WASHINGTON (BP)–Some longtime leaders in a coalition seeking to restore protection of religious expression have withdrawn support for legislation with that purpose only two months after it overwhelmingly passed the U.S. House of Representatives.
Among the organizations no longer backing the Religious Liberty Protection Act are Americans United for Separation of Church and State, the National Council of Churches, People for the American Way and the Religious Action Center for Reform Judaism.
The Baptist Joint Committee on Public Affairs, meanwhile, continues to support RLPA but will no longer work actively for its passage, a spokesman said.
The Southern Baptist Ethics & Religious Liberty Commission and others reiterated they will continue to work for its adoption.
RLPA 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 by the U.S. Supreme Court, RLPA utilizes the spending clause, the interstate commerce clause and the 14th Amendment of the Constitution to restore this test.
A diverse coalition of conservative and liberal organizations were united behind the bill until the American Civil Liberties Union, a former supporter, introduced a new issue earlier this year that threatened to peel off some support in Congress and the coalition. The ACLU said it would oppose the bill unless Congress amended it to protect local and state civil rights such as gender, marital status and “sexual orientation,” which includes homosexuality. The Human Rights Campaign and the National Gay and Lesbian Task Force, leading homosexual rights political organizations, joined the ACLU in calling RLPA a threat to civil rights, saying people would be able under the legislation to discriminate against homosexuals and others in housing and employment based on their religious beliefs.
Nearly all the coalition members opposed any attempt to make an exception for civil rights laws, and the House adopted RLPA in a 306-118 vote in mid-July. The majority consisted of 107 Democrats as well as 199 Republicans. An attempt to amend the bill to provide an exemption for cases dealing with housing and employment failed.
The NAACP Legal Defense Fund withdrew its support at about the same time, and former RLPA leaders in the House, Reps. Jerrold Nadler, D.-N.Y., and Barney Frank, D.-Mass., had already come out against the legislation without a civil rights amendment.
In a coalition meeting Sept. 14, several organizations announced they would either no longer support or work actively for the bill. In interviews Sept. 23 and 24, some of them cited political and judicial reasons, not new sympathy for the arguments of homosexual rights activists, as the basis for their decisions.
While still endorsing the legislation, the BJC is “not prepared to lobby heavily for” RLPA, because “we think the chances of passing it in the Senate are next to nil,” said Brent Walker, the agency’s general counsel.
The homosexual rights argument is “certainly” the point of opposition “driving the debate,” Walker acknowledged but said, “It doesn’t influence the Baptist Joint Committee’s position, because we have always maintained that religious freedom should be the first freedom and there should be no carve-out for civil rights.”
Instead of pushing RLPA forward, the BJC “would be open to a more focused measure dealing with land and zoning, number one, because there’s plenty of problems; number two, because its constitutional grounding is firm, and number three, because it is something that can pass.”
Oliver “Buzz” Thomas of the National Council of Churches called it a “sad, sad development” but a “pragmatic, political judgment” by his organization.
The NCC chose “to not invest our resources in a bruising political battle that we could lose, but even if we win is likely to be struck down by the court,” said Thomas, who has served with Walker as co-chair of the Coalition for the Free Exercise of Religion.
“I am deeply frustrated and disappointed that some of my friends and colleagues in the civil rights community have declared war on this piece of legislation, but at this point we don’t have a single Democratic senator willing to sign on as a cosponsor,” Thomas said. “We don’t agree with them. We have not changed our opinion on the compelling-interest standard. This is a change of strategy on our part, not a change of principle.”
Remaining supporters of RLPA disagreed with Walker and Thomas’ political and constitutional assessments.
Shannon Royce, new legislative counsel for the SBC’s Ethics & Religious Liberty Commission, said, “We are just as supportive of this legislation as we have been from the beginning. We are working with hope of success.
“I think it’s unfortunate that they lost hope in this cause for which they worked so long.”
Sam Casey, executive director of the Christian Legal Society, said, “If we are permitted to have a [Senate] floor vote on the RLPA, it will turn out to be a bipartisan vote in favor of religious liberty for all Americans. I am confident that when called upon to do so, Republicans and Democrats will come together on this.”
The organizations no longer working for RLPA “say they’ve got concerns about the constitutionality of the bill. Yet, they’re all on record as saying this bill is constitutional under current law. I believe that this bill is not only constitutional under current law but will be found constitutional by the United States Supreme Court.”
A representative of another organization continuing to work for RLPA’s passage was more pointed in her critique of the groups changing their positions.
“It’s become clear that many in the coalition do not care enough about religious freedom for all, as they claimed, to fight for it,” said Mariam Bell, director of federal affairs for Justice Fellowship.
“We’ve just come from a stunning victory in the House, and then to go into the Senate and say, ‘Well, we’d better pull back,’ just defies one’s imagination. And again, where are their principles? This is the same RLPA we drafted together. … And for them to pull back from legislation they helped draft is cowardly.
“There are few pieces of legislation worth going to the mat for, and the First Amendment is worth going to the mat for.”
Justice Fellowship is the public-policy arm of Prison Fellowship.
Among other organizations still actively supporting RLPA, Casey said, are Family Research Council, National Association of Evangelicals, American Center for Law and Justice, Christian Coalition, U.S. Catholic Conference, Prison Fellowship, Union of Orthodox Jewish Congregations of America, the Church of Jesus Christ of Latter-day Saints, B’nai B’rith International, General Conference of Seventh Day Adventists, Agudath Israel of America, the Episcopal Church, and Association of Christian Schools International. Casey is chairman of the group.
People for the American Way has not ruled out the possibility of opposing RLPA in the Senate, said Catherine LeRoy, director of public policy. It would support legislation focusing on government restrictions on land use by churches and other religious groups, she said.
Others withdrawing support include the Evangelical Lutheran Church, Anti-Defamation League and the National Council of Jewish Women, Casey said.
RLPA also has faced some conservative opposition in the last two sessions of Congress. 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.
The White House has signaled its support for the bill but has not recently addressed the legislation.
RLPA 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.
