TO: elmira Nazombe

FROM: Buzz Thomas, NCCC Special Counsel for Religious and Civil Liberties

RE: Free Exercise Objections to Government Restrictions on Ministry to "Enemy States"

DATE: January 7, 1998

Thank you for sending me a copy of the memorandum entitled: "Enemy States and the Ministry of the Churches: A Time for Re-evaluation". I like it. Churches should be free, whenever possible, to carry on their ministry without interference from the government. This is similar to what was at stake in the sanctuary movement. There are, however, some important practical considerations that must be taken into account.

The Supreme Court of the United States has a crimped view of the Free Exercise Clause at this time. Its infamous 1990 decision Employment Division v. Smith jettisoned the traditional protections for religious exercise and left us with little more than a guarantee of equal protection. As long as religion is treated no worse than anything else, we no longer can complain under the Free Exercise Clause. This absurd result means that a yarmulke and a baseball cap are now on equal footing despite the fact that one represents a sincere claim of conscience. Under such an interpretation, churches now have no more recourse in a zoning dispute than do adult movie theaters.

Of course, this has affected our relationship with the federal agencies. We have been unsuccessful in our efforts to challenge such things as the I-9 forms which must be filled out on all employees as well as the imposition of war taxes on Quakers and other conscientious objectors.

The Religious Freedom Restoration Act restored the traditional protections for religious exercise, but last June it was ruled unconstitutional. To its credit, the Clinton Administration is taking the position that RFRA still applies to the federal government, but it is likely that the federal courts will disagree. In fact, we expect a decision to that effect out of the 8th Circuit Court of Appeals any day. With RFRA gone, the churches most likely could never mount a successful Free Exercise challenge to restrictions such as those applicable to enemy states.

Since litigation is both time-consuming and expensive, this would not be a good time to press the position set forth in your memo in the courts. Even more importantly, we could create some bad legal precedent that would haunt us for years.

This does not mean we are without recourse. Congress will be considering new legislation to shore up the protections for free exercise later this year. I think there is a better than 50% chance the RFRA coalition will be successful in getting this accomplished. Then, we will have a much stronger basis for our claim that these "enemy state" restrictions constitute an illegal burden on the churches' efforts to carry our their ministry.

I hope this is helpful. I will try to call in on Thursday if I can.