Safeguard for Religion

WHEN the US Supreme Court refused to exempt from Oregon's criminal laws the possession and use of peyote for native American religious rites, leaders of many denominations were deeply concerned about the ruling's potential to weaken religious freedom in the United States.

At the heart of those concerns was the reasoning the court applied - reasoning that opened the door wide to state interference with religious practices.

Three years later, Congress has begun work on a remedy that deserves the broad support it is receiving: The Religious Freedom Restoration Act of 1993. It seeks to reinstate the strict burden states carried when statutes clashed with religious practices.

In the nearly 30 years prior to its 1990 decision, the court applied two tests in cases where state laws encroached on religious practices. Did the state have a "compelling interest" in limiting such actions? And did the state use the "least restrictive means" to accomplish its goals?

Writing for five of the 6-3 majority, however, Justice Antonin Scalia said that a state merely had to show that a law was neutral toward religion and had a general application - that is, the religion was not being singled out for regulation. That interpretation would allow indirect state interference with a number of established religious practices, ranging from techniques for processing kosher products to the use of wine in communion services and to Christian healing through prayer.

The bill before Congress, introduced by Sens. Edward Kennedy (D) of Massachusetts and Orrin Hatch (R) of Utah, restores the "compelling interest" test. It is one of the few bills that draws support from both the Christian right and the liberal People for the American Way.

The bill would not prevent states from enacting or enforcing laws to promote public safety; prior to the 1990 ruling, the high court upheld states' positions in several "free exercise" cases. Nor, as some argue, does it shield violations of criminal law from prosecution in the name of religious freedom. It does, however, restore an appropriate check on the power of the state to interfere with the First Amendment right of free exercise of religion.