[1]WASHINGTON (BP)–Southern Baptist agency head Richard Land encouraged Congress to restore the religious liberties of Americans in a Capitol Hill hearing before the U. S. Senate Judiciary Committee. Referring to last year’s decision of the U. S. Supreme Court to overturn the Religious Freedom Restoration Act (RFRA), Ethics & Religious Liberty Commission President Land said, “I believe that the Boerne decision is one of the worst decisions rendered by the Supreme Court in its long history.”
Land was joined by five other witnesses testifying in support of the Religious Liberty Protection Act (RLPA) June 23. The RLPA seeks to restore the “compelling interest” test struck down by the court in the 1997 City of Boerne v. Flores opinion.
Introduced on June 9 by Sen. Orrin Hatch, R.-Utah, and Sen. Edward Kennedy, D.-Mass., RLPA protects religious expression from governmental interference by prohibiting the government from placing a substantial burden on religious practices unless it is the least restrictive means of furthering a compelling interest such as health and safety.
In his opening remarks, Hatch explained, “The legislation seeks to protect the right of religious freedom in cooperation with the Supreme Court. Clearly it would be preferable if the court returned to its previous solicitude for religious liberty claims. But until it does, this Congress will do what it can to protect religious freedom in cooperation with the court.”
Indeed RLPA has been written to withstand court scrutiny, relying on three powers of Congress as defined in the Constitution: the spending clause, the interstate commerce clause and the 14th Amendment. Under the proposed legislation, state and local officials may not substantially burden a person’s religious practice in any state or local program receiving federal funding and in or affecting interstate commerce. Furthermore, governments are restricted from imposing land-use regulations which substantially burden churches and other religious bodies.
RFRA was enacted in 1993 by Congress — in a unanimous vote in the House of Representatives and a near-unanimous vote in the Senate — in response to the Supreme Court’s 1990 opinion in the Employment Division v. Smith case. In that decision, the court stated that rather than showing it has a compelling interest in restricting religious expression, a government need only show a law to be neutral to religion. RFRA restored the “compelling interest” language but the court overturned it, ruling that Congress had exceeded its authority.
“RFRA was based upon the simple premise that Congress had every right to afford religious liberty greater protection than what the Constitution provides, as interpreted by this Supreme Court,” Land said. However, “the Supreme Court incorrectly focused on the issue of whose right it is to interpret the Constitution. From the Supreme Court’s perspective, it was a turf war. The Boerne decision was wrong.
“You cannot treat a church or a mosque or a synagogue the same way you treat a bowling alley or a used car dealership. This Supreme Court said, ‘Yes you can.’ That is outrageous and dangerous,” Land said.
“The RLPA is a good faith and magnanimous effort at legislation which conforms to the ruling in Boerne. RLPA is an attempt to give religious liberty the greatest protection possible, given the framework within which the Supreme Court has given to make that happen,” he said.
“The purpose of this legislation is not to empower the federal government … (but) to restrain the use of power of any government which interferes with religious liberty,” Land explained.
Others testifying in support of RLPA were Elder Dallin H. Oaks of the Mormon Church; Rabbi David Zwiebel, general counsel for Agudath Israel of America in New York; Elliott Mincberg, legal director for People for the American Way; and law professors Douglas Laycock of the University of Texas and Michael McConnell of the University of Utah.
Professor Laycock, who represented the churches in the Boerne v. Flores case, stated in written testimony presented to the committee, “Religious Liberty is a universal right. The Supreme Court has taken the view that one has a right to believe a religion, and a right not to be discriminated against because of one’s religion, but no right to practice one’s religion. To the extent that it has the power to do so, Congress should enact more substantive protection for religious liberty.”
Law professors Christopher L. Eisgruber of New York University and Marci A. Hamilton of New York’s Yeshiva University testified against RLPA. Characterizing the legislation as “a massive shift toward religion,” Hamilton said it “violates the letter and spirit of the modern court’s emerging structural constitutional jurisprudence.”
“RLPA is an attempt to expand Congress’ power beyond anything before,” said Hamilton, who was lead counsel for the city of Boerne, Texas, in the 1997 Supreme Court decision on RFRA.
A similar hearing in the House of Representatives was held June 17 in the Constitution Subcommittee of the Judiciary Committee. Chief sponsors of RLPA in the House are Rep. Charles T. Canady, R.-Fla., and Rep. Jerrold Nadler, D.-N.Y. Mark-ups, or committee debates on RLPA, S. 2148 in the Senate and H.R. 4019 in the House, are expected in July, with possible floor votes following the Labor Day recess.
More than 80 religious and civil rights groups have joined together in support of RLPA. Often on opposite sides in other religious liberty issues, these organizations include the Southern Baptist Ethics & Religious Liberty Commission, the Baptist Joint Committee on Public Affairs, Family Research Council, Christian Coalition, Americans United for the Separation of Church and State, Focus on the Family and the ACLU.