Judge Not

A Bill Would Shackle the Judiciary on Religious Matters

by JOHN M. PAYNE THE NEW YORK TIMES, Sunday, January 11, 1998, N.J.Section, p.15 [based on talk given by Prof. Payne at the First Unitarian Universalist Church of Essex County, December 10, 1997. Copyright New York Times . Reproduced by permission of the author.]

It may come as a surprise that one of our most cherished freedoms--religious liberty--has been lost in New Jersey, and that a Religious Freedom Restoration Act is needed to put things right. A bill with just that purpose is pending in Trenton, and who can be opposed to religious freedom? The New Jersey Religious Freedom Restoration Act seems well on its way to passage.

I have no doubt about the sincerity of the bill's principal sponsor, Assemblyman Joel Weingarten, Republican of Livingston. The bill provides that "no governmental entity may substantially burden a person's exercise of religion" unless the government has a "compelling" justification for doing so and achieves its goal by the means that is "least restrictive" of a person's religious exercise.

The problem is real, but not because New Jersey is preventing anyone from believing (or not believing) in any particular deity. Instead, the problem is that many general laws, enacted without religion in mind, inevitably can have an impact on how religious beliefs are expressed. Few would dispute that a church or synagogue ought to bear the expense of complying with codes that require smoke detectors and fire extinguishers in public places, for instance. But what about a zoning law that excludes all structures except single-family residences, right where the congregation wishes to build a place of worship? Or a historic preservation law that restricts the congregation's ability to demolish an old structure, sell the land and use the proceeds to proselytize for the faith? Or a law that criminalizes the religious use of drugs (peyote in one case involving native Americans) or alcohol (Communion wine, for instance)?

These can be tough questions, particularly in close cases, but without the benefit of a religious freedom restoration act the New Jersey SupremeCourt has already interpreted the state Constitution in a way that gives religious exercise generous latitude, while retaining the flexibility to enforce general laws. If the act is enacted, however, the courts would be bound to apply the statutory language and might well lose some of this flexibility. "Complling," after all, is a pretty stringent standard to meet. Would historic preservation (as opposed to smoke detectors, for instance) ever be able to satisfy the "compelling" and "least restrictive" tests?

To see how things might go wrong, consider section 6(d), the only part of the draft law that gives a specific example of how the "compelling" test should be used. It provides that the religious rights of prisoners may be limited if there is a "reasonable liklihood" that the practice will (among other things) "disrupt the operation of the facility." Maintaining prison discipline is a highly legitimate concern, particularly as mandatory sentencing laws have stuffed our jails and penitentiaries to the density of bedlam. But what is disruptive? Prisoners, disproportionately poor and non-white, sometimes with unconventional religious beliefs, are by and large society's outcasts. It is easier to write off them and their claims as disruptive, compared with mainstream religions, and that is what the Legislature seems to be inviting with this special provision.

Despite objections from civil liberties groups, the sponsor and the Governor's office have adamantly refused to change Section 6(d). The most they would agree to is a statement accompanying the bill (not part of the statute itself) saying that "prison regulations and policies grounded on mere speculations, exaggerated fears, or post-hoc rationalizations" are not protected by the act.

Legislatures are good at protecting the interests of a majority; courts are much better with the interests of the rest. Today's disfavored group may be prisoners, but who among us may be in the disfavored group of tomorrow?

Congress adopted the Federal Religious Freedom Restoration Act in 1993 because several United States Supreme Court decisions had sharply limited claims that religious practices were exempt from neutral state laws. In doing so, Congress encroached on the Court's authority, and the Federal law was invalidated last June by the Supreme Court. The New Jersey Supreme Court, by contrast, has been a vigilant defender of religious liberty. We would all be better off if our Legislature passed a nonbinding resolution commending our Supreme Court for its good work and then turned to a real civil liberties problem--say, the deplorable state of urban public education.

John M. Payne teaches Constitutional law at Rutgers Law School in Newark.