Bill affecting religious freedom now in Senate’s hands

Sunday, July 25, 1999

If you care about your religious freedom, pay close attention to what's happening in Congress this month.

No, I'm not referring to the bill about posting the Ten Commandments. That debate may grab the headlines, but another, lesser-known piece of legislation may wind up having a greater impact on your free exercise of religion.

It's called the Religious Liberty Protection Act (RLPA), and it passed the House of Representatives earlier this month by a vote of 306 to 118. If it passes the Senate and becomes law, proponents claim that the act will strengthen the right of citizens to practice their faith without governmental interference.

You might recall that Congress has been down this road before. After a 1990 Supreme Court decision weakened protections for “free exercise” of religion, Congress tried to give back what the court had taken away by passing the Religious Freedom Restoration Act of 1993. But in 1997 the court ruled that law unconstitutional, declaring that Congress had overstepped its powers by interfering with the rights of states.

Now Congress — at the urging of a broad coalition of more than 70 religious and civil rights groups — is trying again. This time the bill is crafted to circumvent the court's objections: it applies only to federally funded state programs or to issues involving interstate commerce.

What does all this mean for you and me?

At the heart of the debate is the meaning of religious liberty as defined by the free-exercise clause of the First Amendment (“Congress shall make no law… prohibiting the free exercise [of religion]….”).

If the government passes a law — a general law that applies to everyone — and it happens to interfere with or burden your religious practice, does the free exercise clause give you have the right to be exempted from that law?

Prior to 1990 the Supreme Court often said yes, you may be exempted — unless the government can show a compelling state interest (such as health or safety) for denying your exemption. Moreover, even with a compelling reason, the government would have to use the least restrictive means of furthering its interest.

But then the court ruled in Employment Div., v. Smith that the “compelling-interest test” no longer had to be applied in most religious-liberty cases. According to many religious groups, that decision makes it easier for government to interfere with religious practices. That's why Congress keeps trying to restore the compelling-interest test through legislation.

How does the test work?

Let's take a simple example. Your local public school bans all caps worn by students in an effort to reduce gang activity. But you're an orthodox Jewish boy who must wear a yarmulke as a matter of religious obligation. Should you be exempted from that rule?

Clearly the state — in this case, the public school — has an strong interest in keeping gangs out of the school. But can the school still accomplish that objective even if it exempts Jews or Sikhs or others who must wear headgear from the general rule? Or must all caps be banned?

Under current law, it isn't clear that schools have to provide exemptions for religious claims. But under this new bill — RLPA — the school would be required to use the “compelling-interest test” before telling a student that he couldn't wear his religious head-covering in a public school. Most likely, the student would win his exemption.

Support for restoring the compelling-interest test is widespread, but not universal. On the left, some civil rights groups argue that RLPA might be used to get exemptions from existing anti-discrimination laws. And on the right, some conservatives worry that RLPA's use of the interstate commerce provision of the Constitution might serve to expand the power of the federal government in new and dangerous ways.

But most members of the House — like most religious leaders — are convinced that RLPA is essential to ensure the religious liberty of all Americans. Now it's up to the Senate to decide. Their decision may well determine the course of religious liberty in America for many years to come.