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Congress approves protection for religious liberty in 2 areas

WASHINGTON (BP)–Both houses of Congress adopted legislation July 27 to provide protection for religious liberty in two arenas where discrimination has been a particular problem in recent years.

Acting by unanimous consent, the Senate and House approved the Religious Land Use and Institutionalized Persons Act, S. 2869. The legislation was agreed to without dissent in first the Senate and then the House as members of Congress prepared for a five-week recess.

President Clinton is expected to sign it into law.

The bill is designed to protect the religious freedom rights of churches and other religious bodies against discriminatory land-use regulations and of people in institutions such as prisons and mental hospitals. Though the legislation is narrower in focus than the Religious Liberty Protection Act that failed to receive Senate approval in this session, it addresses the two categories where its advocates say the overwhelming majority of free-exercise-of-religion problems have arisen in recent years.

While it only addresses land use and people in institutions, RLUIPA is like RLPA in that it utilizes the spending clause, the interstate commerce clause and the 14th Amendment of the Constitution. Like RLPA, the bill also prevents a government entity from substantially burdening the free exercise of religion unless it demonstrates it has a “compelling interest.”

Congressional committees have received testimony showing local communities have used zoning laws and land-use regulations to prevent churches and other religious bodies from building, buying or leasing spaces to meet and to limit attendance at such meetings.

In addressing institutionalized people, the bill is designed to protect the religious rights of prisoners and patients while not undercutting security and discipline.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, praised Congress “for taking leadership in helping to restore at least a portion” of the First Amendment’s religious free-exercise rights.

“When President Clinton signs this bill, Americans will have more freedom to exercise their religious faith than they do now,” Land said. “That should be a cause for celebration for every citizen.”

Supporters of the free exercise of religion, Land said, should increase their efforts in the next Congress to restore that freedom to its level prior to a damaging 1990 ruling by the Supreme Court. In that opinion, the court discarded a test requiring the government to demonstrate it has a “compelling interest” before restricting religious expression.

Melissa Rogers, general counsel of the Baptist Joint Committee on Public Affairs, said RLUIPA “protects a foundational freedom — the right to worship free from unnecessary governmental interference.”

“Some have said that only divine intervention could explain the alliance” behind RLUIPA, Rogers said in a written statement. “An incredibly diverse group of organizations put aside their differences on so many issues to pursue a cause that unites us all — robust protection for the free exercise of religion.”

In addition to the ERLC and BJC, other coalition members were the Christian Legal Society, American Civil Liberties Union, Prison Fellowship, National Council of Churches, Family Research Council, American Jewish Congress and U.S. Catholic Conference.

The bill “provides important protection for people of faith from the overreaching power of government,” said Rep. Charles Canady, R.-Fla., lead House sponsor, in a written release.

“America is the most successful multi-faith country in all recorded history largely due to both components of the phrase ‘religious liberty,'” said Sen. Orrin Hatch, R.-Utah, chief Senate sponsor, in a written statement. “This measure is an important protection of our religious liberty.”

Sen. Edward Kennedy, D.-Mass., and Rep. Jerrold Nadler, D.-N.Y, were the lead Democratic sponsors.

The House approved RLPA with a 306-118 vote in July 1999. The Senate never acted on the bill, however.

Two months after the House vote on RLPA, some longtime leaders in a coalition seeking to restore protection of religious expression withdrew their support of RLPA. They included the National Council of Churches, People for the American Way, Americans United for Separation of Church and State, Evangelical Lutheran Church and the Religious Action Center for Reform Judaism.

In addition, the BJCPA said it would continue to support RLPA but would no longer work actively for its passage.

Support for RLPA began to be peeled away last year after the ACLU said it would oppose the bill unless Congress amended it to protect local and state civil rights such as gender, marital status and “sexual orientation,” which includes homosexuality. The Human Rights Campaign and the National Gay and Lesbian Task Force, leading homosexual rights political organizations, joined the ACLU in calling RLPA a threat to civil rights, saying people would be able under the legislation to discriminate against homosexuals and others in housing and employment based on their religious beliefs.

Nadler and Rep. Barney Frank, D.-Mass., former RLPA leaders in the House, came out against the legislation minus a civil rights amendment before the vote.

Spokesmen for the BJCPA and NCC said the arguments of homosexual rights activists did not form the basis for their new positions on RLPA. They cited the lack of support in the Senate and constitutional reasons. The BJCPA said it would prefer a bill targeting land use.

The ERLC, Christian Legal Society, Prison Fellowship, Family Research Council and others continued to work for RLPA’s passage, but no Senate action was forthcoming.

RLPA was a secondary attempt to alleviate problems for religious liberty brought on by a high court opinion. It was a response to the Supreme Court’s 1997 ruling overturning the Religious Freedom Restoration Act at the state and local levels.

RFRA, also supported by a broad coalition, was enacted in 1993 in order to remedy the 1990 decision in Employment Division v. Smith, in which the Supreme Court rejected a previous requirement the government must show it has a “compelling interest” in restricting religious exercise and its action is the “least restrictive means” in furthering that interest. Instead, the high court said the government only must show a law is neutral toward religion. RFRA restored the “compelling interest/least restrictive” test, but the justices rejected the law in the City of Boerne v. Flores decision, ruling Congress exceeded its authority.