Congress Moves to Restore Religious Freedom
As we reported in the last issue of the Court Report, the United States Supreme Court, on April 17, 1990, effectively eradicated the traditional standard of protection afforded the free exercise of religion. The Court ruled in Smith v. Oregon (Smith II) that they would no longer apply the compelling state interest test to religious freedom cases. However, the Court indicated that this test would continue to be applied to cases involving other fundamental freedoms. The net conclusion is that the Court’s ruling means that it no longer considers the free exercise of religion to be a fundamental freedom.
Obviously, this is an intolerable conclusion. Since the day Smith II was announced, we have been working to reverse the effects of this decision through federal legislation.
Home School Legal Defense Association has been an active participant in a coalition effort to draft and lobby for a bill to reverse the effect of Smith II.
Congress has now introduced our legislation, the Religious Freedom Restoration Act of 1990 [H.R.5377]. Its chief sponsors are Rep. Stephen Solarz (D-NY), Rep. Paul Henry (R-MI), Rep. Don Edwards (D-CA), and Rep. James Sensenbrenner (R-WI).
Our current goal is to gain as many cosponsors as possible in both the House and Senate. Rep. Edwards, chairman of the House Judiciary Committee, has indicated that he will hold hearings [on the bill] in September.
Congressional support for this bill is clearly bi-partisan in nature. Some Congressmen supporting this bill rarely ever work together on legislation. Traditional ideological and party lines do not apply for this bill.
This fact is also indicated in the composition of the coalition backing H.R.5377. The ACLU has chaired the meetings of the coalition. Other liberal organizations supporting this bill include People For the American Way, National Council of Churches, and the American Jewish Congress. Conservative backers include the Christian Legal Society, National Association of Evangelicals, and Concerned Women for America. Representing HLSDA, I was able to lead the legislative drafting committee which was co-chaired by Mark Stern of the American Jewish Congress.
It is important to address the question of why this wide variation of organizations support this bill when they have tangled so often in the past. There are two reasons for this unusual occurrence. First, most of the disputes between these organizations have centered on cases involving the Establishment Clause. These groups hold sharply differing views on cases where the government appears to be involved with religious activity which they claim implicates the so-called “separation of church and state.” However, these groups disagree far less frequently on cases arising under the Free Exercise Clause.
All of these groups support the principle that the free exercise of religion is a fundamental right. That is the second reason there is a basis for united action on this bill. The bill simply re-enacts the fundamental rights standard in free exercise of religion cases. The bill does not mandate particular outcomes in particular cases. All groups will be free to advocate different application of the general rule in each case arising in the future.
We urge every member of HSLDA to write to your Congressman and Senators now, encouraging them to become co-sponsors of H.R.5377.
If this bill is not enacted, the Supreme Court’s new standard will be employed to force churches and religious people to succumb to the general provisions of law without any protection of their religious beliefs. Churches could be forced to hire women pastors even if their doctrine forbids it. Religious individuals can be forced to aid in abortions even if their faith forbids it.
It is an utter shame that we must resort to legislative protection for what should clearly be a Constitutional right. But when the Supreme Court refuses to grant an appropriate Constitutional remedy, we have the right and responsibility as citizens to appeal to another branch of government to recognize the fundamental right of religious freedom.
For your convenience and information, the complete text of H.R.5377 appears on p. 19.
Michael P. Farris