Politics & Policy

Hate Speech by Anti-Gay Bigot

Editor’s Note: This is the text of Senator Ted Kennedy’s opening statement before the Committee on the Judiciary at the hearing on the Religious Freedom Restoration Act, September 18, 1992, the model for the Arizona law which has been so controversial.

We will come to order. The brave pioneers who founded America came here in large part to escape religious tyranny and to practice their faiths free from government interference. The persecution they had suffered in the old world convinced them of the need to assure for all Amer­icans for all time the right to practice their religion unencumbered by the yoke of religious tyranny.

That profound principle is embodied in the two great religion clauses of the first amendment, which provide that Congress “shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.” But in 1990, the Supreme Court’s decision in Oregon Employment Division v. Smith produced a serious and unwarranted setback for the first amendment’s guarantee of freedom of religion.

Before the Smith decision, Federal, State, and local governments were prohibited from interfering with people’s ability to practice their religion unless the restriction satisfied a difficult two-part test — first, that it was necessary to achieve a compelling govern­ment interest; and, second, that there was no less burdensome way to accomplish the goal.

The compelling interest test has been the legal standard protect­ing the free exercise of religion for nearly 30 years. Yet, in one fell swoop the Supreme Court overruled that test and declared that no special constitutional protection is available for religious liberty as long as the Federal, State, or local law in question is neutral on its face as to religion and is a law of general application. Under Smith, the Government no longer had to justify burdens on the free exercise of religion as long as these burdens are “merely the incidental effect of a generally applicable and otherwise valid provision.”

The Supreme Court did not have to go that far to reach its result in the Smith case. As Justice Sandra Day O’Connor wrote of the majority’s ruling in her eloquent and forceful opinion concurring in the result but criticizing the majority’s reasoning,

Today’s holding dramatically departs from well-settled first amendment jurispru­ dence, appears unnecessary to resolve the questions presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty. 

The Religious Freedom Restoration Act, which Senator Hatch and I, and 23 other Senators have introduced, would restore the compelling interest test for evaluating free exercise claims. It would do so by establishing a statutory right that adopts the stand­ards previously, used by the Supreme Court. In essence, the act codifies the requirement for the Government to demonstrate that any law burdening the free exercise of religion is essential to fur­thering a compelling governmental interest and is the least restric­tive means of achieving that interest.

The act creates no new rights for any religious practice or for any potential litigant. Not every free exercise claim will prevail. It simply restores the long-established standard of review that had worked well for many years and that requires courts to weigh free exercise claims against the compelling State interest standard. Our bill is strongly supported by an extraordinary coalition of or­ganizations with widely differing views on many other issues. The National Association of Evangelicals, the American Civil Liberties Union, the Coalitions for America, People for the American Way, just to name a few, support the legislation. They don’t often agree on much, but they do agree on the need to pass the Religious Free­dom Restoration Act because religious freedom in America is damaged each day the Smith decision stands.

Today, the committee will hear compelling testimony about the destructive impact of the decision. We are fortunate to have a very distinguished group of witnesses and I look forward to their testi­mony.

— Senator Ted Kennedy (D., Mass.) served in the U.S. Senate from 1962–2009. He was the fourth-longest-serving senator when he died.


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