Welcome to the Liberty Insider.
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This is a program
that brings you discussion
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and up-to-date information
and interesting guests
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to discuss religious liberty
events in the United States
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and around the world.
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My name is Lincoln Steed
editor of Liberty Magazine
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and my guest on the
program is Brent Walker,
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executive director of
the Baptist Joint Committee
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for Religious Freedom.
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Welcome, Brent.
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Thank you, thank
you and good to be here.
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You are very knowledgeable
as well as having worked
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very closely with Liberty
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and the Seventh-day
Adventist church on common cause
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for religious
liberty over the years
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and over the years I
have heard many, many times
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from when I first
started with Liberty Magazine
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almost to the
present about RLPA and RFRA
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and as a working title I call
this program acronym smacronym.
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And I know in
any-- in any disciple
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in the modern world there
are also sorts of acronyms
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and they can mean nothing
to people outside the system.
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Right.
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But what was it 1993
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that the Religious
Freedom Restoration Act.
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Religious Freedom
Restoration Act was passed.
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Tell me about
that because I know
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you have quite a hand on it.
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That's the RFRA, RFRA part.
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I'm sorry. No, that's all right.
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Religious
Freedom Restoration Act?
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I was just giving you
the acronym one more time.
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For a second I
thought I had said RELPA.
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No, no you said it right
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Religious Freedom
Restoration Act, 1993.
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A very important piece of
legislation that Congress passed
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and President
Clinton signed 20 years ago.
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In fact, we just
celebrated the 20th anniversary
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several weeks ago at the
museum in Washington D.C.,
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and not all of you-- I'm
sure you have been there.
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Oh, yes, I have been there,
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have been going to
that event kicking myself.
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People that are
watching the program
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when they come to Washington
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they shouldn't miss the museum
it's quite a an experience.
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The new museum?
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New, new museum.
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A move from
Alexandria wasn't it?
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It was in Rosslyn in Arlington
but its now on the foot
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of the Capitol Hill right
before you get on to the wall
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so it's a beautiful area.
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Where we had our Liberty dinner
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at the Canadian
embassy just next door?
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Oh, its right next to the
Canadian embassy, you are right
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and they have this
mammoth wall outside
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with the first amendment
engraved so that it can be read
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you know, 300-400
yards away so everybody
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that drives that
constitution avenue is treated
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to the words of
the first commandment
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including those first 16
Congress shall make no law
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respecting
establishment of religion
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or prohibiting
the free exercise.
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It's a wonderful I'm trying to--
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it's not organization
but it's a wonderful outlets,
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isn't it founded by
the Hearst Corporation?
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Gannett I think.
Gannett, sorry Gannett
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and it was a publishing empire.
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But it's a
wonderful but it any way
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the Religious
Freedom Restoration Act
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whose anniversary we were
celebrating several weeks ago
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is one of the most important
religious liberty laws passed
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by the Congress
of our generation.
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A little background the second
part of that first amendment
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religion clause is
the free exercise clause
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traditionally
has been interpreted
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to provide a strong level of
protection for religious liberty
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that the government
could not substantially burden
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your exercise of
religion with out coming forward
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with a really
compelling reason for doing it.
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Not just because
it was a good idea
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but health,
safety, welfare of others
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and do it in a nearly
tailored unobtrusive way.
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That was that was
the high-- and in fact,
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it was Seventh-day Adventist
until Sherbert who's case --
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who's case is in
Supreme Court in South Carolina.
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Yes, a woman in
a mill in Carolina.
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Yes, whose case was the
occasion for the government
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to articulate or
for the spring court
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to articulate that
level of review specifically
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that the government has
to show a really good reason
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why it shouldn't be allowed
to burden your religious liberty
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before you will be permit.
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Well, all of that went
away pretty much in 1990
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in the so called
Native American Peyote Case.
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It wasn't just about
that Native Americans right
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to in just Peyote
but the larger principles
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involved the Smith case, yeah,
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that the court said not
just for Native Americans
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but all Americans as long
as the law is facially neutral
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and generally applicable
you really don't have the right
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to insist upon
government telling
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their high level of
proof to justify that word.
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I have never
read anything on this
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but I have read
opinions on it for sure.
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But I read about you
before I edited Liberty Magazine
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I did distinct
editing Listen Magazine
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which was a drug
education general for teens
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and I dealt a lot
with the drug education
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with the police
with other church groups
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and the civic organization.
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And so with the war
on drugs and it struck me
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that the timing was unfortunate
for religious liberty
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but it was sort of
obvious because we were
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at the full scale war on drugs.
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As many people Bad timing.
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Yeah, many people come
to see that in some ways
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that was a war on populations.
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I have been in the inner city
and it certainly functioned as--
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as a excuse many times
where the lot have matched
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the jackfruits
through communities
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this literal war on drug
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and I think
that's what happened.
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And I think so--
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The government was
so fixated that the--
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they are really
were not sensitive
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to the religious issue at play
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and drugs Indians using
drugs and they are serving, no.
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Yeah, but yeah, absolutely right
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the larger point was
that the Supreme Court
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didn't just say there
is a compelling interest
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justifying not
allowing the Native Americans
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to use Peyote they
went to the larger principle
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that says the government
is never gonna have to--
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have a compelling
interest to justify burden
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in any religious practice,
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whether it has to
do with Peyote or not.
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So it was Peyote
specific in its application
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but the real
damage that was done
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to the cause of free
exercise was much, much broader.
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Well, the Religious
Freedom Restoration Act
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three years
later came into restore
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that high level of protection
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not just for Native Americans
but for smaller groups.
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You were a big
part of the collision
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that were bring forward is on--
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so it's an
interesting discussion.
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Yeah, it was a
leader in the collision
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my predecessor Buzz Thomas
but we had like 68-70 groups.
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Seventh-day Adventist and
groups across the religious
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and political spectrum
that came together to say
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that we need to restore
that high level of protection
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that the Supreme Court
said in the Sherbert case
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was there as a
matter of interpreting
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the free exercise clause,
now, at least we would have
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a federal statute to be
kind of do the same thing
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to provide greater protection.
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Long story short, several
years later the Supreme Court
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reviewed the Religious
Freedom Restoration Act,
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struck down, strike it down.
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But they didn't do on
it religious reasons it was
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because of the commerce
close limited their ability
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to reject it to the state.
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Right, It was struck
down in its application
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to the states it's still applied
to the federal government
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but that the court ruled that
Congress didn't have the power
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under section five of the
14th amendment is where the--
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where the power of
this predicatively resided.
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But of course and you
can't require the states
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to provide this
high level protection.
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You can self impose it
on the federal government.
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And then in the
aftermath of that decision
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the Boerne Decision
and it's the name of it
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many states passed their own
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Religious
Freedom Restoration Act.
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So, is it back 20's?
I did a number recently
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we are doing it state by state.
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With 20 something
and some states have it
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in their constitution too.
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So when all of them have a
little amount to the same thing
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but its made a slower
process doing it state by state.
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And, you know,
the long range goal
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I guess is someday if the court
to reconsider the Smith decision
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and go back and say no
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that high level protection is
there under the first amendment
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not because of
legislation peacefully
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or comprehensive that
was passed in response.
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You have explained
why the wording was there
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but I must tell you and
this is a good discussion
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I can learn in
front of our viewers.
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But I remember
when I first started
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with Liberty looking at
the wording of the refer,
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I know it was
needed the Peyote thing
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turned out badly
but it says there that--
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you shall have
this religious freedom
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unless there is a compelling
governmental interest.
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And I study politics
and international events
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as well as
domestic and it seems to me
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whenever a
government acts it always feels
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like it compelling interest.
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So I'm not comfortable
with that laying to be honest
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because it's a total
out for a government.
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But a government official
doesn't have the final word.
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The court interprets.
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If it is left to the court
then there is a certain safety.
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The court has to decide whether
there is a completing interest
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and whether the
least restrictive
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means of accomplishing
that compelling interest
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have been followed
by, yeah, you are right.
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There is always gonna
be a compelling interest
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as far as the government
official is concerned--
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all most always
government official is concerned
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but the court can
make that decision.
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Yes, you could qualify. I
hadn't really thought that.
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But, I must be honest with you
even the courts didn't always
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require a high level of proof
for the compelling interest.
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You know many of the
cases not the Sherbert case
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but many cases coming
after Sherbert were lost.
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The court didn't say that the
other is a compelling interest
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so by no means either
into the pre-exercise clause
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or under the Religious
Freedom Restoration Act
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is the religious
claim is going to always win
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but at least he or she will
have a shot to get in the court.
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And proceeding in the
right direction and bring--
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And it tells supplying filled
a little bit in the direction
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in favor of the
religious claiming.
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Now, you mentioned
00:10:23.23\00:10:24.35
that Religious Freedom
Restoration Act was passed
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and then declare subsequently
for few years declared
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unconstitutional by the
same court that passed it.
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But I think they got
it right and the reason
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that's a bigger question,
federalism is the states right
00:10:36.31\00:10:39.33
but then its in
96, then religious--
00:10:39.36\00:10:44.82
the religious
liberty protection RLPA.
00:10:44.85\00:10:49.02
RLPA.
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Religious
Liberty Protection Act.
00:10:50.16\00:10:51.62
No, no, Religious
Liberty Protection Act.
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Religious
Liberty Protection Act.
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That really didn't get
off the ground it did--
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It got through one
house to get through the house
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and not through
the senate isn't it?
00:11:00.18\00:11:02.07
But how did what the
Christian world would ask you
00:11:02.10\00:11:04.95
for those that are
trying to fall under
00:11:04.98\00:11:06.22
the progression of
these legal charts.
00:11:06.25\00:11:09.09
We had a chart and we can.
00:11:09.12\00:11:10.49
Yeah, we need it,
00:11:10.52\00:11:13.39
did that just
restate the same intention?
00:11:13.42\00:11:16.72
How did that defer in
its word and what was?
00:11:16.75\00:11:18.42
Instead of using section
five of the 14th amendment
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for just
jurisdictional justification.
00:11:21.67\00:11:23.09
Some jurisdictional--
00:11:23.12\00:11:24.15
Yeah, they are trying
to use the spending clause
00:11:24.18\00:11:27.84
and the commerce
clause wherever it got--
00:11:27.87\00:11:29.70
wherever
commerce was implicated,
00:11:29.73\00:11:31.31
wherever
government money was spent
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that high level of
protection would obtain
00:11:33.20\00:11:35.45
and that didn't get
off, get off the ground.
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Part of it was it
this broad collision
00:11:37.62\00:11:40.12
that I mentioned
a few minutes ago
00:11:40.15\00:11:41.39
started to fray at
the edges and unravel,
00:11:41.42\00:11:44.43
a lot of folks were
concerned about well,
00:11:44.46\00:11:46.37
what happens when
civil rights are involved,
00:11:46.40\00:11:50.18
gay rights were involved,
they are concerned that--
00:11:50.21\00:11:54.33
that the protection
00:11:54.36\00:11:56.47
for religious
freedom will be so robust
00:11:56.50\00:11:59.61
that it will swallow up
these competing interest
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and politically it just wasn't
that right their time but--
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And then there was one last--
00:12:04.65\00:12:06.07
And there is one
more this is-- yeah,
00:12:06.10\00:12:08.44
Religious Land Use and
Institutionalized Persons Act.
00:12:08.47\00:12:10.79
Yeah, then there is an
another one after that but--
00:12:10.82\00:12:12.81
Yeah, the Religious Land Use
00:12:12.84\00:12:14.09
and Institutionalized
Persons Act in year 2000, RLUIPA
00:12:14.12\00:12:19.06
which restored again
this high level of protection
00:12:19.09\00:12:21.87
for two specific
factual circumstances,
00:12:21.90\00:12:25.28
one involving land
use zoning decisions.
00:12:25.31\00:12:28.47
Usually churches.
00:12:28.50\00:12:29.89
Churches, yeah,
mosques, yes, absolutely
00:12:29.92\00:12:34.47
and what kind of--
00:12:34.50\00:12:35.77
whether they can have a
feeding program with the church
00:12:35.80\00:12:37.66
where can you just go
pray on Saturday morning
00:12:37.69\00:12:39.94
or Sunday morning
00:12:39.97\00:12:41.99
see how I didn't
step in it there--
00:12:42.02\00:12:46.14
You included
Seventh-day Adventist probably.
00:12:46.17\00:12:48.88
Well, Friday night.
00:12:48.91\00:12:50.15
Friday night too,
yeah. whenever you were--
00:12:50.18\00:12:52.73
Well, Friday, not Friday night.
00:12:52.76\00:12:53.79
That's true. That's true.
00:12:53.82\00:12:55.35
So dealing with land use
00:12:55.38\00:12:57.63
and the other
dealing with prisoners.
00:12:57.66\00:12:59.64
Yeah, that's true.
00:12:59.67\00:13:00.70
The rights of prisoners
that are very, very important
00:13:00.73\00:13:02.42
and often trampled on in that
obviously cohesive kind of--
00:13:02.45\00:13:05.96
I felt a burden on
that from the beginning.
00:13:05.99\00:13:08.50
So, RLUIPA this last
bit of law that was passed
00:13:08.53\00:13:13.23
provide protections for those
two specific areas of life.
00:13:13.26\00:13:17.64
But then there is a fourth
one that you have been occupied
00:13:17.67\00:13:19.87
with until fairly recently
the Workplace Religious Freedom.
00:13:19.90\00:13:24.37
Okay, well.
00:13:24.40\00:13:26.04
So they all trying to run after.
00:13:26.07\00:13:28.01
Right, RLUIPA is not necessarily
00:13:28.04\00:13:29.81
but I see the original intention
00:13:29.84\00:13:31.50
and is becoming
more and more narrowed
00:13:31.53\00:13:34.69
in it's the way place
a same principle at work.
00:13:34.72\00:13:38.09
The Workplace
Religious Freedom Act is one
00:13:38.12\00:13:40.22
that has not yet been passed.
00:13:40.25\00:13:41.49
It's been going
on for two decades.
00:13:41.52\00:13:43.62
Probably one but I know
our religious liberty people
00:13:43.65\00:13:47.30
from the
Seventh-day Adventist church
00:13:47.33\00:13:48.47
had spend their
lot of time and effort.
00:13:48.50\00:13:50.15
Absolutely.
00:13:50.18\00:13:51.21
Same collusion--
00:13:51.24\00:13:52.47
Or similar,
similar not quite the same.
00:13:52.50\00:13:54.32
With 30-50
people or 30-50 groups,
00:13:54.35\00:13:57.78
we thought we had
it but again it came
00:13:57.81\00:13:59.48
hard up against
perception that other rights,
00:13:59.51\00:14:02.70
particularly the
rights of the employer
00:14:02.73\00:14:05.11
and the rights
of the gay community
00:14:05.14\00:14:07.54
would be
inherited with things --
00:14:07.57\00:14:09.07
And union seniority
rights and there were
00:14:09.10\00:14:11.64
all kinds of complaints
that went against the passage.
00:14:11.67\00:14:15.19
But the very end of the day
was the employers were constant
00:14:15.22\00:14:19.72
in their objection but
then it was the gay rights.
00:14:19.75\00:14:21.83
I see our first
half has passed us by,
00:14:21.86\00:14:25.19
good discussion so stay with us
00:14:25.22\00:14:27.04
after short
break we will be back
00:14:27.07\00:14:29.71
to continue this
discussion of the acronyms
00:14:29.74\00:14:32.44
but the reality behind them.
00:14:32.47\00:14:33.98