The Religious Liberty Protection Act: Background and Current Status (CRS Report for Congress)
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| Release Date |
April 25, 2000 |
| Report Number |
RL30221 |
| Report Type |
Report |
| Authors |
David M. Ackerman, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
On July 15, 1999, the House adopted a slightly modified version of H.R. 1691 , the
"Religious Liberty Protection Act" (RLPA), by a vote of 306-118.. Prior to final passage the House
rejected an amendment to limit RLPA's application with respect to certain state and local
nondiscrimination measures, 190-234. The bill (along with a modified Senate version ,
S. 2081 ) now awaits action in the Senate.
RLPA is part of an ongoing conversation between Congress and the Supreme Court about
whether religious practices ought to be given special treatment by government and about Congress'
power to mandate such treatment. Prior to 1990 the courts had generally applied (although often
with a light hand) a strict scrutiny test to government actions that imposed substantial burdens on
the exercise of religion. But in 1990 in Employment Division v. Smith, the Court
largely eliminated
the strict scrutiny test for free exercise cases. In response Congress in 1993 enacted the "Religious
Freedom Restoration Act" (RFRA) reapplying (and extending) the strict scrutiny test to all
government actions, including those of state and local governments, that impose substantial burdens
on religious exercise. But in City of Boerne, Texas v. Flores in 1997 the
Court held that Congress
lacks the power under Section 5 of the Fourteenth Amendment to impose RFRA on state and local
governments. RLPA is a response to that decision and would re-apply a strict scrutiny standard to
the actions of state and local governments on the basis not of Section 5 (except with respect to land
use decisions) but of Congress' powers to attach conditions to federal funding programs and to
regulate commerce.
RLPA raises several major issues. First is the policy question of whether, and to what degree,
religious exercise ought to be protected by federal law from burdensome interference by state and
local governments, i.e. , whether religious exercise should be afforded special treatment
by
government or should, instead, be treated neutrally. RLPA is intended to be broadly protective of
religious exercise, and revisions that have occurred since it was first introduced in 1998 have made
it increasingly so. A second issue concerns whether Congress has the constitutional power to
mandate that state and local governments give religion special treatment. Questions have been raised
about whether RLPA exceeds Congress' power under the spending clause by imposing a condition
on federal grants that is coercive on the states and that has little nexus to the individual spending
programs to which it is attached; whether RLPA's use of the commerce power violates principles
of federalism; and whether its reliance on Section 5 of the Fourteenth Amendment in its land use
provisions satisfies the requirements the Supreme Court has articulated for Congress' exercise of that
power. Question has also been raised about whether state and local nondiscrimination statutes ought
to be exempted from its purview.
This report provides background on the Supreme Court's decisions in Smith and
Boerne and
Congress' passage of RFRA; summarizes legislative action on RLPA in the 105th and 106th
Congresses; and frames the salient legal issues that appear to be implicated by RLPA. It will be
updated as events warrant.
