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Commentary

Religious-Political Mix Makes a Bad Brew

September 11, 2000|ROSS K. BAKER | Ross K. Baker is a professor of political science at Rutgers University

No politician ever lost by standing up too tall for religion. This imperative lurks behind a mischievous piece of legislation with the curious title "the Religious Land Use and Institutionalized Persons Act," which passed both houses of Congress almost by acclamation and is headed for certain presidential signature. It is a bill that would cause James Madison and the other authors of the Constitution who abominated government meddling in religion to gyrate in their crypts. And what is worse, it sails under the false banner of promoting the free exercise of religion.

The bill has a curious history that began more than 10 years ago with two employees of a private drug rehabilitation program in Oregon. Both were Native Americans whose religion required them to use the hallucinogenic drug peyote. Because it was a controlled substance under Oregon law, the two were fired and denied unemployment compensation. Claiming religious discrimination, the workers appealed. The case was ultimately heard by the U.S. Supreme Court, which held, in effect, that the Oregon law was reasonable since its principal purpose was not to restrict the free exercise of religion but to impose a ban on a harmful substance.

This was read by a number of conservative religious leaders as an attack on religion, and they began to lobby Congress vigorously for a statute to nullify the Supreme Court decision. Congress complied in 1993 with the passage of the "Religious Freedom Restoration Act." This legislation said that laws or ordinances by states or cities had to yield to virtually any manifestation of religious expression unless there was some "compelling state interest" to restrict a religious institution or impede an individual practicing his or her religion. At a time when President Clinton could not get a single Republican vote for his deficit-reduction package and was gearing up to do battle with the GOP on health insurance, this bill passed with scarcely a murmur of partisan dissent.

While it was full of windy rhetoric about protecting religion, its actual effect was sinister. In practice, it would be almost impossible for a town to invoke its zoning laws to block the expansion of a church, synagogue or mosque or to bar a church from razing a historic building to provide parking. And there would be no way to block new construction of a house of worship. The same immunity from zoning laws was not granted to businesses or even nonprofit organizations unconnected to religions. The law had granted a special right to churches, and the property rights of individuals were trumped.

Religious congregations are commonly subject to two infirmities: gigantism and mitosis. They are either so successful that they need to expand, or they succumb to factionalism, and elements in the church hive off to form new congregations whose members want to remain close to the church from which they seceded. Churches, typically, do not pay local property taxes. In towns strapped for taxable entities, the gobbling up of residential land by freeloading churches shifts the tax burden to homeowners and commercial establishments.

One particular horror was visited on the town of Boerne, Texas, where a Catholic church proposed to demolish a historic building to enlarge its sanctuary. When the zoning board invoked the town's historic preservation ordinance to prevent the demolition, the church argued that it was exempt by reason of the Religious Freedom Restoration Act because the zoning restriction hampered its free exercise of religion for no reason more compelling than preservation of a historic neighborhood. This case also reached the high court, where an unusual combination of liberal and conservative justices struck down the act in a 6-3 decision, holding that the law exceeded Congress' constitutional authority.

The religious lobby did not wait long before setting to work on a new bill that it hoped would get by the withering stare of the high court majority. Ultimately, it came up with "the Religious Land Use and Institutionalized Persons Act," which was introduced in the Senate on July 13 and passed the upper chamber by unanimous consent two weeks later.

The renaming of the bill to also include "institutionalized persons" has its origin in a report that Jewish prisoners had been denied Passover matzo. If passed, the bill would force the penal system to accommodate all manner of religious needs of felons, ranging from vegetarian meals to sweat lodges.

Lamentably, moral ostentation has become one of the deadly sins of American politics. It has caused otherwise sensible politicians like Sen. Joseph Lieberman to have his beliefs exploited to inoculate Vice President Al Gore against President Clinton's pathogens. And when members of Congress recognize the constitutional flaws in a bill like the Religious Land Use and Institutionalized Persons Act of 2000 but vote for it anyway--in the expectation that the Supreme Court will clean up their mess--they compound their hypocrisy with the base alloy of political cowardice.

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