Congress considers new version of Religious Freedom Restoration Act

Thursday, June 11, 1998

A new effort to pass a bill protecting religious practice has begun in

A coalition of organized religions and civil rights groups has persuaded
some congressional lawmakers to try again to pass a religious-protection
bill. A previous effort went down in flames when the U.S. Supreme Court
ruled it unconstitutional last year. The coalition claims it is trying to
restore religious freedoms damaged by an older Supreme Court ruling that
some believe weakened the First Amendment clause guaranteeing free exercise
of religion.

Reps. Charles Canady, R-Fla., and Jerrold Nadler, D-N.Y., and Sens. Orrin
Hatch, R-Utah, and Ted Kennedy, D-Mass., introduced the Religious Liberty
Protection Act of 1998 on June 9. They did so after months of trying to find
some constitutional authority to force state and federal judges to use a
stringent legal test when deciding free exercise of religion cases.
Requiring such a test would provide more protection for religious practices
by making it harder for government to pass laws that might impinge on
religion, even if unintentionally.

The Religious Liberty Protection Act states that government laws or actions
should be allowed to substantially infringe on a person's free exercise of
religion only if the government has a “compelling interest” in doing so and
the interference is done by the “least restrictive means” possible.

Supporters of the act say the authority for this legislative approach lies
in the fiscal powers granted to Congress by the Constitution. The
Constitution grants Congress the power to tax and spend for defense and
general welfare, as well as to control interstate commerce.

In a press release, Canady said that under the proposed act, “state and
local officials may not substantially burden religious exercise that is in
or affects interstate commerce, or in any state or local program receiving
federal financial assistance, unless it is the least restrictive means of
furthering a compelling state interest such as health or safety.”

In other words, state and local governments could not pass laws or take
actions infringing on religious practices if any kind of interstate commerce
or federally funded programs would be at all affected — unless they could
prove a compelling interest to do so.

Last year, the Supreme Court invalidated the Religious Freedom Restoration
Act of 1993, which Congress enacted at the behest of the Coalition for the
Free Exercise of Religion and with the intent to re write free-exercise
clause jurisprudence.

Specifically Congress implemented RFRA to appease religious, legal and
academic outrage over Justice Antonin Scalia's majority opinion in
Employment Div., v. Smith. In that 1990 case, Scalia pointed out
that the free-exercise clause has never been interpreted to mean “that an
individual's religious beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate.”

RFRA, however, overturned Scalia's opinion and forced state and federal
courts to use the “compelling interest/least restrictive means” test when
deciding whether a government law or act had infringed upon a person's free
exercise of religion.

The Supreme Court's 6-3 ruling in Boerne v. Flores invalidated RFRA.
The high court concluded it was not within Congress' constitutional powers
to tell courts-federal or states-how to interpret the free-exercise clause
of the First Amendment. Members of Congress and lawyers for the Coalition
for the Free Exercise of Religion had unsuccessfully insisted that Congress
was attempting to enforce with federal legislation religious-liberty rights
as guaranteed by the due-process clause of the Fourteenth Amendment, the one
that says states can't abridge fundamental constitutional rights.

“Legislation which alters the meaning of the Free Exercise clause (of the
First Amendment) cannot be said to be enforcing the Clause,” wrote Justice
Anthony Kennedy.

Since the act's demise, the coalition — which includes the Christian
Coalition, the Christian Legal Society and a few civil rights organizations
such as the American Civil Liberties Union — has struggled to come up with
another way for Congress to legally force state and federal courts to use
the “compelling interest/least restrictive means” test when deciding whether
apparently neutrally applicable laws substantially burden a person's free
exercise of religion.

Steve McFarland, legal director at the Christian Legal Society, said
Congress' authority to regulate commerce and spend public money gives it the
power to create new free-exercise jurisprudence.

“The Constitution explicitly empowers the Congress to regulate those
activities that cumulatively affect interstate commerce and to stipulate how
the states use federal money,” McFarland said.

Michael McConnell, a law professor at the University of Utah and ardent
supporter of the Religious Freedom Restoration Act of 1993, said the
new bill is “more limited than RFRA was, but is still going to cover the
vast majority of religious-liberty disputes.”

According to McConnell, churches and other religious institutions will have
greater protection from government involvement in their hiring
practices — which can run afoul of government anti-discrimination laws.

Opponents of RFRA and its replacement, the Religious Liberty Protection Act,
however, question the expansion of Congress' fiscal powers to deal with
alleged violations of religious-liberty rights.

Marci Hamilton, a constitutional law scholar and the attorney who argued
against RFRA before the Supreme Court, said the coalition and supporters of the
new act were “determined to stretch any congressional power to impose its
interpretation of the free- exercise clause on the states.”

Steven Green, legal director for Americans United for Separation of Church
and State, one of the civil-liberties groups supporting the new act, said
Congress is not trying to rewrite free-exercise jurisprudence.

“The act corrects the standard to recognize that when government imposes a
substantial burden on religious practices and beliefs, then it must show a
compelling reason for doing so,” Green said. “We want an even playing field for
religious persons and realize that at the moment many laws that appear to be
neutral toward religion often have a disproportionate impact on people of

Hamilton said the new act, like RFRA, does not correct or restore the
standard courts use when deciding free exercise clause violations.

“Any honest scholar will tell you that the compelling interest/least
restrictive means test was not the test employed by the court in free
exercise cases before 1990,” she said.

Kennedy noted in Boerne that RFRA “imposes in every case a least
restrictive means requirement-a requirement that was not used in
pre-Smith jurisprudence RFRA purported to codify.”

On June 16, the House Judiciary Subcommittee on the Constitution will
conduct hearings, in part to determine if laws not intended to target
religion are actually causing mass infringements on religious liberty in the

Besides calling for a new RFRA, the coalition has been behind all state
efforts to pass similar legislation.

In May, the Florida Legislature sent Gov. Lawton Chiles a religious
protection act modeled after RFRA. Chiles announced Tuesday he would let
the act become law without his signature.

McFarland lauded Chiles' decision and said, “Florida has set the pace for
other states to respect their first freedom.”

Hamilton said that state religious-protection bills that parallel RFRA will
also run into constitutional problems.

In part, Hamilton pointed out such laws are an affront to the establishment
clause of the First Amendment as well as state constitution clauses that bar
government-sponsored religious activities.

Supreme Court Justice John Paul Stevens, in a concurring opinion in Boerne,
noted that RFRA subverted the establishment clause. Stevens concluded that
a law that gives preference to religion is “forbidden by the First