Religious Liberty Protection Act

[Thomas C. Berg]

On Fri, 19 Jun 1998 15:00:38 EDT "Lash, Kurt"
<klash at LMULAW.LMU.EDU> wrote:

> A question for Doug Laycock and Tom Berg regarding congressional power to
> regulate free exercise as an aspect of the Commerce Power: When and where
> was such power granted?
>
> In the original Constitution?  Thus, in 1789 Congress could have forced
> the states to disestablish religion in the name of commerce ala Heart of
> Atlanta?  In 1791, with the adoption of the First Amendment (despite the
> establishment clause)?  In 1868, with the adoption of the Fourteenth
> Amendment (despite Boerne)?  Or did the commerce power expand to include
> the regulation of free exercise in 1937 (despite footnote 4's express
> exclusion of First Amendment subjects from the scope of the New Deal
> Revolution)?
>
> It seems to me that figuring out just when, where and how such power was
> added to the Constitution is exceedingly difficult, even if you concede
> the constitutional legitimacy of the New Deal (or so I argue in an
> upcoming issue of the Ohio State Law Journal).
>
>
I take it as a given that the power to regulate
interstate commerce now extends well beyond what the
founding generation would have specifically contemplated.
A good portion of that is because of changes in the
economic world -- more interstate transactions and
integrated markets -- but some is obviously because of a
more lenient attitude in reviewing the exercise of that
power.  The scope of the commerce power is a separate and
complex question.  RLPA incorporates whatever scope the
power has.

Maybe (probably? I don't know) the framers wouldn't have
specifically envisioned reaching religious activity under
the commerce power.  But as Michael McConnell showed in his
Harvard article, they did contemplate that various
enumerated powers would touch on religion and other
sensitive areas; that was the argument why a Bill of Rights
was necessary.  If the commerce power is interpreted
broadly, then it can reach religious activity too.  So the
point at which the Commerce Clause is interpreted broadly
enough to reach religious activity is the point at which
Congress has the power to reach it in the form of an
accommodation.

As Doug pointed out yesterday, religious institutions are
already subject to federal regulation under the Commerce
Clause.  Any interpretation that accepts the New Deal in
any significant way would countenance such regulation.
Therefore I see no per se problem under the commerce power
with protecting them from regulation (the scope, again, is
open to question after *Lopez*).  I think that at least
some of the New Deal expansion was constitutionally
legitimate.  Even if I didn't, I wouldn't suddenly develop
nightmares the moment it was used to protect religious
freedom.

So Kurt's argument really rests not on the Commerce Clause,
but on the Establishment Clause and the proposition that it
forbids any religious accommodations.  (Remember, he would
say it prevents Congress from creating religious exemptions
in its *own* laws too.)  Of course, he believes that the
Fourteenth Amendment changed that and permitted (in fact
required) accommodations -- but he says we can't argue that
now because of *Boerne*.  In other words, Kurt accepts the
Supreme Court's construction of the incorporated First
Amendment (in *Boerne*) even though he thinks it is wrong.

But the Court has also said repeatedly (in *Amos* etc.)
that the Establishment Clause *doesn't* forbid religious
accommodations per se.  Why won't you accept that
interpretation, Kurt, even though you believe it is wrong?
You seem selective in when you appeal to precedent and when
you reject it.

A basic premise of Kurt's analysis is that the term
"regulating religion" means, and means nothing more than,
"mentioning religion in a law."  Thus according to his
view, an exemption of religion from regulation is in fact a
regulation of religion, and so is one of the things that
the Establishment Clause is meant to forbid.  I think that
that is hardly obvious as a matter of language; government
also "regulates" religion when it regulates it under a
general law.  Moreover, as a matter of history, Michael's
article, I think, shows that the founders contemplated
Congress having the power to make religious accommodations.

But moreover, you have to look at constitutional
development.  The premise of the original Religion Clause(s)
was to minimize the new federal government's power over,
and effect on, religious activity.  (And after
incorporation, the effects of of state power too.)  In
1791, when the federal government did little anyway, that
purpose could largely be served if the government would
just not legislate to single out religion particularly.
But the expansion of general governmental power over the
course of our constitutional history -- in large part at
the New Deal, but at other times too -- means that this
underlying purpose is now often best served not by taking
no account of religion, but by protecting it from the
restrictions imposed by general laws.

Kurt's interpretation would allow for a massive increase in
legal restriction of religious activity -- with Congress
deprived of any ability to avoid it, unless it refrains from
passing a law on the subject altogether.  For example, to
avoid forcing Catholic churches to hire women priests,
Congress would have to drop sex discrimination from Title
VII altogether.  That seems wrong both as a matter of
constitutional law and of policy.

Tom Berg




-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu