A Loss Without Losing
BY John Baker
October 12-18, 1997 Issue | Posted 10/12/97 at 1:00 PM
The archbishop of San Antonio may not have gotten the ruling he hoped for in City of Boerne vs. Flores, but it was …
(Second of two parts)
Just because the Supreme Court hasn't recognized an expansive interpretation of the Constitution's ‘free exercise’ clause doesn't mean religious liberty or natural law is in peril.
San Antonio's Archbishop Patrick Flores of lost a big one in the Supreme Court last June—but all was not lost.
In last week's Register, the first part of this article addressed the Supreme Court's decision in City of Boerne v. Flores (1997). The city had denied the archbishop's request for a building permit to expand an old church building in order to serve a growing parish. The church was part of an historic landmark district on which the city had imposed special zoning restrictions. The archbishop sued the City of Boerne, Texas, claiming that the Religious Freedom Restoration Act (RFRA), passed by Congress in 1993, required the city to make an exception to its zoning restrictions in order to accommodate the religious practices of Catholics in the parish.
The Supreme Court ruled that RFRA was unconstitutional under the doctrine of separation of powers. The Court was saying that the Congress could not pass a statute contradicting the Court's previous interpretation of the Constitution's religious “free exercise” clause. In other words, Congress could not require state and other governments (such as the City of Boerne) to make religious accommodations when the Supreme Court had already ruled that the religious “free exercise” clause does not require a state (although a state may choose) to make exceptions from general laws in order to accommodate religious practices.
Those who disagree with the Supreme Court's rulings on RFRA and the religious “free exercise” clause have charged that the decisions erode religious liberty. Part one of this article disputed those claims.
The Natural Law Factor
Part two of this article answers criticisms that these Supreme Court's decisions do not comport with the “natural law,” even if they do adhere strictly to the Constitution. As indicated at the end of part one, we want to ask whether the Supreme Court has violated the natural law either by its general interpretation of the “free exercise” clause or by the result in Flores?
Adults who attended parochial schools or Catholic colleges prior to the 1960s should have at least a passing acquaintance with the term “natural law.” As psychological and behavioral methodologies displaced the philosophical foundations even of Catholic education, teaching about natural law went the way of the Baltimore Catechism. More recently, the publication of the Catechism of the Catholic Church (1994) and Pope John Paul II's encyclicals Veritatis Splendor (The Splendor of Truth, 1993) and Evangelium Vitae (The Gospel of Life, 1995), have revived teaching about natural law.
The Catechism quotes the pagan Roman lawyer-orator-philosopher, Cicero, along with St. Augustine and St. Thomas on the meaning of natural law. Variously expressed, natural law refers to “right reason” or “the original moral sense that enables man to discern by reason the good and the evil, the truth, and the lie.”
As Pope John Paul II writes in Veritatis Splendor, the negative precepts of the natural law (“thou shalt nots”) differ from the positive precepts in this: violations of the negative precepts can never be justified. On the other hand, the positive precepts of natural law require us to do good and “what must be done in any given situation depends on the circumstances” (52).
Under that standard, the Supreme Court's interpretation of the “free exercise clause”-as distinguished from the “establishment clause”-not only does not violate the natural law, but it was most famously applied in a way that supports the natural law.
Currently, members of the Supreme Court may not link interpretation of the “free exercise” clause to the natural law. The Court's most significant, recent decision of the clause, Employment Division v. Smith (1990), however, continues the interpretation of the clause given in the first major “free exercise” case, Reynolds v. United States (1878), which certainly does support natural law.
A Ruling for Mormons
Reynolds involved Mormons and polygamy. The Court rejected the claim that the “free exercise” clause entitled Mormons to practice polygamy as part of their religious faith. The Supreme Court said that they could believe whatever they wished, but they could not claim a religious exemption from the laws against bigamy and polygamy.
Had Smith rejected the principle of Reynolds, the “free exercise” clause would have required states to accommodate not only “sacramental drug use”’ but all manner of other” religiously motivated” conduct. Not much would have been left to the Reynolds’ rejection of constitutional protection for a religious ritual of human sacrifice.
Critics have repeatedly said that as a result of Smith a local political majority could outlaw the use of wine necessary to celebrate Mass. Of course, in more than 200 years in this country, Catholics have not been discriminated against in this way—despite fierce anti-Catholicism at different times and places.
Critics place too much significance on one phrase of the Constitution and one institution of government. The fact that the unintended effect of a particular law is to limit religious freedom may be a legitimate criticism of the particular law and the maker of that law; but it is not a valid criticism of the Constitution's “free exercise” clause or the Court, neither of which were responsible for the law. Moreover, it distorts the Constitution to think of the Supreme Court and the “free exercise” clause, or even the Congress, as the primary institutional means of protecting religious liberty.
Under RFRA, or the view taken by critics of Smith, federal judges would have to determine what is and is not legitimate religious practice. Smith and Flores refuse to allow federal judges to get into that business. Keeping federal courts from judging religious practices should be viewed as a victory for religious liberty.
What if a law clearly discriminates against religion? That is a completely different issue. Smith reaffirms that such a law would raise a claim under the “free exercise” clause.
What if the lawmaker quietly and cleverly discriminates in such a way that it cannot be proven the law was intended to have a negative effect on religious practice or group? All is not lost. Under our democratic Constitution, we are a self-governing people. As the Court reminds us in Smith, the principal method of protecting our liberty is political.
Critics say that only works well for majorities or significant minorities. But they forget that the major advances in religious liberty were not brought about by the “free exercise” clause which until the early partof this century didnot apply to the states. In other words, religious liberty in this country came about for a century and a half almost without any involvement of federal courts. By its adoption of the Northwest Ordinance in 1787 and then again in 1789, Congress required all newly created states to guarantee religious liberty in their state constitutions. This act did not apply to the original 13 states. Although at the time several of those states had varying forms of established religion, those restrictions all eventually dissolved. Through time, changes in opinion, politics and population brought this about.
The Irish Connection
The battle over religious liberty was most clearly evidenced in Massachusetts after Irish Catholics immigrated. The Irish survived and prospered due to other provisions in the Constitution that have no obvious relationship to religious liberty. As designed by its framers, the Constitution was so structured as to protect liberty without need for a bill of rights.
In the 1840s and ‘50s, the Protestant majority in Massachusetts probably would have—if they could have—kept the immigrant wave of Irish Catholics out of their state. Under the Constitution, the states retain many important powers. But one of the most important powers they have lost is the control over their borders. Thus matters of immigration are determined by the federal government, not the states. Moreover, if one state proves inhospitable, one is free to emigrate to another state. But that may not be necessary because one can change things even while in the minority.
With citizenship comes exactly the same political rights as those who can trace their lineage back to the Mayflower. Not all countries give new citizens the same rights as native-born citizens. With the vote comes the political power to alter legislation even without being in the majority. Exactly that happened in Massachusetts as the Irish became an important voting block in enough state legislative districts to be able to win concessions through the political process.
Thus, an expansive interpretation of the “free exercise” clause is not required for religious liberty to flourish; and, if permitted, such an unnecessary interpretation may, as indicated by Reynolds, produce conflicts with natural law.
Property Rights, the Real Issue
But does not the fact that the archbishop of San Antonio cannot getaper-mit to expand a parish church prove the inadequacy of the political process and the need forafederal court to intervene? After all, Pope John Paul H writes in Veritatis Splendor that consciences should not be coerced, especially in matters of religious faith.
When the Supreme Court ruled, the case was not over for the archbishop of San Antonio. The Supreme Court remanded the case to the district court to address other legal issues raised in the case. Without considering all legal options, and possibly state—as opposed to local—political actions, that might still be available to the archbishop, we should consider one legal issue that shouldbe available, but may not be.
Besides the church and the archdiocese, what about other property owners who cannot get a permit to modify buildings they own? And how would they have felt if only the church property was able to get a building permit for expansion?
The real problem facing the archbishop of San Antonio in his quest to expand the local parish church involves property rights—something about which Catholic clergy rarely speak.
The Catholic Church has always insisted on the preference for the poor. That principle does not negate, however, the fact that private property remains a natural, as well as a constitutional, right. While some members of the Catholic clergy minimize the significance of property ownership, Pope John Paul II gives important recognition to the legitimate use of private property in his 1991 encyclical Centesimus Annus.
Under a provision in the Fifth Amendment known as the “takings clause,” government cannot take private property without “just compensation.” Clearly, that's a constitutional provision based on natural law.
The clause has been interpreted to prevent not only outright condemnation under the government's power of eminent domain, but also government regulation that significantly reduces the value of property. In interpreting the clause, however, the Supreme Court has justifiedat least some “historic landmark” regulation that imposes restrictions on the use of private property that might normally not be constitutional.
Whether or not the archbishop has a viable “takings” claim is not the point. Nor does mention of the “takings” clause indicate that property rights should be given greater weight than religious liberty. Rather, Americans need to understand that ours is a rich and complex constitutional system that affords many means to protect religious and other liberties. The fact that the Supreme Court has not recognized an expansive interpretation for the “free exercise” clause does not mean that such a ruling threatens religious liberty or violates natural law.
John Baker is a professor of Law at Louisiana State University and host of Law and Morality on EWTN.
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