Letter to the House on the Religious Liberty Protection Act and the Impact on Civil Rights Laws

Letter to the House on Religious Liberty Protection Act

May 5, 1999

U.S. House of Representatives
Washington, D.C. 20515

Re: Potentially Harmful Effect of the Religious Liberty Protection Act (“RLPA”) on Enforcement of State and Local Civil Rights Laws

Dear Representative:

The American Civil Liberties Union strongly urges you to refrain from supporting the Religious Liberty Protection Act (“RLPA”) unless it includes explicit language ensuring that the legislation will not undermine enforcement of state and local civil rights laws. We understand that Congressman Charles Canady will soon introduce the bill without any language protecting the hard-won civil rights laws in many states and municipalities.

The ACLU regrets that we have no choice but to ask you to refrain from supporting RLPA. For nearly a decade, the ACLU has fought in Congress and the courts to preserve the highest level of constitutional protection for claims of religious exercise. Our record of support for persons seeking protection for religious exercise against governmental burdens is even longer. We have directly represented persons asserting burdens on their religious beliefs, filed amicus briefs with the Supreme Court, and were founding members of the coalition that supported the Religious Freedom Restoration Act of 1993, and the RLPA legislation during most of the last Congress.

However, we are no longer part of the coalition supporting RLPA because we could not ignore the potentially severe consequences that RLPA may have on state and local civil rights laws. During hearings last summer before the Constitution Subcommittee, a landlord testified that her religious beliefs were burdened by having to comply with a state fair housing law protecting people based on marital status.

We researched the issue and found that landlords across the country were using state religious liberty claims to challenge the application of state and local civil rights laws protecting persons against marital status discrimination. None of the claims involved owner-occupied housing; all landlords owned so many investment properties that they were outside the state laws’ exemptions for small landlords.

The U.S. Court of Appeals for the Ninth Circuit (covering California and seven other Western states) recently decided a case in which it applied the same strict scrutiny standard contained in RLPA to a claim by landlords that compliance with a local civil rights law protecting unmarried couples from discrimination based on marital status burdened the landlords’ religious beliefs. The court held that the governmental interest in preventing marital status discrimination was not compelling. As a result, the landlords did not have to comply with that civil rights law.

The Massachusetts supreme court and a plurality of the Minnesota supreme court have also found that a defendant in a civil rights case may have a religious liberty defense against state civil rights claims. The only two state court decisions that found in favor of the civil rights plaintiffs in similar cases are in California and Alaska–but both states are in the Ninth Circuit.

RLPA may jeopardize more than marital status protection. The Ninth Circuit’s analysis calls into question all state and local civil rights laws which are not motivated by a “firm national policy” in favor of eradicating specific forms of discrimination. Thus, persons protected because of characteristics such as marital status, familial status, pregnancy status, sexual orientation, disability, and perhaps religion or gender, could find their protections under state or local laws eroded by RLPA.

If RLPA becomes law, an applicant for a job or housing may have no state law protection against having to answer questions such as: Is that your spouse? Are those your children? Are you straight or gay? Are you pregnant? Are you HIV-positive? Mentally ill? What is your religion?

In the wake of the recent court decisions, Congress should not leave the problem of RLPA’s effect on civil rights laws unresolved. The stakes are too high.

Instead, the ACLU urges you to consider other alternatives for increasing the protection for religious exercise without causing the unintended consequence of jeopardizing civil rights laws. A properly drafted amendment to RLPA is one approach. It would make clear that RLPA has no effect on state or local civil rights laws, thus leaving in place both the rights of civil rights plaintiffs and the existing constitutional exception from civil rights laws for the ministerial functions of religious organizations and the numerous statutory exceptions for religious organizations and small landlords.

Another approach is to pass legislation that specifically addresses each area of law where generally applicable state laws often conflict with religious exercise by linking protection of such religious exercise to specific sources of federal funds. That approach can provide at least as much protection as RLPA–but with a more effective enforcement mechanism, no questions about its constitutional authority, and no effect on state and local civil rights laws.

Thank you for your consideration of our views. Please do not hesitate to call us if you would like a copy of our memorandum of law on this issue or a copy of a working draft of alternative issue-specific religious liberty legislation. Also, please contact us with any questions or comments regarding this matter.

Sincerely,

Laura W. Murphy,
Director

Christopher E. Anders,
Legislative Counsel

Terri A. Schroeder,
Legislative Analyst