June 2, 1999

Religious liberty bill facing
threats from a new side--the left

___WASHINGTON--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, this time the American Civil Liberties Union and the National Gay and Lesbian Task Force have joined forces against RLPA (HR 1691). Their concerns were expressed at a May 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," Richard Land of the Ethics & Religious Liberty Commission told the subcommittee. "Our free-exercise rights as American citizens are in peril."
___The Religious Liberty Protection Act would limit the power of state and local governments to interfere with religious practices. Government would be required to have a "compelling" reason before burdening any religion and to use the least-restrictive means of achieving that aim.
___Religious groups say the law is needed because Supreme Court rulings have eroded the free exercise of religion guaranteed by the First Amendment.
___The Supreme Court discarded the "compelling state interest" test for church-state disputes in 1990. That prompted Congress to pass the Religious Freedom Restoration Act in 1993, restoring the standard. The high court struck down part of the law, however, saying Congress exceeded its authority by imposing the law on all 50 states.
___The new law, introduced May 5 by Charles Canady, R-Fla., is similar to RFRA but would be enforced largely through Congress' powers regulating spending and commerce. It also has a separate provision protecting houses of worship from zoning laws.
___Canady, chairman of the House Constitution Subcommittee, said the measure would apply the "most rigorous legal test" to state and local regulations that end up burdening religious practice.
___Canady said he is puzzled by people who supported the 1993 law but now find flaws in this bill, "which simply reflects the same policy objectives that we were pursuing in the Religious Freedom Restoration Act."
___Opponents criticize the bill's use of the commerce powers of Congress and the possibility it could be used to trump other civil-rights laws.
___Critics of the commerce provisions include the Home School Legal Defense Association. In a written statement, Michael Farris, head of the group, said the bill's commerce provisions would grant Congress too much power over religion.
___"If Congress has Commerce Clause power to order state governments to not discriminate against churches under RLPA, then Congress also has Commerce Clause power to order churches not to discriminate against homosexuals," Farris said.
___Land said opponents' concerns about "anti-federalism" are "misguided in this instance." The bill's purpose is not to "empower the federal government," he said, but to "restrain the use of power of any government which interferes with religious liberty."
___Oliver Thomas, special counsel for religious and civil liberties at the National Council of the Churches of Christ, said RLPA is not a complete solution but warned lawmakers not to penalize "the good because it's not the best."
___Thomas said the First Amendment spells out particular freedoms of the press, speech and association and religion in a special way. While "strict scrutiny" still applies for clauses affecting speech and the press, "the anomaly is we don't have it under the religion clause anymore," he said.
___"What we're asking for is not just that religion always wins, but that we at least have to go through the balancing of interests so that religion can win unless there is a good reason for it not to," Thomas said.
___Meanwhile, other opponents now warn that RLPA could threaten the civil rights of gays and others claiming a religious motive behind discrimination.
___Christopher Anders, legislative counsel for the ACLU, said the law "is consistent with the ACLU's position favoring stronger protection of religious exercise, ... but our concern is that some courts may turn RLPA's shield for religious exercise into a sword against civil rights."
___Anders said civil-rights laws should be exempted from the scope of the law.
___But Brent Walker, general counsel for the Baptist Joint Committee, said "there should be no carve-outs to religious liberty, even for good causes such as non-discrimination."
___Walker said the law is designed to allow courts to balance the two fundamental principles of religious freedom and civil rights.
___In a prepared statement, Walker told lawmakers that "if a court finds a compelling interest in enforcing non-discrimination, including on the basis of sexual orientation, that claim will prevail; where the interest cannot be shown, the religious-liberty claim will prevail."
___Compiled from Baptist Press and Associated Baptist Press reports


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