Senate hears more support for religious-protection bill

Friday, September 10, 1999

Seeking to protect religious observers from state and federal regulations that could infringe on the practice of their beliefs, a Senate committee is again considering a religious-liberty bill.

In July the House of Representatives passed the Religious Liberty Protection Act of 1999, which is similar to a 1993 federal law that was later invalidated by the Supreme Court. The Religious Freedom Restoration Act of 1993 was an attempt to override the Supreme Court’s 1990 ruling in Employment Div. v. Smith, which concluded that laws applying to everyone, such as land-use laws, do not violate the free-exercise clause of the First Amendment even if they burden religious practices.

The Supreme Court invalidated RFRA in 1997 in Boerne v. Flores decision, saying that Congress did not have constitutional authority to re-write First Amendment jurisprudence. A group called the Coalition for the Free Exercise of Religion, which is made up of organized religions and some civil rights groups that helped draft RFRA, has continued to urge Congress to try again.

The coalition, however, has lost some of it original supporters — both the NAACP and the American Civil Liberties Union have left, charging that RLPA could be used by religious observers to obtain exemptions from state and federal laws that bar discrimination. The two civil rights groups also question the legislation’s ability to survive Supreme Court scrutiny.

A panel of four religious-liberty experts testified yesterday before the Senate Judiciary Committee on RLPA’s constitutional viability. The committee also heard testimony in June on the bill. Like previous Senate committee hearings on RLPA (the Senate considered the same bill last year, but it never reached the floor), panel participants had few negative comments on the bill.

Sen. Orrin Hatch, R-Utah, chairman of the committee and one of RLPA’s sponsors, said yesterday that the bill was “a measure which truly does have the power to shape our country’s moral conscience in a way that other legislation cannot match.”

Hatch says RLPA is needed to “ensure that in our communities Bible study will not be zoned our of believers’ own homes, that Americans’ places of worship will not be zoned out of their neighborhoods, and, ultimately, that the Framers’ free-exercise guarantee will demand that government have a compelling reason before it prohibits a religious practice.”

RLPA states, in part, that government shall not burden “a person’s religious exercise in a program or activity, operated by a government, that receives federal financial assistance” unless the government can prove its enforcement of the program is “in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that compelling governmental interest.”

Although all four panelists — three law professors and a practicing attorney — offered no reasons for Congress to drop its consideration of RLPA, several of them took issue with criticisms raised by the ACLU, the NAACP and Marci Hamilton, a constitutional law scholar and a visiting law professor at Emory. Hamilton successfully argued before the high court against RFRA.

Earlier this year the ACLU pulled its support of RLPA, saying the law would permit religious landlords and employers to ignore fair-housing and employment-discrimination laws. Before the Senate Judiciary Committee in June, Christopher E. Anders, the ACLU’s legislative counsel, said that “several witnesses during hearings before the House and Senate Judiciary Committee specifically stated their belief that RLPA could and should be used as a defense to civil rights claims based on gender, religion, sexual orientation and marital status.”

Hamilton, in an Atlanta Journal and Constitution op-ed piece that appeared on Sept. 7, said RLPA would provide “that whenever a religious individual or institution is substantially burdened by any law, the government may not enforce its law unless it proves its law is enacted for a compelling interest and is the least restrictive means of achieving that interest.” According to Hamilton, “murder, mayhem, conspiracy to terrorize, child abuse, medical neglect, carrying weapons in the public schools, hate crimes — all of these potentially life-threatening actions are covered by RLPA’s all-embracing standard.”

Douglas Laycock, a University of Texas law professor and coalition member, chided what he termed “Hamilton’s parade of horribles,” before the judiciary committee yesterday.

Laycock said that the Supreme Court in its 1990 Smith decision took “the cramped view that one has a 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.” He said that “the truth is that religious-liberty legislation has been underenforced, not overenforced,” and “the great danger with RLPA is not that important public policies will be undermined, but that courts will too often defer to bureaucratic rationalizations and permit the suppression of harmless religious practices.”

An exemption in RLPA for civil rights laws, Laycock said, was “unnecessary, because most civil rights claims satisfy the compelling interest test.” He also said, “civil rights and religious liberty are both about living with our differences.”

“There should be legal protection for gays and lesbians and also for persons with religious commitments to traditional sexual morality,” Laycock told the committee. “There should be a general gay rights law, and there should be religious exemptions. And it should be obvious that gay rights laws will be far easier to enact if there are exemptions for religious objectors – the most legitimate and often the most intensely felt source of opposition.”

Sens. Russ Feingold, D-Wis., Patrick Leahy, D-Vt., and Edward Kennedy, D-Mass., all supporters of RFRA, were the only committee members to voice concerns about RLPA.

Feingold called for more hearings on the bill and noted that many people “concerned with the rights of women and children and civil rights in general recently have changed their position on the House bill” and “believe the bill is dangerously broad.”

Feingold also criticized Hatch for calling only panelists to testify who agree that Congress has the constitutional mandate to re-write free-exercise jurisprudence and for ignoring civil rights concerns.

“Some have raised concerns about the effect of religious-freedom law on existing protections for children and women,” Feingold told the committee. “I want to point out that there is concern that the House bill, in its current form, could be used as a tool to justify child and spousal abuse. Some say an attacker could argue that his religious beliefs allow him to physically abuse his children or wife.

“But of the numerous organizations and scholars the Senate has called to testify on religious freedom so far, the issue of the bill’s effect on the rights of children and women has not been explored at all,” he continued. “The Senate has not yet heard from a single children’s group or women’s rights group.”

Kennedy also called on Hatch and the committee to think again about RLPA’s reach before sending it to the floor for full consideration.

“In our efforts to strengthen the religious liberties of all Americans, we must be careful not to do so in ways that undermine existing laws to protect other important civil rights and civil liberties,” Kennedy said. “Action by Congress to protect religious liberty should not be a setback for the nation’s ongoing commitment to provide equal opportunity and equal justice for all our citizens.”