[1]WASHINGTON (BP)–The U.S. House of Representatives decisively approved a bill restoring protection for religious expression against governmental interference July 15.
The House voted 306-118 in favor of the Religious Liberty Protection Act, thereby providing the latest congressional response to a Supreme Court that has lowered the standard required before a government may restrict religion.
RLPA, which has yet to be acted on by the Senate, requires a governmental entity to show it has a “compelling interest” and its action is the “least restrictive means” in furthering that interest before it can substantially burden a person’s religious expression. Unlike a broader piece of legislation enacted in 1993 only to be struck down in court, RLPA utilizes the spending clause, the interstate commerce clause and the 14th Amendment of the Constitution to restore this test.
The vote, as well as its size, was welcomed by supporters who saw last year’s version of the bill fail to move beyond the subcommittee level.
“This is genuinely a great victory for religious liberty,” said Will Dodson, public-policy director for the Southern Baptist Ethics & Religious Liberty Commission. “The margin of victory in the House is a very encouraging sign about the prospects of passage in the Senate, particularly when you consider the large and broad coalition of supporters of this legislation. This bill will go a long way toward restoring greater protection for the free exercise of religion.”
The Baptist Joint Committee on Public Affairs said in a written release the bill “will be instrumental in allowing persons of faith to avoid the choice between compliance with law and compliance with their conscience. In America, persons of faith should not have to face such terrible choices.”
Dodson said, “It is particularly amazing that this bill passed by the kind of margin that it did when you consider the fact that there was opposition on both ends of the political spectrum.”
The ERLC, BJC and other members of a diverse coalition backing RLPA — ranging from Christian Coalition and Focus on the Family to Americans United for Separation of Church and State and People for the American Way — opposed an attempt to provide an exception to the bill for civil rights laws
The American Civil Liberties Union and homosexual-rights organizations, such as the Human Rights Campaign and the National Gay and Lesbian Task Force, sought to carve out an exemption for local and state laws protecting “sexual orientation,” which includes homosexuality, and HIV/AIDS, as well as other categories. They fear courts will favor such religious exercise rights as those of landlords who oppose renting to homosexual or unmarried heterosexual couples over laws banning discrimination.
Rep. Jerrold Nadler, D.-N.Y., introduced an amendment to RLPA that would have exempted cases dealing with housing and employment discrimination from the bill’s reach. He expressed concern that a bill that was to be a shield for some might be used as a sword against others.
The House defeated Nadler’s amendment 234-190. While 174 Democrats voted for his substitute and only 30 opposed it, a majority of Nadler’s own party still favored the bill minus the amendment. On passage of the bill, 107 Democrats joined 199 Republicans in support.
The Human Rights Campaign said it would work in the Senate to pass an exemption. “We cannot support legislation that might threaten anti-discrimination statutes that protect gay and lesbian Americans,” said HRC political director Winnie Stachelberg.
RLPA coalition members, some who oppose homosexual rights and others who favor them, were united in opposing any exceptions to the legislation.
While the opposition of the ACLU and homosexual-rights groups was new this year, some on the right maintained their dissatisfaction with RLPA. The Home School Legal Defense Association led a group against the bill because of its use of the commerce clause. The coalition contends only those religious organizations large enough to affect interstate commerce would be able to seek RLPA’s protection. It also argues people of faith would be forced to challenge government restrictions of religious exercise on the basis of commercial activity, not belief. HSLDA President Michael Farris said July 15 he believes RLPA will be found unconstitutional.
The ERLC’s Dodson commended the organizations supporting RLPA “for joining forces with organizations they are oftentimes at odds with while agreeing to disagree with organizations they ordinarily are in agreement with.”
Among other RLPA supporters are the Christian Legal Society, National Council of Churches, National Association of Evangelicals, American Jewish Congress and Family Research Council.
Rep. Charles Canady, R.-Fla., chief sponsor of the bill, called the vote “an important step forward in the protection of religious freedom. I am pleased that the House listened to the voice of an incredibly diverse coalition of organizations” to approve RLPA.
The White House has signaled its support for the bill.
The legislation is a secondary attempt to alleviate problems for religious liberty brought on by a high court opinion. It is a response to the Supreme Court’s 1997 ruling overturning the Religious Freedom Restoration Act at the state and local levels. RFRA was a congressional response to a 1990 decision by the justices.
RFRA, also supported by a broad coalition, was enacted in 1993 in order to remedy the 1990 Employment Division v. Smith opinion, in which the Supreme Court rejected a previous requirement the government must show it has a “compelling interest” in restricting religious expression 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.
Last year, the House Judiciary Committee’s Constitution Subcommittee approved RLPA but only after removing the commerce clause provision. The bill moved no further.