Slow down, look closely at Religious Liberty Protection Act, Senate urged

Wednesday, September 23, 1998

The U.S. Senate has conducted one hearing on whether there's a need for the recently introduced Religious Liberty Protection Act of 1998. For a group of political advocates and law professors, that is simply not enough.

Led by Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, the group sent a letter to Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee, last week urging the committee to slow its consideration of RLPA. The group also asked the panel to conduct a “closer examination of [RLPA's] multifaceted and invasive impact.”

The group, which includes the National League of Cities, the Minnesota chapter of the American Civil Liberties Union and the National Center for Public Policy Research, also called on Hatch to give “an opportunity for all constituencies who will be affected by RLPA to express their views and have their considerations taken into account.”

RLPA was introduced in both houses in June. The act is similar to the Religious Freedom Restoration Act of 1993, which the U.S. Supreme Court invalidated last year.

The new act, co-sponsored in the Senate by Hatch, would codify the same stringent legal standard as did RFRA. That test would require federal and 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. That means laws that are supposed to apply to everyone must not infringe on religious liberty unless government has a compelling interest (such as public safety) in doing so, and uses the least-restrictive means of regulating religious practices.

In late June, Hatch's committee conducted a hearing at which lawyers, academics and representatives of organized religions argued that RLPA could withstand judicial scrutiny and that it was needed to protect religious people from an array of local and federal laws that might hamper their practices. Most of the participants at the hearing were members of the Coalition for the Free Exercise of Religion, the same gathering of organized religions and civil rights groups that wrote RFRA and RLPA.

After the hearing, Hatch said no further RLPA hearings would be conducted. He said he was confident the full Senate would vote on the act before the October break. The House Subcommittee on the Constitution held two hearings on RLPA and passed it on to the full Judiciary Committee in August. The House Judiciary Committee was scheduled to vote on RLPA early this month, but postponed the vote in light of its duty to decide if it should send articles of impeachment of President Bill Clinton to the Senate.

In its letter to Hatch, the opponents of RLPA listed a bevy of instances in which the government could be severely hamstrung if the “compelling interest/least restrictive means” were once again codified by Congress.

“In Arizona, a Warlock recently defended his alleged sexual abuse of a 13-year-old girl as part of the Wiccan religion,” Hamilton wrote for the group. “The open question is what is the least restrictive means of dealing with religious conduct that results in sexual abuse or statutory rape. Although the state may have a compelling interest in preventing sexual abuse or statutory rape, conviction and incarceration may not be the least restrictive means of dealing with such individuals.”

Additionally, Hamilton noted a situation in Utah where a “battered and bruised teenager fled from an isolated ranch that is used by a Utah polygamist sect as a reeducation camp for recalcitrant women and children.” Hamilton said that although the teen-ager's husband had been charged with several crimes, RLPA would offer him a defense.

Representatives for the Coalition for the Free Exercise of Religion, however, do not agree that the Senate should conduct further hearings or that RLPA unduly hampers government's ability to create general health and safety laws.

“Hamilton is wrong when she argues that RLPA would automatically trump civil rights laws, require prison officials to tolerate practices that endanger prison security, or require states to turn a blind eye to the abuse,” the coalition maintained in a letter signed by J. Brent Walker of the Baptist Joint Committee, Marc Stern of the American Jewish Congress, and Douglas Laycock, a constitutional law scholar and administrator at the University of Texas Law School.

“RLPA would call only for officials to justify substantial intrusions on religious liberty and to demonstrate that they cannot satisfy those interests in a way creating a lesser burden on religious practice,” the coalition continued. “RLPA is a declaration by the elected representatives of the people that religious liberty is a precious and fundamental freedom and that, in weighing competing interests, it should be taken seriously.”

Hamilton, however, maintains that the coalition has misconstrued religious-liberty jurisprudence to the detriment of all society.

“What about the children who die from easily treated maladies in faith-healing homes?” she asked. “Or the spouses who are abused in the name of a greater power? Or the children who are denied child-support payments because the parent's religion requires the pooling of the members' assets and allows no outside distribution? The coalition asserts that the government may win some of its cases under RLPA. But why create the risk for children and spouses in the first place?”

Hamilton added that there is “nothing in the free-exercise clause about the right to obstruct views, congest streets, abuse children or carry weapons to school. The historical record simply does not indicate that 'free exercise' meant that every transaction of a religious believer should be above the law.”

When the Supreme Court invalidated RFRA in Boerne v. Flores, Justice John Paul Stevens noted in a concurring opinion that to codify the legal test of RFRA would amount to a “preference for religion, as opposed to irreligion,” which he said was “forbidden by the First Amendment.”

Hatch has not responded to RLPA's opponents and a spokeswoman for the Senate Judiciary Committee said that no further hearings on the act have been scheduled.