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The Bible and Suicide

House Subcommittee on the Constitution

Hearing on H.R. 4019

Religious Liberty Protection Act of 1998


Summary of the Testimony of Michael P. Farris, Esq.

Founder and President of the

Home School Legal Defense Association


July 14, 1998


While the need to provide effective federal protection for the free exercise of religion is clear, the Religious Liberty Protection Act ("RLPA") should be opposed because it will not provide a real, lasting solution to this problem. Congress cannot employ an expansive theory of the commerce clause to protect religious freedom without violating crucial constitutional principles and without denigrating the role and meaning of religious faith in our society.

  1. RLPA discriminates among religious practices because only religious organizations with sufficient wealth and power to impact interstate commerce will be able to claim its protections.

  2. RLPA denigrates religion because it forces people of faith to challenge restrictive government action by characterizing their worship as "big business." Only the commercial activity will be protected, not religion for its own sake.

  3. RLPA attacks principles of federalism and limited government by opposing the Supreme Court's 1995 U.S. v. Lopez decision and encouraging the use of the Commerce Clause as an unlimited federal police power.

For these reasons, it is imperative for this committee to reject RLPA and, instead, seek a solution to the problem of religious freedom that can generate broad public support.

House Subcommittee on the Constitution

Hearing on H.R. 4019

Religious Liberty Protection Act of 1998

Testimony of Michael P. Farris, Esq.

Founder and President of the

Home School Legal Defense Association

July 14, 1998

My name is Michael P. Farris and I am the Founder and President of the Home School Legal Defense Association ("HSLDA"). For 15 years, HSLDA has been committed to protecting the rights of parents to choose and control the education of their children, to defending religious liberty, and to advocating the principles of federalism, limited government and individual rights. I am here today to speak in opposition to the proposed Religious Liberty Protection Act ("RLPA").

There are many points on which I, and those who agree with HSLDA's opposition to RLPA, are in full agreement with the bill's supporters. We agree that there is in this country a great constitutional problem concerning legal protection for the free exercise of religion. This committee has already heard testimony regarding the Supreme Court's disastrous 1990 decision of Employment Division v. Smith, which eviscerated the Free Exercise Clause of the First Amendment; the response of Congress in the 1993 Religious Freedom Restoration Act ("RFRA"); and the Court's 1997 Boerne v. Flores decision holding RFRA unconstitutional. I served as co-chair of the initial drafting committee for RFRA. This committee later grew into the Coalition for the Free Exercise of Religion, many of whose members now support RLPA. I understand the gravity of the problem that the Supreme Court has created with respect to religious freedom, and I am committed to working toward real, lasting solutions to that problem.

The RLPA, however, is not such a solution. I do not believe that Congress can employ an expansive theory of the commerce clause to protect religious freedom without violating crucial constitutional principles and without denigrating the role and meaning of religious faith in our society.



RLPA Discriminates Among Religious Practices

Unlike RFRA, RLPA is not a blanket protection for religious freedom. It does not give every American's religious practices the security of the compelling interest/least restrictive means standard. Instead, by its very terms the bill only protects religious conduct when that conduct occurs in a federally-funded program or affects commerce with foreign nations, among the several States, or with the Indian tribes. This is inherently discriminatory. Religious groups and organizations that are large, powerful and involved in economic activities such as publishing houses and products distribution will have little problem establishing that their ministries have an effect on interstate commerce. Not so the "little guy." Individual religious believers, families -- including the almost 60,000 home schooling families who make up HSLDA's constituency -- and small churches and ministries will be left defenseless. A home school run out of religious conviction will be unable to claim the protections of RLPA because the family will be unable to establish that their faith has any material effect on interstate commerce.

In fact, this discrimination in favor of affluent and powerful religious groups, against the small and economically weak, runs in total opposition to the purposes of religious liberty protection under our Constitution. The wealthy and powerful are able to seek political solutions to any legal infringement of their sincere religious practices. It is the small and powerless who must be able to turn to the courts for the protection of their fundamental, inalienable rights. Yet these are the very people who would be excluded from protection under RLPA.




RLPA Denigrates Religion

Quite simply, religion is not commerce. If RLPA is enacted, Christians and other people of faith will not be able to seek legal protection for our worship simply because it is commanded by God. Instead, we will be required to prove in court that our religion is interstate commercial activity. This reduction of worship to "big business" is highly offensive to many people of faith. The Bible instructs that we cannot serve both God and money. Even if RLPA were successful in winning some cases where religious freedom is at stake, the price is too high. Believers cannot submit to Caesar what is rightly God's, and we cannot allow our religious liberty to be determined by whether we can establish that our worship is commerce.

There is a law of general applicability in every State banning the use of alcohol by minors. Under Smith and Boerne, applying this law to Holy Communion would not violate the Free Exercise Clause. Suppose a sheriff decides actually to enforce this law during a worship service, and the church defends on the basis of RLPA. "Don't worry about the religious stuff," the church's lawyer would say. "Under RLPA, the most important thing is to prove that the bread and wine were purchased through channels of interstate commerce. Otherwise, we lose."




RLPA Attacks Principles of Federalism and Limited Government

Our nation was founded on the principle of federalism and the belief that our national government is one of limited, defined powers. Unlike the States, which have plenary police powers to legislate for the public good, Congress has authority to act only where the Constitution grants express or implied power. All other powers are reserved to the States or the people by the Tenth Amendment.

Beginning in the New Deal era of the 1930s, this principle of limited national government has been seriously undermined by an expansive reading of the congressional power under Article I, Section 8 to "regulate commerce . . . among the several States." Originally intended as a national power over rivers, roads and canals which do not fall exclusively under the jurisdiction of any one State, the commerce power has been transformed by the legal fiction that virtually any area of human 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 wide-spread 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.

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