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ISSUES ALERT

a division of Home School Legal Defense Association	June 29, 1999

Letter From Mike Farris to Congress on RLPA

Dear Representative:

On behalf of the organizations that are opposed to the Religious Liberty Protection Act (RLPA), H.R. 1691, I am writing to express our deep disappointment that you are listed as a co-sponsor of this proposed law, and to encourage you to re-consider your support.

I want to state clearly that I admire and fully support Mr. Canady and others in their commitment to the protection religious liberty.

But, the RLPA is unconstitutional and ineffective.

We all agree that the decisions of the Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) and City of Boerne v. Flores, 138 L.Ed.2d 624 (1997) view the free exercise of religion in a way that grants far too little protection. We tried to enact as civil rights legislation a big theory of religious freedom in the Religious Freedom Restoration Act of 1993. As you know, I was a committed advocate in that fight.

However, the use of the Commerce Clause as the source of federal power to enact the RLPA makes this bill unacceptable to those of us who fight for religious liberty and the original intent of the Constitution. The analysis which follows relates exclusively to the Commerce Clause portion of RLPA.

First, the RLPA is unlikely to provide victory in any religious freedom case.

Under the Supreme Court’s precedents, although Congress may be able to use the Commerce Clause to regulate state and local governments as employers (along with other employers), any attempt to use the Commerce Clause to regulate only the sovereign functions of state government is unconstitutional.

Just last week, the Court roundly rejected the notion of expansive Commerce Clause power over sovereign state governments, calling it an “act of usurpation” which “deserves to be treated as such.” “Congress,” the Court wrote, “has vast power but not all power.” (Alden v. Maine, No. 98-436, 1999 U.S. LEXIS 4374, at 90, June 23, 1999).

The Religious Liberty Protection Act (RLPA), attempts to protect religious liberty by using Congress’ power to regulate interstate commerce. The Fourth Circuit recently struck down a Congressional effort to protect privacy using that same power, and the Supreme Court has accepted the case for review. Condon v. Reno, 155 F.3d 453 (4th Cir. 1998), cert. granted, 1999 U.S. LEXIS 3200 (May 17, 1999). The Fourth Circuit concluded, in light of recent Supreme Court rulings, that Congress has no power to directly regulate state governments through the Commerce Clause. This is exactly what RLPA attempts to do. There is, therefore, reason to expect that RLPA will be struck down by the courts.

Principled conservatives are used to disagreeing with the federal courts, especially when religious liberties are at stake. In 1990, the Supreme Court effectively gutted free exercise law, and in 1997, the Court ruled the Religious Freedom Restoration Act unconstitutional. For this reason, many conservative Congressmen have no qualms about voting for a law they know the Supreme Court is against. But RLPA is different. This time—on the subject of the Commerce Clause—the Supreme Court is right. Congress is asking state and local governments to do as they say, not as they do. RLPA says, in effect, “You little governments must limit your power in the spirit of the First Amendment while we in Big Government ignore all the limits on our power under the Commerce Clause.” This is, as the Court said in Alden, an “act of usurpation” that “deserves to be treated as such.”

Second, we should hold to the true principles of federalism in good times and in bad.

The Commerce Clause has been, since the New Deal, the primary tool of the Left for government intrusion into the lives of private citizens. When liberals try to bring more and more of life under federal regulatory authority because of alleged “impact on interstate commerce,” conservatives stand in firm opposition. Conservatives cannot grab the same expansive federal power just because we like the underlying issue (in this case, religious freedom). RLPA violates the core principle of limited government.

Third, the RLPA will open the door to national regulation of religious families, churches and home schools.

The intent of RLPA is benign—it seeks to protect religious people and institutions from interference from local government. But to invoke the commerce provision, the church, ministry or home school would have to prove in court that its activities, or the regulation of its activities, touches on interstate commerce in some way. Once the power of Congress to regulate these entities has been established, any regulation is possible in the future. There are no substantive limits on the commerce power.

Fourth, RLPA’s inclusion of the Commerce Clause is an extraordinarily dangerous action to protect very few additional religious liberty cases.

Consider the universe of cases in which current law protects the same standard of religious liberty that RLPA seeks to establish;

Religious Freedom Restoration Act of 1993 still applies to the federal government.

The First Amendment in state cases where;

(1) State or local government singles out religious believers for negative treatment;

(2) The law interfering with religion is not “neutral and generally applicable” (i.e., it contains exceptions or exemptions for other individuals or activities); or

(3) The individual’s religious freedom claim is combined with any other constitutionally-protected right such as freedom of speech, freedom of association, or the rights of parents to raise their children.

A number of states interpret their state constitutions to provide a high level of protection for religious exercise. In addition, eight states have enacted their own versions of the Religious Freedom Restoration Act.

Under its Spending Power, Congress can implement blanket protections for religious activity in public schools, prisons and all other programs and activities that receive any direct or indirect federal funding.

Under § 5 of the Fourteenth Amendment, Congress can enact remedial legislation aimed at particular problems that it finds to exist. The current version of RLPA uses this principle to protect against religiously-discriminatory zoning and land use decisions—but this tool could also be used, with appropriate hearings and findings, to protect religious landlords, schools and churches from local “anti-discrimination” laws that would promote immoral sexual conduct.

Michael P. Farris