IT'S HARD TO object to the goals of the Religious Liberty Protection Act (RLPA), now passed by the House of Representatives. The bill responds to a pair of Supreme Court rulings. The first, in 1990, held that the constitutional religious freedom protections do not prevent a state from enforcing a religiously neutral regulation in ways that burden religious practice. The second, in 1997, struck down the first congressional effort to reverse the 1990 ruling.
The consequence of the 1990 decision is that a series of state laws passed without religion in mind can, often for trivial reasons, require of people conduct that conflicts with their deeply felt religious beliefs. Incidents cited in support of a legislative fix include zoning regulations that have an impact on plans for church activities, bans by schools on student hats that include no exceptions for yarmulkes, and autopsies performed on members of religious groups that object categorically to such procedures. The RLPA would forbid states from enforcing such laws in ways that burden religious activity unless they have a compelling interest in doing so and use the least restrictive means.
There are, however, two serious problems with this proposal. The first is that the bill contains no exception for state civil rights laws that may go further than federal protections in certain areas. This means, for example, that a commercial landlord who refused to rent apartments to gay or unmarried heterosexual couples could argue that any state civil rights statutes guaranteeing equal housing are trumped by his religious rights under the federal law not to rent to people of whose lifestyle he disapproves. This seems wrong.
But this problem, fortunately, is resolvable. When the Senate takes up the bill, it should at least write in an exception clarifying that the law does not nix other individual rights that states may grant their citizens.
The other problem is more fundamental: The RLPA is something of a constitutional stretch. It would mark the second time that Congress has attempted to, in effect, reverse a Supreme Court decision on the parameters of religious freedom. The earlier effort, called the Religious Freedom Restoration Act (RFRA), was passed under Congress's 14th Amendment legislative power, and the court struck it down on the theory that it went beyond Congress's power under the amendment to remedy civil rights violations.
Now Congress is trying again, but it is writing the law largely on the basis of its powers under the Commerce Clause and the Spending Clause. This is in some respects an even more aggressive reading of congressional power than was the original RFRA. It carries with it the risk that parts of it will be struck down in a fashion that carries consequences for other federal civil rights laws.
The Senate should consider whether the scope of the problem the legislation tackles justifies the risks. Our sense is that while the individual cases it seeks to address demonstrate often-tragic state insensitivity to religious concerns, the problem the law remedies is insufficiently widespread or systemic to justify trying yet again to reverse the court's plain holding. At this point, the RLPA has serious momentum, but the Senate would do everyone a favor if it paused to consider the constitutional implications of this bill.