Congress urged to slow consideration of new Religious Liberty Protection Act

Wednesday, August 5, 1998

Not so fast, some are telling Congress as it prepares to vote on a new religious-liberty protection measure.

Although two different groups yesterday issued letters to both houses of Congress urging more study of and changes to the recently introduced Religious Liberty Protection Act of 1998, a House subcommittee is poised to vote on the proposal tomorrow.

Rep. Charles Canady, R-Fla., chair of the House Subcommittee on the Constitution announced today that the proposal will be voted on by the panel tomorrow afternoon. If the panel votes in favor the of the bill it will be sent to the full House committee for consideration.

The act was introduced in both houses in early June by Reps. Canady, and Jerrold Nadler, D-N.Y.; and by Sens. Orrin Hatch, R-Utah, and Ted Kennedy, D-Mass. Hatch chairs the Senate Judiciary Committee, which is considering the proposal.

The House Subcommittee on the Constitution has conducted two hearings on the proposed legislation aimed at replacing, in part, the Religious Freedom Restoration Act of 1993, which the U.S. Supreme Court invalidated last summer. The Senate committee has held one hearing. All three hearings included panels of religious-liberty academics and lawyers, most of whom urged Congress to enact the new law.

Like RFRA of 1993, RLPA would require federal or state government to show a “compelling interest” before it imposes religious restrictions – and use the “least restrictive means” possible in imposing them – in generally applicable laws.

A generally applicable law is one that applies to all individuals regardless of religious affiliation, such as a health or safety law. In 1990, the U.S. Supreme Court decided in Employment Div., v. Smith that laws that incidentally infringe upon a person's religious practices do not amount to a serious enough violation of the First Amendment's free exercise clause to require government to meet “the compelling interest/least restrictive means” test.

Canady has said his subcommittee would hold no more hearings on RLPA and Hatch has claimed the Senate would vote on the bill before it breaks in October.

A group led by constitutional law scholar and professor Marci Hamilton issued a statement to Congress yesterday urging restraint on action toward the bill. The group is made up organizations and individuals with differing political viewpoints and concerns about the bill. The groups range from the National League of Cities to the ultraconservative American Family Association, led by Don Wildmon.

“Our political viewpoints are very diverse, as are our specific concerns with this legislation,” the group said in its statement. “Some of us strongly oppose RLPA in any form; some oppose particular aspects; others generally support the purpose of the legislation but believe amendments are necessary to deal with particular issues.

“All of us agree that Congress should not move this bill on a fast track. The diversity of organizations deeply concerned about RLPA make clear that no action should be taken on this bill (in committee or Congress) until our elected representatives have engaged in a closer examination of its multifaceted and invasive impact,” the group concluded.

Hamilton said that if Congress did not produce more evidence that the bill is necessary, it would face the same fate as RFRA. Hamilton said Congress should pay more attention to the high court's 1995 ruling in Boerne v. Flores – the decision invalidating RFRA of 1993.

“Congress was told bluntly in Boerne that there must be some proportionality between the evil discovered and the legislation's remedies,” Hamilton said. “The three hearings conducted in both Houses have not explained why Congress should grant an across-the-board exemption from generally applicable laws for religion.”

When it struck down RFRA in Boerne, the Supreme Court noted that it was not within Congress' power to tell state and federal judges which test to use in deciding if generally applicable laws restrict a person's free exercise of religion. Congress maintained it had the right to pass the law because it sought to protect the free exercise of religion from a wide array of state and federal laws.

Justice Anthony Kennedy, however, noted in Boerne that while it was appropriate, at times, for Congress to create such preventive rules, there must nonetheless be “a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in the light of the evil presented.”

Kennedy concluded in Boerne that one of RFRA's shortcomings was the lack of proof that generally applicable laws were a true menace to the free exercise of religion in America.

Hamilton said she hoped “politicians would have learned more from Boerne.” Instead, she said “they have decided, in an election year, to offer up a vote for religion.”

Congress has come under heavy pressure to pass RLPA quickly. The Coalition for the Free Exercise of Religion, the same gathering of organized religions and civil rights groups that urged passage of RFRA of 1993, has now called on Congress to enact RLPA. In fact, the coalition wrote the legislation.

One coalition member, Prison Fellowship Ministries, urged its members in a July 31 letter to donate money and support for RLPA's passage. Prison Fellowship Ministries, a nonprofit group, assists “the Church in its ministry to prisoners, ex-prisoners, victims, and their families,” and promotes “biblical standards of justice in the criminal justice system.” Prison Fellowship is led by Charles Colson, a former special counsel to President Richard Nixon who served prison time for a Watergate-related offense.

Colson's letter dubbed RLPA the “most important piece of legislation to face Congress in this generation,” and said its failure “could have devastating effects on this ministry – and on the right of every American to freely worship God.” Colson also described the coalition as “the broadest-based Christian coalition in recent memory.”

On the same day that Hamilton's group urged Congress to slow RLPA's quick procession toward enactment, the National Association of Attorneys General sent both congressional committees a letter urging them to alter the bill to exempt state and federal prisons from the law.

The Coalition for the Free Exercise of Religion has stood steadfast against attempts to drop prisoners from RLPA's coverage.

The NAAG letter was signed by the attorneys general of Nevada, Ohio and California. According to the letter, RLPA, like RFRA, would hamper the ability of prison administrators to control inmates.

“It must be remembered that inmates have been incarcerated as a result of their rule-breaking, manipulative behavior,” NAAG said. “Thus, overshadowing the impact RLPA would have on litigation is the drastic effect that changing the existing legal standard, which the courts have followed in handling inmate claims, would have on the ability of prison administrators to manage difficult and manipulative prisoner populations.”

Hamilton agreed with the attorneys general, noting in a recent article: “Prisons, for example, had not been required to prove that they had a compelling interest for a safety regulation that affected religious conduct, such as prohibiting the wearing of religious jewelry or regarding hair length.”

Forest Montgomery, counsel for the National Association of Evangelicals Office of Governmental Affairs, called NAAG's arguments in favor of exempting prisoners from RLPA “bogus.”

Montgomery said that while judges can always take into account the special needs and problems of prisons, no inmate should be denied the opportunity to practice religion.

“Prisoners should not be denied opportunities to the free practice of religion, and indeed in evangelical terms, the real hope for prisoners is the Gospel,” Montgomery said. Citing studies done by Colson's Prison Fellowship Ministries, Montgomery said recidivism rates of inmates “who engage in Bible study is substantially less” than those prisoners who don't.

Montgomery added that the coalition would not support RLPA if prisoners were exempt.

“Congress should not be in the business of picking and choosing who is entitled to religious freedom and who is not. That goes against the basic principles found in the Bill of Rights,” he said.