Cover Story

Strongarming

Taking liberties? Efforts to pass religious-freedom legislation are breaking down over disagreements on technical legal issues. The debate pits two cherished ideals against one another: limited government vs. religious freedom. One proposal would safeguard the rights of Christians. But critics charge it takes liberties with the Constitution.

Issue: "Religious liberty fight," June 20, 1998

in Washington - Mike Farris is in crisis mode. The politically powerful head of the Home School Legal Defense Association doesn't spend any more time in Washington than absolutely necessary-Purcellville, Va., site of HSLDA headquarters, is two area codes away from D.C. and hardly even qualifies as a suburb. But Mr. Farris is slumming it in the District all week, save for a quick trip to Ohio for his daughter's college graduation. To anyone who will give him five minutes' time, he pleads for defeat of an upcoming bill that he fears will sell out the conservative ideal of limited government and result in a massive power grab by the feds. His mission in the capital has him calling on virtually every conservative group and elected official who will receive him. On Monday, it was senior staffers of the House GOP leadership. Tuesday he focused on the Senate. And on Wednesday, he distributed a 10-page paper to family-group representatives gathered for lunch at Paul Weyrich's Free Congress Foundation. He dashed to that appointment after distributing the same paper to about 100 economic policy wonks across town at Americans for Tax Reform. After a few questions, he's off to press his case with Rep. Joe Pitts (R-Pa.), chairman of the Values Action Team in the House. "The ends do not justify the means," Mr. Farris stresses at every stop. Each time, the audience nods in agreement-albeit with eyebrows raised. Mr. Farris, after all, is not talking about Bill Clinton or Al Gore or scores of other well-known Machiavellians in Washington. He's talking about Chuck Colson. Farris vs. Colson? The matchup is odd enough. But stranger still is the issue that precipitated the split: religious liberty. Like motherhood or apple pie, it's one of those things that is almost impossible to oppose. Indeed, when the Coalition for the Free Exercise of Religion sent out a memo in late May, titled "The need for the Religious Liberty Protection Act," the letterhead seemed to indicate that no one was, in fact, opposed. Mr. Colson's Justice Fellowship (the public-policy arm of Prison Fellowship) and Mr. Farris's HSLDA were listed as RLPA supporters, along with such leading liberal organizations as People for the American Way and Americans United for Separation of Church and State. But trouble was brewing behind the scenes. By the time another memo went out on May 5, urging members of Congress to protect religious liberty by passing RLPA, the letterhead had changed considerably. Gone was Mr. Farris's group, as were the American Association of Christian Schools, Concerned Women for America, and the Traditional Values Coalition, among others. The coalition that had come together to pass the Religious Freedom Restoration Act (RFRA) in 1993 was quietly falling apart. No one was more surprised than Pat Nolan, the Justice Fellowship president. "I didn't expect this kind of opposition. I'm disappointed and frustrated," he told WORLD just hours before congressional leaders held a news conference to introduce RLPA. He had reason to be optimistic at the outset. The 1993 RFRA had sailed through Congress five years earlier with only three "No" votes. But in 1997 the Supreme Court overturned the law, saying that Congress could not extend religious protections further than the court itself found in the Constitution. Many conservatives saw the 1997 high court ruling (City of Boerne vs. Flores, Archbishop of San Antonio; see WORLD July 12/19, 1997) as just the latest-and most egregious-example of judicial activism. The fallout from the decision began almost immediately. Without the protection of RFRA, 20 religious daycare centers in Philadelphia were cited for violations of anti-discrimination laws because they hired only workers who were Christian believers. In South Carolina, a home Bible study group was charged with violating a zoning ordinance that allowed similar meetings for sports or Tupperware parties. And several states moved to forbid death-row prisoners from bringing Bibles to religious meetings. Appalled at what they considered judicial arrogance, both Mike Farris and Chuck Colson immediately began reviewing their options for restoring the will of the Congress and putting the court in its place. Mr. Farris, who helped write the original RFRA legislation, favored a constitutional amendment. But Mr. Colson and his allies insisted that the legislative branch should strike back with legislation, or risk abdicating its function to judges who would govern from the bench. In essence, they wanted to pass a new version of RFRA and dare the court to strike it down again. As the "new" RFRA evolved into RLPA, fine legal questions evolved into huge philosophical disagreements. The arguments are highly technical, but they boil down to this: Congress must cite Constitutional authority for the laws it passes. RFRA relied on the 14th Amendment, while RLPA relies on a loose interpretation of the Constitution's so-called commerce clause. But critics charge that gives away too much, expanding federal power in exactly the same way liberals have for decades. RLPA's architects argue that local religious activities inevitably affect interstate commerce, and therefore fall under the jurisdiction of Congress. Referring to the Philadelphia example, the Center for Law and Religious Freedom spun the following scenario: 20 daycare centers are cited for failing to hire nonbelievers. Rather than surrender their religious convictions, the centers close their doors. That means 20 fewer customers for toymakers in Indiana and storybook publishers in New York. Multiplied many times over, such closings would adversely affect trade between the states-interstate commerce-thus justifying congressional intervention. That reasoning was too much for Carmen Pate, who decided to pull Concerned Women for America out of the RLPA coalition though they had backed the earlier RFRA bill. "We are very concerned because it sounds good on the surface, but the fact that it is under the commerce clause really devalues religious belief," she says. Believers seeking relief under RLPA would have to show the economic impact of their religious activities, in effect putting a price tag on their piety. Besides the philosophical concerns, Mr. Farris raises a purely practical objection to RLPA's use of the commerce clause: It legitimates the role of a big, intrusive federal government. Liberals have long used the commerce clause to justify government action in almost any conceivable area. The conservative position, meanwhile, has been that the founders intended Congress to be involved only in actual matters of interstate commerce-such as shipping goods for sale among the states-not in limited, local concerns like daycare. By interpreting the commerce clause broadly, conservatives would concede the big-government position and abandon the moral high ground, according to Mr. Farris. "We're buying into the left's view of expansive government power," he told activists at Americans for Tax Relief. "We should never sell out our view that we should have limited government." Nonsense, says Mr. Nolan. Legislation to ban partial-birth abortion "uses the commerce clause also, and there hasn't been this hue and cry there. RLPA only uses the authority that Congress already has under the commerce clause; it doesn't expand that authority. The opposition essentially says, 'Congress is already using the commerce clause to regulate all these areas of our lives, but we won't use it to protect our religious freedom.' "Those that oppose RLPA are essentially saying, 'We feel safer with our liberties in the hands of the court than in the hands of Congress.' We actually feel Christians have far more to fear from an unelected Supreme Court than they do from the democratic process." There is little doubt that many Christians are fearful of a growing anti-religious sentiment. But Mr. Farris wants elected officials to know that the solution is neither easy nor obvious. After one meeting, a high-ranking Gingrich staffer thanked Mr. Farris for his presentation. The House leadership thought conservatives were united behind RLPA, the staffer said. Now she could report to her boss that the religious right is, in fact, deeply divided over the bill. RLPA opponents hope such division will doom any chance of passage. "We need to slow down this process, encourage our legislators to wait," said CWA's Mrs. Pate. "My concern was that it would be rushed through before they knew what they've voted on. But on cases like this where there's a lot of conflict-especially among allies-that sometimes does cause leadership to slow down before they introduce something." So far, the strategy seems to be working. No timetable has yet been established for voting on the bill, and opponents plan to make sure their voices are heard. CWA , HSLDA, and Eagle Forum have widely heard radio shows that they can use to rally the troops, while TVC and AACS have networked thousands of churches and Christian schools nationwide. Mrs. Pate also promises that CWA will score the RLPA vote on its legislative report card, putting extra pressure on Republican lawmakers who count on support from conservative Christians. But RLPA supporters have some impressive weapons in their own arsenal. Foremost among them is the Focus on the Family radio broadcast, heard by an estimated 5 million listeners and hosted by James Dobson, a longtime Colson ally. Gary Bauer's Family Research Council-perhaps the religious right's most formidable power in Washington-also supports RLPA, as does the Christian Coalition, which publishes the grandaddy of all congressional report cards. With all the heavy artillery being dragged out for battle, GOP stalwarts in Congress may get caught in the crossfire. Mr. Farris is already singling out the congressman who introduced RLPA for criticism. Although Rep. Charles Canady (R-Fla.) is a leading pro-lifer, Mr. Farris charges, he "is not a federalist. He's a big-government Republican." Few conservatives would want that label, but fewer still may be willing to anger Mr. Dobson, whose threats to bolt the party have spooked the GOP leadership for months. No matter how they vote on RLPA, congressional Republicans are sure to alienate a large part of their most passionate voter base. That may explain why the House GOP was so united in its support of the school-prayer bill known as the Religious Freedom Amendment (RFA), which was defeated on June 4. The amendment, sponsored by Rep. Ernest Istook (R-Okla.), would have protected almost all forms of religious expression, rendering RLPA unnecessary. House leaders made passage of RFA their No. 1 priority in terms of social issues, extracting promises from grassroots organizations not to push any other religion bills until after the RFA vote. But as the vote neared and chances for passage dimmed, conservative groups began quietly jockeying for position on the controversial question of alternatives. "A constitutional amendment is required ultimately, but that's not to say some legislative fixes won't be necessary along the way," explained Christian Coalition spokesman Arne Owens the week before the RFA vote. Meanwhile, Gary Bauer-officially an RLPA backer-continued to craft his own legislative fix, known as the Ten Commandments Defense Act. Mr. Bauer's bill would do much the same thing as Mr. Colson's: It "erects a federalism shield to protect the authority of state institutions, such as state courts and public schools, to acknowledge the Creator ... and preserves the right of individual citizens ... freely to express their religious faith, so long as they refrain from interfering with the legitimate rights of others." Competing bills-and the sense that only an amendment will solve the problem once and for all-may spell trouble for RLPA. Opponents are united in their antipathy to a specific bill, while many supporters merely argue that something must be done as a stopgap measure while awaiting a constitutional amendment. Political pressures may not help, either. Pro-RLPA forces are counting on strong support from Sen. John Ashcroft, chairman of the Constitution, Federalism and Property Rights subcommittee. But Mr. Ashcroft, like Mr. Bauer, is positioning himself as the presidential candidate of choice among religious-right voters. With those voters deeply divided over RLPA, neither man can afford to alienate a large part of his base. So the search for alternatives goes on. Religious-freedom bills will proliferate on the one hand, while other conservatives urge a renewed focus on building support for a single Constitutional Amendment. The unanimity of opinion that propelled RFRA through Congress in 1993 looks impossible to restore. Rather than try to re-create the unusual coalition that formed five years ago, some are trying to resuscitate RFRA itself. So popular was the original act among all members of Congress (and the administration) that Rep. Tom DeLay may use it to challenge the authority of the Supreme Court. Through a tactic known as jurisdiction-stripping, Congress could simply declare that RFRA is outside the purview of the Court, thus nullifying the justices' earlier ruling against the statute. Though controversial, such a move would not be unprecedented: Earlier this year, the House voted 350-85 to strip judges of their ability to order the early release of violent criminals from overcrowded prisons. Thus, the RLPA debate could turn into something much bigger than a battle between Mr. Colson and Mr. Farris. The hot-potato issue of religious liberties could set off a turf war between two branches of the federal government, similar to the crisis that raged when Franklin D. Roosevelt tried to pack the high court with six additional liberal justices. That crisis ended with a defeat for FDR, but the larger issue of separation of powers lives on. In a divided government, Christians are now being asked to choose which branch will best protect their liberties-and which is most likely to take them.

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