Religious Freedom - Take Two

The Christian Century, July 1, 1998 | Go to article overview

Religious Freedom - Take Two


With a rare display of broad political and religious unity, federal legislation was introduced June 9 to replace a religion protection law overturned by the Supreme Court last year. Supporters say this time their effort will pass constitutional muster. The new measure--the Religious Liberty Protection Act (RLPA)--is a narrower version of the 1993 Religious Freedom Restoration Act (RFRA) rejected by the high court.

Like RFRA, the new measure seeks to protect religious expression in cases in which it conflicts with other government regulations. As with RFRA, government would again have to show that it has a compelling reason, such as health or safety concerns, and is operating in the least restrictive manner to infringe upon religious practices or beliefs. RLPA, said Senator Orrin Hatch (B., Utah), "seeks to protect religious activity even in the face of general legislative rules that make worship difficult or impossible through unawareness, insensitivity or hidden hostility."

Since the court turned aside RFRA on the grounds that it unconstitutionally usurped power belonging to the federal courts, liberal and conservative religious groups and their congressional supporters in both parties have worked feverishly to come up with substitute legislation that might survive another legal challenge. Supporters say they have met that challenge by largely shifting the new measure's legal basis away from RFRA's reliance on the 14th Amendment's equal protection clauses. Instead, RLPA will rely mainly on Congress's established powers to regulate interstate commerce and spend federal funds.

For example, under RLPA individuals may not be fired because of their observance of religious holidays or dress if the company they work for receives federal funds. RLPA might also be invoked to supersede local regulations preventing construction of a church when out-of-state contractors are involved in building the structure. RLPA would also negate local zoning laws designed to exclude houses of worship.

The bill's backers, speaking at a Capitol Hill news conference, said language used to legally justify RLPA was lifted verbatim from landmark legislation used to extend rights to racial minorities and the disabled. "If the Supreme Court were to overturn this bill, it would also have to overturn the Civil Rights Act and the Americans with Disabilities Act," said Marc D. Stern, an American Jewish Congress attorney who helped write RLPA. "The genius of this bill is it forces no one to be religious and establishes no special class. It only requires a second look at bureaucratic regulations that are enforced blindly," Stern said. RLRA's backing in the Congress is broad and includes the leadership of the House and Senate, according to Hatch. …

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