Senators told new religious-protection act is needed and constitutional

Thursday, June 25, 1998

The U.S. Senate Judiciary Committee took its turn Tuesday to showcase arguments that the recently introduced Religious Liberty Protection Act of 1998 is both necessary and constitutional.

The lawyers, academics and representatives who testified at the Senate hearings were invited by Sen. Orrin Hatch, R-Utah, one of the act's co-sponsors. Six of the eight religious leaders and constitutional scholars on the panel favored the act as a constitutionally sound way to require state courts to use the “compelling interest/least restrictive means” test when deciding if generally applicable laws or government actions infringe upon a person's religious-liberty rights.

Congress codified the test—described by some legal scholars as the strictest standard known in constitutional law—in the Religious Freedom Restoration Act of 1993. The Supreme Court invalidated RFRA last year in Boerne v. Flores, noting Congress had no constitutional power to implement a law that would rewrite religious-liberty jurisprudence.

Since the act's demise, the Coalition for the Free Exercise of Religion, the same gathering of organized religions and civil-rights groups that created RFRA, has worked to find the constitutional authority for Congress to implement the “compelling interest/least restrictive means” test.

Two weeks ago, the coalition saw its work come to fruition when the new act was introduced in both houses of Congress. The Religious Liberty Protection Act of 1998, like RFRA, states that a “government may substantially burden a person's religious exercise if the government demonstrates that the application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling interest.”

Before the committee–chaired by Hatch–lawyers, academics, and representatives of organized religions expressed confidence that RLPA, unlike RFRA, is a constitutionally valid way for Congress to protect religious persons from a raft of governmental regulations that may impinge upon their practices. Only two of the eight people testifying criticized the act.

RLPA co-sponsors and a majority of the panelists said the act was needed to protect religious liberty in the wake of recent Supreme Court rulings they characterized as harmful.

“Clearly, it would be preferable if the court returned to its previous solicitude for religious-liberty claims,” Sen. Hatch said before hearing testimony. “But, until it does, this Congress will do what it can to protect religious freedom in cooperation with the court.”

Sen. Edward Kennedy, D-Mass., one of the bill's co-sponsors, also weighed in on the attack against Supreme Court jurisprudence. Kennedy referred to the court's 1990 decision in Employment Div., v. Smith as “a serious setback to the First Amendment.”

The court in Smith concluded that laws applying to everyone, such as safety and health laws, do not violate the free-exercise clause of the First Amendment even if they incidentally impinge on some religious practices.

Like RFRA, the 1998 act is intended to ensure that such laws, infringing on a person's right to exercise religion will be enforced only if the government can meet the “compelling intererst/least restrictive means” test.

Michael McConnell, a University of Utah law professor and staunch supporter of government accommodation of religious practices, urged the judiciary committee to support RLPA. He said the fiscal powers of Congress give it the right to create and enforce the law.

“The Court has concluded that neutral and generally applicable laws cannot violate the Free Exercise Clause, but that does not prevent Congress from protecting religious freedom under the Spending Clause and the Commerce Clause,” McConnell said in testimony submitted to the committee. “Congress is free to fund, or not to fund, programs and activities in accordance with its view of the public interest. It necessarily follows that Congress can impose requirements and criteria on federally funded programs.”

McConnell said Congress' constitutional powers to regulate interstate commerce and spend for the general welfare give it the right to regulate “many areas of importance, including virtually all public schools,” and the “employment decisions of churches and religious organizations.”

The professor added that the new act was not meant to equate religious practices with commercial transactions.

“But it is undeniable that much religious exercise, for example the purchase of a church building, hiring of a rabbi, or the publication of religious books, does implicate commerce,” McConnell said. “The Commerce Clause is our Constitution's means of demarcating the federal from the state spheres of regulation. There is nothing unseemly about recognizing that much of religious activity falls within the protective jurisprudence of the federal government.”

A couple of speakers, however, questioned both the need for RLPA and its constitutionality.

Christopher Eisgruber, a New York University law professor and constitutional scholar, said the 1998 act, if enacted, would impose difficulties on governing, provide special treatment for religious objections to generally applicable laws, and ultimately be found unconstitutional by the judiciary.

“Many perfectly sound, even-handed laws will impose incidental burdens on some religious practices,” Eisgruber said in testimony provided to the committee. “The breadth and variety of religious beliefs make such collisions inevitable; but this does not offer a reason for depriving ourselves of the capacity to govern. Nor does the mere fact that a person's conduct is motivated by religious belief offer a good reason for permitting that person to defy reasonable, even-handed laws.”

The “compelling intererst/least restrictive means” test as spelled out in RLPA is foreign to American free-exercise jurisprudence and violates the First Amendment's establishment clause, Eisgruber said.

“As applied in RFRA and RLPA, the compelling state interest test indefensibly favors religious commitments over the other deep concerns and interests of members of our society—concerns and interests like the welfare and integrity of one's family, deep moral and political commitments not recognizably grounded in religious beliefs, and professional, artistic and creative projects to which individuals may be passionately committed,” said Eisgruber.

McConnell, however, dismissed the claims that RLPA unconstitutionally provides government support of religion.

“The notion that religion-specific accommodations are unconstitutional is contradicted by the very text of the First Amendment,” McConnell said. “The First Amendment, after all, protects the free exercise of religion, and does not extend comparable protection to nonreligious commitments, institutions, or acts of conscience.”

Eisgruber said that the establishment clause problems with RLPA were real.

“There have been two important Supreme Court cases involving state-created exemptions for religious actions, and both were found to be unconstitutional” on grounds that they subverted the separation of church and state, Eisgruber said.

In 1989 the Supreme Court, in Texas Monthly v. Bullock, ruled a state law giving tax breaks to religious publishers violated the separation of church and state. Justice William Brennan, writing for the majority, found the law an affront to the establishment clause because the tax break was not afforded to other publishers.

“If the state chose to subsidize, by means of a tax exemption, all groups that contributed to the community's cultural, intellectual, and moral betterment, then the exemption for religious publications could be retained,” Brennan wrote.

The other case Eisgruber mentioned centered on a Connecticut law requiring all employers—private or government—to give any employee the right not to work on their Sabbath. Justice Warren Burger struck the state law down in the Supreme Court's 1985 decision, Thornton v. Caldor, Inc. In a brief opinion, Burger dismissed Connecticut's law as blatant favoritism toward religious beliefs in contravention of the First Amendment's establishment clause.

“The idea that some persons are entitled to ignore the laws that others are required to obey, and that this privilege depends upon the actors' system of beliefs, is both extraordinary and transparently inconsistent with our constitutional values,” Eisgruber said.

Marci Hamilton, a constitutional law scholar at Yeshiva University in New York and the attorney who successfully argued against the 1993 RFRA before the high court, told the senators that if RLPA is enacted, it will adversely affect an array of societal interests because “it elevates religion” above those interests.

In particular Hamilton noted that such a law would make it difficult if not impossible for states to protect people with disabilities, women, minorities, and gay people from discrimination couched in religious beliefs.

“In sum, RLPA is no better than RFRA,” Hamilton said. “In fact, it is worse. Congress has a duty to investigate its wide-ranging effects with care before taking this plainly unconstitutional path.”

Despite such objections raised to the new act, Hatch told the panelists and the committee that he plans to prepare the bill for a full Senate vote and that he was confident it would win before Congress breaks for the year in October.

Hamilton said that Hatch's comments were optimistic. “Other senators requested additional letters from the panelists regarding things like child abuse and whether RLPA privileges religion over all other interests, so nothing is in stone, yet.”