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Article Specs

Article ID: 1971

VoxAcct: 1

Section: cases

Age Group: Adult

Days Up: 8,362

Times Read: 33,545

Religious Freedom Restoration Act

Author: Wren
Posted: February 27th. 1997
Times Viewed: 33,545

A Real Bad Day For Witchcraft

Supreme Court Strikes Down Religious Freedom Restoration Act!
June 25th, 1997 c.e.

With a few strokes of the judicial pen, the Supreme Court today crossed out four years of tolerance toward minority religions. By declaring the RFRA unconstitutional, the country is tossed back to the year 1990 -the year of the Smith decision


According to Barry Lynn of Americans United"

"In Employment Division v. Smith the justices gave government greater authority to restrict religious practices. Under the judicial standard used by the courts before Smith, government at any level could not restrict a person's religious freedom without first demonstrating a "compelling state interest." Government was also required to show that it has used the "least restrictive means" in passing or enforcing a law that might suppress religious practices. The Smith ruling, authored by Justice Antonin Scalia, wiped that standard off the books and said that instead all "generally applicable" statutes would be constitutional, even if their effect was to eviscerate religious practices. Only laws that specifically targeted religious practices for suppression would be unconstitutional.

Scalia conceded that the new approach could place religious minorities at a "relative disadvantage" in comparison with majority faiths. But that, he said, is an "unavoidable consequence of democratic government."

To the layperson, the legal terms at the heart of the judicial debate over the reach of the First Amendment's Free Exercise Clause may sound abstract and confusing. The bottom line is that many religious liberty advocates believed that the Smith ruling gave government too much power over religion and handed the state a dangerous new weapon it could use to restrict religious practices."

"Once on the books, federal and state judges began looking to the new law as a standard for deciding religious freedom conflicts."

Now that "new standard" is gone. And without it, minority religions such as Wicca and Witchcraft are once again totally dependent-not on a legal standard of religious tolerance-but solely upon the "good will" of their local communities and government officials. We remember well what the flames and the "good' intentions of communities have inflicted upon those who are considered different.


The Smith decision allows that any "neutral" law may be enforced EVEN IF IT INFRINGES ON YOUR RELIGIOUS FREEDOM! Before Smith, the Court maintained a much friendlier view toward religious practice and routinely handed down decisions based on a true understanding of the Free Exercise Clause. With Smith, this all changed and was the reason that the RFRA came to be introduced by Congress as a countermeasure to the now hostile stance (after Smith) by the Court toward individual religious belief.

As long as a law does not DIRECTLY target one religious group, it is considered "neutral" and applies to all. That does not sound dangerous until you begin to realize that any belief outside the mainstream could be restricted by these "neutral" laws. And that you would have no recourse....

To show you the real impact of this devastating blow to religious freedom, we offer the following examples:

With the RFRA out of the picture, your federal, state or city government can now-

Pass and enforce laws which prohibit home worship.

While seemingly a "neutral" law that prohibits any church within a residential zone, any groups practicing a ritual could be considered as conducting a church service. Christian Bible groups could be considered exempt as they are not conducting a "ritual" just studying. They have their official church building for their services.

Pagan groups may have to rent public buildings-or build their own- to have religious services just like everyone else.

But Pagans do not build church buildings and home worship is a basic practice of our religion, you say?

"Too Bad", says the Supreme Court.

Pass and enforce laws which ban the possession of ritual tools.

If your town passes a law banning double edged implements, you can no longer legally own, sell or purchase an athame-even in your own home. If found on your person while you are on your way to a ritual (which you may not be able to now have in your home), or if it found in your home during a 'routine search", you have broken the law.
But this a religious tool and part of our religious beliefs, you say?
"What a shame!', says the Supreme Court. "Use a stick!"

In Prison and want access to items used in your religious practice?
"Nope, Can't do!"

Want to burn incense in that public ritual?
"Nope...Clean Air Act, ya know!"

"Uh-uh, disturbing the peace!"

Your condo-agreement or trailer park lease prohibits use of candles, incense or the performance of home worship or outdoor gatherings on the premises.
You protest? - You're evicted!

You can easily see where a "neutral' law can directly affect you without not necessarily be directed AT you....and that does not rule out the fact that your town may decide to enact a law which MAY target just one group or family. It would be up to you to prove it...and meanwhile, you are restricted from practicing your religious beliefs, because remember, there are no longer any accommodations or leeway for those beliefs to be granted an exception under the same law.

What can we do?

1. Get those educational brochures out in the mail, on the street and in the media!

By dispelling the myths about Witchcraft, we can ease the fears of our communities and lessen the likelihood that they will file reports against us.

2. Include your local police department in your educational campaigns!

Invite the local police to rituals and offer to speak on the beliefs of Witches to police academy training classes.

3. Become legally ordained in your state!

By registering as clergy in your state, you can gain public recognition of your sincere religious practice. Contact and work with other clergy in mainstream religions where possible and network with them.

4. Support religious rights organizations!

We shall probably need their support more than ever before. Most depend on donations, so please be generous. Think of it as an investment in your own future.

5. Get together - and STOP fighting amongst yourselves!

It is only the voice of the entire Pagan community that will establish the future of our religions. It is time to forget those petty local differences for the sake of the greater good of our entire community. The next few years are crucial to our survival as a viable religion!

In his remarks at the White House on November 16, 1993, when signing the RFRA, President Bill Clinton said:

"The power to reverse by legislation, a decision of the United States Supreme Court is a power that is rightly, hesitantly and infrequently exercised by the United States Congress. But this is an issue in which that extraordinary measure was clearly called for. As the Vice President said, this act reverses the Employment Division against Smith and reestablishes a standard that better protects all Americans of all faiths in the exercise of their religion in a way that I am convinced is far more consistent with the intent of the Founders of this Nation than the Supreme court decision.

More than 50 cases have been decided against individuals making religious claims against the Government action since that decision (Smith) was handed down. This act will help to reverse that trend by honoring the principle that our laws and institutions should not impede or hinder, but rather should protect and preserve fundamental religious liberties."

Mr. President, thank you for trying. But now it is up to us to carry on the fight for our religious freedom.

We will find a way...

Because we shall never again allow anyone to turn us in...
Because we shall never again allow anyone to turn us out....
Because we shall never again allow anyone to turn us around....
Never again shall we be made to be silent, powerless or invisible...

Never Again!!!!

Is Religious Freedom Down In Flames?

by Argent

So, the Religious Freedom Restoration Act (RFRA) has strapped onits ivory wings and flown to the sublime heights of legislation, only to be immolated by the fiery light of judicial inquiry. Nowit falls to its probable death, amidst the wails and grieving ofnearly every religious group in our fair country. Is it, truly, the end of our freedoms? The end of our hopes? Should we give upnow, convinced that the Supreme Court has buried "minorityreligions" for good?

Perhaps I'm a lone dissenting voice here, but I think the Supremes might have actually grown a collective brain, for once.Maybe we didn't actually need all that "protection" from ournoble benefactors (the Christians, naturally, who were ardent and outspoken sponsors of RFRA...) Not that I expect to make ahabit of agreeing with Justice Scalia!

Okay, so here's the horrors we're supposed to get ready for. New"neutral civic laws" will be passed which will outlaw our athames, prohibit coven meetings, ban drumming, censor occult books, andso on. Well, lets be honest and say that we've had plenty of experience with library censorship, noise ordinances, residential parking disputes, and dubious "occult tools evidence" issues in the past. Laws which specifically target religious practices are stillunconstitutional, RFRA or no. So we just need to worry about lawsto protect the general "civic interests."

Well, that means we still have noise ordinances. No whining to theFeds about the downstairs neighbors "restricting our religious practices" by complaining about our djembe jam. Parking thirty extra cars on a residential street each Sabbat is still going toget the cops interested. Your boss may not like you to wear yourpentacle to work...but unless he/she restricts all religiousjewelry, that would fall under "specific target." And maybe your local Baptist commissioner will pass a law restricting double-edged knives. If he survives the resulting mob of hunters and fishermen outside his office, that is...

In short, Pagans need to be good neighbors, and make sure the local government doesn't feel any compelling need to recognize Pagan or Wicca religions as "dangerous." And it's probably a damn good idea to keep voting, and make sure the votes count. But with freedom of speech and assembly, and protection from illegal search & seizure, just what is it we're missing from being able to worship? Are we getting addicted to being marginalized? Do we continually *need* to see our civic government as our enemy?

Let's take a look at "life with RFRA" for just a moment, assumingthe Supremes had decided that religions really *were* an endangered species. The test case was a Roman Catholic church in Texas, which wanted to expand in violation of a historic preservation statute. The city said, "No, it's a historic structure and you can't change it." The church said, "We're special, 'cause we're a CHURCH." RFRA says, sure enough, if you're a CHURCH, you're special and the government has to make every effort to exempt you.

So let's say RFRA passed and made churches special. I suspect we'd be starting to see a lot of real estate developers get religion fast."Oh, damn, that's a wildlife refuge! Reverend, remember that youthcamp you wanted last year? I can help with this generous donation!By the way, would the youngsters like a little shopping mall on thepremesis?" RFRA would give the churches a great flaming sword withwhich to defend themselves against the evil government. But who isgoing to be holding the hilt? Generally it's those who seek power, not those who are genuinely oppressed.

The seed of earth-based religions has been well planted here inAmerica. Like any young plant, it needs some protection. But the soilis cultural, not political. It will grow through gentle education, the power of the message, and by showing the way to a better life.Keep the education polite, the groups small but connected, and watchthe circle grow. And don't spend too much time mourning for RFRA;let the Christians mourn their fallen saviour. We have a Goddess totend.



Religious Freedom Restoration Act
Reconsidered in Response to
Texas Church Zoning Dispute

Some Newspapers Call Wicca a "Dubious" Religion

by Peg Aloi

What began as a protest against a zoning ordinance has escalated into a major case before the U. S. Supreme Court dealing with the rights of the State to interfere with individuals' rights to practice their chosen religion.

In Boerne, Texas, city councilors rejected a proposal from a local church to modify and expand their existing building. The St. Peter the Apostle Roman Catholic Church, housed in a 74-year old sanctuary, petitioned their city to allow them to partially destroy and then rebuild the church, to allow room for more parishioners to attend mass. The city refused, claiming the church, built of Spanish limestone, is a in a historic district, and should be preserved.

This would seem clear-cut enough, but the church decided to challenge the ruling, citing the Religious Freedom Restoration Act of 1993, and won the appeal, which brought it before the Supreme Court. The RFRA upholds the rights of individuals to practice their own forms of worship; specifically, it says that the state cannot pass or enforce laws restricting religious liberty unless it shows a "compelling state interest" and uses the "least restrictive means" to do so.

Various court justices have made strong statements while discussing the issues at stake; many of the other parties involved, including lawyers and church officials, have made strong statements to the press regarding their own feelings, which are varied. Some believe this is not a matter of religious freedom, but of the power of the federal government usurping what should be state-mandated decisions. Boerne attorney Marci Hamilton said "This is the worst of legislative overreaching."

Others think this is a matter of cultural heritage and historic preservation, and should be settled at the municipal level. One wonders, for example, why the church could not merely add more services, or build onto another part of the property.

Still others believe this case is about the rights of religious groups, and whether they need to be kept in check. Opponents claim the RFRA could be invoked inappropriately, as with inmates who sue prisons based on dietary or clothing restrictions which they claim violates their religious rights (this has been a problem in Ohio in recent years). Or, as Justice Sandra Day O'Connor mentions, some Sikh followers might wish to carry ceremonial knives in schools (good thing Pagans use their athames in circle only).

Unique religious practices were what prompted the 1990 ruling that the RFRA addresses: an Oregon case where Native Americans sought to use peyote (the use of which is illegal) in religious ceremonies. The government ruled that forbidding the ritual use of peyote was not a denial of constitutional rights.

Then in 1993, the Religious Freedom Restoration Act was passed, guaranteeing groups and individuals the right to their religious ceremonies, objects and practices.

Given the kneejerk reversal that characterized the original passing of the RFRA in response to the peyote case, it would be ironic but not unlikely that the RFRA is in danger of being overturned or, at least, reconsidered.

If this happens, the rights of those who practice earth-based religions, especially Witches, will be in even greater jeopardy than they are now. The ONLY federal law on the books guaranteeing us the right to practice Witchcraft as a religion in the U. S. is the Religious Freedom Restoration Act. If it is struck down, we are in danger of seeing a peaceful, rapidly-growing and potentially earth-healing religious movement forced underground once again, as it was during centuries of witch hysteria in medieval Europe.

Because of such rampant misinformation regarding our beliefs and practices, I believe Witches suffer from religious discrimination in the United States more than any other single religious group. We are certainly the group most poorly-treated by the popular media and by the powerful Religious Right.

How can you voice your opinion on this crucially-important issue?

Write letters: to newspapers, to your local and state officials, and to the Supreme Court Justices.

Email or call your friends and loved ones and let them know this case is being deliberated RIGHT NOW! It is important to mobilize and remain informed and educated about this issue, now and in the future, as other situations prompt the review of the RFRA.

(See "What Every Witch Needs to Know" for more about the Religious Freedom Restoration Act and what it means to Witches and Pagans.)

(Some of the information for this article was derived from AP articles appearing in The Boston Globe.)

Remember this comment from the Smith decision that prompted the RFRA: Scalia, in his opinion, stated that to allow people exceptions to statutes on religious grounds would lead to anarchy and it would be better to trample a few religious freedoms than to risk it. People could seek relief from the state, but , he admitted, in the case of unpopular(minority) religions, it would indeed be difficult for them to attain it. It was a price that we as a nation should be willing to pay, he thought. Here he seemed to forget that the Bill of Rights was formulated to guard against the very ideas he was espousing with his decision..that it is the very same minority religions that most need protection from the tyranny of a majority ruled society. While Catholics would not need to apply to the state for relief when serving wine in the form of communion to under age children, the beliefs of minority religions, because their beliefs may not be the same or may not be understood in the same way as those of mainstream religions, would virtually have no way to win their case for exemption and the right to "free exercise" of their own religious practices. Bad Judge, no donut.



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