|May 5, 1998|
Religious Liberty Protection Act:
Waste of Time Or Threat to Freedom?
by Michael P. Farris and Bradley P. Jacob
The battle to protect religious freedom has taken many unexpected turns in recent years. The latest proposed panacea, the Religious Liberty Protection Act of 1998 (RLPA), is being touted by its supporters as a comprehensive cure. In reality, however, the bill will either (1) have little impact on the religious liberty of most Americans, (2) signal and support massive federal governmental regulation in areas that will destroy, rather than protect, the liberty of individuals, families and churches, or (3) place the courts in the position of picking and choosing which religious believers to protect based on their economic clout and political correctness. In any event, the RLPA must be opposed.
Until 1990, legal protection for the rights of religious believers was found primarily in the Free Exercise Clause of the First Amendment to the United States Constitution (Congress shall make no law ... prohibiting the free exercise [of religion]). This provision was interpreted by the courts to mean that the government could not interfere with sincerely-held religious beliefs or practices unless it could show that such interference was an essential means to accomplish an essential governmental purpose. Constitutional scholars refer to this as strict scrutiny or the compelling governmental interest/least restrictive means test.
In 1990, in the case of Employment Division v. Smith, 494 U.S. 872, the Supreme Court jettisoned the compelling interest/least restrictive means test for free exercise cases. Henceforth, said Justice Scalia writing for a five-Justice majority, the government need not show an essential purpose in order to justify violating the religious beliefs of individuals, families and churches. Instead, it must merely show that the law or government action is facially neutralthat it prohibits no more conduct by religious believers than by non-believers.
The effects of the Courts new neutral law of general applicability test were enormous and have been well documented. Prior to 1990, religious believers did not win every free exercise case, but they were able to prevail in a significant percentage of them, particularly in circumstances where the governments objectives were less than crucial. Since the Smith decision, however, with the exception of very rare situations in which the government singles out a religious group for specific legislation (see Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)), religious believers have never been able to win a free exercise constitutional claim.
A broad and bipartisan coalition of religious liberty and civil rights organizations and constitutional scholars, representing both the political Left and Right, joined together in their opposition to the Supreme Courts rejection of religious freedom in Smith. The Religious Freedom Restoration Act (RFRA), drafted by a committee chaired by HSLDA president Michael Farris and attorney Marc Stern of the American Jewish Congress, was passed by Congress in 1993, restoring strict scrutiny as the proper legal test when government interferes with the religious practices of citizens. RFRA was adopted under the authority of Section 5 of the Constitutions Fourteenth Amendment, which permits Congress to enforce the Due Process and Equal Protection provisions of that Amendment (including the right to free exercise of religion) against infringement by state and local governments.
After a brief (1993-1997) window in which RFRA lived up to its name and restored effective legal protection for religious freedom, the Supreme Court once more destroyed the strict scrutiny standard when it decided Boerne v. Flores, 117 S.Ct. 762 (1997), holding that RFRA violated the constitutional authority of Congress. According to the Court, Section 5 of the Fourteenth Amendment only gives Congress authority to pass legislation giving religious freedom, and other fundamental rights, the same level of protection that they have under the Courts interpretation of the Constitution. Congress has no authority, said the Supreme Court, to provide any greater freedom by statute than the Court was giving under its new interpretation of the Free Exercise Clause. The Court was unclear on whether RFRA and the compelling interest test are still good law with respect to federal government actions that interfere with religious practice, but clearly they have been held unconstitutional as applied to the actions of state and local governments. Since most free exercise cases involve state or local regulation, this dramatically infringed the rights of religious believers once again.
Following the Boerne decision, members of the RFRA coalition and other religious liberty advocates considered a number of possible responses that could be implemented by Congress and/or the states, including:
- passing, and submitting to the states for ratification, a constitutional amendment restoring the compelling governmental interest/least restrictive means test;
- passing a Congressional resolution stating that RFRA is constitutional and Boerne wrongly decided;
- re-enacting RFRA without changes as a demonstration to the Supreme Court that Congress believes RFRA to be constitutional and Boerne wrongly decided;
- focusing on RFRA-type statutes and constitutional amendments in the various states rather than a uniform federal remedy; and
- passing a RFRA-type federal statute under the authority of some other constitutional provision rather than Section 5 of the Fourteenth Amendment.
Of these possibilities, only a constitutional amendment would be safe from invalidation by the Supreme Court; however, a constitutional amendment is very difficult to achieve and requires a high level of political unity. Some of the more liberal members of the coalition have expressed their unwillingness to support any proposed amendment.
After lengthy discussions, and over the objections of HSLDAs Michael Farris, the RFRA coalition determined to pursue a new federal statute, the Religious Liberty Protection Act, based on the spending and commerce power of Congress under the Constitution.
RELIGIOUS LIBERTY PROTECTION ACT
In its current version, RLPA provides that state and local government may not, absent a showing of compelling governmental interest and least restrictive means, substantially burden a persons 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.
Since the Supreme Court held in Boerne that Congress has no power under the Fourteenth Amendment to provide expanded protection for religious freedom in general, this statute seeks to regulate the free exercise of religion only in two areas where the federal government has clear constitutional authority to act: when it spends money, and when it regulates interstate commerce (the spending power and the commerce power, both found in Article I, Section 8).
In an unusual twist unusual since Congress does not have any general authority to regulate local land use and zoning decisions RLPA excludes land use regulations from its general provisions and instead requires that such regulations not (i) substantially burden religious exercise, unless that burden is the least restrictive means to prevent substantial and tangible harm to neighboring properties or to the public health or safety (which appears to be a much lower standard than compelling governmental interest); (ii) exclude religious assemblies from the jurisdiction; or (iii) exclude religious assemblies from areas in which nonreligious assemblies are permitted. This appears to be an attempt to give the government greater flexibility to violate religious freedom in land use decisions than in cases where the federal commerce power or spending power apply, although it is not clear from what source Congress would get its authority to regulate these decisions.
WHAT WILL RLPA DO?
The critical question with respect to RLPA is: What religious activity will it protect? Is it, like RFRA, a general protection imposing the compelling governmental interest/least restrictive means test in all (or nearly all) cases where the government interferes with religiously motivated conduct? Or is it a very limited statute that will apply only in a small number of cases?
The reach of the federal spending power is pretty well established. It seems clear that where Congress invests money into state and local programs, it has the power to place restrictions on how that money is used. (This is a primary reason why HSLDA has advocated caution in exploring educational vouchers, since grants of government money often come with regulatory strings attached.) If a governmental program receives federal funding, Congress can probably require that program to apply strict scrutiny in any case in which someones religious exercise is burdened. However, very few free exercise cases come up in the context of federally funded programs. This use of Congressional power will not often be of assistance to religious believers.
The more difficult question raised by RLPA involves the commerce power. It is this issue that will determine where the danger lies in the proposed statute.
THE COMMERCE CLAUSE
Article I, Section 8 of the Constitution provides in part that Congress shall have power ... to regulate commerce with foreign nations, and among the several States, and with the Indian tribes (the Commerce Clause). Therefore, free exercise of religion cases involving commerce among the several States should fall within Congress authority to regulate. What is commerce among the several States?
Legal scholars hold differing views with respect to the scope of the Commerce Clause. Those who wish to see the United States government hold broad power over the lives of citizens generally view the commerce power as analogous to the police powers of state and local governments; that is, a general authority to enact legislation to advance the perceived health, safety and welfare of the people. Interstate commerce is treated in its broadest possible sense as including any kind of human activity that might affect someone or something that could conceivably cross state lines at some time. This is the view of many prominent constitutional scholars, and it had been the consistent position taken by the Supreme Court in decisions from 1937 to 1995.
The opposite view of the breadth of the Commerce Clause might be described as the federalist position, and it is held by many conservative constitutional scholars including the leadership of HSLDA. In this view, the national government is one of limited, defined powers, which does not have general police power authority to act outside of its defined scope. The power to regulate interstate commerce means just that: the power to regulate railroads, highways and other means of transporting goods from state to state. Other areas of human existence, such as education and family life, are not subject to general regulation by the federal government but are the proper concerns of the states. The Supreme Court indicated a possible willingness to move towards this correct view of the Commerce Clause when it decided U.S. v. Lopez, 514 U.S. 549 (1995), a case in which the federal Gun-Free School Zones Act was held unconstitutional because the Commerce Clause does not give Congress authority over students carrying firearms into local public schools.
It is also possible to think of the commerce power in an intermediate way, broader than true interstate commerce but narrower than an unlimited police power. Under this approach, the courts would look case-by-case to see when the activity in question might have some arguable connection to interstate commerce.
In order to analyze the potential impact of RLPA, it is important to think through the possible meanings of the Commerce Clause.
LIMITED COMMERCE POWER
If the commerce power is limited, then RLPA does not accomplish much. Very few religious freedom cases actually involve goods moving in interstate commerce, or institutions that are involved in the business of moving goods interstate. Very few religious freedom cases involve federally funded programs. The net effect of RLPA would be close to zero. Most free exercise plaintiffs would be left to remedies that they now have under the post-Smith Free Exercise Clause, RFRA (maybe for federal cases) or state law.
Because RLPA would have so little impact under this understanding of the Commerce Clause, it would send little or no message to the Supreme Court. The Court would, in all likelihood, uphold RLPA as constitutional under this approach, since the statute would only apply to a tiny universe of cases (federal spending and true interstate commerce) where Congress has clear authority to regulate. The Courts limited view of religious freedom would continue to govern the vast majority of cases.
There may be a few religious organizations the Catholic Church, perhaps, or some of the large Protestant denominations or parachurch ministries that run publishing houses or other related businesses involved in interstate commerce. One can conceive of a small handful of cases in which these large, well-funded organizations might be able to raise a successful claim under RLPA.
Consider, however, the kinds of claims not covered under RLPA if the commerce power is limited:
- Cases involving the little guy, individual believers, families and small churches and ministries that do not operate in the world of interstate commerce.
- Homeschool families who are forced by local government to violate their biblical convictions about raising their children.
- Christian landlords who are told by local law that they may not discriminate against unmarried couples or homosexual couples in renting out an apartment in their home.
- Prisoners who are denied even the most routine access to spiritual comfort and worship, such as the use of a Bible in their cell.
- Public school students who are taught material that violates their religious convictions and those of their parents, or denied the right to opt out of offensive programs.
- Churches whose scriptural convictions forbid them from employing women as pastors or require them to preach against homosexuality.
- Students who are denied the right to share their faith with their friends on school grounds.
- Christian day care centers that are required by local law to hire employees without regard to their religious beliefs.
- Small Christian-owned businesses that are forbidden by local law from firing employees for openly immoral behavior.
None of these situations involve the transport of goods in interstate commerce, so none of them would be affected by RLPA under a federalist reading of the commerce power!
In short, if the Commerce Clause has a limited reach, then RLPA will accomplish next to nothing. It will not protect religious believers in the vast majority of potential free exercise cases. What it will do, however, is use up much or all of the political enthusiasm for a correction to the Supreme Courts Smith and Boerne decisions. If RLPA passes this year, and next term there is an effort to pass a constitutional amendment to protect free exercise the only way, other than a change of heart by the Court, to really reverse Smith and reinstate strict scrutiny in all free exercise cases it is likely that most Senators and Representatives will have little interest. They will feel that they have already dealt with the Smith/RFRA problem by enacting RLPA. In addition, since there are indications that many of the RFRA coalition member organizations are satisfied with RLPA, it may be difficult or impossible to assemble a credible, bipartisan coalition to lobby for a real solution once RLPA is in place.
If the commerce power is limited, RLPA is an unjustifiable waste of time, effort and the political resources needed to find a real solution to the problem of religious freedom.
BROAD COMMERCE POWER
However, the public statements that are being issued by various supporters of the RLPA including both liberal groups, like the ACLU, People for the American Way and Americans United for Separation of Church and State, and a number of highly-respected conservative Christian organizations and leaders indicate that they do not believe RLPA to be a limited, almost meaningless statute. They believe it to be the equivalent of RFRA: a general protection for free exercise of religion for all Americans. They use phrases like a new Religious Freedom Restoration Act, and legislation that mirrors the Religious Freedom Restoration Act and can stand judicial scrutiny.
Since the congressional spending power still reaches only a tiny number of free exercise cases, if RLPA is really as extensive as RFRA it can only mean one thing: the commerce power is viewed as a broad, general federal police power, enabling Congress to regulate virtually every area of human activity under the theory that everything we do somehow impacts interstate commerce.
Under this view of the Commerce Clause, the narrow scope of RLPA is no longer the problem. Religious exercise will be protected in most cases by the compelling governmental interest/least restrictive means test. However, this approach raises a number of other problems that are even more frightening:
- If the Commerce Clause gives the federal government broad police powers in the area of free exercise of religion, it also gives the federal government broad police powers in other areas. Family life, discipline of children, education, church order and governance, medical treatment decisions, employment decisions, housing decisions, membership in private clubs and organizations, and a host of other private and local concerns would be fair game for national regulation. From the 1930s to the 1990s, it was conventional wisdom in most law schools that the Commerce Clause gave the federal government carte blanche to pass any laws that it wanted to. With the Lopez decision, there are indications that a more conservative Supreme Court is moving away from that position. If RLPA is going to encourage Congress and the courts to go back to thinking of the commerce power as essentially unlimited, it is enormously dangerous. We must find a way to protect religious freedom without giving Congress, through the back door, unlimited regulatory power. The end cannot justify the means.
- In addition to the possibility of actually increasing federal regulatory power through a broad reading of the Commerce Clause, support of the RLPA by Christian advocacy groups will put those organizations in an untenable position if they attempt to oppose broad commerce power in other contexts. If we support RLPA because religious freedom is so important, but later oppose national educational testing or a federal anti-spanking law on the grounds that Congress has no authority to regulate in those areas, we open ourselves to charges of hypocrisy and inconsistency.
- RLPAs provisions dealing with land use regulation are particularly problematic with respect to the question of federal power, since they do not even purport to tie into the commerce power or the spending power, and the Constitution contains no grant of authority for Congress to regulate local land use decisions. This appears to be a naked power grab by Congress over an issue that it should not be touching.
Additionally, RLPA under the broad view of the Commerce Clause would be an exercise in futility. Its attempt to broadly reinstate strict scrutiny in free exercise cases flies in the face of Smith and Boerne, and its stretch for general federal regulatory power is inconsistent with Lopez. If the Supreme Court would not allow Congress to effectively overrule Smith with RFRA, under the clear constitutional authority of Section 5 of the Fourteenth Amendment, what possible reason is there to think that the Court will uphold the same result under a questionable reading of the Commerce Clause? A just-like-RFRA RLPA will be struck down as unconstitutional, providing one more discouraging defeat for those who continue to believe in religious liberty.
INTERMEDIATE COMMERCE POWER
There is a third possibility, which is that the commerce power underlying RLPA is neither limited to true interstate commerce, nor as broad as RLPAs supporters have suggested, giving rise to a general federal authority over all religious practices. It is possible, instead, that RLPAs Commerce Clause authority might be interpreted in an intermediate way, giving the statute application over some, but not all, religious activities that are not truly interstate commerce but might be argued as having some impact on that commerce.
In many ways, this would be the worst of all worlds. It would retain most of the problems inherent in both of the other two approaches, as well as creating a whole new set of difficulties. Specifically, under this intermediate reach theory:
RLPA would still substantially under-protect religious freedom. It would still leave many meritorious free exercise claims out in the cold. It would still be a waste of time, effort and political resources that might eliminate the possibility of a real solution to the Employment Division v. Smith problem.
By extending commerce power authority beyond true cases of interstate commerce, it would still support the concept that the federal government has general police powers to regulate the lives of citizens in ways never contemplated by the Constitutions framers. It would set a terrible precedent concerning federal regulatory authority in other contexts.
In addition, the fact that federal courts would be evaluating various free exercise claims not merely to determine whether the believers were acting on the basis of sincere religious conviction, but to judge whether their situation in some way impacts a broad and nebulous notion of interstate commerce would present a whole new set of dangerous consequences:
- The legal protection available under RLPA would be inherently discriminatory. Large, affluent churches and religious groups could most often establish some kind of nexus between their activities and interstate commerce. Small churches, families and believers would find it difficult or impossible to prove this connection. However, it is the weak and non-influential who most need legal protection for their religious practices large ministries and organizations can typically find political and economic solutions to their disputes with the government. The statute would discriminate against those who need it most.
- Since human federal judges would be deciding which religious practices should be protected under RLPA, it is likely that the beliefs of the politically correct would be the ones found to fall under the statute. Those whose religious beliefs are viewed as more counter-cultural and out-of-the-mainstream would most likely be found to not impact interstate commerce and therefore not trigger RLPAs protections.
- It would raise the costs of litigation in free exercise cases, since a connection to interstate commerce, probably requiring expert testimony, would become an essential element of the plaintiffs case. Even some believers who might ultimately be able to prove an effect on interstate commerce in their religious practice may not make the effort because of increased transaction costs.
- It would put believers in the problematic position of having to argue that their religious practices are really commercial in order to be protected. For example, if a statute bans all use of alcohol and a church sues to be permitted to use wine in its sacrament of Holy Communion, the church would have to argue in court that its use of wine is a commercial transaction, albeit religiously motivated, and that it should win because it purchased wine that had been transported over state lines. This reduction of faith and religious practice to commerce is at the very least silly, and will be viewed by many religious believers as sacrilegious and heretical. If the choice is (i) suffer persecution, or (ii) argue that worship is a business transaction, many will choose the persecution out of conscience.
The Religious Liberty Protection Act, resting as it does on the commerce power of Congress, will find the particular scope of its danger defined by the meaning of the Commerce Clause.
If interstate commerce really means interstate commerce, then RLPA will accomplish next to nothing and will simply deflect resources from a true solution to the problem of religious freedom.
If interstate commerce means general authority of Congress to do anything it wants to do, then RLPA will lay the groundwork for federal regulation in virtually any area of the lives of individuals, families and churches.
If interstate commerce means some intermediate group of cases where the courts decide to apply the statute, then RLPA will be wildly discriminatory in favor of affluent, influential religious groups and will pressure believers to violate conscience by arguing that their worship is merely business.
Finally, no matter which of these interpretations eventually carries the day, the very act of passing RLPA, giving up both the Free Exercise Clause and the Fourteenth Amendment as legitimate sources of protection for religious freedom and relying instead on an inappropriate source like the Commerce Clause, will signal to the Supreme Court that Congress has acquiesced in the atrocious Boerne v. Flores decision and accepted the notion that it has no direct power to protect the inalienable right to religious liberty. If Congress does not have the political will to pass a constitutional amendment correcting the Smith decision directly, it should continue to signal to the Court at every opportunity that Boerne was wrongly decided and that the Court may not continue to overrule the will of the people simply because nine Justices have a narrow view of personal liberty.