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Issue: "Larry Woiwode: By the book," July 4, 1998

Farris responds, too

The first thing to realize in the debate over the Religious Liberty Protection Act (RLPA) is that this is a disagreement among friends-an important and impassioned disagreement, to be sure, but still one among friends. We hold the utmost respect and love for our Christian brothers like Rep. Charles Canady, Chuck Colson, James Dobson, and Gary Bauer who are supporting RLPA, and we will be delighted to work side-by-side with them in the future on the 99.9 percent of public-policy issues on which we agree. Nevertheless, we believe that their position on this question is wrong. Here's why: No one disputes that there is in this country a great constitutional problem concerning legal protection for the free exercise of religion. Mr. Colson's analysis of this problem is accurate, as is his analysis of the Supreme Court's usurpation of power in the Boerne decision. We agree with him that these injustices must be addressed. But we do not believe that employing a liberal theory of the Commerce Clause to gain religious freedom can be done without violating important biblical and constitutional principles. The RLPA requires proof that our religious faith affects interstate commerce in order to obtain protection. This requires Christians to prove that their faith is a commercial event that is interstate in character. This is the reason that using the Commerce Clause to ban partial-birth abortions is inherently different. Killing babies for money is commercial. The only debate is whether the killing for profit is interstate in character. The Christian pro-family community is deeply and widely divided over the RLPA. Not so the liberals. For groups like the ACLU, Norman Lear's People for the American Way, Americans United for Separation of Church and State, and similar opponents of traditional values, this is an easy bill to support. Those groups like broad federal powers. They want the national government to be able to regulate education, churches, and families. If RLPA lays the groundwork for a national anti-spanking law, they would be perfectly happy. For Christians and conservatives who believe in both religious freedom and federalism, this is a very difficult bill because it puts these two values in direct opposition. The more it protects religious freedom, the more it expands federal regulatory authority. If the courts uphold the principle of limited national government, the bill will accomplish little or nothing in protecting believers. This is why so many Christian and conservative leaders and organizations that believe in limited federal power-including Home School Legal Defense Association, Concerned Women for America, the American Family Association, Eagle Forum, the Traditional Values Coalition, the American Association of Christian Schools, Free Congress Foundation (Paul Weyrich), and former Attorney General Edwin Meese-are united in our commitment to stopping this bill. RLPA's supporters undoubtedly wish that the Christian community were not so deeply divided over RLPA, and that one side or the other had a clear majority of support. However, this is simply not true and cannot be made true by asserting it as a fact. There is strong and principled disagreement on this issue, and our position does not determine whether we are "right-thinking Christians." Legal scholars have proposed a number of different possible congressional responses to the Supreme Court's Boerne decision, and we are confident that a mutually acceptable remedy could be found-one that we could all stand behind. Instead, the ACLU and its allies, with the unfortunate but well-intentioned support of some Christian groups, are attempting to fast-track a law that causes more problems than it solves. It is interesting that some believe that RLPA would "challenge" the Supreme Court. There are many possible ways to do that, ranging from a constitutional amendment and the selection of new Justices to stripping of jurisdiction, impeachment, and the "court packing" plan that President Roosevelt almost pursued in the 1930s. RLPA would present no such challenge. By shifting the Religious Liberty Protection Act's source of federal power (the authority to protect inalienable rights under the Fourteenth Amendment) to the commerce and spending powers, it sends the message to the court that Congress accepts the Boerne decision. Since we can't protect religious freedom with the Religious Freedom Restoration Act (RFRA) which was recently struck down by the Supreme Court, suggest RLPA supporters, we will try another federal power source until we find one the court likes. After RLPA is held unconstitutional, as it surely will be, what federal power will be used for the next proposed bill? Quite simply, religion is not commerce. If RLPA is enacted, Christians and other people of faith will not be able to seek legal protection for their worship because God commands it. Instead, they will be required to prove in court that their religion is simply interstate commercial activity. This reduction of worship to big business is highly offensive. Scripture instructs that we cannot serve both God and money. Even if RLPA were constitutional, and even if it were successful in winning some cases where religious freedom is at stake, the price is too high. We cannot submit to Caesar what is God's. Imagine a case in which the government tries to outlaw Holy Communion, and a church sues to protect its right to the sacrament. Don't worry about the religious stuff, says their lawyer. Under RLPA, the first thing we have to prove is that the bread and wine were purchased through channels of interstate commerce. Otherwise, no case. After the Supreme Court took away serious constitutional protection for religious exercise in 1990, it took three years for a sufficient consensus to develop to pass RFRA. Now that RFRA has been held unconstitutional, this is the time to seek a response to the Supreme Court that can generate widespread support. It is not the time to allow the political Left to ram through a measure that has torn the Christian community apart because of its use of Big Brother to control everyone's lives from Washington. - Michael P. Farris
President, Home School Legal Defense Association,

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