House panel holds second hearing on Religious Liberty Protection Act

Wednesday, July 15, 1998

Supporters of the Religious Liberty Protection Act tried to explain yesterday what commerce has to do with religion.

In efforts to prepare for a full House vote, the Subcommittee on the Constitution held hearings regarding the legality and effects of the recently introduced act.

The committee, chaired by Rep. Charles Canady, R-Fla., a co-sponsor of the Religious Liberty Protection Act of 1998, heard from lawyers, professors and representatives of civil rights and religious organizations regarding the measure aimed at replacing, in part, the defunct Religious Freedom Restoration Act of 1993.

Of the 10 panelists, only one voiced opposition to the law, which would mandate federal and state courts to use the “compelling interest/least restrictive means” test when deciding if generally applied laws infringe upon a person's religious-liberty rights. At the urging of the Coalition for the Free Exercise of religion, an unusual association of organized religions and civil rights groups, Congress had codified the legal test in RFRA.

Last summer the U.S. Supreme Court, in Boerne v. Flores, struck RFRA down. The court concluded it was not within Congress' power to rewrite free-exercise jurisprudence.

The coalition had created RFRA in response to the high court's 1990 decision in Employment Div., v. Smith that laws of “general applicability” that incidentally infringe on a person's religious practices do not amount to a violation of the free-exercise clause.

Most of yesterday's discussion focused on Congress' power to implement RLPA, which differs from RFRA by mandating the use of the legal test when claims of violations of religious liberty are linked to commercial transactions.

Specifically, RLPA states, in part, that “government shall not substantially burden a person's religious liberty 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 within Indian tribes.”

In other words, committee members were told that 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 affected at all — unless they could meet the “compelling interest/least restrictive means” test.

Colby May, director of the American Center for Law and Justice's Office of Governmental Affairs and one of the hearing's participants, said that Congress should enact RLPA even though it is weaker than RFRA.

May, whose organization is a member of the coalition that also drafted the new 1998 act, said RLPA would only protect religious practices and beliefs “to the extent that the actions are related to a federal spending program.” Concerning commerce, he said that “you must show that the activity of the churches and religious people affects commerce” in order to claim a religious-freedom violation under the proposed act.

Michael Farris, president of the Home School Legal Defense Association, was the only witness who urged the lawmakers to dump the act.

“I do not believe that Congress can employ an expansive theory of the commerce clause to protect religious freedom without violating crucial constitutional principles and without denigrating the role and meaning or religious faith in our society,” Farris said.

Farris maintained that RLPA would “only protect religious conduct when that conduct occurs in a federally funded program or affects commerce with foreign nations, among the several states or with the Indian tribes. This is inherently discriminatory. Religious groups and organizations that are large, powerful and involved in economic activities such as publishing houses and products distribution will have little problem establishing that their ministries have an effect on interstate commerce.”

May, as well as other members of the coalition, tried to set aside any worries that Congress was simply protecting religious actions and beliefs that affect the economy.

“The claim that using the commerce clause to advance and protect religious free exercise essentially cheapens religious expression, because only that religious expression which affects commerce is protected by RLPA, is no objection at all,” May said. “Using the commerce clause to advance religious liberty does not subordinate things religious to things commercial. Rather, the commerce clause is simply being harnessed to advance religious expression as far as it may go.”

Marci Hamilton, a constitutional law scholar at Yeshiva University in New York, called May's assertion that Congress' fiscal powers give it the authority to rewrite free-exercise jurisprudence “ridiculous.” Hamilton was the attorney who successfully argued against the 1993 RFRA before the U.S. Supreme Court.

“What RLPA attempts to do is to take the subject of the First Amendment and make it an enumerated power,” Hamilton said. “The subject of RLPA has nothing to do with commerce and everything to do with religion.”

Hamilton said RLPA — if enacted — would unconstitutionally permit Congress to invoke its commerce-clause power.

“If you look at the bill, it only requires proof of an effect on commerce,” she said. “The Supreme Court has already ruled that the commerce clause can only be invoked after a substantial effect on commerce has been shown.”

Several other panelists, including Douglas Laycock, a University of Texas law professor, and Steven Green, legal director for Americans United for Separation of Church and State, maintained that the compelling interest/least restrictive means test had been used by federal courts prior to the Smith decision. May added that the federal courts had “walked all over Congress” in ruling that the compelling interest/least restrictive means test cannot be codified.

“The beauty of the compelling interest standard is that it does not preordain any particular outcome but merely sets up a balancing of competing interests,” Green said in testimony submitted to the committee. “The compelling interest standard was selected, first and foremost, because it was the standard the Supreme Court had adhered to for almost 30 years.”

Just last year, however, Supreme Court Justice Anthony Kennedy, writing for the majority in Boerne, noted that the legal test as set out in RFRA (and now RLPA), had never been a part of the courts' free-exercise jurisprudence.

“The substantial costs RFRA exacts, both in principal terms of imposing a heavy litigation burden on the states and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith,” Kennedy wrote.

“When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the act imposes in every case a least restrictive means requirement — a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify — which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.”

Canady told the panelists that this would be the last hearing on RLPA and that he hoped to move the bill along quickly for a full House vote.

Neither of the House hearings or for that matter the sole Senate hearing dealt much with the issue of whether the RLPA is actually needed to address mass religious-liberty violations by generally applicable laws.

The Boerne court noted that RFRA was hampered, in part, by the failure of Congress to come up with proof that generally applicable laws were indeed a deterrence to religious liberty.

“The groups backing RLPA have still miserably failed to provide actual proof that any action needs to be taken at the federal level,” Hamilton said.