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House panel approves RLPA but removes commerce sections

WASHINGTON (BP)–A House of Representatives subcommittee approved a new bill designed to protect the free exercise of religion but only after removing a key component.
The Constitution Subcommittee of the House Judiciary Committee passed the Religious Liberty Protection Act Aug. 6 by voice vote. The version approved, however, does not include the original bill’s provisions based on the interstate commerce clause of the Constitution.
Rep. Charles Canady, R.-Fla., the subcommittee chairman, said he bowed to political reality in changing his bill just before the subcommittee’s action.
“I personally regret” deleting the commerce clause sections, Canady said before the subcommittee voted, but he also believes “this bill was not going to become law” without such action.
The commerce clause provisions “have created an insurmountable obstacle” to passing the legislation, Canady said.
Canady’s amendment of his bill brought an end to the strong, grassroots opposition from a conservative coalition led by Michael Farris, president of the Home School Legal Defense Association. The Farris coalition’s efforts, including phone calls to congressional offices, proved effective, a Capitol Hill source said.
The commerce clause’s removal resulted in a significant weakening of the legislation as far as the diverse coalition supporting RLPA is concerned. The coalition backing the RLPA had released no statement by mid-day Aug. 7, but some members expressed a willingness to maintain their support of the House bill while working for the Senate legislation, which has Sen. Orrin Hatch, R.-Utah, as chief sponsor.
“While we are disappointed that it seemed necessary to weaken the reach of this bill by removing the commerce provisions, we will continue to support the amended version in the House and also back Senator Hatch’s stronger version in the Senate,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “The bottom line is that we want the strongest Religious Liberty Protection Act that we can get passed by this Congress to at least restore some protections for religious liberty’s free exercise in America.”
Prison Fellowship is “extremely, extremely disappointed,” said Mariam Bell, director of federal affairs at Justice Fellowship, the public-policy arm of the ministry.
“It is very important to do something this year,” she said, and “we are willing to go with a more diluted version … but it is not the strong kind of bill that we need.”
The National Association of Evangelicals expressed a similar approach.
The pro-RLPA coalition also includes the Baptist Joint Committee on Public Affairs, Christian Legal Society, People for the American Way, Focus on the Family, the ACLU, Christian Coalition, Americans United for Separation of Church and State and Family Research Council.
In opposing the original bill, the Farris coalition contended only those religious organizations large enough to affect interstate commerce would be able to seek RLPA’s protection. It also argued people of faith would be forced to challenge government restrictions of religious exercise on the basis of commercial activity, not their beliefs.
Canady’s substitute of a new version without the commerce clause provisions resulted in the home school organization withdrawing its opposition, a HSLDA spokesman confirmed. HSLDA and the coalition continue to oppose the Senate version, however.
RLPA was fashioned as a response to a 1997 Supreme Court ruling largely overturning the Religious Freedom Restoration Act, which was a congressional response to a 1990 decision by the justices.
The Religious Freedom Restoration Act 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 last year in the City of Boerne v. Flores decision, ruling Congress exceeded its authority. The Clinton administration and many church-state specialists believe RFRA still applies to federal actions, though the high court did not clarify that issue.
While more limited in scope than RFRA, the original version of RLPA relied on three congressional powers — the spending clause, the interstate commerce clause and the 14th Amendment — to restore the “compelling interest/least restrictive means” test where applicable.
The amended House version still includes the spending clause and 14th Amendment provisions. It prevents state or local governments from substantially burdening a person’s religious practice in federally funded programs and restricts governments from imposing land-use regulations that substantially burden churches and other religious bodies.
While RLPA still protects free-exercise rights in federally funded schools, prisons and housing, the removal of the commerce clause leaves religious organizations “extremely vulnerable,” Justice Fellowship’s Bell said. For one, employment practices of religious organizations will not be protected under the new House version, she said.
In addition to HSLDA, the Farris coalition includes Concerned Women for America, Eagle Forum and Traditional Values Coalition. Two prominent Southern Baptists also are members: Adrian Rogers, three-time Southern Baptist Convention president and pastor of Belleuve Baptist Church in suburban Memphis, Tenn., and retired Houston Judge Paul Pressler, an architect of the SBC’s conservative resurgence.
The ERLC’s Land testified in behalf of RLPA in a Senate Judiciary Committee hearing in June.
The bill number is H.R. 4019 in the House and S. 2148 in the Senate.