TESTIMONY
Richard D. Land, President-Treasurer
*Ethics & Religious Liberty Commission of
the Southern Baptist Convention
June 23, 1998
Senate Committee on the Judiciary
on
S.1248, Religious Liberty Protection Act of 1998
Thank you for the opportunity to testify on this issue of critical importance to all who cherish religious liberty. As president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, I am frequently in a position to hear from people across America about their religious liberty concerns. These individuals are not legal scholars. They do not spend their spare moments perusing legal opinions published by our judicial system. They are not familiar with the meaning behind technical legal terms. They do not talk about “strict scrutiny” or “compelling interests” or “least restrictive means.” Yet, despite their unfamiliarity with the nuances of a specialized area of the law, they sense that something is fundamentally wrong with the status of religious liberty in our country, particularly when it clashes with the secular interests of government. As government’s pervasive influence increases, so does the concern of millions of Americans who sense that their fundamental right to the free exercise of religion is being made subordinate to the current whims of fancy of those who control the powers of government.
The vast majority of Americans are correct in their intuitive sense that religious liberty has lost significant ground in recent years and that the courts in general, and the Supreme Court in particular, no longer share most Americans’ conviction that religious liberty should be cherished and protected to the greatest practical extent. The Religious Freedom Restoration Act (RFRA) was a courageous attempt to rectify an egregious decision by the U.S. Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith (1990). The Smith decision was the worst religious liberty decision handed down by the Supreme Court in my lifetime. Given the fact that the court’s decision strikes down attempts by the Congress (through RFRA) to rectify the court’s significant restriction of religious liberty in Smith, the Boerne decision has now dethroned Smith as the worst religious liberty decision in my lifetime (51 years).
As Justice O’Connor says in her eloquent dissent, the First Amendment’s free-exercise clause:
...is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: Where a law substantially burdened
*The Ethics & Religious Liberty Commission is the public policy and religious liberty agency for the Southern Baptist Convention. The Southern Baptist Convention is the nation’s largest non-Catholic denomination, with over 40,000 local churches and 15.9 million members. Dr. Richard D. Land has served as the president of the agency since 1988.
religiously motivated conduct . . . we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest . . ..
The Court’s rejection of this principle in Smith . . . has harmed religious liberty.
Justice O’Connor concludes that:
The historical evidence casts doubt on the Court’s current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre- Smith jurisprudence.
It is difficult to improve on such straight-forward and trenchant prose. The Supreme Court dealt an extremely damaging blow to free-exercise, religious-liberty rights in Smith. When the Congress rectified the Supreme Court’s terrible mistake, the Supreme Court surveyed the situation and, having painted the American people into a religious liberty corner in Smith, promptly applied a second coat of paint in striking down RFRA in the Boerne decision.
Our free-exercise rights as American citizens are in peril. The First Amendment’s free-exercise clause is there to protect all people’s religious liberty, particularly those in a minority or vulnerable position. As U. S. Solicitor General Walter Dellinger told this court during oral arguments, minority religious groups will be discriminated against pervasively and consistently with RFRA protection.
As a result of the Smith decision in 1990, the free exercise of religion must defer to the interests of the government where any “rational basis” is shown. The practical effect of this is that there is barely any constitutional safeguard against government interference in the free exercise of religion. As the members of this committee are well aware, RFRA passed through Congress and was signed into law with strong bi-partisan support. RFRA was based upon the simple premise that Congress had every right to afford religious liberty greater protection than what the Constitution provides, as interpreted by this Supreme Court. If the Supreme Court had reviewed RFRA properly, it would simply have asked itself whether RFRA was in any way contrary to the First Amendment’s provisions on religion. Had they asked themselves the proper question, they would have reached an entirely different result that they did reach in the Boerne case. The Supreme Court incorrectly focused on the issue of whose right it is to interpret the Constitution. The real issue is whether or not it is constitutional for Congress to give greater protection to religious liberty than is provided for in the Constitution, as interpreted by this Supreme Court. The Boerne decision was wrong. In effect, Bishop Flores argued that a church has inviolate First Amendment religious protections that cannot be abrogated by the whims and dictates of a municipal government’s historic preservation desires. In other words, you cannot treat a church or a mosque or a synagogue the same way you treat a bowling alley or a used car dealership. This Supreme Court, despite eloquent dissent from Justice O’Connor, said, “Yes, you can.” That is outrageous and dangerous.
Congress must respond. The Religious Liberty Protection Act (RLPA) is a good faith and magnanimous effort at legislation which conforms to the ruling in Boerne. RLPA is an attempt to give religious liberty the greatest protection possible, given the framework within which the Supreme Court has given to make that happen. For some, RLPA is more controversial than RFRA because of its use of the “commerce” and “spending” clauses to extend greater protection to religious liberty. Admittedly, the act invokes the power of the federal government to extend this protection. However, this is no less true when speaking of invoking the powers of the federal government on the basis of the First Amendment. In other words, we should be less concerned about where the federal government finds its authority to act, than we are concerned about where the federal government finds its authority to act, than we are concerned with what will result if the federal government fails to act. We believe that the anti-federalist argument is not only misguided, but it also places a higher value upon governmental process than it does upon religious liberty. Greater weight must be given to the precious value of religious liberty than to the value of strictly adhering to a political theory to which no one is bound.
I will not attempt to review RLPA. Others will be doing that. I want to close my testimony by again emphasizing how important it is that Congress do everything within its power to respond to the U. S. Supreme Court’s decision in Boerne. Let me be even more blunt that I have been to this point, and state that I believe that the Boerne decision is on of the worst decision rendered by the Supreme Court in its long history. It is consistent with a pattern on the part of this Court to restructure the basic values of our society in a manner consistent with its own set of values and no those prescribed by the Constitution to which it should be bound. The people I talk to are increasingly aware, and increasingly concerned about, the scope and power of a court which is barely accountable to “the people.” There is a growing sense of frustration over the feeling of powerlessness to respond to a court which is supposed to understand that it is covenant bound to protect the original meaning of the original parties to the Constitution of the United States. Failure to respond is to concede to the Supreme Court that any legislation of the Constitution, but must also be consistent with the Court’s own narrow way of protecting the liberties secured by the Bill of Rights.
Richard D. Land, President-Treasurer
*Ethics & Religious Liberty Commission of
the Southern Baptist Convention
June 23, 1998
Senate Committee on the Judiciary
on
S.1248, Religious Liberty Protection Act of 1998
Thank you for the opportunity to testify on this issue of critical importance to all who cherish religious liberty. As president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, I am frequently in a position to hear from people across America about their religious liberty concerns. These individuals are not legal scholars. They do not spend their spare moments perusing legal opinions published by our judicial system. They are not familiar with the meaning behind technical legal terms. They do not talk about “strict scrutiny” or “compelling interests” or “least restrictive means.” Yet, despite their unfamiliarity with the nuances of a specialized area of the law, they sense that something is fundamentally wrong with the status of religious liberty in our country, particularly when it clashes with the secular interests of government. As government’s pervasive influence increases, so does the concern of millions of Americans who sense that their fundamental right to the free exercise of religion is being made subordinate to the current whims of fancy of those who control the powers of government.
The vast majority of Americans are correct in their intuitive sense that religious liberty has lost significant ground in recent years and that the courts in general, and the Supreme Court in particular, no longer share most Americans’ conviction that religious liberty should be cherished and protected to the greatest practical extent. The Religious Freedom Restoration Act (RFRA) was a courageous attempt to rectify an egregious decision by the U.S. Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith (1990). The Smith decision was the worst religious liberty decision handed down by the Supreme Court in my lifetime. Given the fact that the court’s decision strikes down attempts by the Congress (through RFRA) to rectify the court’s significant restriction of religious liberty in Smith, the Boerne decision has now dethroned Smith as the worst religious liberty decision in my lifetime (51 years).
As Justice O’Connor says in her eloquent dissent, the First Amendment’s free-exercise clause:
...is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: Where a law substantially burdened
*The Ethics & Religious Liberty Commission is the public policy and religious liberty agency for the Southern Baptist Convention. The Southern Baptist Convention is the nation’s largest non-Catholic denomination, with over 40,000 local churches and 15.9 million members. Dr. Richard D. Land has served as the president of the agency since 1988.
religiously motivated conduct . . . we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest . . ..
The Court’s rejection of this principle in Smith . . . has harmed religious liberty.
Justice O’Connor concludes that:
The historical evidence casts doubt on the Court’s current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre- Smith jurisprudence.
It is difficult to improve on such straight-forward and trenchant prose. The Supreme Court dealt an extremely damaging blow to free-exercise, religious-liberty rights in Smith. When the Congress rectified the Supreme Court’s terrible mistake, the Supreme Court surveyed the situation and, having painted the American people into a religious liberty corner in Smith, promptly applied a second coat of paint in striking down RFRA in the Boerne decision.
Our free-exercise rights as American citizens are in peril. The First Amendment’s free-exercise clause is there to protect all people’s religious liberty, particularly those in a minority or vulnerable position. As U. S. Solicitor General Walter Dellinger told this court during oral arguments, minority religious groups will be discriminated against pervasively and consistently with RFRA protection.
As a result of the Smith decision in 1990, the free exercise of religion must defer to the interests of the government where any “rational basis” is shown. The practical effect of this is that there is barely any constitutional safeguard against government interference in the free exercise of religion. As the members of this committee are well aware, RFRA passed through Congress and was signed into law with strong bi-partisan support. RFRA was based upon the simple premise that Congress had every right to afford religious liberty greater protection than what the Constitution provides, as interpreted by this Supreme Court. If the Supreme Court had reviewed RFRA properly, it would simply have asked itself whether RFRA was in any way contrary to the First Amendment’s provisions on religion. Had they asked themselves the proper question, they would have reached an entirely different result that they did reach in the Boerne case. The Supreme Court incorrectly focused on the issue of whose right it is to interpret the Constitution. The real issue is whether or not it is constitutional for Congress to give greater protection to religious liberty than is provided for in the Constitution, as interpreted by this Supreme Court. The Boerne decision was wrong. In effect, Bishop Flores argued that a church has inviolate First Amendment religious protections that cannot be abrogated by the whims and dictates of a municipal government’s historic preservation desires. In other words, you cannot treat a church or a mosque or a synagogue the same way you treat a bowling alley or a used car dealership. This Supreme Court, despite eloquent dissent from Justice O’Connor, said, “Yes, you can.” That is outrageous and dangerous.
Congress must respond. The Religious Liberty Protection Act (RLPA) is a good faith and magnanimous effort at legislation which conforms to the ruling in Boerne. RLPA is an attempt to give religious liberty the greatest protection possible, given the framework within which the Supreme Court has given to make that happen. For some, RLPA is more controversial than RFRA because of its use of the “commerce” and “spending” clauses to extend greater protection to religious liberty. Admittedly, the act invokes the power of the federal government to extend this protection. However, this is no less true when speaking of invoking the powers of the federal government on the basis of the First Amendment. In other words, we should be less concerned about where the federal government finds its authority to act, than we are concerned about where the federal government finds its authority to act, than we are concerned with what will result if the federal government fails to act. We believe that the anti-federalist argument is not only misguided, but it also places a higher value upon governmental process than it does upon religious liberty. Greater weight must be given to the precious value of religious liberty than to the value of strictly adhering to a political theory to which no one is bound.
I will not attempt to review RLPA. Others will be doing that. I want to close my testimony by again emphasizing how important it is that Congress do everything within its power to respond to the U. S. Supreme Court’s decision in Boerne. Let me be even more blunt that I have been to this point, and state that I believe that the Boerne decision is on of the worst decision rendered by the Supreme Court in its long history. It is consistent with a pattern on the part of this Court to restructure the basic values of our society in a manner consistent with its own set of values and no those prescribed by the Constitution to which it should be bound. The people I talk to are increasingly aware, and increasingly concerned about, the scope and power of a court which is barely accountable to “the people.” There is a growing sense of frustration over the feeling of powerlessness to respond to a court which is supposed to understand that it is covenant bound to protect the original meaning of the original parties to the Constitution of the United States. Failure to respond is to concede to the Supreme Court that any legislation of the Constitution, but must also be consistent with the Court’s own narrow way of protecting the liberties secured by the Bill of Rights.