Churches and Prisoners
by Raymond Dague

What do pious churchgoing folk share in common with jailbirds serving prison sentences for serious crimes? More than you might expect. They both share the same federal statute which protects their religious freedom. That statute was just declared to be constitutional when the United States Supreme Court unanimously decided the case of Cutter v. Wilkinson on May 31, 2005. So churches and prisoners can now assert religious rights with greater assurance that they will get maximum protection from the courts.

The story about how it came about is an interesting one. It speaks well of the willingness of the congress to protect religious liberties when the courts have dropped the ball. Hence the importance of the current battle in the senate over the filibuster of President Bush’s nominees to the courts. The president cares about religious freedom, whereas his opposition seems more concerned about protecting abortion and gay rights.

Religious liberties have been eroded since 1990 by a case which said that if there is a general law, you have to obey it, even if that law impinges on your religious beliefs and practices. You get no exceptions. Before 1990 the government could not abridge religious liberties unless firstly, the government had a compelling interest to do so, and then secondly, only if they used the least restrictive means available to accomplish that compelling government interest.

So for example, if the government passed a law which said that everyone had to attend school between the ages of 6 though 16 (which all states have done), it had to show that the government had a compelling reason why all kids should go to school. That is not hard. There is plenty of data which shows that it is important to have an educated citizenry. It is also clear that a lifetime of problems occur for most people if they do not have a basic grade school education. But that is not enough. The government also had to show that the goal of an educated citizenry and eliminating the problems of being uneducated are best met by a law which forces everyone without exception to attend school between the ages of 6 and 16.

It happens that the Amish do not send their children to school after they have learned how to read the Bible at a good level of comprehension, which is well before age16. So in 1969 the Amish father of a 15 year old boy was tried by the State of Wisconsin for violating their compulsory education law. He was convicted, and his case went to the Supreme Court. There the Court decided, yup, Wisconsin has a compelling governmental interest in seeing that all of its citizens are educated, but that in the face of the religious objection of an Amish father to sending his son to school, the state had to make an exception. A universal law applicable to everyone had to make exceptions for the deeply held religious convictions and practices of those who could not follow the law without violating their religious beliefs.

All this changed in 1990 with a case entitled Employment Division v. Smith. In Smith the Supreme Court reversed the rule of the Amish case (without admitting that they did so) and said, no exceptions for religious practices. Three years later in response to Smith, the congress, after an intense lobbying effort by the Christian Legal Society and other religious groups, passed a law called the Religious Freedom Restoration Act. This law re-established the rule of the Amish case, and again allowed for exceptions based on deeply held religious convictions. But the Supreme Court in 1997 declared the Religious Freedom Restoration Act to be unconstitutional based on various technical aspects of how congress justified passing the statute. Back to the “no exceptions” rule.

When religious groups tried to correct those technical defects with a new and improved law which would allow the religious exception, the political climate had changed. The rise of the homosexual rights movement lead many former supporters of the Religious Freedom Restoration Act to grow concerned that the anti-discrimination laws for homosexuals which were being manufactured by the courts would have holes punched in them by religious objections.

Apparently the gay rights crowd thought that churches using their land and prisoners in jail could not endanger gay rights. Christian leaders such as Sam Casey of the Christian Legal Society and Chuck Colson of Prison Fellowship were able to successfully lobby congress to get a law which again gave religious conscience an exception to a general statute. Such a statute might be reasonable on its face, but occasionally oppressive to religious freedoms. A statute by the long and odd sounding name of the Religious Land Use and Institutionalized Persons Act of 2000 was born.

Readers might not care about the new statute (unless you happen to be reading this in jail), but pastors and churches should take careful note. The next time the local zoning board says, “no, you can’t do that with your own property because it violates our zoning law,” there now may be a good legal response from the church attorney.

Maybe there is a hint of Providence in the political compromise which linked Jesus’ call to outcasts to follow him (now called the church) with those jailed for theft, drugs, and murder. There is an old maxim which says “politics makes strange bedfellows.” Jesus might like that, but say it slightly differently. “I came not to call the righteous, but sinners.”

Raymond Dague is a Syracuse, New York attorney who represents many churches in their disputes with zoning boards, and is a member of the Christian Legal Society and the parish chancellor of St. Andrew’s Episcopal Church in Syracuse. His law office can be found at (315) 422-2052 and on the web at www.DagueLaw.com.