Religious liberties bill faces
a difficult legislative road

By Eric Fingerhut
Washington Jewish Week

(JWR) ---- (http://www.jewishworldreview.com) DESPITE ENJOYING THE SUPPORT of virtually every religious group in the United States, legislation which would strengthen the right of Americans to freely exercise their religious beliefs still faces significant obstacles on both sides of the aisle as it heads toward a vote in the House Judiciary Committee.

The Religious Liberty Protection Act (RLPA) is designed to be a replacement for the Religious Freedom Restoration Act (RFRA), which was struck down by the Supreme Court two years ago because it was ruled too broad in its applicability.

RFRA prohibited government from placing a "substantial burden" on a person’s free exercise of religion, even if the burden resulted from a rule that applies equally to everyone, unless the government could show the burden was "in furtherance or a compelling government interest" and was "the least restrictive means of furthering that interest."

RFRA came in response to a 1990 Supreme Court decision, Employment Division v. Smith, which ruled that members of the Native American Church did not have the right to unemployment benefits after being fired for smoking the hallucinogenic drug peyote as a religious sacrament. That ruling threw out the "compelling interest" test, which was first established by the high court in 1963 in the Sherbert v. Verner decision.

Without the requirement that the government have a "compelling interest" in placing a burden on free exercise of religion, Jewish prisoners could be denied kosher food, for example, and workers could be prevented from taking time off to observe religious holidays.

In addition, laws that were not written with the intent of restricting religious freedom, but did have that practical effect — for instance, if a state passed a measure which prescribed that chickens could only be killed in a certain manner in order to prevent animal suffering, but had the unintended consequence of not allowing kosher slaughter of chickens — would still be valid.

Opposition to the current bill exists among some liberal Democrats because it is believed the law would allow religious beliefs to defeat civil-rights claims in some cases. For example, a recent U.S. Court of Appeals Ninth Circuit decision upheld the rights of landlords of residential properties to choose not to rent apartments to unmarried couples due to the landlords’ belief that sex outside of marriage is a sin.

Similar worries about the civil rights of gays and lesbians under RLPA have caused the American Civil Liberties Union to pull out of the coalition supporting the bill.

"Religious freedom ought to be indivisible," said Rabbi David Saperstein in testimony before the House Judiciary Committee’s Subcommittee on the Constitution last month. "This legislation works only when there is a uniform standard. Grant an exemption or ‘carve-out’ in any area, and the entire conceptual and political support structure for the bill topples."

Saperstein noted that numerous other groups, from law-and-order organizations concerned about abuse of the law by prisoners to groups on both sides of the abortion debate, put their concerns on the back burner in order to pass RLPA.

Supporters of the new amendment, which is still being worked on, say any exception will be a "reasonable compromise," but the amendment offered last month does not appear to meet the "no carve-out" test set up by the coalition supporting the bill. With certain exceptions, the amendment would not allow RLPA to be applied to any law "prohibiting discrimination in housing and employment" or "in a public accommodation."

Meanwhile, the Home School Legal Defense Association has been running a strong grassroots campaign to defeat the legislation for a different reason. The group objects to the use of the clause in the U.S. Constitution -- Article 1, Section 8 -- that gives power to Congress to regulate activities that affect interstate commerce as one of the bases for the bill’s authority.

Mike Farris, president of the organization, said that not only is the categorization of religion as "commerce" objectionable, but it sets a precedent which will be harmful in the long run.

By making a religious institution commercial in nature, he said, it then means that other laws, such as religious discrimination laws, which normally would not apply to religious institutions, can then be used against them. For instance, Farris said that if a church sues under the interstate commerce provision of RLPA, it leaves itself open to challenge under the proposed Employment Non-Discrimination Act, which would give protection from discrimination to gays and lesbians by using the very same interstate commerce clause.

"You can’t have it both ways," he said in an interview with WJW. If a religious institution claims that their activities are regulated under interstate commerce in one court proceeding, he said, then they certainly cannot reject that characterization in a different case, where, for instance, they are being sued by a gay man who wants to be a priest.

Supporters of RLPA question Farris’ interpretation, though. Michael Lieberman, Washington counsel for the Anti-Defamation League, asked, "Do you think the Christian Coalition would be supporting [this bill] if it allowed gay priests?"

Farris has drafted his own legislation, titled the Religious Exercise and Liberty (REAL) Act, and is looking for a legislative sponsor. He said the REAL Act would solve only the specific problems that need legislative attention and would not derive its authority from the interstate commerce clause. here.”

Eric Fingerhut is a staff reporter for Washington Jewish Week. Let him know what you think by clicking here.

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