House subcommittee votes to move Religious Liberty Protection Act

Friday, August 7, 1998

As expected, a U.S. House subcommittee voice-voted the Religious Liberty Protection Act of 1998 nearer to consideration by the full House yesterday afternoon.

Stacey Windham, spokeswoman for Rep. Charles Canady, R-Fla., a co-sponsor of the bill and chair of the subcommittee, said that Canady regretfully made one “monumental change” to the bill regarding commerce regulation before passing it to the full committee. Canady dropped the provision stating Congress' power to implement the proposal was based in part on its power to regulate interstate commerce.

The full House Committee on the Constitution is chaired by Rep. Henry Hyde, R-Ill., a strong supporter of the proposal that would replace portions of the defunct Religious Freedom Restoration Act of 1993.

Windham added that the full committee would not hold additional hearings and that usually bills are ready to be voted on, by the full committee, at any time after being approved and prepared by subcommittees. Windham said no more action would be taken until Congress returns from its August break in early September.

When the U.S. Supreme Court invalidated RFRA of 1993 in last year's Boerne v. Flores decision, it concluded that Congress had overstepped its constitutional authority. What Congress had tried to do in enacting RFRA was make it harder for federal and state governments to pass laws that incidentally restricted religious practices. Under RFRA, government was required to show a “compelling interest” in limiting religious activity — for health or safety reasons, for instance — and use the “least restrictive means” of doing so.

After the demise of RFRA, the Coalition for the Free Exercise of Religion, a large gathering of organized religions and civil rights groups, set out to rewrite the law to pass constitutional muster. When RLPA of 1998 was introduced this summer, it included language prohibiting government from substantially burdening a person's religious liberty “in or affecting commerce.” In other words, the proposal, in part, relied on congressional power to regulate interstate commerce for codifying the “compelling interest/least restrictive means” test.

Bowing to suggestions from some coalition members that religious liberty should not be tied to the regulation of commerce, Canady deleted the commerce clause provision. Michael Farris, founder of the Home School Legal Defense Association, told the subcommittee last month that he believed Congress could not “employ an expansive theory of the commerce clause to protect religious freedom without violating crucial constitutional principles and without denigrating the role and meaning of religious faith in our society.”

The proposal still relies on Congress' constitutional authority to spend public funds, however. It still states that “government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, even if the burden results from a rule general applicability.”

Windham said Canady believed that deleting the provision “was the only way to keep the bill moving along.”

Canady nonetheless praised the subcommittee's action in a statement released late yesterday.

“Today we took an important step forward in the protection of religious freedom,” Canady said. “Americans should not be unduly burdened as they exercise their individual faiths; rather, their faiths should be accommodated to the greatest extent possible.”

Only days before the subcommittee's vote, two different groups had asked Congress to slow RLPA's procession.

Marci Hamilton, a constitutional scholar and law professor at Yeshiva University in New York, led a group of academics, religious organizations, and civil rights groups in calling on the subcommittee to conduct further study. Hamilton, also the attorney who argued against RFRA of 1993 before the high court, said the Boerne decision noted that one of RFRA's shortcomings was a lack of evidence that generally applicable laws were truly hampering religious practices and beliefs.

Hamilton said she was not surprised by the subcommittee's actions.

“I'm sorry to see RLPA pass out of the subcommittee, but delighted its members came to their senses and deleted the commerce-clause provision,” Hamilton said. “The provisions regarding the spending clause and land-use issues are still outrageous, especially when one considers the constitutional issues regarding federalism.”

RLPA states that if a person can prove that government actions or laws affecting property — such as zoning ordinances — substantially burden religion, then the government must meet the “compelling interest/least restrictive means” test.

“Like RFRA, RLPA would give churches more power than they have ever had in the political arena,” Hamilton said. According to Hamilton RLPA would essentially require that zoning laws “give way to claims of religious institutions or persons unless the burden on them is the least restrictive and the local government is preventing substantial and tangible harm to neighboring properties or to the public health or safety.”

The National Association of Attorneys General also urged that RLPA be amended so as not to apply to state and federal prison inmates. The NAAG sent a letter to both chambers saying RLPA would interfere with the ability of prison administrators to control prisoners.