Religious Protection Act embraces expanded federal power

Human Events, Jul 31, 1998 by D'Agostino, Joseph A

The battle over the Religious Liberty Protection Act (RI.PA) is heating up as Congress begins to run out of legislative days left in the session. The bill is designed to prevent any agency of government-federal, state or localfrom imposing any law or regulation that "burdens" an individual's right to practice religion.

To justify Congress's authority to pass such a law and to have it upheld by the Supreme Court, however, the RLPA relies on a reading of the commerce clause of the Constitution that critics say has been historically rejected by conservatives as an unwarranted expansion of federal power.

The push for the RLPA began after the Supreme Court struck down its precursor, the Religious Freedom Restoration Act (RFRA), in Boerne v. Flores (1997). RFRA was Congress's response to a 1990 Supreme Court decision, Employment Division v. Smith, that discarded the long-standing "compelling interest" test for burdening reliious exercise.

This test had meant that federal and state governments could burden any American's exercise of religion only if they could prove they had a "compelling interest" in doing so. Employment Division v. Smith proclaimed a new rule: Any law that had "general applicability," pursued a reasonable goal, and was not aimed at any particular religious group was valid regardless of whether it burdened someone's exercise of religion.

RFRA tried to reverse Employment Division v. Smith by reinterpreting the 1 st and 14th Amendments to the Constitution, a move the High Court rejected as stepping on its turf and found unconstitutional.

RLPA takes a different tack: It uses Congress's power to regulate interstate commerce to protect religious groups that engage in such commerce, an interpretation of the commerce clause at variance with standard conservative jurisprudence.

Says the proposed law (HR 4019 and S 2148): "A government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, or in or affecting commerce with foreign nations, among the several states, or with the Indian tribes."

The compelling interest test is revived as the exception: "A government may substantially burden a person's religious exercise if the government demonstrates that application of the burden to a person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest."

The battle over the bill has split conservative Christians, with those who champion what they see as the original intent of the Constitution pitted against those who believe that the cause of protecting religious freedom outweighs such concerns.

Commerce Clause Distorted

Heavyweight Christian groups such as the Christian Coalition, Focus on the Family, and the Family Research Council support RLPA, while the American Family Association, Eagle Forum, Concerned Women for America, and the Home School Legal Defense Association (HSLDA) oppose it.

Chuck Colson of Prison Fellowship is leading the charge for RLPA. "Do we really want to allow our differences over which clause in the Constitution we should use, to prevent Congress from acting to protect religious liberty, reassert our right to self-determination, and stop infanticide?" he asked in World magazine (June 27, 1998). He pointed out that the Partial-Birth Abortion Ban Act depends on the interstate commerce clause as its legal basis.

Mike Farris, president of the HSLDA, says RLPA accepts the liberal view of Congress's power to regulate interstate commerce. The interstate commerce clause has been used to expand the federal government's reach into virtually every aspect of economic life in every corner of the nation. Farris says this bill comes at a time when the Supreme Court is attempting to restore a semblance of federalism.

"In 1995, in U.S. v. Lopez;' he says, "the Supreme Court repudiated that [liberal] interpretation of the commerce clause.... We've put [in RLPA] the best and brightest of conservative lawyers to justify the liberal interpretation of the commerce clause." In addition, small churches-and homeschools-which do not engage in any true interstate commerce, could, under the Supreme Court's new and narrower interpretation of the commerce clause, be left out of RLPA's protection.

HSLDA also questions the bill's efficacy in general. The group is distributing flyers that quote Doug Laycock, a University of Texas law professor who helped draft the RLPA. Asked at a July 14 House Subcommittee on the Constitution hearing if a gay rights ordinance would trump a church's refusal, under RLPA, to hire homosexuals as ministers or choir directors, he answered, "I am not confident that [churches] will always win those cases."

The RLPA is sponsored by Rep. Charles Canady (R.Fla.), chairman of the Constitution subcommittee, and Sen. Orrin Hatch (R.-Utah), chairman of the Senate Judiciary Committee. At the hearing before his subcommittee, Canady questioned Farris's strict interpretation of the Constitution. But House Judiciary Committee Chairman Henry Hyde (R.-Ill.) said, "I want Mr. Farris to know that he is not without admirers and friends on this side of the aisle. I think you have a strong view of original intent and historical accuracy."