House committee approves religious-protection bill

Friday, June 25, 1999

Less than a week after claiming government can display the Ten Commandments in public buildings, Congress has offered up another vote in support of religion. This time representatives approved a bill that would make it easier for religious observers to ignore an array of laws.

On June 23 the House Committee on the Judiciary approved the Religious Liberty Protection Act of 1999. The act, similar to one invalidated by the U.S. Supreme Court in 1997, would require state and federal courts to apply the strictest legal standard possible before allowing government to enforce laws that may infringe upon a person's religious practices.

RLPA of 1999 states, in part, that government shall not burden “a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance” unless the government can prove its enforcement of the program was “in furtherance of a compelling governmental interest” and was “the least restrictive means of furthering that compelling governmental interest.”

Before a U.S. Supreme Court ruling in 1990, federal courts had always required government to meet the “compelling interest-least restrictive means” test when deciding if laws intended to apply fairly to all happened to infringe on religious believers, according to the Coalition for the Free Exercise of Religion, a group of organized religions and civil rights organizations that drafted RLPA and 1993's Religious Freedom Restoration Act, which was largely struck down in the high court's Employment Div., v. Smith decision.

The court ruled in Smith that neutral laws applying to everyone, such as land-use regulations and civil rights laws, do not automatically rise to a constitutional violation if they happen to infringe on religious liberty. Moreover, the high court noted that a “compelling interest” test would not be proper to use when deciding free exercise of religion cases.

“If the 'compelling interest' test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded,” Justice Antonin Scalia, wrote for the majority in Smith. “Moreover, if 'compelling interest' really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them.

“Precisely because we are a cosmopolitan nation, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order,” Scalia wrote. Such a rule “would open the prospect of constitutionality required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect law.”

The coalition and federal lawmakers, such as Rep. Charles Canady, R-Fla., and Sen. Orrin Hatch, R-Utah, however, argue that the high court rewrote and seriously damaged religious-liberty protections in its Smith ruling.

Canady lauded the House committee's passage of RLPA as “an important step forward in the protection of religious freedom.”

The House committee's approval came weeks after a hearing before the committee in which the American Civil Liberties Union and professor Marci Hamilton, a constitutional law scholar at Yeshiva University in New York, attacked the law as a blatant attempt by Congress to rewrite a Supreme Court ruling and an unconstitutional effort to endorse religion.

In a June 4 letter to Rep. Henry Hyde, R-Ill., chairman of the House committee, Hamilton echoed some of the concerns Scalia raised in Smith and said RLPA was an effort to provide religious believers with automatic exemptions from generally applicable laws.

“The religious liberty protection act of 1999 (RLPA) rests on a simplistic,
unsophisticated, and historically inaccurate assessment of religious liberty in the United States,” Hamilton wrote. “This bill, which would make it easier for religious individuals and institutions to break any law governing conduct, is a lopsided caricature of the religious liberty that was imagined by the Framers of the Constitution, especially James Madison, who drafted the First Amendment. Madison did not believe in religious supremacy, which this bill promotes, but rather in a pragmatic balance of power between church and state.”

On the same day the House committee approved RLPA, the Senate Judiciary Committee heard testimony from several members of the coalition and an ACLU representative regarding the Senate's version of RLPA. Both the House and Senate considered RLPA in 1998, but because of impeachment proceedings the bills never reached the floor of either chamber.

Hatch, chairman of the Senate Judiciary Committee, told the panel that “some legislative effort is needed — in tandem with the jurisprudential protections recognized by the Supreme Court — to uphold the right of religious freedom guaranteed by the free-exercise clause of the Constitution.”

Hatch, a co-sponsor of RLPA and a 2000 presidential contender, urged those at the hearing “to do our best to ensure that in our communities, Bible study will not be zoned out of believers' own homes, to ensure that Americans' places of worship will not be zoned out of their neighborhoods and, ultimately, to ensure that the Founders' free exercise guarantee will demand that government have a good reason before it prohibits a religious practice.”

Before the testimony, Sen. Russell Feingold, D-Wis., raised the same issue that had caused the ACLU to yank its support of RLPA (the ACLU was a member of the coalition when it drafted RFRA). “I understand that significant concerns have been raised about the effect of a new law to protect religious freedom on existing state and local civil rights laws,” Feingold said. “As someone who is a strong supporter of civil rights, and of federalism, I want to be sure before voting for a statute that is intended to protect religious freedom that it doesn't undermine other freedoms.”

Steve McFarland, director of the Christian Legal Society, and one of the coalition's harshest critics of civil rights laws, testified that his group would not support RLPA if it failed to protect religious believers from having to comply with state and federal civil rights laws. Moreover, McFarland said his group would not support a RLPA that would not protect religious prisoners.

Religious freedom “includes practices inside houses of worship,” McFarland told the Senate committee. “But it also encompasses the living out of one's beliefs in the marketplace of ideas, jobs, of housing. Those who support a civil rights carve-out amendment to RLPA either do not understand the comprehensive nature of most religious devotion or else they dangerously overweight the government's constitutional authority to burden it. But as millions of religious Americans know, they do not leave their religion at the door to their office, at the factory punchclock or at the schoolhouse gate. And among religious Americans are landlords whose consciences do not allow them to rent their private property for sinful purposes.”

While McFarland and other coalition members may condone a private landlord's denial of renting commercial property to a gay or unmarried couple as constitutionally protected religious practice, the ACLU sees it as discrimination hiding behind the First Amendment.

“We have found that landlords across the country have been using state religious-liberty claims to challenge the application of state and local civil rights laws protecting persons against marital-status discrimination,” Christopher E. Anders, ACLU legislative counsel, told the committee. “None of the claims involved owner-occupied housing; all of the landlords owned so many investment properties that they were outside the state laws' exemptions for small landlords. These landlords all sought to turn the shield of religious- exercise protections into a sword against the civil rights of prospective tenants.”

Hamilton said that McFarland's comments on civil rights laws in housing were not widely shared or constitutionally mandated.

“There is no reason to permit anyone to disobey the fair-housing laws, especially in the context where the landlord does not live on the premises and involving large commercial units,” she said. “McFarland has a view of the polity that is not the prevailing view in the United States.”

Hamilton also said that RLPA is as unconstitutional as RFRA, especially in light of three rulings by the high court this week that she said sharply decreased the ability of Congress to make legislation binding on the states.