House committee hears arguments on new religious-protection bill

Wednesday, June 17, 1998

Constitutional lawyers and scholars lined up yesterday before the U.S. House Subcommittee on the Constitution to question and defend the need for a new religious-protection law.

A proposed act would require all courts to use a strict legal standard when deciding infringements of a person's First Amendment right to the free exercise of religion.

Less than a week after lawmakers in both the House and Senate introduced the Religious Liberty Protection Act of 1998, the House Subcommittee on the Constitution heard conflicting arguments whether Congress has the constitutional authority to implement the bill. The act, co-sponsored by both Democrats and Republicans and written by a large and unusual coalition of organized religions and civil liberties groups, would require federal and state courts to use the “compelling interest/least restrictive means” test when deciding if laws of general applicability infringe upon a person's religious-liberty rights.

A law of “general applicability” is one that applies to all individuals regardless of religious affiliation, such as a health or safety law. In 1990, U.S. Supreme Court Justice Antonin Scalia, writing for the majority in Employment Div., v. Smith, concluded that laws of “general applicability” that incidentally impinge upon a person's religious practices do not amount to a serious enough violation of the First Amendment to require government to meet the “compelling interest/least restrictive means” test.

Like the struck-down Religious Freedom Restoration Act of 1993, the Religious Liberty Protection Act of 1998 seeks to nullify the Supreme Court's 1990 decision and require federal and state courts to use the “compelling interest/least restrictive means” test anytime a law of general applicability infringes, even slightly, upon a person's religious liberty rights.

The proposed act, just like RFRA of 1993, states that a “government may substantially burden a person's religious exercise if the government demonstrates that the application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Yesterday's hearing was the start of Congress' process to determine whether it should again attempt to codify the “compelling interest/least restrictive means” test. RFRA was invalidated last year when the Supreme Court held that Congress simply did not have the constitutional power to pass such a law to overturn a Supreme Court precedent.

This time around, lawyers for the Coalition for the Free Exercise of Religion, which wrote the 1993 RFRA as well as the new law, argued that Congress' power to regulate interstate commerce and to tax and spend gives it the constitutional authority to enforce the Religious Liberty Protection Act of 1998.

The 1998 act states that “government shall not substantially burden a person's religious exercise—(1) in a program or activity, operated by a government, that receives Federal financial assistance; or (2) in or affecting commerce with foreign nations, among the several States, or with the Indian tribes; even if the burden results from a rule of general applicability.”

In other words, state and local governments could not enforce 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 meet the “compelling interest/least restrictive means” test.

Among the seven scholars and lawyers who testified before the committee were the two who fought over the constitutionality of RFRA before the Supreme Court last year.

Douglass Laycock, a University of Texas law professor and the attorney who argued in support of the 1993 RFRA before the Supreme Court, told the subcommittee that the new act, like RFRA, is needed to combat the Supreme Court's decisions regarding religious liberty.

“The Supreme Court has taken the cramped view that one has the right to believe a religion, and a right not to be discriminated against because of one's religion, but no right to practice one's religion,” Laycock said. The new act would protect an individual from being “excluded from a federally assisted program because of her religious dress, or because of her observance of the Sabbath or of religious holidays, or because she said prayers over meals or at certain times during the day—unless these burdens served a compelling interest by the least restrictive means.”

Laycock told House members that “federal funds should not be used to impose unnecessary burdens on religious exercise.”

Marci Hamiltion, a constitutional law scholar at Yeshiva University in New York and the attorney who successfully argued against the 1993 RFRA before the high court, told committee members that the new law is an affront to the Constitution.

“When I first read the Religious Liberty Act of 1998, I thought someone was playing a prank on me,” Hamilton said. “There is no enumerated power that would support this bill. Moreover, it violates a score of structural constitutional principles.”

Hamilton then detailed a raft of problems the new act poses. Hamilton charged that the new act, like RFRA, is “an undisguised attempt to reverse the Supreme Court's interpretation of the Free Exercise Clause,” and “attempts to amend the Constitution by majority vote.”

Despite Laycock's assertion that the new bill is a legitimate action of Congress' fiscal powers, Hamilton pointed out to the committee that the bill is the first of its kind.

“There is not a single statute that provides a model for RLPA's claim to be grounded in either the Spending Clause or the Commerce Clause,” she said. “Congress has not identified any specific arena of spending or commerce. Rather, it has identified all religious conduct as its target and attempted to cover as much religious conduct as possible by casting a net over all federal spending and commerce.

“Like RFRA, its obvious purpose is to displace the Supreme Court's interpretation of the Free Exercise Clause in as many fora as possible,” she said.

Finally, Hamilton said the new act would subvert the separation of church and state.

“RLPA privileges religion over all other interests in the society,” she said. “While the Supreme Court indicated in Smith that tailored exemptions from certain laws for particular religious practices might pass muster, it has never given any indication that legislatures have the power to privilege religion across-the-board in this way. RLPA, which was drafted by religion for the purpose of benefiting religion and has the effect of privileging religion in a vast number of scenarios, violates the Establishment Clause.”

Gene Schaerr, a religious-liberty attorney and a member of the coalition that drafted RLPA, said that despite Hamilton's testimony he believed committee members left with the impression that opponents of the act were simply trying to create a “dark cloud of constitutional uncertainty” over the bill.

“This bill was specifically drafted so as to solve the problems that the Supreme Court had with RFRA,” said Schaerr, a partner in the prestigious D.C.-law firm Sidley & Austin and among the seven testifying before the subcommittee. “RLPA is just like a provision in the Civil Rights Act of 1964 that forbids race discrimination in federally assisted programs. RLPA tells states that if they want to participate in a federal spending program then they must implement it in ways so as not to violate religious-liberty rights.”

Schaerr also said that the intent of RLPA is not to rewrite the Supreme Court's interpretation the free-exercise clause.

“RLPA, quite to the contrary, acknowledges that the Supreme Court has the power to interpret the free-exercise clause and makes no attempt to get the Supreme Court to change the interpretation,” he said. “To the extent the bill articulates a standard different from Smith, it does so as a matter of statutory right.”

Schaerr said that if Congress can create legislation to enforce civil rights then it should also be permitted to protect religious liberty.

The bill “is important because of all the values that our Constitution was designed to protect, there is none more important than religious freedom and our basic message is that Congress is allowed to protect religious freedom to the same extent that it has the authority to protect minorities from non-discrimination,” he said.

Hamilton, disagreeing with Schaerr, called RLPA a “slap in the face of the Framers and the Constitution,” and said that if “Congress wants to be perceived as the savior of religious liberty and wants to defer to the most powerful coalition of religions in this country's history, there is absolutely nothing that I can do about it.”

The Senate Judiciary Committee will hold hearings next Tuesday regarding RLPA.