Religious leaders are urging Congress to steer clear of advancing a constitutional amendment as a way to counter the Supreme Court’s ruling striking down the Religious Freedom Restoration Act.
Testifying before the House Judiciary Subcommittee on the Constitution on Monday, religious leaders and legal experts outlined several alternative courses of action in the wake of the court decision, including passing federal legislation to restore the religious freedom protections voided by the Supreme Court.
Last month, the high court ruled that Congress overstepped its bounds and usurped judicial authority in 1993 when it enacted RFRA — a law that protected religious practice from government interference.
The decision means that it will be far more difficult to claim that actions taken by government improperly restrict religious freedom.
Reflecting a wariness felt among many members of a broad coalition formed several years ago in support of RFRA, Rev. Oliver Thomas, special counsel for the National Council of the Churches of Christ, cautioned against a congressional response that might “upset the delicate balance between the institutions of church and state.”
“In particular, if we were to amend the First Amendment, we would risk creating larger problems than the one we seek to solve,” said Thomas, who chairs the RFRA coalition, which includes many Jewish groups.
Instead, advocates of RFRA are suggesting a variety of legislative responses.
Congress, for example, might use its spending powers to make federal funding of local governments contingent upon compliance with RFRA-like rules, or lawmakers could enact another religious freedom law that would apply to federal agencies.
In addition to new legislation, other possible avenues include getting states to enact their own religious freedom statutes and finding a case in the lower courts that could challenge a 1990 Supreme Court ruling that sparked the entire controversy.
The recommendations reflect an emerging consensus among most members of the RFRA coalition.
Some conservative Christian groups, however, are actively looking to a constitutional amendment — a move that threatens to fracture the coalition.
Most of those who spoke at Monday’s hearing agreed that such a measure should only be considered as a last resort, and lawmakers in attendance, for the most part, seemed to be reading from the same page.
“It would be ill-advised for us to embark on an attempt to amend the constitution in response to this decision,” said Rep. Charles Canady (R-Fla.), chairman of the subcommittee.
“There are important” legislative “avenues to address the problems raised by” the court’s ruling, he said, adding that an amendment “would be premature at this point and likely would not pass in any event.”
Amending the Constitution requires the approval of two-thirds of Congress and three-quarters of the states.
Most church-state watchdogs specifically fear a constitutional amendment resembling Rep. Ernest Istook’s (R-Okla.) “Religious Freedom Amendment,” which would, among other things, allow for prayer in school.
Istook has already suggested adding a section dealing with the free exercise of religion to his proposed amendment.
There are concerns beyond the content of a constitutional amendment. Marc Stern, co-director of the American Jewish Congress’ legal department, said that such a response would have the effect of “declaring war between Congress and the Supreme Court.”
He questioned the “political prudence” of engaging in a separation of powers struggle over RFRA, adding that such a battle could come at the expense of the larger goal of restoring protections for religious liberty.
Jewish observers, meanwhile, saw positive signs in Monday’s hearing.
“What you saw from the members” of Congress “was a clear willingness to do something, and a clear willingness on the part of members to take their cues from what the coalition wants to do,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs.
JTA has documented Jewish history in real-time for over a century. Keep our journalism strong by joining us in supporting independent, award-winning reporting.
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
