Religious Liberty Protection Act
dlaycock at MAIL.LAW.UTEXAS.EDU
Fri Jun 19 14:14:20 PDT 1998
This bill is at the hearing stage. I do not know when it might
reach the floor.
The bill would protect religious liberty where Congress has power to
do so -- in federally assisted programs, where the religious exercise
affects commerce, and where Congress can assist with free exercise
enforcement or make a record of widespread free exercise violations.
The opposition to the bill from the far right end of the Coalition
that supported RFRA seems to be based on the view that if the Commerce
Clause were properly interpreted in pre-1937 fashion, religious exercise
would almost never affect commerce. But the Commerce Clause is not so
interpreted; churches are regularly subjected to Commerce Clause
legislation, and they almost never win (I don't know a single case) on the
ground that they are beyond the reach of the Commerce Clause. To say that
churches affect commerce for purposes of burdens but not for purposes of
protection seems to be the worst possible outcome.
There is also a fear that using the commerce clause might somehow
demean religion. But I think that fear has no basis in the experience of
the civil rights movement. The consensus against racism, and that
protection from racial discrimination is a basic human right, is far
stronger now than in 1964, when Congress first used the Commerce Clause to
prohibit racial discrimination.
I think that those who support religious liberty but oppose this
bill are making a terrible mistake.
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
dlaycock at mail.law.utexas.edu
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