Participants: Lincoln Steed (Host), J. Brent Walker
Series Code: LI
Program Code: LI000244A
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00:22 Welcome to the Liberty Insider.
00:24 This is a program that brings you discussion 00:27 and up-to-date information and interesting guests 00:30 to discuss religious liberty events in the United States 00:33 and around the world. 00:34 My name is Lincoln Steed editor of Liberty Magazine 00:38 and my guest on the program is Brent Walker, 00:40 executive director of the Baptist Joint Committee 00:43 for Religious Freedom. 00:44 Welcome, Brent. 00:45 Thank you, thank you and good to be here. 00:48 You are very knowledgeable as well as having worked 00:50 very closely with Liberty 00:51 and the Seventh-day Adventist church on common cause 00:54 for religious liberty over the years 00:56 and over the years I have heard many, many times 00:59 from when I first started with Liberty Magazine 01:01 almost to the present about RLPA and RFRA 01:05 and as a working title I call this program acronym smacronym. 01:10 And I know in any-- in any disciple 01:14 in the modern world there are also sorts of acronyms 01:16 and they can mean nothing to people outside the system. 01:18 Right. 01:19 But what was it 1993 01:23 that the Religious Freedom Restoration Act. 01:24 Religious Freedom Restoration Act was passed. 01:26 Tell me about that because I know 01:27 you have quite a hand on it. 01:29 That's the RFRA, RFRA part. 01:31 I'm sorry. No, that's all right. 01:33 Religious Freedom Restoration Act? 01:34 I was just giving you the acronym one more time. 01:37 For a second I thought I had said RELPA. 01:38 No, no you said it right 01:40 Religious Freedom Restoration Act, 1993. 01:43 A very important piece of legislation that Congress passed 01:47 and President Clinton signed 20 years ago. 01:49 In fact, we just celebrated the 20th anniversary 01:52 several weeks ago at the museum in Washington D.C., 01:56 and not all of you-- I'm sure you have been there. 01:58 Oh, yes, I have been there, 01:59 have been going to that event kicking myself. 02:02 People that are watching the program 02:04 when they come to Washington 02:05 they shouldn't miss the museum it's quite a an experience. 02:08 The new museum? 02:10 New, new museum. 02:11 A move from Alexandria wasn't it? 02:12 It was in Rosslyn in Arlington but its now on the foot 02:17 of the Capitol Hill right before you get on to the wall 02:19 so it's a beautiful area. 02:20 Where we had our Liberty dinner 02:22 at the Canadian embassy just next door? 02:23 Oh, its right next to the Canadian embassy, you are right 02:25 and they have this mammoth wall outside 02:29 with the first amendment engraved so that it can be read 02:33 you know, 300-400 yards away so everybody 02:36 that drives that constitution avenue is treated 02:38 to the words of the first commandment 02:40 including those first 16 Congress shall make no law 02:43 respecting establishment of religion 02:46 or prohibiting the free exercise. 02:47 It's a wonderful I'm trying to-- 02:49 it's not organization but it's a wonderful outlets, 02:51 isn't it founded by the Hearst Corporation? 02:54 Gannett I think. Gannett, sorry Gannett 02:55 and it was a publishing empire. 02:57 But it's a wonderful but it any way 03:00 the Religious Freedom Restoration Act 03:01 whose anniversary we were celebrating several weeks ago 03:04 is one of the most important religious liberty laws passed 03:08 by the Congress of our generation. 03:10 A little background the second part of that first amendment 03:15 religion clause is the free exercise clause 03:18 traditionally has been interpreted 03:21 to provide a strong level of protection for religious liberty 03:25 that the government could not substantially burden 03:29 your exercise of religion with out coming forward 03:32 with a really compelling reason for doing it. 03:35 Not just because it was a good idea 03:37 but health, safety, welfare of others 03:41 and do it in a nearly tailored unobtrusive way. 03:45 That was that was the high-- and in fact, 03:47 it was Seventh-day Adventist until Sherbert who's case -- 03:51 who's case is in Supreme Court in South Carolina. 03:52 Yes, a woman in a mill in Carolina. 03:56 Yes, whose case was the occasion for the government 03:59 to articulate or for the spring court 04:01 to articulate that level of review specifically 04:06 that the government has to show a really good reason 04:10 why it shouldn't be allowed to burden your religious liberty 04:12 before you will be permit. 04:14 Well, all of that went away pretty much in 1990 04:17 in the so called Native American Peyote Case. 04:21 It wasn't just about that Native Americans right 04:24 to in just Peyote but the larger principles 04:27 involved the Smith case, yeah, 04:29 that the court said not just for Native Americans 04:32 but all Americans as long as the law is facially neutral 04:39 and generally applicable you really don't have the right 04:43 to insist upon government telling 04:46 their high level of proof to justify that word. 04:50 I have never read anything on this 04:51 but I have read opinions on it for sure. 04:54 But I read about you before I edited Liberty Magazine 04:57 I did distinct editing Listen Magazine 05:00 which was a drug education general for teens 05:03 and I dealt a lot with the drug education 05:05 with the police with other church groups 05:08 and the civic organization. 05:09 And so with the war on drugs and it struck me 05:14 that the timing was unfortunate for religious liberty 05:17 but it was sort of obvious because we were 05:19 at the full scale war on drugs. 05:21 As many people Bad timing. 05:23 Yeah, many people come to see that in some ways 05:27 that was a war on populations. 05:30 I have been in the inner city and it certainly functioned as-- 05:33 as a excuse many times where the lot have matched 05:37 the jackfruits through communities 05:39 this literal war on drug 05:41 and I think that's what happened. 05:42 And I think so-- 05:43 The government was so fixated that the-- 05:45 they are really were not sensitive 05:47 to the religious issue at play 05:49 and drugs Indians using drugs and they are serving, no. 05:52 Yeah, but yeah, absolutely right 05:54 the larger point was that the Supreme Court 05:56 didn't just say there is a compelling interest 05:59 justifying not allowing the Native Americans 06:01 to use Peyote they went to the larger principle 06:08 that says the government is never gonna have to-- 06:12 have a compelling interest to justify burden 06:14 in any religious practice, 06:15 whether it has to do with Peyote or not. 06:17 So it was Peyote specific in its application 06:19 but the real damage that was done 06:22 to the cause of free exercise was much, much broader. 06:24 Well, the Religious Freedom Restoration Act 06:27 three years later came into restore 06:29 that high level of protection 06:31 not just for Native Americans but for smaller groups. 06:33 You were a big part of the collision 06:35 that were bring forward is on-- 06:37 so it's an interesting discussion. 06:38 Yeah, it was a leader in the collision 06:41 my predecessor Buzz Thomas but we had like 68-70 groups. 06:47 Seventh-day Adventist and groups across the religious 06:49 and political spectrum that came together to say 06:52 that we need to restore that high level of protection 06:55 that the Supreme Court said in the Sherbert case 06:59 was there as a matter of interpreting 07:02 the free exercise clause, now, at least we would have 07:04 a federal statute to be kind of do the same thing 07:07 to provide greater protection. 07:10 Long story short, several years later the Supreme Court 07:13 reviewed the Religious Freedom Restoration Act, 07:15 struck down, strike it down. 07:19 But they didn't do on it religious reasons it was 07:21 because of the commerce close limited their ability 07:23 to reject it to the state. 07:25 Right, It was struck down in its application 07:28 to the states it's still applied to the federal government 07:31 but that the court ruled that Congress didn't have the power 07:35 under section five of the 14th amendment is where the-- 07:38 where the power of this predicatively resided. 07:43 But of course and you can't require the states 07:45 to provide this high level protection. 07:47 You can self impose it on the federal government. 07:50 And then in the aftermath of that decision 07:54 the Boerne Decision and it's the name of it 07:56 many states passed their own 07:59 Religious Freedom Restoration Act. 08:01 So, is it back 20's? I did a number recently 08:05 we are doing it state by state. 08:06 With 20 something and some states have it 08:08 in their constitution too. 08:09 So when all of them have a little amount to the same thing 08:12 but its made a slower process doing it state by state. 08:15 And, you know, the long range goal 08:20 I guess is someday if the court to reconsider the Smith decision 08:24 and go back and say no 08:26 that high level protection is there under the first amendment 08:29 not because of legislation peacefully 08:32 or comprehensive that was passed in response. 08:36 You have explained why the wording was there 08:38 but I must tell you and this is a good discussion 08:41 I can learn in front of our viewers. 08:43 But I remember when I first started 08:45 with Liberty looking at the wording of the refer, 08:51 I know it was needed the Peyote thing 08:53 turned out badly but it says there that-- 08:57 you shall have this religious freedom 08:59 unless there is a compelling governmental interest. 09:02 And I study politics and international events 09:06 as well as domestic and it seems to me 09:08 whenever a government acts it always feels 09:10 like it compelling interest. 09:12 So I'm not comfortable with that laying to be honest 09:16 because it's a total out for a government. 09:18 But a government official doesn't have the final word. 09:20 The court interprets. 09:22 If it is left to the court then there is a certain safety. 09:24 The court has to decide whether there is a completing interest 09:26 and whether the least restrictive 09:28 means of accomplishing that compelling interest 09:30 have been followed by, yeah, you are right. 09:32 There is always gonna be a compelling interest 09:33 as far as the government official is concerned-- 09:35 all most always government official is concerned 09:38 but the court can make that decision. 09:40 Yes, you could qualify. I hadn't really thought that. 09:42 But, I must be honest with you even the courts didn't always 09:47 require a high level of proof for the compelling interest. 09:52 You know many of the cases not the Sherbert case 09:56 but many cases coming after Sherbert were lost. 09:59 The court didn't say that the other is a compelling interest 10:03 so by no means either into the pre-exercise clause 10:07 or under the Religious Freedom Restoration Act 10:10 is the religious claim is going to always win 10:12 but at least he or she will have a shot to get in the court. 10:15 And proceeding in the right direction and bring-- 10:17 And it tells supplying filled a little bit in the direction 10:20 in favor of the religious claiming. 10:23 Now, you mentioned 10:24 that Religious Freedom Restoration Act was passed 10:28 and then declare subsequently for few years declared 10:30 unconstitutional by the same court that passed it. 10:33 But I think they got it right and the reason 10:36 that's a bigger question, federalism is the states right 10:39 but then its in 96, then religious-- 10:44 the religious liberty protection RLPA. 10:49 RLPA. 10:50 Religious Liberty Protection Act. 10:51 No, no, Religious Liberty Protection Act. 10:53 Religious Liberty Protection Act. 10:55 That really didn't get off the ground it did-- 10:58 It got through one house to get through the house 11:00 and not through the senate isn't it? 11:02 But how did what the Christian world would ask you 11:04 for those that are trying to fall under 11:06 the progression of these legal charts. 11:09 We had a chart and we can. 11:10 Yeah, we need it, 11:13 did that just restate the same intention? 11:16 How did that defer in its word and what was? 11:18 Instead of using section five of the 14th amendment 11:21 for just jurisdictional justification. 11:23 Some jurisdictional-- 11:24 Yeah, they are trying to use the spending clause 11:27 and the commerce clause wherever it got-- 11:29 wherever commerce was implicated, 11:31 wherever government money was spent 11:33 that high level of protection would obtain 11:35 and that didn't get off, get off the ground. 11:37 Part of it was it this broad collision 11:40 that I mentioned a few minutes ago 11:41 started to fray at the edges and unravel, 11:44 a lot of folks were concerned about well, 11:46 what happens when civil rights are involved, 11:50 gay rights were involved, they are concerned that-- 11:54 that the protection 11:56 for religious freedom will be so robust 11:59 that it will swallow up these competing interest 12:00 and politically it just wasn't that right their time but-- 12:04 And then there was one last-- 12:06 And there is one more this is-- yeah, 12:08 Religious Land Use and Institutionalized Persons Act. 12:10 Yeah, then there is an another one after that but-- 12:12 Yeah, the Religious Land Use 12:14 and Institutionalized Persons Act in year 2000, RLUIPA 12:19 which restored again this high level of protection 12:21 for two specific factual circumstances, 12:25 one involving land use zoning decisions. 12:28 Usually churches. 12:29 Churches, yeah, mosques, yes, absolutely 12:34 and what kind of-- 12:35 whether they can have a feeding program with the church 12:37 where can you just go pray on Saturday morning 12:39 or Sunday morning 12:42 see how I didn't step in it there-- 12:46 You included Seventh-day Adventist probably. 12:48 Well, Friday night. 12:50 Friday night too, yeah. whenever you were-- 12:52 Well, Friday, not Friday night. 12:53 That's true. That's true. 12:55 So dealing with land use 12:57 and the other dealing with prisoners. 12:59 Yeah, that's true. 13:00 The rights of prisoners that are very, very important 13:02 and often trampled on in that obviously cohesive kind of-- 13:05 I felt a burden on that from the beginning. 13:08 So, RLUIPA this last bit of law that was passed 13:13 provide protections for those two specific areas of life. 13:17 But then there is a fourth one that you have been occupied 13:19 with until fairly recently the Workplace Religious Freedom. 13:24 Okay, well. 13:26 So they all trying to run after. 13:28 Right, RLUIPA is not necessarily 13:29 but I see the original intention 13:31 and is becoming more and more narrowed 13:34 in it's the way place a same principle at work. 13:38 The Workplace Religious Freedom Act is one 13:40 that has not yet been passed. 13:41 It's been going on for two decades. 13:43 Probably one but I know our religious liberty people 13:47 from the Seventh-day Adventist church 13:48 had spend their lot of time and effort. 13:50 Absolutely. 13:51 Same collusion-- 13:52 Or similar, similar not quite the same. 13:54 With 30-50 people or 30-50 groups, 13:57 we thought we had it but again it came 13:59 hard up against perception that other rights, 14:02 particularly the rights of the employer 14:05 and the rights of the gay community 14:07 would be inherited with things -- 14:09 And union seniority rights and there were 14:11 all kinds of complaints that went against the passage. 14:15 But the very end of the day was the employers were constant 14:19 in their objection but then it was the gay rights. 14:21 I see our first half has passed us by, 14:25 good discussion so stay with us 14:27 after short break we will be back 14:29 to continue this discussion of the acronyms 14:32 but the reality behind them. |
Revised 2014-12-17