RLPA coalition shrinks

Tuesday, September 28, 1999

A coalition that at one time prided itself on its diversity as it tried to persuade Congress to pass a religious-liberty law has failed to maintain a consensus on the version that has already passed the House.

The Coalition for the Free Exercise of Religion was formed shortly after the U.S. Supreme Court ruled in 1990 in Employment Div., v. Smith that government actions and laws that happen to infringe on a person's religious liberty do not necessarily violate the Constitution. Writing for the Smith majority, Justice Antonin Scalia concluded that religious freedom had never been interpreted to mean “that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

The coalition of close to 60 groups included the conservative Christian Legal Society and the liberal People for the American Way, two groups that often do not see eye to eye and rarely work together on religious-liberty issues. The coalition drafted and successfully urged Congress to pass the Religious Freedom Restoration Act of 1993, which claimed to represent the constitutional test the high court used for determining free-exercise clause violations before Smith. RFRA said that state or federal courts could not enforce laws on religious objectors unless the government had a compelling interest in the law and applied it in the least restrictive manner.

In 1997, however, the high court led by Justice Anthony Kennedy invalidated RFRA in Boerne v. Flores. The high court said Congress did not have the power to tell state courts which test to use when deciding religious-liberty cases and that Congress lacked constitutional authority to rewrite free-exercise clause jurisprudence.

Rather than give up, the coalition encouraged many state legislatures to pass their own religious-liberty protection laws and redrafted RFRA as the Religious Liberty Protection Act of 1999. RLPA is much narrower than RFRA, requiring courts to use the “compelling interest/least restrictive means” test when dealing with federal laws that regulate commerce or affect spending. The House passed RLPA in July and the Senate Judiciary Committee is now considering it.

Last week after a coalition meeting in Washington, D.C., nearly half of the coalition's members announced they could no longer support RLPA of 1999, according to the coalition's co-chair, Oliver Thomas. These groups' departure came only months after the American Civil Liberties Union and the NAACP, once coalition members, said they could not support RLPA. Among those dropping support for RLPA were Americans United for Separation of Church and State, People for the American Way, National Council of Churches, Presbyterian and Lutheran groups, the Anti-Defamation League, the Baptist Joint Committee, the Religious Action Center for Reform Judaism, and the Union of American Hebrew Congregations.

Members of the coalition who remain dedicated to RLPA include the Christian Legal Society, the American Jewish Congress, the Catholic Conference, the Southern Baptist Convention and the Church of Jesus Christ of Latter-day Saints, the Family Research Council, the Christian Coalition and the National Association of Evangelicals.

“The coalition is kind of struggling. We've run into an avalanche of opposition to this thing,” Thomas said. “It is rather sad. There are a number of reasons, such as the constitutionality of the law and the political problem. We have run into a great deal of opposition in the Senate and we don't have a single Democratic sponsor of the bill.” Thomas is also special counsel to the National Council of Churches and a legal consultant to the First Amendment Center's Religious Freedom Programs.

Thomas said he did not think RLPA could survive the Senate and that many members of the coalition were asking “whether it was worth the fight to pass the bill and then see it struck down.”

Samuel B. Casey, executive director and chief executive officer of the Christian Legal Society, said Thomas was in error to suggest that nearly half the coalition's members no longer support RLPA.

Casey said that only a few of the members, the NAACP and the National Council of Jewish Women, actually oppose RLPA. Casey said that other coalition members were simply remaining silent or neutral on the issue, but added that “they all believe in religious liberty for all and want to see the compelling-interest test restored.”

According to Casey, the coalition groups favoring RLPA represent millions of Americans and far outweigh the coalition members who have decided not to urge the bill's passage.

“We still have the numbers and it makes sense, because this bill does not impose results and just imposes a fair process,” Casey said of RLPA, which he believes does have a chance of being voted on in the Senate this session.

A major hurdle for RLPA is a Supreme Court that has slowly expanded the boundaries of state sovereign immunity. On June 23, the Supreme Court issued three opinions, all decided by 5-4 votes, that together declared that the federal government's ability to impose mandates on states was limited by states' sovereign immunity.

“It appears to be the Supreme Court trend to curtail the power of Congress to regulate state and local governments,” Thomas said. “It is hard to look at RLPA, which does exactly that, without coming to the conclusion that it is likely to be struck down.”

Thomas and officials for Americans United and People for the American Way also noted concerns that RLPA could be used by some religious objectors to ignore civil rights laws that protect minorities in employment and housing.

In June, Christopher E. Anders, legislative counsel for the ACLU, told the Senate Judiciary Committee that his group could no longer support RLPA because “a federal religious-liberty statute could provide a new federal defense against state and local civil rights claims made by persons who already receive the least protection from the courts and federal government.” Anders noted federal cases in which courts had found in favor of landlords who for religious reasons refused to rent commercial property to gays and lesbians.

Elliot Mincberg, an executive vice president and legal director for People for the American Way, said “the coalition no longer has a unified position on RLPA” and that his group was concerned about the civil rights issues raised by Anders and others in the coalition.

In a letter sent Sept. 24 to the Senate Judiciary Committee and signed by the NAACP and the Lutheran Office for Governmental Affairs, People for the American Way said that some coalition members “have signaled an intention to use RLPA as a means to restrict others' civil rights.”

Steve McFarland, then director of the coalition member Christian Legal Society's Center for Law and Religious Freedom, told the House in June that his group would not support RLPA if it failed to provide religious objectors with protection from federal, state and local civil rights laws. McFarland said that “among religious Americans are landlords whose consciences do not allow them to rent their private property for sinful purposes.”

It was that kind of talk, prevalent among the coalition's conservative groups, that helped drive away coalition members traditionally concerned with all fundamental rights.

“We no longer are supporting the bill,” Rob Boston, assistant communications director for Americans United, said. “Some of the conservative groups were saying things that were not helpful and made it difficult for us to work together.”

Thomas said the ACLU and others concerned about RLPA's civil rights ramifications were “dead wrong” but that “unfortunately the issue has become too divisive” to hold the coalition together.

J. Brent Walker, general counsel of the Baptist Joint Committee, said that although members of the coalition could not support RLPA, they might be able to support a “more tailored legislative measure that would focus on land-use issues.”

Thomas also said that the coalition remains committed to seeing the compelling-interest test restored to free-exercise clause jurisprudence.