[1]WASHINGTON (BP)–Congress should act to offset a recent Supreme Court decision injurious to religious liberty but should not pursue a constitutional amendment yet, a House of Representatives panel was told July 14.
In testimony before the Constitution Subcommittee of the House Judiciary Committee, six of seven witnesses criticized the court’s June 25 opinion in City of Boerne v. Flores. In the ruling, the court struck down the Religious Freedom Restoration Act, which Congress passed nearly unanimously and President Clinton signed into law in 1993.
The decision “makes religious liberty an inferior right,” Prison Fellowship President Charles Colson said. “It’s only going to be enforceable if it can be coupled with some other constitutional right and therefore makes it the first hybrid liberty, which is preposterous to those of us in the religious community and should be preposterous to most Americans because freedom of conscience would be the first of the inalienable rights … .”
In its 6-3 decision, the court ruled RFRA is a matter for the federal courts and states to consider and not Congress. The court acknowledged Congress’ authority to legislate enforcement of a constitutional right to the free exercise of religion, yet it held Congress cannot make a substantive change to define what the right to free exercise means. The ruling also held RFRA violated the federal government’s separation of powers.
RFRA was a legislative response to the 1990 Employment Division v. Smith opinion, in which the Supreme Court ruled government no longer had to demonstrate a “compelling interest” before restricting religion. After the Smith decision and prior to RFRA’s enactment, critics of Smith said it had become easier for the government to limit religious expression. RFRA required a government body to show a policy serves a “compelling interest” and is the “least restrictive means” in fulfilling the government’s interest before limiting the free exercise of religion.
Colson and other supporters of RFRA recommended several remedies other than an amendment. Among potential congressional responses cited by the pro-RFRA witnesses were:
— a nonbinding, joint congressional resolution supporting protection for the free exercise of religion.
— legislation requiring state and local governments to meet the “compelling interest” test on religious exercise before receiving federal funds.
— a bill mandating the “compelling interest” test be applied to religious practice affecting interstate commerce.
— implementation of the International Covenant on Civil and Political Rights, which provides more protection for religion than the Smith decision does.
Seeking a constitutional amendment now would be an admission by Congress the court was correct in its separation of powers ruling, might cause a greater problem than the one that already exists, and is a long and difficult process, some witnesses said.
“A constitutional amendment, though an important last resort, is not a sprint. It is a marathon,” said Oliver Thomas, special counsel for the National Council of Churches and chairman of the Coalition for the Free Exercise of Religion. The coalition is the widely diverse, 68-member group that worked for RFRA’s passage.
The subcommittee chairman, Rep. Charles Canady, R.-Fla., agreed it would be “ill advised” to seek a constitutional amendment now.
The Southern Baptist Ethics and Religious Liberty Commission is working as part of the RFRA coalition to find ways to protect religious liberty after the court’s decision. There is disagreement within the coalition as to the proper approach. An ERLC spokesman said a constitutional amendment may be the only remedy.
“Personally, I do not feel that a compelling argument has been made that there is any practical solution to the problem other than a constitutional amendment,” said Will Dodson, the ERLC’s director of government relations, after observing the hearing. “I can appreciate those who want to be very deliberate in their approach to the problem, but the alternatives being suggested all have a considerable down side.
“To be honest, it must be recognized that a constitutional amendment is very problematic as well. Over time, I believe more and more people will become of the opinion that a constitutional amendment is the most effective and the most practical solution.”
Canady and some witnesses said the court’s opinion apparently leaves RFRA as valid in relation to the federal government. The Clinton administration has instructed federal agencies to act as if RFRA is still the law, said Marc Stern, director of the American Jewish Congress’ legal department.
Rep. Robert Goodlatte, R.-Va., asked about reining in the Supreme Court, but Colson and Mark Chopko, general counsel of the U.S. Catholic Conference, said they would like Congress to deal with religious liberty before seeking to restrain the court.
The “overriding problem” is the court’s “willingness to ignore the will of the people as expressed in our written Constitution,” Dodson said. “No solution, including a constitutional amendment, is effective unless you have a federal judiciary which is self-disciplined enough to follow what the law is as opposed to what they think it ought to be.”
Other pro-RFRA witnesses were Doug Laycock, University of Texas law professor who argued the Boerne case before the high court, and Thomas Berg, associate professor at the Cumberland School of Law at Samford University in Alabama. The lone witness who agreed with the court’s ruling was Jeffrey Sutton, solicitor for the state of Ohio.