October 7 1996

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The tug of war between lawmakers and judges over religion freedom may enter a new chapter this fall if the U.S. Supreme Court decides to accept a case focusing on the constitutionality of 1993's Religious Freedom Restoration Act (RFRA).

It was the high court's 1990 decision in Employment Division v. Smith that gave rise to RFRA. In Smith, the Court ruled that the government no longer needed to demonstrate a compelling interest to justify generally applicable laws inhibiting religious practice. In accordance with RFRA, the government may "substantially burden" religious exercise only if it can demonstrate a "compelling governmental interest" achieved through the "least restrictive means."

Three years ago, the U.S. House passed RFRA by unanimous vote. The Senate passed it by a 97-to-3 margin, and President Clinton signed the bill into law in November 1993. But questions of when and how RFRA should be applied have divided the nation's courts since its passage.

Courts have reached different conclusions at two main points. First is the question of RFRA's constitutionality. RFRA's opponents maintain that by passing an act effectively overturning a Supreme Court decision, Congress stepped outside the bounds of its legislative authority, as prescribed by the Constitution. The courts have also been at odds over what constitutes the "substantial burden" of religious practice.

RFRA'S INFLUENCE: RFRA has been invoked in roughly 130 cases since 1993, the majority of them pertaining to the religious rights of prison inmates.

According to Steve McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom in Annandale, Virginia, only about one-third of these cases have been decided in favor of the religious claimant. ...