(fwd from Kurt Lash) re: Religious Liberty Protection Act -

[Michael McConnell]

Kurt Lash writes:
>
> In answer to the first question: Under the original First Amendment,
> Congress was as disabled from acting to protect religion as it was
> prevented from establishing it.  That proposition may sound astonishing
> to us, but it made perfect sense to those who called for the adoption of
> the Bill of Rights and the enactment of provisions that would prevent the
> federal government from telling the states what to do on the subject of
> religion.

To this observer it does sound, if not "astonishing," at
least wrong. What is the support for this? It seems to me
that the record shows:

(1) Supporters of a Constitution without a Bill of Rights
argued that the federal government had no power over
religion; but this was recognized as incorrect. While
Congress had no power over religion as such, almost every
one of the enumerated powers could, in particular contexts,
affect religion. That is why the First Amendment was added.

(2) The two parts of the Religion Clauses are not parallel
with respect to the federalism dimension. Kurt
misparaphrases the First Amendment when he says that it
"would prevent the federal government from telling the
states what to do on the subject of religion." The First
Amendment prevents the federal government from telling the
states what to do on the subject of the establishment of
religion. It also prevents the federal government from
telling individuals what to do when that would prohibit the
free exercise of religion. Those are two quite different
ideas. (And remember, contrary to our general notions
today, the founding generation did not think it was
inconsistent to protect free exercise rights while at the
same time establishing religion.)

The Free Exercise Clause was understood from the beginning
as a rights provision, not a federalism provision. The
contrast in wording makes that clear. Congress had no power
to prohibit the exercise of religion, but it certainly had
power to protect the exercise of religion within the scope
of the enumerated powers (as well as the obligation to do
so when federal law was the source of the interference
with religious exercise). For example, when the state
militia was called into service, Congress would have
authority to enforce regulations guaranteeing the soldiers'
right to worship.

The Establishment Clause, however, was primarily a
federalism provision: Congress could make no law
"respecting" an establishment of religion--meaning that it
could neither establish a religion nor disestablish it
where there was an establishment under state law.

Kurt: what is your basis for interpreting the Free Exercise
Clause as if it read: "Congress shall make no law
respecting the free exercise of religion"?

To make matters concrete, how would you answer the
following:

(1) In 1791, would Congress have had the power to enact a
law of evidence for the federal courts recognizing the
priest-penitent privilege? [This is an example when the
operations of the federal government could interfere with
free ex.]

(2) In 1791, would Congress have had the power to enact a
law requring ships operating in interstate commerce to
provide reasonable opportunities for their seamen to
worship? [This is an example where the operations of
private parties in interstate commerce could interfere with
religious exercise.]

(3) In 1791, would Congress have had the power to enact a
law forbidding states from denying entry to persons
travelling from foreign countries on ground of their
religion? [This is an example where actions of state
governments that affect commerce could interfere with free
ex.]

(It should be apparent that my answer is surely yes, yes,
and yes.)

-- Michael McConnell (U of Utah)