that protections for
religious freedom are subject to the whims of state
legislatures.

As the drafters of the First Amendment clearly understood, what a
legislature grants today, a legislature can remove tomorrow. Religious
freedom is supposed to be an inalienable right -- not a gift of the
state.