As a result of serious concerns voiced by conservatives, the Religious Liberty Protection Act (RLPA), HR 4019, was amended yesterday in subcommittee to remove problematic portions. Because of this, the Home School Legal Defense Association has announced that it will drop its opposition to the House version of the bill.

     Rep. Charles T. Canady (R-FL), chief sponsor of the House version of the bill, conceded that there had been strong objections to the bill’s use of the U. S. Constitution’s Commerce Clause to protect freedom of religion. These objections “created an insurmountable obstacle” for passing the RLPA, Canady told the House Judiciary Constitution Subcommittee. Canady is chairman of the subcommittee.

     Once the Commerce Clause language was removed, the RLPA was reported favorably to the full House Judiciary Committee by a voice vote. Now the battle will probably move to the Senate, where Sen. Orin Hatch (R-UT) is sponsoring a bill that still includes the same Commerce Clause language removed yesterday from the Canady bill. As the House subcommittee discussed the RLPA, supporters of the Commerce Clause language circulated a letter urging the Senate to re-insert those provisions in its bill.

     Opposition to the RLPA came from across the political spectrum. Michael Farris, president of the Home School Legal Defense Association and a Constitutional litigator for more than 20 years, led one of the opposition coalitions. “Worship is not a commercial transaction,” said Farris, in reference to the pre-amendment bill. “In order for an individual’s free exercise of religion to receive protection under the RLPA, the individual will have to prove that his ‘religious practice’ impacts interstate commerce.”

     Farris also called the fairness of the bill into question. “The RLPA would discriminate in favor of affluent, large religious groups which could easily prove an effect on interstate commerce. Religious individuals, most churches, home schoolers, and parents will be left unprotected,” he said.

Federalism
     Regarding the key issues of Federalism and Constitutional interpretation, the initial RLPA contradicted the original intent of the Framers “by advancing the theory that the Interstate Commerce Clause gives the Congress general authority to regulate individuals in virtually any area,” Farris said. “The Framers believed in limited government and intended the federal government to have authority only to regulate the areas specifically enumerated in the Constitution. All other areas are reserved to the states and the people.”

     “The RLPA was really proposing to protect religious freedom by using a theory of the Commerce Clause that is part of our FDR New Deal hangover. We would do much better pushing for a Constitutional Amendment to protect the free exercise of religion than trying to use a liberal view of the Commerce Clause and a New Deal view of the Constitution,” Farris said. “Our coalition will continue to keep an eye on the Senate, to see what it plans to do with its version of the bill.”