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New bills to help remedy court’s rejection of RFRA

WASHINGTON (BP)–New legislation designed to protect the free exercise of religion has been introduced in both the U.S. Senate and House of Representatives with the support of an extremely diverse coalition.
The June 9 introduction in both houses of the Religious Liberty Protection Act marked the latest in an ongoing skirmish between Congress and the U.S. Supreme Court over the extent to which religious exercise should be protected from government intrusion. The RLPA was fashioned as a response to a 1997 high court ruling largely overturning the Religious Freedom Restoration Act, which was a reaction to a 1990 decision by the justices.
At a Capitol Hill news conference, an 82-member coalition consisting of organizations normally on opposite sides of issues — from the Southern Baptist Ethics & Religious Liberty Commission to the Baptist Joint Committee on Public Affairs, from Focus on the Family to the ACLU, from Christian Coalition to Americans United for Separation of Church and State, from Prison Fellowship to People for the American Way — was unveiled in support of the legislation.
Only a week before, many of the groups took opposing sides over the controversial Religious Freedom Amendment, which failed in a House floor vote to progess as a Constitutional amendment.
A much smaller coalition, including a few organizations which supported the Religious Freedom Restoration Act, is opposing RLPA, however.
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 it 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, RLPA would rely 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 new legislation would prevent state or local governments from substantially burdening a person’s religious practice in federally funded programs and in or affecting interstate commerce. The measure also would restrict governments from imposing land-use regulations that substantially burden churches and other religious bodies.
RLPA “will simply require religious exemptions from certain state and local laws — a small concession by government but vitally important relief to people of faith,” said Rep. Charles Canady, R.-Fla., chief sponsor in the House, at the June 9 news conference.
“Americans deserve to have their religious beliefs and practices protected. Religious freedom is too important to be trampled by insensitive bureaucracy or bad policy.”
Sen. Orrin Hatch, R.-Utah, chief Senate sponsor, and Sen. Edward Kennedy of Masachusetts and Rep. Jerrold Nadler of New York, lead Democratic cosponsors, endorsed the legislation at the news conference.
“Religious liberty is due the greatest protection possible,” said Ethics & Religious Liberty Commission President Richard Land in a letter to Canady released at the news conference. “We believe that this act is a good faith effort to respond to the concerns articulated by the Supreme Court in its decision in Boerne v. Flores.”
RLPA “will help religious individuals avoid the choice between compliance with the law or compliance with their conscience,” said Melissa Rogers, Baptist Joint Committee associate general counsel, in a written statement. “In America, citizens should not have to face such choices.”
RLPA supporters contend the legislation is needed to protect religious adherents in a variety of situations, including a local government banning a congregation from meeting in a house in a residential area and a prosecuting attorney trying to force a pastor to divulge details of a person’s confession.
Three organizations that supported RFRA were among those
expressing their opposition to RLPA in a June 5 letter to Congress. The Home School Legal Defense Association, Concerned Women for America and Traditional Values Coalition supported RFRA but were joined by, among others, Eagle Forum, Free Congress Foundation and two prominent Southern Baptists in rejecting nearly all aspects of RLPA’s approach.
“(S)ince religious liberty claimants are required to prove that their exercise of religious faith affects interstate commerce, it forces claimants to justify their faith in God as a commercial transaction,” they said in the letter. “Many of us believe that this is an affront to our faith. Worship is not commerce.”
Adrian Rogers, three-time Southern Baptist Convention president and pastor of Belleuve Baptist Church in suburban Memphis, Tenn., and retired Judge Paul Pressler of Houston, an architect of the SBC’s conservative resurgence, also signed the letter.
A hearing on RLPA in the Constitution Subcommittee of the House Judiciary Committee is scheduled June 16. The Senate Judiciary Committee has tentatively set a hearing for June 23.
The bill number is S. 2148 in the Senate. The legislation has not been assigned a number in the House.