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activity must have some indirect effect on something that once was or someday might be transported in the channels of interstate commerce. Indeed, for many years it was a truism in our nation's law schools that the Commerce Clause gives Congress virtually unlimited power to legislate on any subject. Limited government became a distant historical relic.
In 1995, the Supreme Court signaled a possible openness to reexamining the principles of federalism and limited government when it decided United States v. Lopez, ruling that an individual's possession of a handgun in a local public school has no clear connection to interstate commerce so as to support congressional action. The Lopez decision has prompted significant speculation by commentators, both those who support it and those who oppose it, that the Court may be moving towards a new era of federalism in which Congress will once again be limited to acting in the areas of its explicit and clearly implied powers.
RLPA runs in direct opposition to this encouraging development. By enacting the RLPA, and thereby claiming a Commerce Clause power over activity as intrinsically non-commercial as religious worship and practice, Congress would be signaling to the Court that it disapproves of the Lopez decision and seeks plenary regulatory authority over virtually all human activity. If RLPA is enacted, the commitment of this Congress to the principle of limited government would be reduced to mere lip service and empty symbolism.
CONSERVATIVE OPPOSITION For Christians and conservatives who believe in both religious freedom and federalism, this is a very difficult bill because it puts these two values in direct opposition. The more that RLPA protects religious freedom, the more it expands federal regulatory authority over all of life. If, on the other hand, the courts uphold the principle of limited federal government, this bill will accomplish little or nothing in protecting religious believers. This is why so many Christian and conservative leaders and organizations that believe in limited federal power are united in our opposition to this bill. The position that I am advocating today is held by Concerned Women for America, the American Family Association, Eagle Forum, the Traditional Values Coalition, the American Association of Christian Schools, Paul Weyrich and the Free Congress Foundation, and former Attorney General Edwin Meese, among many others. These individuals and organizations represent and are listened to by millions of mainstream Americans.
ALTERNATIVES Legal scholars have proposed a number of different possible congressional responses to the Supreme Court's Boerne decision, and I am confident that a remedy can be found that does not contain the problems inherent in RLPA. The alternatives range from a direct reenactment of RFRA to a provision restricting the jurisdiction of the federal courts over RFRA cases to a Constitutional amendment restoring the Free Exercise Clause to its pre-Employment Division v. Smith contours. Each of these has substantial merit and can be examined in due course if RLPA does not derail the debate. The RLPA is, at best, a waste of the time and resources that could be used in developing a non-discriminatory response to the problem of religious liberty that can generate widespread public support.
It is interesting to note that some of RLPA's supporters have argued that this bill will "challenge" the Supreme Court's Smith and Boerne decisions. There are many possible ways to challenge the Court, including a constitutional amendment, the selection of new Justices, stripping of appellate jurisdiction, impeachment and a “court packing" plan like that almost pursued by President Roosevelt in the 1930s. RLPA would present no such challenge. 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 decision and accepted the notion that it has no direct power to protect the inalienable right to religious liberty. After RLPA is held unconstitutional by the Supreme Court, as seems quite likely, what federal power will be cited in the next proposed bill?
CONCLUSION After the Supreme Court took away serious constitutional protection for religious exercise in 1990, it took three years for a sufficient consensus to develop to pass RFRA. In the interim, liberty suffered but the Republic was able to survive. Now, after RFRA has been held unconstitutional, the situation is once again bad, but not quite as bad. RFRA may still be good law with respect to the federal government
(lower courts and commentators are divided on this question), and a number of states have enacted or are considering state-level RFRAs or constitutional amendments.
This is the time to seek a response to the Supreme Court that can generate widespread public and congressional support. It is not the time to jump precipitously into a measure that has divided the religious freedom community because of its use of expansive federal commerce authority, because it discriminates among believers based on their economic power, and because it casts our most deeply held religious beliefs into the role of crass commercial activity. I urge this committee to reject the RLPA.
Thank you for you time and consideration of this important matter.
STATEMENT OF COLBY M. MAY, SENIOR COUNSEL, OFFICE OF GOVERNMENTAL AFFAIRS, AMERICAN CENTER FOR LAW AND JUSTICE
Mr. MAY. Mr. Chairman, members of the subcommittee, thank you for extending to me the invitation of this body to participate in this important hearing today on the Religious Liberty Protection Act, legislation intended to protect religious liberty and to require that government at all levels demonstrate a compelling reason before it takes an action which substantially burdens the Free Exercise of religion.
The problem Congress is addressing was created by the Supreme Court when it issued its Smith decision in 1990. Instead of adhering to the plain language of the Free Exercise Clause that Congress shall make no law prohibiting the Free Exercise of religion, the Supreme Court in Smith instead ruled that government at all levels can indeed make laws prohibiting the Free Exercise of Religion as long as the law has some rational basis and is generally applicable.
Congress was so alarmed by the Smith ruling that in 1993 it tried to reinstate some semblance of the original constitutional protection for religion by enacting the Religious Freedom Restoration Act. However, in 1997, the Court in its Boerne decision declared that to be unconstitutional, concluding that neither the Due Process nor the Equal Protection portions of the 14th Amendment enabled Congress to address the evisceration of the rights of free exercise resulting from the Smith decision.
In other words, the courts have corralled Congress and held that it has no authority to provide any greater freedom by statute than what the Court was giving under its new interpretation of the Free Exercise Clause in Smith.
The record first for RFRA and now for RLPA make one thing perfectly clear: There is a serious problem. Government in the absence of having to show a compelling interest and least restrictive means of fulfilling that interest has virtual license to abridge the Free Exercise rights of the people.
Having first created the problem and then rejecting Congress' efforts to address the problem, the Court has changed “We, the people” to “We, the justices.” This should not, however, be the last word.
As President Lincoln warned in his first inaugural address, “The candid citizen must confess that if the policy of government upon vital questions affecting the whole people is to be irrevocably fixed by decision of the Supreme Court, ... the people will have ceased
to be their own rulers, having to that extent . . . Resigned their government into the hands of that eminent tribunal.”
The RLPA is a measured and appropriate response to that eminent tribunal's claim in Boerne that it alone has the authority to irrevocably fix, by its decision, the vital question of the standard the government must scale before it burdens the Free Exercise of Religion.
On the claim that using the Commerce Clause to advance and protect religious free exercise essentially cheapens religious expression because, only that religious expression which affects commerce is protected by RLPA is really no objection at all.
Using the Commerce Clause to advance religious liberty does not subordinate things religious to things commercial. Rather, the Commerce Clause is simply being harnessed to advance religious expression as far as it may go. One may wish that the court had not issued the Smith and Boerne decisions, which greatly intruded into the protection of Free Exercise so clearly stated in the Constitution, but it has.
Using the Commerce Clause here as far as it may go, simply stays the hand of government from intruding unhindered, as it may now, and takes an important step in helping to restore the preeminent first right, the right of free exercise of religion.
The original RFRA coalition, some members of which now object to RLPA, believing it constitutionally infirm because it uses the enabling power of the Commerce Clause, earnestly believed that RFRĀ was constitutional and that Congress had plenary power to enact the law under the 14th Amendment. The Supreme Court disagreed.
Clearly, reasonable and sincere people may disagree on whether courts will uphold use of the Commerce Clause as harnessed in RLPA. Such differences almost always exist. That is simply the way it is. But Congress must nevertheless act in the face of the Supreme Court's assertion that Congress is powerless to advance religious liberties in any manner inconsistent with the Smith decision.
RLPA is that action, and the American Center for Law and Justice supports its enactment. We have, over the last 9 years, had more than nine cases argued in front of the Supreme Court, important cases on free exercise, on religious liberty, on virtually every aspect of the First Amendment.
We believe that the rights that are assessed and otherwise being advanced through RLPA are indeed the preeminent rights. We, as Americans, must be able to have confidence that our government will not intrude in matters religious. To the extent we use the enabling clauses of the commerce power or the spending power to do that, I think Congress is otherwise to be applauded.
Thank you for this opportunity to be with you today. Mr. CANADY. Thank you, Mr. May. Mr. McFarland. STATEMENT OF STEVEN T. MCFARLAND, DIRECTOR, CENTER
FOR LAW AND RELIGIOUS FREEDOM Mr. MCFARLAND. Good morning. Thank you, Mr. Canady—Chairman Canady, Chairman Hyde, Mr. Scott, Mr. Nadler for the opportunity to address this committee on this important subject.
The Christian Legal Society urges this Congress in this session to wield every constitutional means for the protection of our first freedom. And I ask that my written remarks be submitted after this hearing and be included in the record.
Let me respond to my friend, Mr. Farris-some of his comments regarding some conservative concerns. First of all, this bill is not just for the big, the powerful, and the wealthy. It is not just about religious publishers. It will not leave individual believers and small churches defenseless.
It will be available to any "economic activity that might through repetition elsewhere substantially affect any sort of interstate commerce,” obviously the rule in the Lopez decision. The issue will not be the size of a church's budget or of the book store's inventory. The question will be whether there is an adverse impact on religious exercise at one church which, when repeated on a larger scale, on a statewide scale perhaps, will substantially affect interstate commerce; and the answer in many cases will be yes.
To the argument that religious believers would be reducing their worship to big business: religious believers will be able to seek legal protection without having to either claim that their worship is big or that it is business.
Mr. Farris would lead one to think that the RLPA's definition of the exercise of religion is that it must be commercial activity. On the contrary, religious exercise, as defined in this bill is “an act or refusal to act that is substantially motivated by a religious belief." The scope of religious practices is not defined in terms of dollars in this bill.
While the bill recognizes a very broad scope of potentially protected religious activity, RLPA also recognizes that Congress is constitutionally limited in its power. That does not denigrate religion. It recognizes that fortunately we live in a country where the Congress and the Federal Government are not omnipotent. Among those of us who treasure civil liberties, that would seem to be good news.
As to the argument that the RLPA would somehow signal to the Supreme Court a disapproval of a more conservative approach toward the Commerce Clause, I think that claim is in error as well. By passing RLPA, the Congress would be neither approving nor disapproving of Lopez. It would simply be abiding by it. It would simply be appropriating, using all of its Commerce Clause power to the furthest extent the clause permits in the service of religious liberty.
RLPA does not codify Lopez. If the Supreme Court, in further cases, as Mr. Farris predicts, contracts the scope of the Commerce Clause, then the RLPA's scope of protection in that section will contract with it, because its definition closely tracks the constitutional language. If religious exercise is “in or affects interstate commerce," then—to whatever extent the Court recognizes, then that activity is covered. So RLPA will not expand congressional regulatory authority.
This fact is further guaranteed by not one, but two other explicit disclaimers in RLPA. Section 5(b) says that nothing in this act shall create any basis for regulation of religious exercise or for claims against religious organizations. As if that weren't enough, section 5(e) says that just because religious exercise is protected under RLPA does not mean that the religious practice is now subject to any Federal regulations based on the Commerce Clause.
As to the argument that RLPA will protect only a few religious practices or a few religious believers, that is not correct. It will protect many believers, individuals as well as large institutions, without expanding Federal power. The Spending Clause power, which Mr. Farris overlooked mentioning-needless to say, congressional dollars are spent all over the country, not the least of which is public schools. So public schools could not refuse to permit a student to make up work after missing class or an exam because of a religious holiday. A public school would have to excuse a student from attending a sexually explicit assembly on safe sex if the student objected on religious grounds.
A public university could not forbid students from living off campus in a religious community or require them to live in coed dorms contrary to their religious convictions. Public medical schools receiving Federal aid could not deny admission to an applicant because she stated her religious objections to performing abortions. The list goes on.
Secondly, RLPA's section 3(b), which also was not discussed by Mr. Farris, would protect every church and synagogue and house of worship in the country in the area of land use; the record from the five hearings before this subcommittee are replete in describing this as a nationwide problem.
Third, the act's Commerce Clause section would trigger and extend coverage to, as I mentioned earlier, religious schools that, for example, are denied accreditation because they refuse on religious grounds to teach some State-mandated curriculum on, for example, sex education.
Churches (big and small) charities and religious book stores, who wish to hire employees of the same faith, would have potential coverage under the Commerce Clause. Prison inmates and ministries that minister to inmates would be able to have some kind of an argument when wardens in State prison systems bar religious literature from going to people like Pat Nolan.
Finally, RLPA would clarify—and this also was not discussed by Mr. Farris—that every Federal employee, every Federal policy, all 2 million civilian employees of the Federal Government and a million men and women in uniform and their dependents, are all still protected by the 1993 RFRA.
For all of these reasons, members of the committee, we strongly support the immediate passage of this bill and thank the committee for its leadership in this regard. Thank you. Mr. CANADY. Thank you.
[The prepared statement of Mr. McFarland follows:] PREPARED STATEMENT OF STEVEN T. MCFARLAND, DIRECTOR, CENTER FOR LAW AND
RELIGIOUS FREEDOM The Christian Legal Society (CLS) 1 recognizes the dire need for federal legislation to restore the highest legal protection for religious freedom and urges you and the subcommittee to wield every constitutional means available to the Congress to
1 Disclosure: The Christian Legal Society has not received any federal grant, contract or subcontract in the current or preceding two fiscal years. CLS represents only itself at this hearing.