The Folly of the Federal Religious Freedom Restoration Act - and Texas's Too
	By MARCI A. HAMILTON
	Tuesday, June 23, 2009

Recent cases applying the federal Religious Freedom Restoration Act (RFRA) and its cousin, the Texas Religious Freedom Restoration Act (TRFRA), underscore that these laws are simply wrongheaded, not to mention dangerous.

In Potter v. District of Columbia, the U.S. Court of Appeals for the District of Columbia held that the District was required to permit firefighters with facial hair to keep it, even though there was evidence on the record indicating that it is dangerous for firefighters to have facial hair.

In Barr v. Sinton, the Texas Supreme Court held that a small Texas town could not zone out halfway houses for ex-convicts from residential zones.

In this column, I'll discuss these two cases and how RFRA and TRFRA caused courts to reach these absurd results.

Background: Federal and State RFRAs

The federal version of RFRA and its 13 state clones all impose strict scrutiny --the highest, most demanding level of judicial review -- on neutral, generally applicable laws that substantially burden religious conduct. The burden initially rests on the believer to prove that the law imposes a substantial burden upon him or her. If that showing is made, the burden shifts to the government to prove that its law both serves a compelling interest, and constitutes the least restrictive means that could be employed.

As I have written previously, RFRA was a congressional backlash against the Supreme Court's decision in Employment Div. v. Smith. There, the Court held that drug counselors who used illegal drugs – even if they were consumed during a religious ceremony -- could not receive state unemployment compensation after they were fired.

RFRA was engineered by legal academics and religious lobbyists, who misled members of Congress into believing that the Supreme Court had been applying strict scrutiny in every free exercise case until Smith. Through exaggeration and omission, they paved the way for the legislative enactments that now are responsible for the unfortunate results in cases such as Potter and Barr. (The Court invalidated RFRA in Boerne v. Flores, but Congress then re-enacted RFRA to apply to federal law. The Supreme Court has not yet addressed Congress's power to enact RFRA as applied to federal law.)

No one has summarized what is wrong with RFRA legislation better than District Court Judge James Robertson in the Potter case. I'll reproduce his analysis here, but with citations omitted:

"Justice Holmes once wrote that it brought him the greatest pleasure to enforce those laws which he believed ‘to be as bad as possible,' because he thereby marked the boundary between his beliefs and the law. His faith was never tested by the Religious Freedom Restoration Act of 1993 (RFRA). RFRA, by its own terms, imposes upon the courts of the United States the duty of striking sensible balances between religious liberty and competing prior governmental interests, an obligation whose faithful performance demands the very kind of inquiry judges have tried to avoid since the advent of rational basis review in the New Deal era.

The dispute in these RFRA cases--as in most RFRA cases--is precisely the sort of police power matter that is best entrusted to the politically accountable branches. Courts have little competence to locate and set the proper boundary between the accommodations demanded by persons with religious needs and the general safety and welfare of the public. Without RFRA, it would not be the business of the judicial branch to decide whether it is safe enough for a firefighter to wear a religiously required beard, or whether the mission of a fire brigade is compromised by steps taken to accommodate this religious expression. Yet, whether or not it was wise to assign such questions to the courts, Congress has done so, and I am charged with answering them here."

The two cases I discuss below, Potter and Barr, highlight how these laws force judges into the role of unilaterally crafting public policy. Unlike the legislative process, though, where all voices can get a hearing and then public policy is hammered out, RFRA sets up a situation where the loudest voice in the mix is that of the religious entities, who drown out the legitimate concerns of those affected by the religious conduct at issue, who probably cannot even intervene in the litigation to make their case.

Potter v. District of Columbia: Firefighters, Safety, and RFRA

The Potter case arose because District of Columbia firefighters sued the District of Columbia for the right to have facial hair despite the Department's regulations. At the time the lawsuit was brought, the Department permitted an exemption from its no-hair policy for medical reasons, but did not do so for religious reasons.

When the U.S. Court of Appeals for the Third Circuit addressed such a rule in 1999 in FOP v City of Newark, it held it unconstitutional to make such a distinction. That decision made sense, because if a department can live with the exemption for some, then it is hard to explain why it cannot live with the exemption for others.

The District of Columbia, though, when faced with the prospect that its policy would not be upheld on constitutional grounds, altered the policy by simply getting rid of the exemption for everyone. In other words, DC really did have serious safety concerns, and for that reason, it chose a blanket rule against facial hair, rather than a blanket rule permitting it. When the religiously-motivated firefighters called the District's bluff, accusing the District essentially of pretext, the District responded by reinforcing the policy. As a result, neither medical nor religious reasons were sufficient to get around the Department policy, which is very good evidence that the policy was based on important public policy reasons and not a pretext to discriminate against religion.

In a pre-RFRA world, that would have been the end of the dispute. Religious entities could argue against discrimination, but they did have to abide by neutral, generally-applicable safety regulations.

With RFRA, though, obedience to the Constitution is not enough. RFRA gives religious actors rights they never had before, and gives courts the uncomfortable job of weighing public policy in ways unprecedented since the 1930s.

Thus, in Potter, the district and appellate court decisions are rife with acronyms for self-contained breathing apparatus (SCBA), air-purifying respirator (APR), and powered air-purifying respirator (PAPR), along with judicial assessments regarding the effectiveness and safety of the apparatus with and without facial hair. Such assessments are a job for regulators and the government scientists and engineers who advise them – not for judges.

Everyone agrees, as they must, that safety for firefighters is a "compelling interest." Accordingly, the battle was over whether the Department had adopted the least restrictive means for accommodating the religiously-motivated firefighters with facial hair.

As only courts can do, the court sided with the religiously-motivated firefighters, not because it was shown that facial hair was safe, but rather because DC had not carried its full burden of proof. In particular, the court held that DC had not proven that it had adequately balanced safety against all available alternatives that would have been less restrictive to the religiously-motivated firefighters.

In a telling concurrence, Judge Williams metaphorically threw up her hands and said that, at the very least, this case should have gone to a jury. It was her view that the debates about the available data on facial hair and about firefighters' safety both created disputed issues of material fact that should not have been decided on summary judgment.

Judge Williams made the troubling observation that, "[i]f the sole aim of the law were an open search for truth, we would plainly reverse" and hold in favor of the District's blanket no-facial-hair policy. But, she continued, "Unfortunately for the District, its own muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome." The judge went on to implicitly criticize the district court for not ferreting out the evidence within the record showing that facial hair is a danger.

Overall, Judge Williams deemed the outcome "extraordinarily unsatisfactory" – leading to an "experiment" in which the DC fire department will send its firefighters into danger scenes, some with beards, while other departments observe the no-facial-hair rule. She expressed the hope that the "difference will prove inconsequential." But should that not be the case, she also made sure to point out that even permanent injunctions like the one in place in Potter can be altered in the face of new facts.

Barr v. Sinton: Halfway Houses for Ex-Convicts in Residential Neighborhoods

In Barr v. Sinton, Pastor Richard Wayne Barr had bought two houses to use as halfway houses for ex-convicts, in residential neighborhoods within a 2.2-square-mile town in Texas. The town had no regulation regarding such uses, but it soon enacted one, which forbade "[a] correctional or rehabilitation facility [to be] located in the City of Sinton within 1000 feet of a residential area, a primary or secondary school, property designated as a public park or public recreation area by any governmental authority, or a church, synagogue, or other place of worship." The law was both neutral and generally applicable and hardly uncommon. But, because the law was generated by the actions of a religiously-motivated individual, the Texas Supreme Court invalidated the law.

The trial court and the appellate court upheld the regulation, but the Texas Supreme Court reversed. Once again, the government lost because the court held that it did not carry its burden of proof satisfactorily for the Justices making public policy.

In essence, the Texas Supreme Court ruled that no city, of any size, may exclude a religiously-motivated halfway house from its jurisdiction without proving that the use can occur somewhere else nearby. The Texas Supreme Court held that "there is no evidence of any alternate location in the City of Sinton where the ordinance would have allowed Barr's ministry to operate, or of possible locations outside the city." Moreover, it held that the enforcement of a zoning law is not a compelling state interest. That would be news to a lot of homeowners who have invested their life savings in a home in a particular district due to the zoning constraints of the zone, but the truth is that RFRA (and its successor RLUIPA) invite such conclusions.

As often happens in these cases, the Court treated the statutory rights at issue, created by Texas's RFRA, as though they were constitutional rights. It reasoned, "Although the government's interest in the public welfare in general, and in preserving a common character of land areas and use in particular, is certainly legitimate when properly motivated and appropriately directed, the assertion that zoning ordinances are per se superior to fundamental, constitutional rights, such as the free exercise of religion, must fairly be regarded as indefensible."

The Texas Court also emphasized the degree to which the "least restrictive means" test forces cities to form their zoning policies to accommodate particular religious entities. In a statement that should leave every city planner and leader in America deeply concerned, the Court gave Stinton no way out:

"The City also asserts that Ordinance 1999-02 serves a compelling interest in advancing safety, preventing nuisance, and protecting children. But there is no evidence to support the City's assertion with respect to "the particular practice at issue" — Barr's ministry. In fact, the only evidence is to the contrary: Barr testified that he admitted only nonviolent offenders to his program, and no aspect of his operation ever presented a safety problem, a nuisance, or a threat to children. He and the city manager both testified that they were not aware of any complaints of disturbance. The City cites no studies or experiences with halfway houses to support its professed concerns. The City was not, of course, required to wait until disturbances occurred, possibly causing significant harm, before taking measures to prevent them, but neither could it assert a compelling interest in practically excluding a religious ministry from operating within the city limits based on nothing more than speculation."

Obviously, the City was hamstrung on this point, because the harm to neighbors and children had not yet occurred. Yet what parent and homeowner does not know in his or her gut that having recent ex-convicts live next door is a potential problem? Non-violent drug abusers deal with violent drug dealers all the time, and the prison environment from which the ex-convict is emerging is hardly conducive to producing mild-mannered members of society. They go to halfway houses to re-acclimate to society.

Nor do the courts in these cases give any credence to concerns by homeowners about the value of their properties if their neighbors are now a collection of ex-convicts. Is there any real estate salesperson in the United States who would say that a home next to a halfway house is as valuable as a home next to another home? The common values shared by homeowners all over the country get dropped out of these cases, because the courts are making public policy with only two entities before them – the religious believer(s) and the government.

Overall, the Barr decision is highly reminiscent of the Texas Supreme Court's unfortunate decision to send the children of the Fundamentalist Latter-Day Saints from the Yearning for Zion Ranch back to an environment that was inherently abusive. Months after the Court did so, Texas Child Protective Services issued a report documenting widespread sexual abuse within the group, as I discussed in a previous column. By then, however, the children were no longer under the state's care and back in the environment that had endangered them.

Based on these two misguided rulings, one must wonder whether the members of the Texas Supreme Court must take one oath against common sense, and another against taking seriously parties' rational concerns for the safety of children.

At least in the Barr case, though, the folly is not attributable to the court alone. TRFRA is a creature of the Texas legislature. Like Congress's RFRA, Texas's, too, has hardly led to a brighter day of religious liberty. Instead, it has authorized judicial intervention in public policy decisions that serve religious triumphalism at the cost of subjugating crucial safety interests – and these are the interests of our most honorable, the firefighters who protect us and our homes, and our most vulnerable, our children.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.