Jerry Kopel

What vote in Congress would pit Rep. Joel Hefley and Scott McInnis vs. Diana DeGette, Bob Schaffer, Tom Tancredo and Mark Udall?

Well, you might never guess that Hefley and McInnis voted for The Religious Liberty Protection Act (RLPA) and the other four voted "no." Considering that 199 Republicans and 107 Democrats voted for the measure, against 188 "no" votes, Colorado may be the only state where a majority of its House members voted "no".

RLPA replaces the 1993 Religious Freedom Restoration Act (RFRA), which was based on the 14th Amendment and which was ruled an unconstitutional exercise of Congressional power by the U.S. Supreme Court in the June, 1997 case of Boerne v. Flores.

According to Liberty Magazine, the court held "Congress had no business protecting the religious liberty of its citizens beyond what was required by the Court's interpretation in 1990, that the First Amendment should provide protection only if a regulation or law was explicitly aimed at some religious group or practice."

But the court also held if the religious claim was brought in combination with some other kind of right, such as parenting or speech rights, the court would apply its pre-1990 interpretation to protect religious belief, when such belief was not outweighed by some compelling government interest.

Under RLPA, according to the Intermountain Jewish News (IJN) "state or local officials may not substantially burden religious exercise unless it is the least restrictive means of furthering a compelling state interest, such as health or safety."

Courts would decide when a government's interest is compelling.

That means a ton of litigation on a case by case basis resulting in enormous expense especially when the most likely defendants will be cities or counties regarding zoning law restrictions.

RLPA is placed under the Interstate Commerce Clause (which was used to shield the civil rights acts of the 1960s) and RLPA supercedes state and local laws. RLPA is "limited" to governmental units that receive federal funds (which is basically all cities, counties and states) interstate commerce and land use regulation.

Congressmen Tancredo and Schaffer base their objections primarily on the use of the commerce clause, according to the IJN. All four House members agree that use of the commerce clause to "protect" religion can also be used to "regulate" religion.

Many opponents were also concerned about the destruction of state civil rights and anti-discrimination laws. Rep. Jerrold Nadler (D-NY) one of the original sponsors of RLPA, voted against it after his amendment to ensure that existing civil rights laws would not be affected was voted down 190-234. On the final vote on RLPA, of 23 House members of Jewish Faith, according to IJN, 15 voted "no", seven voted "yes" and one did not vote.

Colorado's anti-discrimination laws may well be in jeopardy under RLPA. The original Colorado Fair Housing Act (which is now forty years old) provided protection against discrimination in the sale or rental of housing based on race, creed, color, sex, national origin, or ancestry. It has since been amended to include "marital status, familial status, disability, and religion".

If a religious belief by a landlord considers cohabitation by a male and female without marriage to be a mortal sin, will RLPA take precedence over the Colorado law and protect the landlord when he refuses to rent the apartment to the couple?

If a city ordinance forbids noise over a certain decibel range within a residential area, can the city force a church, whose members believe shouting at the full might of their lungs for an extended period of time is the only way to heaven, to be quieter at night?

Recently a Denver couple holding bible study meetings in their home sued the city after a cease and desist order that held meetings (not just religious meetings) more than once a month in residential homes violate zoning laws. The religious meetings in the lawsuit were held once a week. Under RLPA, the couple would likely win, especially if the bibles used were bought in interstate commerce.

As to some (not all) of the thinking about RLPA, Chuck Colson, former Nixon jailbird who heads the Prison Fellowship Ministries, stated recently in the Denver Post: "Which is the more basic liberty in American: the right of homosexuals to practice sodomy without inconvenience, or the right of free religious exercise?"

The Fair Housing law forbids restrictive covenants which limit the transfer, rental, or lease of any housing because of "race, creed, color" etc. As recently as 1940, the Colorado Supreme Court had ruled "a restrictive covenant in a deed against ownership or occupation by Negroes is not a violation of the 14th Amendment to the constitution, nor against public policy..." In 1948, the U.S. Supreme Court in another non-Colorado case, held it was a violation.

In 1990, because language continued to show up in Colorado deeds of real estate forbidding transfers to anyone of African descent, or Hebraic origin, or not of the nordic race, Colorado passed HB 1218 to provide ways to remove the offensive language. Would an RLPA statute legitimize some form of restrictive covenants in Colorado real estate deeds?

While the Senate will vote on RLPA after the summer recess, supporters of RLPA aren't counting on Congress as the only way to get the law passed. Bills based on the original RFRA (the law thrown out by the U.S. Supreme Court) have been introduced in more than a dozen states. One of the saddest parts of those bills are attempts to exclude prisoners from the protections provided by RFRA. It certainly possible that a state RFRA law will be attempted in Colorado in 2000.

Groups promoting the federal measure include the American Jewish Congress, People for the American Way, Focus on the Family, the Anti-Defamation League, the Orthodox Union, and the Christian Coalition. Opponents include the American Civil Liberties Union, Americans United for the Separation of Church and State, the Legal Defense Fund of the National Association for the Advancement of Colored People, the National League of Cities, and the National Association of Counties.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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