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MAY / JUNE 1998
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Cover Story
Religious Liberty Protection Act: Does the End Justify the Means

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Home Schoolers Turn the Tide in Key Senate Vote

Goodling and Ashcroft Receive Home School Freedom Award

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Home School Students Excel

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C O V E R   S T O R Y

Religious Liberty Protection Act: Does the End Justify the Means

     The battle to protect religious freedom has taken many unexpected turns in recent years. The latest proposed panacea, the so-called 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. Each of these alternatives is unacceptable, so 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 (the “compelling interest” test).
     In the 1990 case of Employment Division v. Smith, the Supreme Court jettisoned the compelling interest test for free exercise cases. The effects of the Court’s new “neutral law of general applicability” test were enormous and have been well documented. Since the Smith decision, religious believers have never been able to win a free exercise constitutional claim.
     The Religious Freedom Restoration Act (RFRA), drafted by a committee co-chaired by Home School Legal Defense Association president Michael Farris, was passed by Congress in 1993, restoring “compelling interest” 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 Constitution’s Fourteenth Amendment, which permits Congress to protect fundamental individual rights against infringement by state and local governments.
     After four years in which RFRA lived up to its name and restored effective legal protection for religious freedom, the Supreme Court once more gutted our liberty in 1997 when it decided Boerne v. Flores, holding that RFRA violated the constitutional authority of Congress. According to the Court, Congress has no authority to provide any greater freedom by statute than the Court was giving under its new interpretation of the Free Exercise Clause.
     Following the Boerne decision, the coalition supporting RFRA considered a number of possible responses that could be implemented by Congress and/or the states, including a constitutional amendment, before deciding to pursue a new federal statute, the Religious Liberty Protection Act, based on the spending and commerce power of Congress under the Constitution.

What Will RLPA Do?
     In its current version, RLPA provides that state and local government may not, absent a showing of compelling governmental interest, substantially burden a person’s religious exercise (i) in a federally-funded program, or (ii) if it affects “commerce among the several States.” The bill is based on the federal “spending power” and “commerce power,” both found in Article I, Section 8 of the Constitution.
     The critical question with respect to RLPA is: “What religious activity will it protect?” Is it, like RFRA, a general protection imposing the compelling interest 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.) However, very few free exercise of religion cases come up in the context of federally-funded programs.
     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 law.

The Commerce Clause
     Article I, Section 8 of the Constitution provides in part that “Congress shall have power . . . to regulate commerce . . . among the several States” (the “Commerce Clause”). Therefore, free exercise of religion cases involving “commerce among the several States” fall within Congress’ authority to regulate.
     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. In a 1995 decision, the Supreme Court indicated a possible willingness to move towards this correct view of the Commerce Clause.
     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 whether the activity in question might have some arguable connection to interstate commerce.
     In order to analyze the potential impact of the 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, and the Supreme Court’s 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, small churches, and ministries that do not operate in the world of interstate commerce.
  • Home school 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.
  • 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.
     Even this limited RLPA, however, is likely to use up much or all of the political enthusiasm for a correction to the Supreme Court’s 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, 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.

Broad Commerce Power
     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.
     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.
     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. 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.

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 RLPA’s supporters have suggested, giving rise to a general federal authority over all religious practices. It is possible, instead, that RLPA’s 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 approaches, including the under-protection of religious freedom and the unlimited expansion of federal power. 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 not to impact interstate commerce and therefore not to trigger RLPA’s 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 plaintiff’s 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 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. As another example, if state law prohibits “sexual orientation” employment discrimination and a church refuses to hire a practicing homosexual as its youth director, the church could only win under RLPA by claiming and proving that the process of hiring youth leaders is not ministry, but rather “interstate commerce.” 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 (1) suffer persecution, or (2) 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 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.

NOTE: For a more comprehensive discussion of this topic, visit HSLDA’s website at www.hslda.org or contact our office and ask for a copy of our position paper on RLPA.