AJC Submits Statement On Legislative Responses To Supreme Court Decision Striking Down The Religious Freedom Restoration Act As Unconstitutional

American Jewish Committee
Monday, 14 July 1997

The following statement was submitted today by Richard T. Foltin, Legislative Director and Counsel for the American Jewish Committee, at a hearing of the House Judiciary Subcommittee on the Constitution on Legislative responses to City of Boerne v. Flores:

"The American Jewish Committee commends Chairman Canady and the members of this subcommittee for quickly convening a hearing at which distinguished scholars and advocates are to address the options available to Congress, in the wake of City of Boerne v. Flores, in protecting religious liberty. This is assuredly but the first of many such discussions to come in the days and weeks ahead.

"On June 25, 1997, the United States Supreme Court dealt the most serious blow to religious liberty that this nation has witnessed in recent memory when it struck down the Religious Freedom Restoration Act as unconstitutional, at least insofar as that law applied to the states. The Court's ruling leaves us with only a cramped view of the protection to be afforded the free exercise of religion. Minority religions are left vulnerable to legislators and government officials who may sometimes be oblivious to the impact of their actions on religious observance.

"In a brief filed earlier this year by the Coalition for the Free Exercise of Religion, AJC joined with dozens of organizations representing almost every major faith group in America, to argue that Congress was well within its authority when it enacted the Religious Freedom Restoration Act. It was this coalition -- spanning the spectrum of religious diversity in this country -- which had earlier worked with a bipartisan and politically diverse group of Members of Congress to secure passage of RFRA in an effort to protect citizens from governmental interference with their free exercise of religion.

"The grievous impact of Boerne notwithstanding, it is crucial that next steps be considered in a reasoned fashion. As the experts you will hear today doubtless will address, there is substantial reason to believe that Congress retains the authority to enact RFRA with respect to federal laws and officers; moreover, we are advised, the Administration takes the position that Boerne leaves RFRA in place with respect to the federal government. In addition, there is a broad range of theories under which the Congress may have authority to enact yet other measures in protection of religious free exercise, and there are important initiatives already under way to enact RFRAs at the state level.

"We urge this subcommittee to weigh carefully the various alternatives that will be presented to it and that it then move forward on those statutory approaches that seem, on balance, to best serve the crucial need to protect religious liberty and to be most likely to survive judicial scrutiny. There are, to be sure, voices already to be heard urging that a constitutional amendment is the only adequate response. But, we respectfully submit, it is far too early in the day to make that judgment.

"As this process moves forward, the American Jewish Committee pledges that it will be available to assist in whatever way it can. We look forward to the opportunity to work with you in the effort to restore to the free exercise clause of the Constitution's First Amendment its rightful role as the protector of our First Liberty, religious liberty."

For more information, or to contact American Jewish Committee, see their website at: www.ajc.org