House hears testimony on re-introduced religious-liberty protection bill

Friday, May 14, 1999

Congress is attempting, again, to enact a religious-liberty protection law that some academics and civil rights advocates say would permit discrimination based on religious beliefs.

As he did last session, Rep. Charles Canady, R-Fla., has introduced a Religious Liberty Protection Act. Canady also chairs the House Subcommittee on the Constitution, which conducted hearings on the act on May 12.

Canady announced yesterday that the subcommittee would vote on May 18 to send RLPA to the House Judiciary Committee. Last year's RLPA was introduced in the House with 51 co-sponsors, more than 20 of whom were Democrats. RLPA of 1999 was introduced with only 11 co-sponsors.

The act is the second attempt by lawmakers to partially resurrect the now-defunct Religious Freedom Restoration Act of 1993. RFRA was drafted by an unusual coalition of organized religions and civil rights groups in an effort to rewrite a 1990 U.S. Supreme Court ruling in Employment Div., v. Smith.

The high court in Smith ruled that not all government actions or laws that happen to infringe on a person's religious liberties would automatically amount to a constitutional violation. The so-called Coalition for the Free Exercise of Religion, which includes the socially conservative Christian Legal Foundation as well as the liberal People for the American Way, responded by drafting RFRA, which proposed a strict legal standard for all courts to use when deciding whether the government had infringed upon a person's religious liberties.

According to the coalition, its test — requiring government to show a “compelling interest” and use the “least restrictive means” in any action or law infringing on religious liberties — was the constitutional test the courts used prior to Smith. Not so, ruled the Supreme Court in Boerne v. Flores in 1997. Moreover, the high court concluded that it was not within Congress' constitutional powers to determine free-exercise clause jurisprudence.

In response to the demise of RFRA, the coalition has urged state lawmakers to pass religious-liberty protection acts and has created the new act that Canady and his Republican co-sponsors are pushing in the House. The newly introduced RLPA of 1999 is much narrower than RFRA. RLPA would only require courts to use the “compelling interest/least restrictive means” test when dealing with government laws or actions that affect interstate commerce.

Nonetheless, the hearings this week showed growing concern that RLPA would give religious objectors to secular laws a greater chance of ignoring state and federal laws against discrimination in housing and employment.

Moreover, at least one politician questioned whether RLPA, like RFRA, was just another attempt to overturn Supreme Court precedent. Rep. Barney Frank, D-Mass., posed that question to Richard Land of the Southern Baptist Convention and a member of the coalition. Land, like all coalition members, maintained that RLPA was intended to restore greater protection to religious-liberty rights. Apparently not pleased with the response, Frank retorted that Land had not answered the question.

Canady agreed with Land, saying that “in 1990 the Supreme Court jeopardized the religious practices of people of all faiths by ruling that only intentional violations of free exercise were of constitutional concern.”

“It's time for Congress to once more act to protect religious liberty,” Canady continued. RLPA “addresses this serious situation by restoring the general rule that state or local officials may not substantially burden religious exercise without demonstrating a 'compelling interest' in doing so. Where religious activity or state burden of it affects interstate commerce, the religious activity will be protected by this bill, as will the religious exercise of participants in state or local programs receiving federal financial assistance.”

Other panelists, however, argued that RLPA and its authors were actually bent on providing religious objectors with automatic exemptions from a host of state and federal laws governing land use, child welfare and discrimination.

Marci Hamilton, a professor and constitutional law scholar at the Benjamin N. Cardozo School of Law at Yeshiva University in New York, cited letters from Steve McFarland, director of the Christian Legal Society and member of the coalition, in which he wrote that religious people needed exemptions from fair-housing laws concerning discrimination against gay people. Last year, when the California Assembly was debating a state religious-liberty protection bill, McFarland said that religious people did need “a statutory exemption from the state's anti-discrimination laws.”

Hamilton said yesterday that if religious objectors were able to evoke RLPA in defense of fair-housing laws, they may well be able to engage in discrimination. Early this year, the 9th U.S. Circuit Court of Appeals ruled in Thomas v. Anchorage ERC that a couple of landlords in Alaska could ignore the state's fair-housing laws and refuse to rent to an unmarried couple because of religious reasons.

“This bill is an unvarnished request from religious lobbyists to permit religious individuals and institutions to break a wide variety of laws,” Hamilton told the subcommittee. She said RLPA “forces governments to permit religious individuals and institutions to break the law unless the government can prove that it has a compelling interest and employed the least restrictive means to reach that interest, the highest level of scrutiny known in constitutional law. For example, there are religions that hope to run day-care centers without having to satisfy the onerous health and safety regulations under which secular day-care centers operate. RLPA will make that easier. Others hope to operate soup kitchens or hold worship services in residential neighborhoods without having to abide by certain zoning and land-use regulations.”

Christopher E. Anders, legislative counsel for the American Civil Liberties Union, also voiced concern about RLPA before the subcommittee. The ACLU was one of the civil rights groups that supported RFRA. Anders told the subcommittee the ACLU could not support RLPA.

“Our concern is that some landlords and employers may turn the shield created by RLPA into a sword used against the civil rights of others,” Anders said. “If RLPA becomes law, an applicant for a job or housing may have no state-law protection against having to answer questions such as: Is that your spouse? Are those your children? Are you straight or gay? Are you pregnant? Are you HIV-positive? Mentally ill? What is your religion?”

Like Hamilton, Anders cited testimony before Senate and House hearings in 1998 that “RLPA could be used as a defense to allow a sectarian vocational-tech school receiving federal funds to offer single-sex education, despite federal laws prohibiting sex discrimination in education; to permit a religiously affiliated day-care center to discriminate on the basis of religion in hiring instructors; to permit employers with sincerely held religious beliefs to discriminate against gay men and lesbians in hiring employees, despite state or local laws prohibiting discrimination on the basis of sexual orientation.”

J. Brent Walker, a member of the Baptist Joint Committee on Public Affairs and the coalition, however, chastised Hamilton and the ACLU for raising concerns about RLPA's ramifications.

“There should be no carve-outs to religious liberty, even for good causes such as non-discrimination,” Walker told the subcommittee. “RLPA is formulated in such a way that courts will balance these two fundamental principles — religious freedom and civil rights — and that is the way it should be.”