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New opposition to RLPA comes from groups on left

WASHINGTON (BP)–The latest version of the Religious Liberty Protection Act received its first hearing in this Congress with new opposition, this time from the left.
While the prime opposition to the bill in the last session was from conservative Christians, led by Michael Farris of the Home School Legal Defense Association, the American Civil Liberties Union and the National Gay and Lesbian Task Force have joined forces against RLPA (H.R. 1691). Their concerns were expressed at a May 12 hearing before the Constitution Subcommittee of the House of Representatives Judiciary Committee.
Meanwhile, representatives of a diverse coalition, ranging from the Southern Baptist Ethics & Religious Liberty Commission to the Baptist Joint Committee on Public Affairs and the National Council of Churches, continued to back the bill as an appropriate response to religious freedom problems resulting from decisions by the U.S. Supreme Court.
“The vast majority of Americans are correct in their intuitive sense that religious liberty has lost significant ground in recent years and that the courts in general, and the Supreme Court in particular, no longer share most Americans’ conviction that religious liberty should be cherished and protected to the greatest practical extent,” Land told the subcommittee. “Our free-exercise rights as American citizens are in peril.”
RLPA was fashioned as a secondary attempt to alleviate problems for religious liberty brought on by a Supreme Court opinion. It is a response to a 1997 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 in the City of Boerne v. Flores decision, ruling Congress exceeded its authority.
In so doing, the court’s Boerne ruling “dethroned Smith as the worst religious liberty decision in my lifetime,” Land testified. After Congress passed RFRA, the high court “surveyed the situation and, having painted the American people into a religious liberty corner in Smith, promptly applied a second coat of paint in striking down RFRA in the Boerne decision,” he said.
While more limited in scope than RFRA, the Religious Liberty Protection Act relies 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.
Last year, Concerned Women for America, Eagle Forum and Traditional Values Coalition were among the organizations that joined HSLDA’s Farris in opposing the bill because of its use of the commerce clause. They contended only those religious organizations large enough to affect interstate commerce would be able to seek RLPA’s protection. They also argued people of faith would be forced to challenge government restrictions of religious exercise on the basis of commercial activity, not their beliefs.
Farris again testified against RLPA May 12 and offered his own proposal, but this time much of the debate was over the opposition from the ACLU and homosexual rights organizations. The ACLU supported RFRA and also backed RLPA in the last Congress.
Christopher Anders, the ACLU’s legislative counsel, testified his organization will oppose the bill unless Congress amends it to protect local and state civil rights such as gender, marital status and “sexual orientation,” which includes homosexuality. “[O]ur concern is that some courts may turn RLPA’s shield for religious exercise into a sword against civil rights,” Anders said.
He cited a ruling by the Ninth Circuit Court of Appeals that found a local ordinance protecting an unmarried couple from discrimination was not a compelling interest in the face of a landlord’s opposition to cohabitation based on his religious beliefs.
In a statement released at the hearing, the National Gay and Lesbian Task Force expressed fear RLPA will be destructive to civil rights laws banning discrimination based on such things as “sexual orientation” and HIV/AIDS.
Some supporters of RLPA said the focus should remain on the fundamental principle of restoring protection to the free exercise of religion, with no exceptions made for homosexual rights or any other concern.
“I have supported gay rights,” said Doug Laycock, a University of Texas law professor. “Lots of people in this coalition have supported gay rights.
“A carve-out for civil rights is a blunderbuss that doesn’t make sense. A civil rights carve-out is a bad idea. Religious liberty is a civil right.”
In his prepared testimony, Oliver Thomas, the National Council of Churches’ special counsel for religious and civil liberties, said his organization supports homosexual rights but opposes an exception for them, because RLPA “does not threaten civil rights.”
Rep. Barney Frank, D.-Mass., contended RLPA appears to give religious adherents more rights than nonreligious people.
“No, it does not give a leg up to religious speech,” said Brent Walker, the Baptist Joint Committee’s general counsel. “There is robust protection for nonreligious speech in the First Amendment.”
Walker told the subcommittee RLPA should bring unity, not division, among those concerned about religious exercise.
“I mean, if Dr. Land and I can agree on something, we must be on the right track,” Walker said.
The BJC served as the Washington voice on church-state issues for the Southern Baptist Convention until the early 1990s, when the SBC cut ties with it in a disagreement over the agency’s handling of some issues. The ERLC became the convention’s sole religious liberty voice in the capital.
The pro-RLPA coalition also includes the Christian Legal Society, People for the American Way, National Association of Evangelicals, Americans United for Separation of Church and State, Justice Fellowship (the public-policy arm of Prison Fellowship) and the American Jewish Congress.
Last year, the Constitution Subcommittee approved RLPA but only after removing the commerce clause provision. The bill moved no further.