Sen. Orrin Hatch, who wrote the new Religious Freedom Act, filed a friend-of-the-court brief Monday contending that the Justice Department is thwarting the new law.
The Utah Republican - represented by Brigham Young University President and former U.S. solicitor general Rex Lee - filed the brief in a Minnesota case where the government seeks to force a church to return all tithing that two members paid the year before they filed for bankruptcy. The money would go to their creditors.Bankruptcy law allows any transfer of funds made within a year before bankruptcy to be seized to repay other creditors.
But Hatch said, "This provision is intended to prevent a debtor from fraudulently disposing of or shielding their assets. It is not disputed that the tithes . . . were made out of a sincere religious belief," and not an attempt to shield money.
Hatch contends the new law that he led the fight for should prevent such acts. The law was designed to prevent government interference with religion except when it could show a "compelling interest" to do so.
"I contend that the government has failed to demonstrate a compelling state interest, and that the government's recapture of the tithes does substantially burden religious free exercise," Hatch said.
He added, "Preventing fraud would probably satisfy a compelling state interest. In this case, the government's interest is in simply enlarging the pool of assets for creditors, not preventing fraud."
Hatch said if the Justice Department wins, it would render the law "virtually meaningless" by giving too broad of definitions of when the government may interfere with religion.
The Church of Jesus Christ of Latter-day Saints agrees in a brief it filed last week in the case. "The Religious Freedom Restoration Act restored the free exercise of religion to its historic protected status lost in an earlier court decision," a statement from the church said. "A decision for the plaintiff in the Minnesota case would lower the threshold of what constitutes a governmental compelling interest."
"I pray this is not the kind of protection President Clinton envisioned when he committed himself to the protection of one of the most precious of all American liberties - religious freedom," Hatch wrote.
"I can say quite confidently that this is not the type of protection Congress fought so hard and so long to restore." The case is Christians vs. Crystal Evangelical Free Church and is before the 8th Circuit Court of Appeals.