wfn.org | NCCCUSA Testimony on Religious Freedom Restoration Act

[CAROL_FOUKE.parti@ecunet.org]

National Council of the Churches of Christ in the U.S.A.
Contact: Carol J. Fouke, NCC News, 212-870-2252
Internet: carolf@ncccusa

TESTIMONY ON THE EFFECTS OF THE SUPREME COURT'S DECISION
REGARDING THE RELIGIOUS FREEDOM RESTORATION ACT

 WASHINGTON, D.C., July 14 --- The Rev. Oliver Thomas, Special Counsel for
Religious and Civil Liberties of the National Council of the Churches of
Christ in the U.S.A. (NCCCUSA), this morning presented the following
testimony before the U.S. House Subcommittee on the Constitution.

-----------------------------------

I am Oliver Thomas, Special Counsel for Religious and Civil Liberties to
the National Council of the Churches of Christ in the U.S.A. (NCCC).  The
NCCC is the nation's premier ecumenical body with 33 Anglican, Orthodox and
Protestant member communions with an aggregate membership of over 50
million persons.  The Council does not purport to speak for all of its
members but rather for its governing body, the General Assembly, in which
all of its member communions are represented.

I am also the Chair of the Coalition for the Free Exercise of Religion.
This coalition -- which worked with members of Congress to draft and secure
passage of the Religious Freedom Restoration Act (RFRA) -- comprises 68
religious and civil liberties groups ranging from the Traditional Values
Coalition to the American Civil Liberties Union.  The Coalition is united
in its support of legislation providing religious liberty for all
Americans.  It is divided, however, over the advisability of a
constitutional amendment.  For that reason, I do not speak for the
Coalition in my remarks today.

The Supreme Court's decision to strike down the Religious Freedom
Restoration Act (RFRA) is a blow not only to the sovereignty of the
Congress but to the American people as well.  As the Dred Scott decision of
a century ago was for African-Americans, so City of Boerne v. Flores is for
religious Americans today.  But, as with Dred Scott, Americans working
together will overcome this setback to freedom.  Thank you, Chairman Canady
and Members of the Subcommittee, for beginning a national conversation on
what the proper response to Flores should be.

Although I have spent most of my adult life litigating, lobbying and
advocating for religious freedom, my overriding message to you today is one
of caution.  In your commendable effort to correct what can only be viewed
as a profound national wrong,  there is the danger that we could upset the
delicate balance between the institutions of church and state.  In
particular, if we were to amend the First Amendment we would risk creating
larger problems than the one we seek to solve.

First, there is the problem with all constitutional amendments.  They are
broad.  They are general.  They are risky.

While statutes can be drafted with great specificity, constitutional
amendments frequently cannot.  As part of the broader legal/social compact,
they speak in what the Supreme Court has called "majestic generalities"
that must stand the test of time.  Decades pass before the true meaning of
an amendment can be deciphered by the courts.  Oftentimes we are surprised
by their interpretations and wonder how they could have strayed so far from
what we understood the language to mean.  For example, who would have
thought that laws "prohibiting the free exercise" of religion did not
include laws prohibiting the free exercise of religion?  How could the
Framers have been more clear?  Yet the Supreme Court in Employment Division
v. Smith, has interpreted the language to prohibit only the handful of laws
that intentionally discriminate against religion, while omitting those that
do so incidentally or accidentally.

Then, there is the problem of exemptions.  The Congress and the Coalition
were able to unite behind a single unifying idea:  religious liberty for
all.  For that reason, exemptions for prisons, historic districts and
public schools all were considered and refused.  Yet, many state attorneys
general and others came to oppose RFRA simply because a smidgen of
prisoners filed frivolous claims.  In light of all the negative publicity
that has been given to this subject, do we really believe that a
constitutional amendment that did not exempt prisons could be passed in 38
state legislatures?  Finally, we do well to remember that although the
United States is the most religiously diverse nation on earth, we have
avoided the religious strife and the bloodshed that has characterized other
parts of the world.  Many, including myself, would attribute America's
success to the genius of the First Amendment.

For all these reasons, a constitutional amendment should be a matter of
last resort -- to be utilized only when all else has failed.

But, has all else failed ?

Close examination reveals that a number of less drastic remedies should be
pursued first.  True, none provides the universal relief that a
constitutional amendment would offer, but none carries such risks or
requires such an investment of time and resources.

Some of the alternatives are:

1.  A JOINT CONGRESSIONAL RESOLUTION - One thing Congress can do
immediately
is to speak with one voice on the Flores decision through the passage of a
joint congressional resolution regarding congressional commitment to
address the loss of protection afforded people of faith by the Court's
action.  Several things could be accomplished with such a resolution.
First, Congress could further educate the American people about the
inadequacy of the Court's current protections for religious liberty.
Second, we could put members on record as supporting reasonable efforts to
shore up federal protections for the free exercise of religion.

2.  FEDERAL LEGISLATION - Additional hearings should be held with
participation from a broad array of constitutional scholars to determine
what, if any, sort of curative federal legislation might be possible.
Possibilities would seem to exist under a variety of constitutional
provisions including the spending, commerce, and necessary and proper
clauses.  Legislation targeted at specific problem areas such as the
bankruptcy code or zoning laws might also be considered.  Finally, serious
thought should be given to determining whether a substantial record of
religious discrimination can be proven so as to justify remedial
legislation under Section 5 of the 14th Amendment.

3.  LITIGATION STRATEGY - As Congress considers its legislative
alternatives, a litigation strategy should be pursued at the state and
federal level.  Already, four state supreme courts (Maine, Massachusetts,
Minnesota and Wisconsin) and the California Court of Appeals have rejected
the rationale of Employment Division V. Smith and have chosen to provide
RFRA-type protection for religion on the basis of their own constitutions.
Only Vermont has considered strict scrutiny analysis and rejected it in
favor of Smith's more narrow interpretation.

No state litigation strategy can substitute for a long term strategy aimed
at overturning Smith.  Justice O'Connor's dissenting opinion in Flores
invites us to present the Court with an opportunity to rectify its 1990
decision, and two -- perhaps three -- of the justices share her view.
Considering that the Court's two most senior members were in the Smith
majority and that the President is an ardent advocate of RFRA and of the
compelling interest test, it is likely that the underlying source of our
problem could be eliminated in 3 to 5 years.  This is a long time to wait,
but not when one considers the length of time that would be required for a
constitutional amendment.  Moreover, a series of temporary measures -- such
as targeted federal legislation and state RFRAs -- could soften the blow
until Smith can be overturned.

By striking down the Religious Freedom Restoration Act, the Supreme Court
has placed America's first freedom in jeopardy.  For that reason, Congress
must carefully consider all of the options available to it as it seeks to
provide relief.

A constitutional amendment, though an important last resort, is not a
sprint.  It is a marathon.  We should exhaust all of our available remedies
at the state and national level before seriously considering such a radical
alternative.
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