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Thursday, Oct. 26, 2000

Throughout his campaign for the presidency, Governor George W. Bush has made the claim that he is adept at encouraging bipartisan compromise that bypasses political gridlock. If his claim is true, Governor Bush will bring a formidable skill to Washington, which seems to have been in gridlock for most of recent history. While Bush’s claim is difficult to prove, I witnessed this quality in action when Texas enacted its Religious Freedom Restoration Act.

The Genesis of Religious Freedom Restoration Acts: A Crucial Court Decision

Before I explain the Texas controversy, and Governor Bush’s resolution of it, some background on religious freedom restoration acts — which I will call RFRAs — is in order. In 1990, the Supreme Court held that it did not violate the Constitution’s guarantee of free religious exercise to apply generally applicable drug laws to an individual or group who used the drug peyote for religious reasons. The decision stood for the proposition that religious individuals and institutions can be required to obey generally applicable laws, especially criminal laws.

Religious entities and some scholars immediately attacked the 1990 decision as the "end of religious liberty." And the decision sparked the formation of the Coalition for the Free Exercise of Religion, a union of civil rights and religious organizations that drafted the federal RFRA and lobbied heavily for it.

A RFRA imposes restrictions on government whenever a general law substantially burdens a religious individual or organization. According to the RFRA, the general law may not be applied to the religious entity unless the government can prove that its law was passed to serve a compelling interest, and that the law is the least restrictive means of achieving the government’s purpose.

I took a broad-based constitutional challenge to the federal RFRA to the U.S. Supreme Court, which struck down RFRA as a violation of the separation of powers, principles of federalism, and the ratification requirements to amend the Constitution. The failure of the federal RFRA led the coalition of organizations that had backed the federal RFRA to begin lobbying the states for state versions.

The Controversy over RFRAs, and the Coalition’s "No-Exemption" Strategy

A RFRA in its "pure" version — unaltered by compromise — has breathtaking scope; it could apply to every law enacted or enforced by any branch and any action by any government official. Initially, no one fully comprehended its scope. Thus, the ACLU enthusiastically supported the federal RFRA for years, until it became evident beyond a doubt that one of the agendas underlying the RFRAs was to permit certain religious individuals to trump the fair housing laws by discriminating against renters on the basis of marital status and sexual orientation. Then the ACLU quickly pulled its support for a broad RFRA.

Later, when the broad scope of RFRAS became evident, other groups began to lobby against them, arguing that certain laws should be applied equally to both religious and secular organizations and individuals — from child neglect and child abuse laws, to prison regulations, to zoning matters.

In response, to ensure unity among its members, the Coalition for the Free Exercise of Religion adopted a "no-exemption" strategy in its dealings with legislators. Under a "big tent" theory, each religious organization agreed not to gore the other religious organization’s ox. Jews would not object to fundamentalist Christians’ agenda to trump the fair housing laws, if Christians would not object to Orthodox Jews’ desire to turn residential homes into synagogues despite zoning laws.

The muscle of organized religion coupled with the "no-exemption" strategy resulted in the passage of "pure" RFRAs in states that passed such laws immediately following the Court’s decision invalidating the federal RFRA. The "no exemption" strategy has not been wholly abandoned; it is currently being touted in Idaho. Congress, however, finally tired of the strategy, with Rep. Barney Frank saying, rightly, that he was suspicious of any group that directed elected representatives to take a bill "as-is"; in July, both Houses enacted a narrower RFRA that applies only to land use and prisons, a bill signed by President Clinton in September.

The Texas RFRA: A Product of Compromise

In 1999, at a time when the nation was being introduced to Governor Bush as a possible presidential candidate, the Governor introduced Texas’ RFRA, touting the Act as an opportunity to save religious liberty. Governor Bush introduced the bill with a strong endorsement, and then the bill moved to the Texas legislature.

As an outspoken critic of RFRAs, I was invited to testify in Spring 1999 by those opposing the law, and I testified that it was unconstitutional. I also wrote an op-ed that appeared in a number of Texas papers, saying that one must wonder about Bush’s position on children’s rights, land use planning, prison administration, and human rights if he was going to introduce a "pure" RFRA that would allow religious entities and individuals to challenge virtually every law.

In concert with arguments such as these, anti-RFRA pressure began to be exerted by Texas homeowners distraught that the most important investment in their lifetimes—their homes–could be devalued by the rapacious growth of neighboring churches (and all the macadam parking lots and traffic and nuisances that follow); by civil rights communities; and by prison administrators. As a result, the Texas RFRA was transformed so that it was unlike any other RFRA in the country. Land use laws were exempted, human rights laws were exempted, and prisons were given the benefit of the doubt under the statute.

The RFRAs most fervent supporters asked Bush to veto any compromise bill — but he did not kowtow to pressure from the Coalition and others. Instead, he signed a compromise RFRA into law. The law omitted to address the single most serious problem that has worried me as I have worked on these issues for almost a decade—children’s interests. Nevertheless, it was an unprecedented compromise, reflecting not just the agenda of the Coalition, but also those of the legislature and those citizens opposed.

I happen to think every RFRA, even Texas’, is a bad idea; there are better ways to accommodate real burdens on religion. But Bush has earned my respect by proving he knows how to bring various forces, both private and governmental, together to achieve results, and more importantly, by showing that he does not kneel at the altar of any interest group, no matter how powerful. These are the marks of leadership.

Marci A. Hamilton is Visiting Professor of Law at New York University School of Law and can be reached at Professor Hamilton took the federal RFRA to the Supreme Court, which declared it unconstitutional, has written on that RFRA extensively, and has testified in Congress and a number of states on religious liberty legislation.

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