Testimony of Michael P. Farris in opposition to H.R. 1691

The Religious Liberty Protection Act

Mr. Chairman and members of the Committee.

I thank you for the opportunity to testify on this very significant issue of religious liberty. And while we disagreed on this legislation last session, I want to make it very clear that I admire and fully support Mr. Canady and others in their commitment to the protection of religious liberty. We have disagreed about means to an end and that is all.

Home School Legal Defense Association and many other organizations continue to oppose the Religious Liberty Protection Act insofar as it employs the power of Congress under the Commerce Clause as the mechanism to protect religious liberty.

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.

Now in the wake of the Boerne decision, RLPA searches for a new theory of Congressional power to impose the RFRA standard for religious liberty in as many cases as possible. The key issue in RLPA is not whether to adopt a big theory of religious liberty, rather it is whether we should wrap religion inside a theory of big government.

It is our studied and solemn position that the marriage of commerce and religion is ill-advised and dangerous. There are two reasons we think this is so.

First, the Commerce Clause provision of RLPA creates two classes of religious exercise. Those whose religious exercise has been burdened by government in a manner that materially affects interstate commerce are within the ambit of this aspect of the bill. Those whose religious exercise has little or no commercial component are outside the ambit of this aspect of this provision.

The money changers in the temple would fall within the zone of protection of the Commerce Clause provision. But the widow who came to the temple to give a single mite would not be protected.

Although well-intentioned, the Commerce Clause provision results in an unprincipled division that is drawn exclusively on the amount of commerce and breadth. We place a subjective tool into the hands of judges and tell them to determine cases for religious people along financial lines. I would suggest that is unAmerican to prefer the rich over the poor, to prefer the big over the small, to prefer the megachurch over the humble congregation, or to prefer the religious institution over the religious individual.

The second principle reason for our opposition to the Commerce Clause provision in RLPA is the long-term danger it poses to religious people and institutions.

By way of contrast, the RFRA was based on the 14^th Amendment's provisions in section 5 which gives Congress power over state governments. The Commerce Clause has been construed to give Congress power over both governments and private companies and individuals.

The Employment Non-Discrimination Act, for example, is proposed legislation which would employ Commerce Clause power to extend gay rights protection over both government and private businesses.

If we embrace the notion that the Commerce Clause gives Congress power over religion, not only can Congress order governments to treat religious people in a certain way, later on it can order churches to conform their practices to congressional standards. If Congress has Commerce Clause power to order state governments to not discriminate against churches under RLPA, then Congress also has Commerce Clause power to order churches to not discriminate against homosexuals.

Specifically for home schoolers, if this bill has any application for us, it would be under the Commerce Clause provision. If Congress has the power to order state governments to treat religious home schoolers in a certain fashion, then later on Congress could order home schoolers to meet teachers' certification standards or teach only from textbooks that U.S. Department of Education has approved.

We think the limiting language in Section 5(f) recognizes but does not solve this problem. If a church has proved that the government's burden on its activities is substantially connected to interstate commerce under RLPA, it will be unlikely to persuade any court that its activities are not connected to interstate commerce in a future case brought under legislation such as ENDA. Or, if a Catholic or Baptist church succeeds in invoking the Commerce Clause provisions of RLPA in one case, it will be unable to prove that the Commerce Clause does not extend to the issue of whether that church is justified in refusing to hire women pastors under existing federal law banning gender discrimination in employment.

Section 5(f) does not grant religious institutions the right to be a chameleon. Either our activities affect interstate commerce or they do not. When there is a body of case law which holds that burdens on churches' activities affect interstate commerce, that case law will have precedential effect in cases brought under other laws.

These are arguments we made last year with the support of thousands and thousands of grassroots citizens. We anticipate similar support this year.

But, unlike last year, we have drafted what we believe is an alternative to the Commerce Clause portion of RLPA. We have attached copies of this alternate legislation to my testimony and have distributed it to the members of the Committee in advance. Keep in mind that this legislation is at the discussion draft stage.

We would be very open to a discussion whereby the principle provisions of our draft, which we call the Religious Exercise and Liberty Act (REAL Act), are substituted for just the Commerce Clause portions of RLPA.

RLPA embraces a theory of big government.

REAL Act embraces a big theory of religious freedom.

RLPA continues the war with the Supreme Court over the use of the compelling interest test in a broad category of cases.

REAL Act accepts the Supreme Court's premises and rulings, and puts meat on the remaining bones in a way that materially broadens the practical protection for religious people and organizations.

RLPA continues and expands the ability of judges to use vague legal tests to impose their personal predilections under the guise of legal analysis. Specifically, the subjective balancing mechanism of compelling interest-least restrictive means, is compounded by the use of the Commerce Clause analysis which allows judges to subjectively weigh the degree to which the burden on a religious practice affects interstate commerce.

REAL Act creates a zone of absolute protection for religious belief that is consistent with Supreme Court doctrine and which avoids the needs for any kind of subjective analysis in these critical zones.

I am very encouraged by Section 3 of RLPA, which relies on the Free Exercise Clause. Despite the Supreme Court's ruling in Smith, there is still a lot of liberty left in the First Amendment. Section 3 of RLPA identifies land use as a specific area where the First Amendment still applies. We would add specific protections for several other remaining categories of religious liberty, especially the absolute right to believe.

The Supreme Court has identified 'hybrid rights,' in which a person exercises another recognized constitutional right for religious reasons. The Michigan Supreme Court upheld the hybrid right of religious home schoolers, and struck down a law which required every teacher to be certified. Hybrid rights can and should be protected under the First Amendment.

The Supreme has limited First Amendment protections for "facially neutral, generally applicable laws," but many - possibly most - laws have exceptions and exemptions. Congress still has power under the First and Fourteenth Amendments to provide federal religious liberty protections for people affected by these kinds of laws.

Consider the important issue of the impact of these alternatives on a claim against a church brought under a local gay rights ordinance for a refusal to hire a minister because of his sexual orientation. Under REAL Act, the church would win--period. This is not a mere prediction. This would be the unambiguous result from provisions of this version. Under RLPA, the result is uncertain. It would depend on how the courts weigh and balance the competing interests. While it is possible to make guesses (and I think a fair guess is that a church is likely to win such a case at this stage in our national history, while I would also guess that the church's ability to win would deteriorate over time given the trends in societal thought), it is not possible to say with absolute certain who would win such a case.

Accordingly, if your goal is to protect churches from such claims, then it seems that REAL Act is your best choice. If your goal is to protect homosexual activists in such cases, you should oppose either version. But, if your goal is to leave the matter to the highly subjective discretion of federal and state courts and to achieve mixed results, then you should support RLPA.

It is our view that what this nation needs is a big theory of religious freedom, not a theory of big government. In the final analysis, one of the greatest dangers to religious freedom, and to all freedom, is big government.