State and federal laws are insensitive to religious beliefs, Congress told

Friday, February 27, 1998

Efforts to persuade Congress to enact a new religious freedom protection act commenced Thursday when a House Judiciary committee heard testimony from 12 individuals claiming religious persecution from an array of state laws.

When the Supreme Court last year invalidated the Religious Freedom Restoration Act of 1993 it noted that not only did Congress not have the Constitutional authority to impose such a law on the states but that lawmakers failed to create a record of evidence that suggested zoning laws, drug laws, discrimination laws, and many other generally applicable state and federal laws were truly an impediment to religious practices in America.

In striking down the law, however, the court left open the possibility that individual states might be able to create constitutionally permissible laws giving citizens expanded religious liberty rights.

Since the Court's decision in Boerne v. Flores, the Coalition for the Free Exercise, the group of organized religions that drafted and lobbied for the act, has pursued a two-track strategy in efforts to resurrect the law. First, the coalition has approached lawmakers in California, Illinois, Maryland, Tennessee and Michigan with proposals to enact laws similar to the unconstitutional federal version. Second, the coalition is preparing a new religious freedom protection draft it hopes Congress will enact.

Steve McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom, a member of the coalition, said committee members were “transfixed by the outrageous stories” about the impact of state and federal laws on religious freedom.

Committee members heard from a pastor of a Washington-state Evangelical Reformed Church who is fighting a state judge's order to reveal details of a conversation he had with a murder suspect. The pastor insists the conversation was a confessional and that forcing him to repeat what was said would violate his religious liberty. He told the committee the state's interest in conducting a murder trial should not trump his rights to religious freedom.

Among other testimony, lawmakers heard from a Massachusetts mother who became peeved after learning that her son was exposed to an AIDS awareness class while at school. The student's mother was upset that her son was forced to attend the class which supposedly included lewd and sexual references. She sued the school, claiming her son's religious liberty rights had been subverted.

A lower state court dismissed the complaint after concluding the student's religious liberty rights were not substantially harmed by attending the public school program.

McFarland said the testimony was intended to convince Congress to take action against such laws and to build a record to convince courts that religious freedoms are indeed harmed by generally applicable state and federal laws.

“The individuals who testified made a compelling case for congressional remedy,” McFarland said. “The next step is to insert the findings of the hearing into the bill, finalize language of the bill and schedule hearings for experts to lay a legal foundation for the bill. I am hopeful the act will be approved by the House this spring.”

Although the language for a new federal religious freedom act has not been finalized by the coalition, McFarland suggested the fiscal powers of Congress, in part, provide Congress with the constitutional authority to successfully defend such an act before federal and state courts.

The Constitution grants Congress the power to tax and spend for defense and general welfare as well as to control interstate commerce. McFarland said Congress could use its authority pursuant to its fiscal powers to “attach strings to recipients” of federal funds.

For instance, McFarland suggests a federal law could demand that law enforcement agencies, receiving federal dollars, show a compelling interest in forcing a clergy's confession.

“A court may well rule that there is a compelling interest in solving the crime, but we would like the opportunity to make that case,” he said. “Right now the government can steamroll the individual's religious conscience.”

Marci Hamilton, a law professor at the Benjamin N. Cardozo School of Law, questions whether Congress will ever be able to create legislation that essentially re-writes judicial interpretation of religious liberty. Hamilton also argued against the original congressional religious freedom act before the Supreme Court.

“The coalition is determined to stretch any congressional power to impose its interpretation of the free exercise clause on the states,” Hamilton said. “I think it will be difficult for the coalition to sell a new congressional power to the current Supreme Court. The Supreme Court is interested in establishing limits on Congress' power. The court is not in the mood to expand federal power.”

Hamilton noted “it will also be an uphill battle for the coalition to build a persuasive record that generally applicable laws are truly the scourge of religious liberty.”