U.S. GOVERNMENT PRINTING OFFICE

67–066 CC WASHINGTON : 2000

S. HRG. 106–689

RELIGIOUS LIBERTY

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

ISSUES RELATING TO RELIGIOUS LIBERTY PROTECTION, AND FOCUSING ON THE CONSTITUTIONALITY OF A RELIGIOUS PROTECTION

MEASURE

JUNE 23, AND SEPTEMBER 9, 1999

Serial No. J–106–35

Printed for the use of the Committee on the Judiciary

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COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

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(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah ................................ 1, 65

Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina ........... 19

Kennedy, Hon. Edward M., U.S. Senator from the State of Massachusetts ......20, 70

Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont .......................27, 67

Feingold, Hon. Russell D., U.S. Senator from the State of Wisconsin ................27, 70

CHRONOLOGICAL LIST OF WITNESSES

JUNE 23, 1999

Panel consisting of Steven T. McFarland, Center For Law and Religious

Freedom, Christian Legal Society, Annandale, VA; Nathan J. Diament,

director, Institute For Public Affairs, Union of Orthodox Jewish Congregations of America, Washington, DC; Manuel A. Miranda, president, Cardinal

Newman Society For Catholic Higher Education, Washington, DC; Elliot

M. Mincberg, vice president and legal director, People For The American

Way, Washington, DC; Michael P. Farris, president, Home School Legal

Defense Association, Purcellville, VA; Christopher E. Anders, legislative

counsel, American Civil Liberties Union, Washington, DC; and Scott

Hochburg, Texas State Representative, Houston, TX ....................................... 4

SEPTEMBER 9, 1999

Panel consisting of Douglas Laycock, Alice McKean Young Regents Chair

In Law, University of Texas School of Law, Austin, TX; Chai R. Feldblum,

Professor of Law, Georgetown University Law Center, Washington, DC;

Jay S. Bybee, Professor of Law, University of Nevada, Las Vegas, Las

Vegas, NV; and Gene C. Schaerr, co-chair, Religious Institutions Practice

Group, Sidley and Austin, Washington, DC ...................................................... 72

ALPHABETICAL LIST AND MATERIALS SUBMITTED

Anders, Christopher E.:

Testimony .......................................................................................................... 41

Prepared statement .......................................................................................... 43

Bybee, Jay S.:

Testimony .......................................................................................................... 112

Prepared statement .......................................................................................... 114

Diament, Nathan J.:

Testimony .......................................................................................................... 21

Prepared statement .......................................................................................... 24

Farris, Michael P.:

Testimony .......................................................................................................... 36

Prepared statement .......................................................................................... 38

Feldblum, Chai R.:

Testimony .......................................................................................................... 102

Prepared statement .......................................................................................... 104

Hochburg, Hon. Scott:

Testimony .......................................................................................................... 51

Prepared statement .......................................................................................... 52

Laycock, Douglas:

Testimony .......................................................................................................... 72

Prepared statement .......................................................................................... 74

Page

IV

McFarland, Steven T.:

Testimony .......................................................................................................... 4

Prepared statement .......................................................................................... 7

Mincberg, Elliot M.:

Testimony .......................................................................................................... 33

Prepared statement .......................................................................................... 35

Miranda, Manuel A.:

Testimony .......................................................................................................... 28

Prepared statement .......................................................................................... 31

Schaerr, Gene C.:

Testimony .......................................................................................................... 121

Prepared statement .......................................................................................... 123

APPENDIX

QUESTIONS AND ANSWERS

SEPTEMBER 9, 1999

Responses of Douglas Laycock to Questions From Senators:

Hatch ................................................................................................................. 143

Leahy ................................................................................................................. 146

Kennedy ............................................................................................................. 153

Feingold ............................................................................................................. 156

Responses of Chai R. Feldblum to Questions From Senators:

Hatch ................................................................................................................. 159

Leahy ................................................................................................................. 161

Kennedy ............................................................................................................. 162

Feingold ............................................................................................................. 164

Responses of Jay S. Bybee to Questions From Senator Hatch ............................ 164

Responses of Gene C. Schaerr to Questions From Senators:

Hatch ................................................................................................................. 167

Feingold ............................................................................................................. 171

ADDITIONAL SUBMISSIONS FOR THE RECORD

JUNE 23, 1999

Prepared statement of:

Hon. Irene B. French, Mayor of Merriam, Kansas ........................................ 173

Glenn S. Goord, Commissioner of the New York State Department of

Correctional Services .................................................................................... 174

Larry E. Naake on Behalf of the National Association of Counties ............. 180

Oliver S. Thomas on Behalf of the National Council of Churches of

Christ in the USA ......................................................................................... 181

Letter to Hon. Henry J. Hyde, from Joel J. Alpert, MD, FAAP, president,

American Academy of Pediatrics, Washington, DC, dated June 22, 1999 ...... 183

Letter to Hon. Orrin G. Hatch, from Janis Guerney, assistant director, American Academy of Pediatrics, Washington, DC, dated June 25, 1999 ............... 183

SEPTEMBER 9, 1999

Prepared statement of: ............................................................................................

Robert J. Bruno, Attorney at Law, Burnsville, Minnesota ........................... 184

Marci A. Hamilton, Distinguished Visiting Professor of Law, Emory University School of Law, Atlanta, GA ............................................................. 188

Barbara Bennett Woodhouse on Behalf of the Center for Children’s Policy

Practice and Research .................................................................................. 192

Ms. Ellen Johnson on Behalf of the American Atheists, Inc. ....................... 197

Letter to:

Senators Hatch and Leahy, from various Civil Rights Organizations,

dated Sept. 9, 1999 ....................................................................................... 199

Senator Leahy, from National Child Abuse Coalition, Washington, DC,

dated Sept. 8, 1999 ....................................................................................... 201

Senators Hatch and Leahy, from Elizabeth Bobo, House of Delegates, Annapolis, MD, dated Sept. 9, 1999 .............................................................................. 202

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RELIGIOUS LIBERTY

WEDNESDAY, JUNE 23, 1999

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 11:03 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators Thurmond, Grassley, Specter, Leahy,

Kennedy, and Feingold.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

The CHAIRMAN. We are happy to welcome you all out to our religious liberty hearing today. Good morning, we welcome all of you

here, good to see you. We are pleased to have seven impressive witnesses, whom I shall introduce in short order.

As we begin this hearing, it is worth pondering just why America

is, worldwide, the most successful multi-faith country in all recorded history. The answer is to be found, I submit, in both components of the phrase ‘‘religious liberty.’’

Surely, it is because of our country’s and our Constitution’s zealous protection of liberty that so many religions have flourished and

that so many faiths have worshipped on our soil. But liberty without the type of virtue instilled by religion is a ship with all sail and

no rudder.

Our country has achieved its greatness because, with its respectful distance from our private lives, our Government has allowed all

of its citizens to answer for themselves, and without interference,

those questions that are most fundamental to humankind. And it

is in the way that religion informs our answers to these questions

that we not only survive, but thrive as human beings; that we not

only endure those difficulties that at some point invariably affect

each of our lives, but are able to achieve a sense of character, to

gain a recognition of the good, and to enrich our lives by contemplating that which is divine.

Today’s witnesses are, I believe, all familiar with the bill that I

sponsored last year which has been largely duplicated by a bill

being considered today by the House Judiciary Committee. While

some of our discussion today may overlap into the specifics of a

particular legislative approach, I want to emphasize that the focus

of this hearing will be on the larger issues involved, on those reasons that underscore the need for Federal action to protect the exVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 JUNE23.TXT SJUD2 PsN: SJUD2
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ercise of religious liberty, more than it will be about any singular

bill that has been drafted to accomplish that objective.

That said, let me emphatically state my view that some legislative effort is needed, in tandem with the jurisprudential protections

recognized by the Supreme Court, to uphold the right of religious

freedom guaranteed by the Free Exercise Clause of the Constitution. While I believe it would be preferable for the Court to return

to its previous solicitude for religious liberty claims, until it does,

this Congress must do what it can to protect religious freedom, in

cooperation with the Court.

And while it seems odd that we would need legislation to protect

the first freedom guaranteed by the Bill of Rights, when faced with

this second-best situation we must do our best to ensure that in

our communities Bible study will not be zoned out of believers’ own

homes, to ensure that Americans’ places of worship will not be

zoned out of their neighborhoods, and ultimately to ensure that the

Founders’ free exercise guarantee will demand that government

have a good reason before it prohibits a religious practice.

The legislative framework I advocated last year, and which will

be the basis for the efforts this Congress, will, among other things,

establish the rule of strict scrutiny review for rules that burden religious practice in interstate commerce or in federally-funded programs. Such protection is necessary not because there are systematic programs against certain sects now as there had been earlier

in our history. Hostility to religious freedom encroaches subtly, extending its domain through the reaches of blind bureaucracies of

the regulatory state.

Rule-bound, and often hypersensitive to the charge of assisting

religion, government agencies all around us cling to the creed that,

‘‘rules are rules,’’ and pay no heed to the damage that might be inflicted on the individual in the process. Such an extension of arbitrary rules into every corner of our lives cannot coexist with the infinite variety of religious experiences we enjoy and cultivate in our

land of America.

This morning, we are going to hear from a small cross-section of

the exceptionally broad range of religious and civil liberties groups

that see a need for Federal legislation protecting religious liberty.

So I, in particular, look forward to this discussion. The freedom to

practice one’s religion is the most fundamental of rights, and the

discussion we are having about protecting that right is one we need

to have here in Congress and across the Nation.

So I am very pleased to have our witnesses who are with us

today. Each can provide a particular point of view, and we are

grateful to have all of you here and we welcome you.

First, we will hear from Mr. Steven McFarland, of the Christian

Legal Society. Mr. McFarland is the Director of the Society’s Center for Law and Religious Freedom, which is dedicated to defending

the religious liberty of people of all faiths, and which has pursued

this objective in the courts, legislatures and governmental agencies

throughout the Nation since its founding in 1975. We are happy to

have you here.

Mr. MCFARLAND. Thank you.

The CHAIRMAN. Second, we will hear from Mr. Nathan Diament,

who is the Director of the Institute for Public Affairs of the Union

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of Orthodox Jewish Congregations of America, where he develops

and coordinates public policy research and initiatives on behalf of

the traditional Jewish community. We are surely happy to have

you here as well.

Mr. DIAMENT. Good morning.

The CHAIRMAN. Third will be Mr. Manuel Miranda, an attorney

recently with the law firm of White and Case, who now serves as

President of the Cardinal Newman Society for Catholic Higher

Education, an organization committed to the stewardship of the

Catholic higher education tradition. We are grateful to have you.

Fourth will be Mr. Elliot Mincberg, no stranger to this committee. Mr. Mincberg serves as Vice President and Legal Director of

People for the American Way, a non-partisan citizens organization

with over 300,000 members vitally concerned with promoting and

protecting religious liberty. We are happy to have you here, Elliot.

Mr. MINCBERG. Thank you, Mr. Chairman.

The CHAIRMAN. Fifth will be Mr. Michael P. Farris, a prominent

lawyer who is the founder and President of the Home School Legal

Defense Association, an organization with some 60,000 member

families. He does a good job in that area and we are happy to have

you here, Mike.

Mr. FARRIS. Thank you, Senator.

The CHAIRMAN. Sixth, we will hear from Mr. Christopher Anders,

who is Legislative Counsel for the American Civil Liberty Union’s

Washington National Office, and whose expertise covers a broad

array of civil rights matters. Good to have you with us.

Mr. ANDERS. Good morning.

The CHAIRMAN. And, finally, we will hear from Representative

Scott Hochburg, who is serving his fourth term in the Texas Legislature representing constituents in the Houston area. Representative Hochburg was instrumental in securing the recent passage of

a bill in Texas that provides at a State level the types of protections sought by any Federal religious freedom liberty protection

measure. So we are very grateful to have you here, Representative

Hochburg, as well.

Mr. HOCHBURG. Thank you, Mr. Chairman.

The CHAIRMAN. Now, I am between two committees. One is this

one, and I take tremendous interest in this, but I also am due to

ask questions in the Finance Committee on the direct benefit part

of the Medicare package. So I will have to slip out for a few minutes, but I will be right back.

Why don’t we begin with you, Mr. McFarland, and we will go

right across the table, and we will just go through all of the statements before we have any questions.

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PANEL CONSISTING OF STEVEN T. McFARLAND, CENTER FOR

LAW AND RELIGIOUS FREEDOM, CHRISTIAN LEGAL SOCIETY, ANNANDALE, VA; NATHAN J. DIAMENT, DIRECTOR, INSTITUTE FOR PUBLIC AFFAIRS, UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, WASHINGTON, DC;

MANUEL A. MIRANDA, PRESIDENT, CARDINAL NEWMAN SOCIETY FOR CATHOLIC HIGHER EDUCATION, WASHINGTON,

DC; ELLIOT M. MINCBERG, VICE PRESIDENT AND LEGAL DIRECTOR, PEOPLE FOR THE AMERICAN WAY, WASHINGTON,

DC; MICHAEL P. FARRIS, PRESIDENT, HOME SCHOOL LEGAL

DEFENSE ASSOCIATION, PURCELLVILLE, VA; CHRISTOPHER

E. ANDERS, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, DC; AND SCOTT HOCHBURG,

TEXAS STATE REPRESENTATIVE, HOUSTON, TX

STATEMENT OF STEVEN T. McFARLAND

Mr. MCFARLAND. Thank you, Mr. Chairman. Mr. Chairman, I

want to thank you for your prime sponsorship of the 1993 Religious

Freedom Restoration Act and your leadership on this matter in this

Congress as well.

The Christian Legal Society’s 4,000 members urge this committee to use all of its constitutional powers, all of its powers, including the Commerce Clause, to restore the highest level of protection

for our first freedom. I would like to make four points very briefly.

Number one, religious practice in this practice does need Federal

statutory protection. Second, Congress should use every constitutional power to restrict government interference with religious exercise. Third, Congress must protect all persons and avoid the

temptation to add carve-outs or to exclude any particular claims on

the basis of sincere religious faith. And, fourth, this committee

should resist the temptation to strip protection from the most politically powerless, including prisoners and inmates.

First, the need, Mr. Chairman, is real and it is growing. You are

no stranger, as you mentioned in your opening statement, to the

disturbing trend across the country in infringing and excessive government interference with the sincerely held religious practice.

Churches can be and are being zoned out of cities because of their

social service ministries to the destitute. My written testimony discusses a lawsuit in which we are co-counsel in St. Petersburg, FL,

to that effect.

Parents and students in public schools have very little leverage

today with school officials when they object to religiously objectionable assignments or assemblies in public school. And even the sanctity of the confessional is being assaulted. We represented recently

a clergyman sentenced to jail for refusing to betray the confidences

of an individual who allegedly confessed his implication in some

criminal activity.

So the need is growing and is more than anecdotal. There has

been much testimony before both this committee as well as the five

or six hearings before the House Judiciary Subcommittee on the

Constitution about the needs in the land use area, and I won’t belabor that.

Let me move to the second point that Congress should use all of

its powers to protect religious liberty. We share the concern of

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many that the Federal Government should not be permitted to expand and extend its regulatory power endlessly at the expense of

our first freedom, and that is why we strongly support legislation

such as the Religious Liberty Protection Act because it uses every

power to restrict and retract Federal and State and local authority

to burden religious exercise.

The commerce power is not a figment of judicial activism. It is

expressly granted to Congress. Yes, it has been abused in the past,

but it has also been wielded for good. Much of our Federal civil

rights laws are based upon the Commerce Clause, and so we would

urge the committee to use this express constitutional authority for

an equally laudable purpose, and that is to restrain and not extend

governmental interference with our most important freedom.

Our third point is that there should be no carve-outs in whatever

this committee considers in the way of legislation. No claims, no

classes of people should be categorically excluded from the protection of strict scrutiny. You will be hearing from the ACLU’s representative, and that organization wishes to amend the bill that

was moved about an hour ago by the House Judiciary Committee

to the floor so that that bill could not be invoked by many believers

against anti-discrimination law.

We believe that religious freedom is a civil right, arguably the

foundational and preeminent one upon which all others depend.

The first freedom includes not only practices inside the house of

worship. As you are well aware and as is true for millions of Americans, they don’t leave religion at the door, to their office, at their

factory punch clock, or at the school house gate. Religious free exercise is not confined to one’s Sabbath, one’s home, or one’s house of

worship.

So, consequently, free exercise will occasionally conflict with the

interests of third parties. And we believe a principled bill from this

committee would apply the same test to all religious practices substantially burdened by government and leave to the courts a caseby-case application, without exceptions, qualifiers or disclaimers.

And, finally, let me just reiterate something that I know is close

to the chairman’s heart in his leadership against and resisting in

1993 the attempt to add a prisoner exemption from the 1993

RFRA. Any legislation that this committee proffers should avoid

the temptation, we would urge, to carve out protection from certain

politically powerless groups, including most notably prison inmates.

The chairman is well aware of statistics from the Justice Fellowship, the branch of prison fellowship, Chuck Colson’s ministry.

While there are frivolous inmate claims, only 1⁄10 of 1 percent of all

of the prisoner litigation brought during the 31⁄2 years of RFRA

were based upon or contained any claim or reference to the Religious Freedom Restoration Act. So carving out prison inmates will

not appreciably diminish frivolous prisoner litigation.

But let me just close with reading a portion of a letter——

The CHAIRMAN. We also had a prison litigation reform bill that

we put through as well.

Mr. MCFARLAND. Yes.

The CHAIRMAN. And that has cut back on a lot of those types of

cases. I mean, that is really a phony argument on their part, it

seems to me.

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Mr. MCFARLAND. That is right, and that was a very wise maneuver. If the problem is frivolous prisoner litigation, then the answer

is to address the whole problem, not single out a single type of

claim.

The CHAIRMAN. And the Prisoner Litigation Reform Act has cut

it down dramatically, since they realize there is a price to be paid

for frivolous litigation.

Mr. MCFARLAND. That is right.

The CHAIRMAN. And very little of that involves religious freedom.

Mr. MCFARLAND. Very little.

The CHAIRMAN. And that is your point.

Mr. MCFARLAND. Yes.

The CHAIRMAN. That is a pretty important point because we got

into the biggest battle on the floor and you would think that the

whole world was coming to an end because we wanted to protect

prisoners so that they can be religious. It seems to me if we are

going to make a difference in people’s lives, we ought to be trying

to get them to be religious, or at least give them the opportunity

to change their lives and have some moral purpose to their lives.

But my gosh, some of these arguments that they make are just, I

think, ridiculous.

Go ahead. I am sorry to interrupt you.

Mr. MCFARLAND. No, no, Mr. Chairman. I couldn’t agree with

you more and you have said it better than I was going to.

The CHAIRMAN. Well, that is a new twist here. Go ahead.

Mr. MCFARLAND. I was just going to close with a letter that we

received yesterday from Justice Fellowship, from an inmate by the

name of Melanie Perkins. She is incarcerated at the Florida correctional institution in Lowell, FL. And while we have not had an opportunity, having just received it yesterday, to investigate the merits of the claim, nevertheless I am assured by Justice Fellowship

that this is not atypical of the type of correspondence that they receive at Justice Fellowship.

This inmate writes, ‘‘I had all of my religious, spiritual and recovery materials and books taken from me, saying these reading

materials were contraband. Of course, they are not contraband and

I received all of my books through the authorized institution mail

from ministries and recovery centers, or I received these books

from right here out of the chapel library in the prison. This problem has occurred numerous times here at this institution. It really

has hurt me in my heart for this prison to take religious books, bibles and recovery books from me and others. I am a reborn-again

Christian of 7 months now, and my Bible and other religious books

have been my guide and direction to transform myself and my life.

I know this time is the most crucial time of my life, and I have

spent every moment of it learning God’s will for me. I pray you and

the Religious Liberty Protection Act may be able to help me receive

my books back. This prison has not even given me the option to

send my books home. This prison is in violation of several rules

and laws, I am sure, to keep me from my books. Yet, praise God,

they cannot take God from me, for he is within my soul living. I

pray you hear and understand my prayer here and that God’s will

is for you to help me. Melanie Perkins.’’ The letter is dated March

of this year.

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1Disclosure: The Christian Legal Society has not received any federal grant, contract or subcontract in the current or preceding two fiscal years. CLS represents only itself at this hearing.

For these reasons, Mr. Chairman, we would urge this committee

to expeditiously consider Federal statutory protection for our first

freedom, without carve-outs for civil rights or any other genre of

claims, without carve-outs for any class of citizens, including inmates, and with the strictest and highest level of scrutiny the Constitution permits.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you, Mr. McFarland.

[The prepared statement of Mr. McFarland follows:]

PREPARED STATEMENT OF STEVEN T. MCFARLAND

Executive Summary

The Christian Legal Society (CLS) 1 urges this committee to use every power conferred upon the Congress by the U.S. Constitution To restore the highest legal protection to religious liberty.

The need is real and growing. Churches can be and are being zoned out of cities

because of their social service ministries to the destitute. Parents and students in

public schools have little leverage with school officials when they object to religiously-objectionable assignments or assemblies, Even the sanctity of the confessional is being assaulted, and clergy sentenced to jail for refusing to betray the confidences of those who confess sins or seek their private spiritual counsel.

We cannot afford half-measures (as Michael Farris’ proposes) that fail to use all

of Congress’ authority to remedy the problem. Neither can religious citizens settle

for a bill that is inadequate in both its scope of coverage and its strength of protection.

The ‘‘Religious Liberty Protection Act’’ (H.R. 1691) is being sent to the House floor

today by the House Judiciary Committee. The RLPA employs all available federal

powers to restore the strictest legal scrutiny with the broadest coverage in a constitutionally defensible manner. Our religious liberty—the First Freedom—deserves

nothing less.

Testimony

1. THE NEED FOR STATUTORY RELIEF

1.1 Land use regulation of churches

The Refuge Pinellas, Inc. v. City of St. Petersburg

Municipal officials in this Florida city are callously stopping an inner-city church

from reaching out to the poor and needy with the love of Jesus Christ.

The Refuge is a mission church in a rundown part of St. Petersburg, Florida.

Many of those who attend its worship services are homeless, poor, addicted, mentally ill, or alienated from society. The Refuge seeks to minister to the whole person.

Rev. Bruce Wright, the Refuge’s pastor, is almost always available to meet with and

counsel hurting people. The church feeds the hungry, sponsors counseling for alcoholics and AIDS sufferers, and works with juvenile offenders. It spreads the message of God’s grace through music concerts and other outreach activities. The Refuge is doing exactly what Christ calls His Church to do.

But the Refuge is doing too much in the eyes of St. Petersburg zoning officials.

At about the same time the City was trying to ‘‘clean up’’ the church’s neighborhood

before the new Tampa Bay Devil Rays started the major league baseball season at

nearby Tropicana Field, the City decided that the Refuge had to go.

The City announced that the Refuge was not a shining example of what the

Christian church should be. In fact, the City proclaimed that the Refuge was not

a church at all!

St. Petersburg zoning officials permit ‘‘churches’’ in the Refuge’s neighborhood,

But ‘‘social service agencies’’ are banned. The City decreed that the Refuge is not

a ‘‘church,’’ but instead a ‘‘social service agency.’’ Apparently the City knows best

what ‘‘church’’ activities should look like, and they don’t include reaching out to

serve the poor, the needy, and the alienated.

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The City ordered the Refuge to leave, to go somewhere else. But there isn’t a single zoning district in the entire city where so-called ‘‘social service agencies’’ can locate as a matter of right. Instead, social service agencies have to get permission to

set up in one of the three zones in the entire city where social service agencies are

permitted. Setting up somewhere else would remove the Refuge from the neighborhood where its most needed. And few of the church’s members have cars.

Other churches in St. Petersburg offer counseling, concerts, Alcoholics Anonymous, and other forms of outreach. But the zoning officials haven’t ordered them

to uproot. It appears as though the economic poverty of those served by the Refuge

makes all the difference in the world.

During his investigation, Development Review Services Manager Robert Jeffrey

required Rev. Wright to describe ‘‘the clients or patrons you serve.’’ In a September

15, 1997, letter explaining his decision to label the church a ‘‘social service agency,’’

Mr. Jeffrey wrote, ‘‘the clients who are served by [the Refuge] are more analogous

with (a) social service agency.’’ Apparently the legality of Alcoholics Anonymous

meetings depends upon whether the participants drink cheap Thunderbird or fine

Chardonnay.

With the help of the CLS Center and a local attorney member, the Refuge is trying to get a Florida court to relabel it a ‘‘church’’ and permit it to stay in its present

location. But the City continues to resist.

Waxing literary, the City asked in its brief, ‘‘what’s in a name?’’. Paraphrasing

Shakespeare, the City observes that a rose still smells like a rose regardless of the

name by which it is called. And here’s where it turns ugly:

[But] if the rose begins to smell like a stink weed, it can still call itself a rose

and may look like one, but it is no longer functioning as one, and so it is eventually going to have a negative impact on the rose garden and be weeded out and

moved to the weed patch for the sake of all those living around the garden. Such

is this case.

(City’s Response to Petition for Writ of Certiorari at 3, in The Refuge Pinellas, Inc.

v. City of St. Petersburg, In the Circuit Court of the Sixth Judicial Circuit of the

State of Florida, No. 97–8543–CI–88B).

So there it is. A church that is serious about serving the poor and needy is not

a ‘‘Church.’’ It’s a ‘‘stink weed’’ that needs to be ‘‘weeded out.’’

RLPA would avert this travesty. Section 3 would require the City of St.

Petersberg to show that forcing The Refuge to move out of town was the least restrictive means of furthering a compelling government interest. Sec. 3(b)(1)(A). The

Church would also be able to invoke RLPA’s prohibition against zoning authorities

that ‘‘unreasonably exclude from the jurisdiction’’ religious institutions. Sec.

3(b)(1)(D).

This case will probably decide the Refuge’s future. RLPA can keep alive ministries

to the most needy Americans.

1.2 Respect for parental rights and religious conscience in public schools

Brown v. Hot, Sexy, And Safer Productions, Inc. (1st Cir. 1995)

The U.S. Court of Appeals For The First Circuit several years ago issued a decision calling into question whether a parents right to direct the upbringing of his

child is protected by the Constitution.

On April 8, 1992, the Chelmsford (Massachusetts) High School held two mandatory, school-wide assemblies for ninth through twelfth grades. The school district

contracted through the chairperson of the PTO with a performer, Suzi Landolphi,

head of ‘‘Hot, Sexy, and Safer Productions’’, to present an AIDS awareness program

for $1,000.

According to the Complaint, during her presentation, Ms. Landolphi:

‘‘(1) told the students that they were going to have a ‘group sexual experience,

with audience participation’; (2) used profane, lewd, and lascivious language to

describe body parts and excretory functions; (3) advocated and approved oral

sex, masturbation, homosexual sexual activity, and condom use during promiscuous premarital sex; (4) simulated masturbation; (5) characterized the loose

pants worn by one minor as ‘erection wear’; (6) referred to being in ‘deep shit’

after anal sex; (7) had a male minor lick an oversized condom with her, after

which she had a female minor pull it over the male minor’s entire head and

blow it up; (8) encouraged a male minor to display his ‘orgasm face’ with her

for the camera; (9) informed a male minor that he was not having enough

orgasms; (10) closely inspected a minor and told him he had a ‘nice butt’; and

(11) made eighteen references to orgasms, six references to male genitals, and

eight references to female genitals.’’

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2 137 Wash. 2d 774.975 P. 2d 1020 (1999).

68 F. 3d at 529.

Before contracting with Ms. Landolphi, the school physician and PTO chairperson

had previewed a video showing segments of Ms. Landolphi’s performance. School officials, including the school superintendent, were present at the assemblies. They

knew in advance what she would say and how she would say it. But no advance

notification of the presentation was given to parents, despite a school policy stating

that written parental permission was a prerequisite to health classes dealing with

human sexuality.

The parents of two students sued on behalf of themselves and their children, alleging that the school district had violated their privacy rights and their substantive

due process rights under the First and Fourteenth Amendments, their procedural

due process rights under the Fourteenth Amendment, their RFRA rights and their

Free Exercise rights under the First Amendment. The district court dismissed under

FRCP 12(b)(6), and the First Circuit affirmed.

In its discussion of the substantive protection under the Fourteenth Amendment

of the parent’s right to rear his children, after discussing Meyer v. Nebraska, 262

U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), the First Circuit stated in dictum:

‘‘Nevertheless, the Meyer and Pierce cases were decided well before the current

‘‘right to privacy’’ jurisprudence was developed, and the Supreme Court has yet

to decide whether the right to direct the, upbringing and education of one’s children is among those fundamental rights whose infringement merits heightened

scrutiny. We need not decide here whether the right to rear one’s children is

fundamental because we find that, even if it were, the plaintiffs have failed to

demonstrate an intrusion of constitutional magnitude on this right.’’

68 F. 3d at 532 (footnote omitted)(emphasis supplied.)

The First Circuit then rejected the plaintiffs’ free exercise claim. First, the court

questioned ‘‘whether the Free Exercise Clause even applies to public education.’’ 68

F. 3d at 536. Second, the court rejected the plaintiffs’ claim that their parental

rights were protected by the Free Exercise Clause under the ‘‘hybrid exception,’’

noted in Employment Division v. Smith, for ‘‘the right of parents, acknowledged in

Pierce v. Society of Sisters, 268 U.S. 510 (1925) to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205 (1972).’’ Smith, 494 U.S. 872, 881 (1990).

The First Circuit stated:

‘‘[A]s we explained, the plaintiffs’ allegations of interference with family relations and parental prerogatives do not state a privacy or substantive due process claim. Their free exercise challenge is thus not conjoined with an independently protected constitutional protection.’’

68 F. 3d at 539.

Virtually all public school districts in the U.S. receive federal funds. So the RLPA

would once again level the playing field for parents who, for reasons of religious conscience, wish to have their child ‘‘opt out’’ of objectionable instruction such as this.

1.3 Involuntary conscription of clergy as government informers

State v. Martin (In re Hamlin) (Wash. Sup. Ct.) 2

If you went to your pastor, rabbi or priest for spiritual counsel, and in your conversations with him discussed highly personal matters, would you expect him to

keep your discussions confidential? Would you trust a pastor who disclosed your

confessions even when you made them under conditions of strictest confidence?

Should a rabbi be jailed simply because he refused to disclose the confessions of a

man seeking spiritual guidance and counsel?

Common sense and the tenets of major religious faiths—Protestant, Catholic, and

Jewish—all agree: confessions heard by ordained clergy should remain confidential.

But a trial court in Tacoma, Washington answered, ‘‘No,’’ a pastor may not maintain that confidentiality if the government wants him to breach it. Incredibly, the

court reasoned that the pastor is obligated to violate confidentiality and disclose

confessions made to him. And worse, if a pastor refuses to disclose the confidential

information, he should be sent to jail. At stake is our right to seek spiritual guidance in private with the candor that only springs from the confidence that it will

remain between us, our pastor, and our God. The Rev. Rich Hamlin is an ordained

minister of the Evangelical Reformed Church. He meets with anyone seeking spiritual guidance, both members of his church and non-members. Pastor Hamlin believes that hearing confessions and leading persons in confession are integral parts

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of his ministry, a ‘‘necessary component’’ of the practice of his religion. Indeed, the

most important relationship an individual has is between himself and his God. For

many, that relationship is enhanced by discussions of private matters with a minister, leading to repentance, reconciliation, and new resolve to do what is right.

Scott Martin sought spiritual counsel from Pastor Rich Hamlin after the death of

Martin’s three-month-old son. At the invitation of Martin’s mother, the minister met

with Mr. Martin at his mother’s home, on two occasions at an army hospital, and

at the home of a friend. Then Martin surrendered to police, who suspected him of

homicide.

Prosecutors charged him with second degree murder in the death of his son. Pastor Hamlin continued to meet with Martin while he was incarcerated in the Pierce

County jail after registering as his pastor with jail administrators.

But prosecutors did not stop with jailing Martin. They sought to compel Pastor

Hamlin to testify about his conversations with the defendant. A judge agreed and

ordered the minister to divulge what admissions Martin may have made in private

to the Pastor. Pastor Hamlin is convinced that Scott Martin only confided in him

because he is a minister of the Gospel and because he trusted that it would go no

further than the pastor. If Pastor Hamlin were forced to reveal matters communicated to him in confidence, it would betray Martin’s trust, undermine Hamlin’s

office as a pastor, and violate the latter’s right to hear confessions and provide spiritual counsel free from state interference. When the pastor refused to testify, the

trial court judge held him in contempt of court and ordered him to jail.

Pastor Hamlin took his case to the Washington Court of Appeals. Last July the

appeals court reversed the trial court decision, reasoning that ‘‘Pastor Hamlin’s religion, thus, constrains him to provide confessors with spiritual counsel and the opportunity for redemption. It is a duty that the pastor must fulfill based upon the

tenets of his faith.’’ Furthermore, the court held, only the communicant (Martin)

could waive the confidentiality of the conversation, not the pastor or priest (Hamlin)

who heard the communication.

But the State appealed this decision to the Supreme Court of the State of Washington. On March 23 of this year, a local CLS attorney and I argued to the state’s

high court on behalf of Pastor Hamlin. Thanks be to God, on May 6 the state supreme court ruled in favor of Pastor Hamlin, based on the state privilege law. But

the prosecutor apparently intends to continue pursuing the pastor’s testimony (arguing that the confidentiality of the confession may have been waived by the possible

presence of the defendant’s mother during portions of the counselling), If CLS and

its member attorneys charged Reverend Hamlin for their legal defense, he and his

church would be bankrupt by now. And he may yet go to jail for contempt.

Pastor Hamlin should not be forced to choose between fulfilling his religious duties as a pastor or serving time in jail. Federal protection is sorely needed. RLPA

would extend it to many clergy, regardless of faith.

2. THE INADEQUACY AND QUESTIONABLE CONSTITUTIONALITY OF THE ALTERNATIVE

Michael Farris of the Home School Legal Defense Association has proffered an alternative bill (‘‘Religious Exercise And Liberty Act’’ or RELA). While Christian Legal

Society shares most of its goals, Mr. Farris’ proposal does too little for too few Americans, and does it in a way that probably violates the federal Constitution.

2.1 Unnecessarily codifying Supreme Court precedent

For the most part, RELA merely codifies what rights religious citizens already

have under the Supreme Court’s interpretation of the Free Exercise of Religion

Clause of the First Amendment: an absolute right to freedom of belief and strict

scrutiny of laws that burden a hybrid of Free Exercise combined with some other

fundamental right.

This ‘‘hybrid rights’’ theory was concocted by Justice Scalia in dictum in the most

universally condemned decision ever announced by the Supreme Court in the religion area, Employment Division v. Smith (1990). Why should Congress legitimize

this historically-, logically- and constitutionally-questionable theory? For whatever

the theory is worth, believers can already invoke it under the First Amendment.

Congress will add nothing to it by writing it into the U.S. Code. CLS urges this subcommittee to extend existing protections for our First Freedom, not just codify the

limited rights we already have under regrettable precedent.

RELA also codifies Justice Scalia’s reasoning in Smith, applying strict scrutiny to

laws that are not generally applicable, not facially neutral, or that discriminate

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3These post-Smith theories, as well as the ‘‘hybrid rights’’ theory, have already been invoked

successfully without their codification by Congress. See, e.g., First Covenant Church v. City of

Seattle, 840 P. 2d 174.215–20 (Wash. 1992).

against religion.3 These do little to ‘‘move the ball forward’’ for Americans of faith,

for clergy like Reverend Hamlin and for students who wish to avoid obscene school

curriculum.

2.2 Anemic land use protection

Mr. Farris’ RELA proposal does contain several new advances for religious liberty.

Borrowing from RLPA (H.R. 1691), Mr. Farris includes language that would help

churches against unreasonable or discriminatory land use regulation.

But RLPA (H.R. 1691) goes significantly farther. Mr. Farris’ RELA would only

provide treatment equal to that enjoyed by government buildings; RLPA would expressly guarantee that churches be treated at least as well as any nonreligious assembly. RLPA would expressly prohibit zoning officials from discriminating against

religious assemblies; RELA would not ban it, but merely require a balancing of the

government’s interests against the burden on the church. And RLPA would expressly ensure reasonable inclusion of zones for religious schools and assemblies in

a jurisdiction, while RELA is silent in this regard.

2.3 Unconstitutional prison reform

Mr. Farris proposes to extend ‘‘hybrid rights’’ Free Exercise theory to prison inmates. CLS strongly supports the restoration of religious liberty to all persons, including prisoners. However, the Supreme Court degraded prisoners’ Free Exercise

protection in 1997, bifurcating them from the rest of society (whose Free Exercise

rights they degraded three years later in Smith). Then in 1997, the high court struck

down the Religious Freedom Restoration Act of 1993 as it applied to state and local

law. In City of Boerne v. Flores, the court reiterated that it alone is constitutionally

empowered to interpret what the Free Exercise clause guarantees.

Therefore, by bestowing far greater protection for prisoners’ religious exercise

than the Court has interpreted the First Amendment to require, RELA would run

afoul of the Constitution’s separation of powers, and risk the same fate as befell the

1993 RFRA under Flores.

2.4 Less protection of parent and student religious excusal rights

RLPA would enable parents and their children to ‘‘opt out’’ of public school curriculum that violates religious conscience or parental rights to direct their children’s

education. But Mr. Farris’ RELA would confer no protection on a student’s individual religious convictions; the hybrid theory is of no avail to a students unless their

parents share their objections.

Moreover, Mr. Farris’ RELA denies any opt-out rights unless a parent ‘‘provides

a reasonable alternative assignment without requiring substantial effort or expense

by the public school.’’ In contrast, RLPA would not place the burden on the parents

to assess what would be an appropriate alternative to an obscene condom demonstration or to reading a book containing graphic violence, sexual abuse or other

inappropriate depictions. Neither would RLPA allow a school district to deny a religious excusal merely by claiming that the parent’s alternative would require too

much effort or money.

Congress can do much better by religious parents than RELA’s anemic ‘‘opt out’’

provision. It can enact RLPA.

2.5 Protection of racial discrimination in the name of religion

RELA would prohibit government from interfering in the employment of teachers

or pastors in any respect. This would exempt from antidiscrimination laws those

misguided religious assemblies that would discriminate on the basis of race or national origin. For this reason alone, Christian Legal Society cannot support RELA.

In contrast, RLPA (H.R. 1691) would not confer religious exemptions on racist religions, because the Supreme Court has held that government has a compelling interest in eradicating private racial discrimination, an interest that outweighs religious freedom. Bob Jones University v. U.S., 461 U.S. 574 (1983).

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2.6 Dubious constitutionality under the 14th amendment

As explained above (para. 2.3, supra), the prisoner provisions in Mr. Farris’ RELA

would probably violate the federal constitution’s separation of legislative from judicial powers.

Equally questionable is the constitutionality of the rest of RELA, with the possible

exception of its land use provisions. That is because in its Flores holding in 1997,

the Supreme Court held that the Fourteenth Amendment (section 5) only empowered Congress to act in response to ‘‘legislation enacted or enforced due to animus

or hostility to the burdened religious practices or [ ] some widespread pattern of religious discrimination in this country.’’ Such a case can only be made with respect

to regulation of land use by religious groups. On March 28 of last year, the Constitution Subcommittee of this Committee heard extensive evidence of such widespread discrimination across the U.S., from mainline Protestant to small minority

faiths.

But it would be difficult to prove the existence of widespread hostility or intentional discrimination in zoning regulation against religion, e.g., application of antidiscrimination laws against churches when they hire their preachers or select their

Sunday School volunteers, or against religious schools when they hire their classroom teachers. Neither would it be easy to prove nationwide problems with government regulation of religious education (at least not yet). Without such proof, Mr.

Farris’ RELA would likely exceed Congress’ power under the Fourteenth Amendment and be struck, just as the high court did to the RFRA in Flores.

3. CONGRESS SHOULD USE ALL OF ITS POWERS TO PROTECT RELIGIOUS LIBERTY

Christian Legal Society shares the concerns of many that the federal government

should not be permitted to expand and extend its regulatory power endlessly at the

expense of our First Freedom. That is why CLS strongly supports the Religious Liberty Protection Act—because it uses every power of Congress to restrict and retract

federal, state and local government power where it burdens religious exercise.

This suspicion of big government also compels CLS to refrain from endorsing Mr.

Farris’ RELA. That proposal does too little for religious freedom, because it fails to

use Congress’ explicit power to regulate interstate commerce.

The Commerce power is not a figment of ‘‘judicial activism;’’ it is expressly granted to Congress. Yes, the power has been abused in the past. But it has also been

wielded for good. The Partial Birth Abortion Ban Act would have been based on the

Commerce Clause. Many of the nation’s federal civil rights laws are too.

And RLPA (H.R. 1691) would use this express constitutional authority for an

equally laudable purpose: to restrain (not extend) governmental interference with

our most important freedom. It would be a painful irony if the First Freedom named

in the First Amendment were the only one not to be protected by federal statute,

while the Commerce power is used to promote supposed constitutional rights like

abortion that are not enumerated anywhere in the Constitution.

A rope can serve as a useful analogy. The Congress has access to a strong rope,

Some have misused ropes in the past (e.g., for lynchings). But the wise response to

misuse is not to leave Congress’ rope lying unused. Rather CLS urges Congress to

pick up its ‘‘Commerce Clause rope’’ and use it constructively—to cordon off government from legislating and acting in ways that substantially burden religious freedom.

4. RLPA MUST PROTECT ALL PERSONS, WITHOUT CARVE-OUTS OR EXCLUDED CLAIMS

According to the testimony of Mr. Chris Anders before the House Judiciary Subcommittee On The Constitution on May 12, 1999, the American Civil Liberties

Union agrees that the Supreme Court’s 1990 decision in Employment Division v.

Smith left the Free Exercise Clause virtually toothless in all but the rarest of cases.

Yet Mr. Anders admitted under questioning by Rep. Jerrold Nadler that the ACLU

would rather leave religious believers statutorily defenseless than enact a RLPA

that would apply to all claims and all Americans. Specifically, ACLU wants the Congress to amend the RLPA so that it could not be invoked by many believers against

an antidiscrimination law. Call it by any other name if you will—but this would be

a carveout, a repudiation of the bedrock principles of ‘‘inalienable rights’’ and equal

protection of the laws.

For the following reasons, Christian Legal Society would vigorously oppose RLPA

if it were to include any such exclusion of a class of religious practices or claims.

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4.1 Free religious exercise should not always be subordinated to other civil rights

The first freedom protected by the Framers in our Bill of Rights is religious freedom, including protection from government prohibition on ‘‘the free exercise’’ of religion. Religious freedom is a ‘‘civil right’’ arguably the foundational and preeminent

one upon which all others depend. If a government will not accommodate a citizen’s

fulfillment of his or her obligation to God, then no other human right is safe from

that government.

This First Freedom includes practices inside houses of worship. But it also encompasses the living out of one’s beliefs in the marketplace of ideas, of jobs, of housing.

Those who support a civil rights carveout amendment to RLPA either do not understand the comprehensive nature of most religious devotion or else they dangerously

overweigh the government’s constitutional authority to burden it.

The ACLU’s proposed civil rights carveout presupposes that the First Amendment’s Religion Clauses protect little more than religious beliefs, and only if such

beliefs do not infect the policies and practices of its adherents outside their houses

of worship. But, as millions of religious Americans know, they do not leave their

religion at the door to their office, at the factory punch clock, or at the schoolhouse

gate. And among religious Americans are landlords whose consciences do not allow

them to rent their private property for sinful purposes. They also include employers

who want to work with people who share their most important values and priorities,

including religious ones. Religious ‘‘free exercise’’ is not confined to one’s Sabbath,

home or house of worship.

Consequently, free exercise of religion will conflict with the interests of third parties who want employment at the believer’s private workplace or want to rent the

believer’s private property.

As a matter of principle, should the First Freedom always prevail over antidiscrimination law? No. Society’s interest in eradicating private racial discrimination will continue to trump claims that one’s religion compels racist practices.

But neither should the opposite extreme be legislated: that certain civil rights always outweigh the believer’s interest in religious exercise. A principled RLPA would

apply the same test to all religious practices substantially burdened by government,

and leave to the courts a case-by-case application of that uniform test. The explicit

and prominent constitutional regard for free exercise of religion admits of no exceptions, qualifiers or disclaimers. At a minimum, Congress should follow the First

Amendment’s lead and let all government interests be tested, and rise or fall on

their own importance relative to our First Freedom.

4.2 As a political matter, carveouts will fracture RLPA’s coalition, spawn other

exceptions, and infect state legislation as well

The Coalition For The Free Exercise Of Religion, an extraordinary coalition of

some 80 organizations that drafted RLPA, supports a ‘‘clean’’ bill, a RLPA free of

any kind of carveouts, exceptions or second class treatment for particular religious

claims or claimants. That support is based on principle, as described in section 4.1,

supra.

But the RLPA Coalition also resists any carveouts for a very practical reason: 80

groups could never agree on what to carveout. The coalition is held together by one

magnetic commitment: we all agree that every sincere religious practice will be, entitled to the protection of strict scrutiny.

If RLPA is amended so that it could not be raised as a defense to. e.g., discrimination law, then the Coalition’s magnetism will have been lost. Coalition members

would spin off under the centrifugal force of their self-interest. Each of us would

have our own wish-list of what religions, religious practices, and government interests should he winners and losers. At the end of this political powerplay, RLPA

would only protect the politically-correct and -powerful religious practices; minority

faiths would be left in the carveout pile, and religious freedom as a universal right

in America would be a thing of the past.

Christian Legal Society serves with the AntiDefamation League as co-chair of the

Coalition’s campaign to enact religious freedom legislation in the states. In the two

years since City of Boerne v. Flores, we have been successful in passing ‘‘clean’’

RFRA’s in Florida, Alabama, Illinois, Arizona and South Carolina.

But several weeks ago the Texas Legislature enacted a ‘‘dirty’’ RFRA. Rep. Scott

Hochberg pushed it through the Texas House with a civil rights carveout. Not surprisingly, having breached the principle of ‘‘protection for all, without exceptions,’’

Rep. Hochberg could hardly object to the Senate’s version, which contained

carveouts for incarcerated persons and a special provision on regulation of land use

by religious groups. One carveout begat another. And thus shall it be if Congress

opens the Pandora’s Box of stripping RLPA’s protection from disfavored religious

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practices and believers. Not only will the federal RLPA collapse upon itself due to

carveouts, but many state legislatures will be tempted to follow Congress’ example,

leaving a patchwork of laws in which religious liberty protection varies from one

state to the next.

For these reasons, the 80 organizations of the RLPA Coalition, ranging from People For The American Way to the Southern Baptist Convention, oppose any exemptions and urge this Committee to pass a ‘‘clean’’ RLPA.

4.3 RLPA must protect all persons, including the incarcerated

Perhaps the most tempting class of persons to carve out of RLPA’s protection

would be those in prison, jail or detention awaiting adjudication. They cannot vote,

cannot contribute to campaigns, and have no lobbyists.

Of the eight states that have enacted state RFRA’s, only Texas has given in to

that temptation. Its law says that any excuse a prison warden gives for burdening

an inmate’s religion is rebuttably presumed to be in furtherance of a compelling government interest. So prison officials can confiscate a Bible or serve only non-Kosher

meals and yet the Texas inmate gets no relief from the Texas RFRA—unless the

inmate (probably undereducated and without a lawyer) can rebut the warden’s

pretextual justification.

Prisoner litigation includes a lot of frivolous claims. But religious claims account

for a tiny fraction of them. According to Justice Fellowship, during the three and

one-half years that the federal Religious Freedom Restoration Act of 1993 was in

effect, 99.9 percent of reported prisoner cases were nonreligious in nature, only .12

of one percent (277) of reported prisoner civil cases even mentioned RFRA. So carving out prison inmates from RLPA will not appreciably diminish frivolous prisoner

litigation.

In addition, some inmates have been unjustifiably deprived of their ‘‘inalienable’’

right to religious freedom. For example, see the attached handwritten letter received

by Prison Fellowship recently from an inmate named Melanie Perkins in the state

prison in Lowell, Florida. Having received this letter only yesterday, CLS has not

yet had an opportunity to investigate the letter’s allegations. But Prison Fellowship

tells us that it is typical of the letters they receive from across the country about

conditions in state prisons. (The Federal Bureau Of Prisons continues to be subject

to the 1993 RFRA, and finds it quite workable in the nation’s second largest prison

system, See attached letter to Rev. O. Thomas from BOP General Counsel, dated

Nov. 6, 1998.)

Finally, not only do prisoner carveouts violate bedrock principles of human rights.

fracture the RLPA coalition and inexorably lead to carveouts against other powerless classes, but they also frustrate society’s penological interests. Religion changes

prisoners, cutting their recidivism rate by two-thirds, according to Prison Fellowship. So it makes good policy to include inmates as beneficiaries of RLPA. If their

religious practice threatens the health, safety or security of anyone in the prison,

it will (and should) yield under RLPA to those interests of the warden. But some

prisoner religious claims (probably a small minority) should prevail, but only if

RLPA contains no carveouts * * * even for ‘‘least of these my brethren.’’ (Gospel of

Matthew 25:40). The Religious Liberty Protection Act would broadly protect religious Americans with the strictest legal standard, one that is time-tested and workable. It would have a much firmer constitutional foundation than RELA. And RLPA

would provide significant rather than anemic protection for public schoolchildren

and churches facing land use obstacles. It would not be a cure-all. But RLPA employs all available federal powers to restore the strictest legal scrutiny with the

broadest coverage in a constitutionally defensible manner. Our religious liberty—the

First Freedom—deserves nothing less.

Thank you, Mr. Chairman, for considering the views of the Christian Legal Society in this most important matter.

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The CHAIRMAN. Senator Thurmond would like to make a statement and then I think Senator Kennedy may want to make one.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR

FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. I am going to have to leave for another appointment and so I appreciate your allowing me to make this statement at this time.

Mr. Chairman, today the Judiciary Committee is considering the

important issue of religious liberty and whether additional legal

protections are needed to protect the free exercise of religion in

America.

One of the founding principles of our Nation involves the freedom

to worship. This is clear from the Free Exercise Clause of the First

Amendment of the Constitution. However, like other constitutional

provisions, the free exercise of religion is not absolute. It does not

provide individuals unlimited rights. It must be balanced against

the interests and needs of society in various circumstances. The

courts have always been tasked with determining the extent of and

limitations on religious liberty under the First Amendment.

When considering the exercise of religion, government interests

are especially significant outside of general civilian life. For example, in the military and in the prison context, government interests

are paramount. The desires and interests of the individual must be

subordinate to those of the institutions in areas such as these.

As recently reported in the Washington Post, Army soldiers who

consider themselves to be members of the Church of Wicca are carrying out their ceremonies at Fort Hood in Texas. The Wiccas practice witchcraft. At Ford Hood, they are permitted to build fires on

Army property and perform their rituals involving fire, hooded

robes, and 9-inch daggers. An Army chaplain is even present.

I do not dispute that individuals may believe what they wish,

and they can practice their religion in private life. However, limits

can and should be placed on the exercise of those views, especially

in the military. I do not believe that the armed forces should accommodate the practice of witchcraft at military facilities. The

same applies to the practices of other groups, such as satanists and

cultists.

For the sake of the honor, prestige and respect of our military,

there should be no obligation to permit such activity. This is an example of going too far to accommodate the practice of one’s views

in the name of religion. Similar problems can arise from allowing

members of the Native American Church to use peyote while in

military service.

Under the Goldman v. Weinberger standard established by the

Supreme Court, the courts deferred to the professional judgment of

the military regarding the military’s need to foster discipline, unity

and respect in its accommodation of religious practices. Under this

standard, it is clear that the military could severely limit or prevent practices such as witchcraft if it wished. It is less clear exactly

what limits the military can impose under the Religious Freedom

Restoration Act, to the extent that it is constitutional as applied to

the Federal Government.

20

A similar problem exists in the prison context. The safe and secure operation of prisons is an extremely difficult and complex

task. This is especially true as inmate populations rise and prisons

must operate with very limited resources.

In Turner and O’Lone, the Supreme Court established a reasonable standard for evaluating religious freedom claims in prison.

Similar to the balancing it considered for the military, the Court

adopted a standard that balanced the needs of inmates and the institution. Then the Religious Freedom Restoration Act imposed a

very difficult burden on correctional officials when prisoners made

demands that they claimed were based on their religious faith. Although RFRA was held unconstitutional as applied to the States,

the Religious Liberty Protection Act would again upset the balance

if it becomes law.

In prison, inmates have used religion as a cover to organize prison uprisings, get drugs into prison, promote gang activity, and

interfere in important prison health regulations. Additional legal

protections for religion will make it much harder for corrections officials to control these abuses of religious rights.

Moreover, even if a prisoner’s claim fails, it costs the prison

much time and money to defend, especially under the compelling

interest legal standard which makes it much harder to get cases

dismissed before trial. RFRA not only gave inmates more of an excuse to sue, it also gave them the opportunity to win more often.

Not all prisoners abuse the law. Indeed, it is clear that religion

benefits prisoners. It helps rehabilitate them and makes them less

likely to commit crime after they are released. However, we cannot

allow inmates to use laws such as this to create rights and privileges that can undermine the operation of prisons. I am pleased

that we have in the record testimony from Glenn Goord, the Commissioner of the New York State Department of Corrections, explaining the problems he encountered in applying RFRA in New

York before it was held unconstitutional.

Religious liberty is an extremely important right of Americans.

However, as we consider legislation that provides safeguards greater than constitutional standards, especially in the area of neutral,

generally applicable laws, we must be mindful of all the potential

implications. We must be very careful to consider the unintended

consequences of legislation, and this hearing is important for the

committee to discuss these complex issues.

Mr. Chairman, thank you very much.

Senator GRASSLEY [presiding]. Senator Kennedy.

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR

FROM THE STATE OF MASSACHUSETTS

Senator KENNEDY. Thank you very much, Mr. Chairman. I want

to thank Senator Hatch for holding these hearings today. Protecting religious liberty for all citizens is a matter of great importance

to the Senate and the country, and I welcome the opportunity to

work with Senator Hatch on this issue.

Today’s hearing is another step in our effort to develop legislation that respects the Supreme Court’s authority to interpret the

meaning of the Constitution, while doing all we can in Congress to

protect individuals against blatant religious bigotry, and also

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against inadvertent but harmful acts that burden their free exercise of religion.

The challenge of drafting effective legislation to protect religious

liberties has become more complex because of the new constraints

on Congress under the Supreme Court’s 1997 decision in City of

Boerne v. Flores. But the overriding need for such protection remains intact. In many communities across the country, laws that

are neutral on their face continue to impinge arbitrarily on religion

and place people of faith in the difficult and untenable position of

choosing, in the words of Justice Souter, ‘‘between God and government.’’

Our goal in enacting religious liberty legislation is to reach a reasonable and constitutionally-sound balance between respecting the

compelling interests of government and protecting the ability of

people to freely exercise their religion. While we consider ways to

strengthen the religious liberties of all Americans, we must also be

careful not to undermine existing laws carefully designed to protect

other important civil rights and civil liberties. Our efforts to

strengthen religious liberty should not become a setback in the Nation’s ongoing struggle to provide equal opportunity and equal justice for all our citizens. I look forward to the testimony of today’s

witnesses and to their insights on this important and difficult

issue.

Thank you, Senator Grassley.

Senator GRASSLEY. Mr. Diament.

STATEMENT OF NATHAN J. DIAMENT

Mr. DIAMENT. Thank you, Senator Grassley, for the opportunity

to address this committee on an issue of critical importance to the

American people, religious liberty.

I am Nathan Diament and I am privileged to serve as the Director of the Institute for Public Affairs, the non-partisan public policy

research and advocacy arm of the Union or Orthodox Jewish Congregations of America. The UOJCA, which has just entered its second century of serving the traditional American Jewish community,

is the largest Orthodox Jewish umbrella organization in the United

States, representing nearly 1,000 affiliated congregations nationwide and their many members.

On behalf of the Union and its membership, I am here today to

say that we are deeply appreciative of the historically unprecedented level of religious freedom that we have enjoyed in these

United States. But I am also here to say that we are deeply concerned that in recent years the scope of this cherished freedom has

been diminished.

Before continuing, I would be remiss if I did not deviate for a moment from my prepared remarks to note that I enjoy the privilege

of sitting before a congressional committee to speak about the issue

of religious liberty while currently in the country of Iran, 13 Jews

have been imprisoned by that nation’s government because that

country does not respect religious liberty. And I would be remiss

and it would be inconsistent with my conscience to not take this

opportunity in the context of a discussion about religious liberty to

appeal to you members of the United States Senate to work with

22

your colleagues to see if you can secure the freedom of these Jewish

prisoners of conscience in Iran. Thank you.

This distinguished committee has examined the challenges to religious liberty in previous hearings. I well remember the day almost 2 years ago this week, I believe, on which I stood in a room

in this building with Senator Hatch and with Senator Kennedy the

day the Supreme Court handed down its opinion in the Boerne

case. On that day, Senator Hatch, Senator Kennedy and others expressed their commitment and passion for repairing the breach and

the blow to religious liberty that had been committed on that day

by the U.S. Supreme Court.

This committee is familiar with the Supreme Court’s decisions in

Employment Division v. Smith and the City of Boerne case, and it

has heard preeminent legal scholars discuss those decisions, as

well as legislative options for redressing the harm they have

caused to religious liberty in the United States. What I hope to

share with you in my brief statement is the traditional Jewish community’s perspective on this issue and the need for legislation addressing it. I will do with one illustrative example, land use regulation and its abuse.

Orthodox and traditional Jews can often be found living in geographically concentrated communities. This phenomenon flows

from a simple religious fact. Traditional Jewish law prohibits driving to the synagogue on the Sabbath. This restriction, combined

with the fact that there are portions of the Sabbath prayer service

that may only be said with a quorum in the synagogue, not by an

individual in his or her home, makes living within walking distance of a synagogue a religious necessity.

In recent decades, Orthodox Jewish communities throughout the

United States have been flourishing. Long-existing communities

are growing and new communities are being developed. This wonderful trend often requires the expansion of older synagogues or

the construction of new ones. Expansion or construction often requires permits, variances, or waivers from local zoning boards.

Thus, the flourishing of traditional Jewish communities has given

rise to another more unfortunate trend, the use of land use regulations and zoning boards to discriminate against these religious

communities.

While we, of course, recognize that land use regulation is an important State interest and religious institutions, like other public

institutions, must be sensitive to them and cannot automatically

override them, it is clearly the case that zoning rules are being

used in inappropriate and religious discriminatory ways.

As recently as June 11, the Forward, a national Jewish weekly

newspaper, reported but one example of this disturbing activity.

The Westchester, NY, community of New Rochelle now has a growing, even burgeoning Orthodox Jewish community. The members of

the Orthodox synagogue are homeowners who pay their taxes and

contribute to the community in all the typical ways. The community has outgrown its current synagogue and is seeking to build a

larger one on a plot of land that is, of necessity, in the same neighborhood as its current structure. And it is the zoning board that

has become the method of choice for those who seek to thwart the

23

growth of the Orthodox community in New Rochelle. An article

from that newspaper is attached to my testimony.

But this is but one of many instances of this unacceptable abuse

of land use regulation. In the last session of Congress, this committee heard an extensive report of the refusal of the Los Angeles Zoning Board to allow elderly Jews to establish a place of worship in

the Hancock Park section of that city.

In Miami, FL, a group of Orthodox Jews have been refused a permit to rent a hotel conference room for weekly Sabbath services,

even though the very same hotel room can be rented for a myriad

of other functions such as weddings and conventions and the like.

In the Cleveland, OH, suburb of Beechwood, the Orthodox community’s desire to construct a new synagogue was also blocked at that

zoning board. The pattern is familiar and it must be put to an end.

Legislation reinstating the requirement that a general law of

neutral applicability, such as land use regulation, must serve a

compelling State interest via the least restrictive means before it

can burden the free exercise of religion is the best means of thwarting those who would restrict religious liberty, and restoring to religious liberty the level of protection and priority it deserves in this

country.

There are other issues of concern to the Orthodox Jewish community that such legislation would address and I would be happy to

elaborate them for you throughout the course of this hearing. Permit me, then, to make two closing observations.

Religious liberty was established as America’s first freedom by

our Founders when they chose to make it the first topic addressed

by the First Amendment to our Constitution. Two years ago when

the Supreme Court struck its most recent blow to this freedom in

the Boerne case, the Justices issued another ruling, relying upon

another part of the First Amendment, the Free Speech Clause,

when they struck down most of the Communications Decency Act,

legislation that was designed to address another issue of concern

to our community, obscenity on the Internet.

It seems that the Justices missed the irony that they could read

the same opening clause of the First Amendment that ‘‘Congress

shall make no law,’’ shared by the Free Exercise Clause and the

Free Speech Clause, in such opposite ways in a matter of days.

That week, the Court gave Internet pornographers a greater stake

in the First Amendment than it gave people of faith. This is, to say

the least, deeply troubling.

Finally, a thought about the very essence of liberty. In America,

the concept of liberty, applied to a wide array of human activities,

is perhaps the foundation stone of our society. We should be ever

mindful that the very notion of liberty springs from religion’s foundation stone, the Bible. Enshrined in our Nation’s birthplace on the

Liberty Bell is a biblical verse—‘‘* * * proclaim liberty throughout

the land to all its inhabitants * * *’’ Religion gave America the

blessing of liberty. It is time for America to restore liberty to religion.

Thank you very much.

[The prepared statement of Mr. Diament follows:]

24

1 New Rochelle Synagogue Spat Heats Up, The Forward, June 11, 1999 (copy attached). 2See One Zoning Law, Two Outcomes, Los Angeles Times, November 11, 1997.

PREPARED STATEMENT OF NATHAN J. DIAMENT

Thank you, Mr. Chairman, for the opportunity to address this Committee on an

issue of critical importance to the American people—religious liberty. I am Nathan

Diament and I am privileged to serve as the director of the Institute for Public Affairs, the non-partisan public policy research and advocacy arm of the Union of Orthodox Jewish Congregations of America. The UOJCA, which has just entered its

second century of serving the traditional Jewish community, is the largest Orthodox

Jewish umbrella organization in the United States representing nearly 1,000 affiliated congregations nationwide and their many members. On behalf of the Union of

Orthodox Jewish Congregations and its membership, I am here today to say that

we are deeply appreciative of the historically unprecedented level of religious freedom that we have enjoyed in these United States. But I am also here to say that

we are deeply concerned that in recent years the scope of this cherished freedom

has been diminished.

This distinguished Committee has examined the challenges to religious liberty in

previous hearings. Chairman Hatch, you have been a leader in the fight to protect

religious liberty in America for much of your career and I well recall standing in

the room with you—two years ago this week (?)—the day the Supreme Court rendered its decision striking down the Religious Freedom Restoration Act in the City

of Boerne case. Your passion and commitment to religious liberty, a commitment

similarly shared and displayed that day by Senator Kennedy, was clear. Sadly, it

is now two years later and we are still working to repair the damage that has been

done to our ‘‘first freedom.’’ Congress must act to restore religious liberty to its venerable position in this session.

This Committee is familiar with the Supreme Court’s decisions in Employment Division v. Smith, 474 U.S. 872 (1990), and City of Boerne v. Texas, 117 S.Ct. 2157

(1997) and has heard preeminent legal scholars discuss those decisions as well as

legislative options for redressing the harm they have caused to religious liberty in

the United States. What I hope to share with you in my brief statement is the traditional Jewish community’s perspective on this issue and the need for legislation addressing it. I will do so with one illustrative example—land use regulation and its

abuse.

Orthodox and traditional Jews can often be found living in geographically concentrated communities. This phenomenon flows from a simple religious fact—traditional Jewish law prohibits driving to the synagogue on the sabbath. This restriction, combined with the fact that there are portions of the sabbath prayer service

that may only be said with a quorum in the synagogue—not by an individual in his

or her home—makes living within walking distance of a synagogue a religious necessity. In recent decades, Orthodox Jewish communities throughout the United

States have been flourishing. Long existing communities are growing and new communities are being developed. This wonderful trend often requires the expansion of

older synagogues or the construction of new ones. Expansion or construction often

requires permits, variances or waivers from zoning boards. Thus, the flourishing of

traditional Jewish communities has given rise to another, more unfortunate trend,

the use of land use regulations and zoning boards to discriminate against religious

communities.

While we, of course, recognize that land use regulation is an important state interest and religious institutions, like other public institutions, must be sensitive to

them and cannot automatically override them, it is clearly the case that zoning

rules are being used in inappropriate and religiously discriminatory ways.

As recently as June 11, The Forward, a national Jewish weekly newspaper, reported but one example of this disturbing activity.1 The Westchester, New York

community of New Rochelle now has a growing Orthodox Jewish community. The

members of the Orthodox synagogue are homeowners who pay their taxes and contribute to the community in all the usual ways. The community has outgrown its

synagogue and is seeking to build a larger one on a plot that is, of necessity, in the

same neighborhood as its current structure. And it is the zoning board that has become the method of choice for those who seek to thwart the growth of the Orthodox

community in New Rochelle.

But this is but one of many instances of this unacceptable abuse of land use regulations. In the last session of congress, this Committee heard an extensive report

of the refusal of the Los Angeles zoning board to allow elderly Jews to establish a

place of worship in the Hancock Park section of that City.2 In Miami, Florida, a

group of Orthodox Jews have been refused a permit to rent a hotel conference room

25

for weekly sabbath services even though the very same hotel room can be rented

for a myriad of other functions. In the Cleveland, Ohio suburb of Beechwood, the

Orthodox community’s desire to construct a new synagogue was also blocked at the

zoning board. The pattern is familiar and must be put to an end.

Legislation reinstating the requirement that a general law of neutral applicability

must serve a compelling state interest via the least restrictive means before it can

burden the free exercise of religion is the best means of thwarting those who would

restrict religious liberty and restoring to religious liberty the level of protection and

priority it deserves in this country.

There are other issues of concern to the Orthodox Jewish community that such

legislation would address and I would be happy to elaborate them for you throughout the course of this hearing. Permit me, then, to make two closing observations.

Religious liberty was established as America’s ‘‘first freedom’’ by our founders

when they chose to make it the first topic addressed by the First Amendment to

our Constitution. Two years ago, when the Supreme Court struck its most recent

blow to this freedom in the Boerne case the justices issued another ruling relying

upon another part of the First Amendment—the free speech clause—when they

struck down most of the Communications Decency Act, legislation that was designed

to address another issue of concern to the Orthodox Jewish community—obscenity

on the internet. It seems that the justices missed the irony that they could read the

same opening clause of the First Amendment—that ‘‘Congress shall make no law’’—

shared by the subsequent clauses: ‘‘prohibiting the free exercise [of religion]’’ and

‘‘abridging the freedom of speech’’ in such opposite ways in a matter of days. That

week the court gave internet pornographers a greater stake in the First Amendment

than it gave people of faith. This, to say the least, is deeply troubling.

Finally, a thought about the very essence of liberty. In America, the concept of

liberty—applied to a wide array of human activities—is, perhaps, the foundation

stone of our society. We should be ever mindful of the fact that the American essence of liberty springs from religion’s foundation stone—the Bible. Enshrined in

our nation’s birthplace on the liberty bell is a biblical verse: ‘‘* * * proclaim liberty

throughout the land to all its inhabitants * * *’’ (Leviticus 25:10). Religion gave

America the blessing of liberty; may America restore the full flowering of liberty to

religion.

26

27

Senator GRASSLEY. Mr. Miranda, would you hold? Senator Feingold would make a statement at this point.

Senator FEINGOLD. Thank you, Mr. Chairman. Let me first ask

consent to put the ranking member, Senator Leahy’s, statement in

the record.

Senator GRASSLEY. So ordered.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK LEAHY

Mr. Chairman, the right to practice any religion of our choice—or no religion at

all—is one of the cornerstones of our Constitutional liberties, protected by the Free

Exercise Clause of the First Amendment.

No law or ordinance that denies or restricts that right should be taken lightly.

That is why I sponsored the Religious Freedom Restoration Act (‘‘RFRA’’) and supported its passage. That is why I continue to support the basic goal of the Religious

Liberty Protection Act (‘‘RLPA’’), to ensure the highest level of legal protection for

the free exercise of religion.

I recognize that the RLPA, as introduced last year, was very similar in language

and approach to the RFRA provisions that the Court found unconstitutional in 1997.

We must therefore proceed carefully to ensure that the RLPA passes constitutional

muster, and work diligently to develop the legislative record that the Supreme

Court found wanting during its review of our prior efforts with the RFRA.

We must also ensure that any statute we consider does not undermine the efforts

of states and localities to administer their civil rights laws. The protection of religious liberty should not come at the expense of civil rights, nor is this necessary.

Just a few weeks ago, Texas enacted a version of the RLPA statute that explicitly

preserves local civil rights laws. I understand that the amendment to add a civil

rights provision to the Texas statute was carried jointly by leaders of both parties.

The way that Texas chose to address this issue is instructive, and I am pleased that

we will be hearing more about it today from the Democratic sponsor of the Texas

statute, Rep. Scott Hochberg.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR

FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Mr. Chairman, I want to thank you for having this hearing. The topic this morning is at the very heart of the

freedoms guaranteed to each of us by the Constitution, the right

to practice religion free of governmental intrusion. This country

has a legacy of religious liberty that is unparalleled and that we

in the Congress have a special duty to respect.

I voted for the original Religious Freedom Restoration Act in

1993 because I thought that the Supreme Court made a mistake

in 1990 in the Smith case, in effect, reducing the level of protection

against government intrusion that religious expression in this

country receives from the courts. And I too was disappointed that

the Court struck down the Religious Freedom Restoration Act. I

think it is important for the Congress to revisit this issue and see

if it is possible to protect religious freedom in a way that the Court

will view as an appropriate exercise of congressional power.

At the same time, we need to work carefully in this area, and

I know this hearing is a reflection of that. I understand that significant concerns have been raised about the effect of a new Federal law to protect religious freedom on existing State and local

civil rights laws. As someone who is a strong supporter of civil

rights and of federalism as well, I want to be sure before voting for

a statute that is intended to protect religious freedom that it

doesn’t undermine other freedoms.

28

In this regard, I want to compliment the chairman and his staff

for inviting a well-balanced panel to discuss these issues. These are

very complicated legal issues and they deserve a searching examination before we act. I understand the chairman has not yet introduced a bill this year, which I think is an indication of his willingness to keep an open mind and work with all affected groups and

with Senators on both sides to try to reach a genuine consensus.

I want to say also, as the ranking minority member of the Constitution Subcommittee, I am eager to work to try to resolve these

difficult questions and try to come to some agreement that can

have the kind of wide support that we experienced last time and

that will also be held constitutional.

I thank the Chair very much.

Senator GRASSLEY. Thank you, Senator Feingold.

Now, to Mr. Miranda.

STATEMENT OF MANUEL A. MIRANDA

Mr. MIRANDA. Mr. Chairman, distinguished Senators, my name

is Manuel Miranda. I am President of the Cardinal Newman Society for Catholic Higher Education, with offices in Fairfax, VA. Our

membership organization has worked for the past 6 years on a variety of issues facing Catholic-affiliated colleges and universities, of

which there are 235 in the United States.

I am proud to offer my support for the Religious Liberty Protection Act. As a naturalized American from a family that has emigrated across the Atlantic no less than five times in three generations, I fully understand the nature of my participation today as a

distinct privilege.

It is providential that we should hold this hearing in the week

which marks the 225th anniversary of the return of John Carroll

to American shores, after a prolonged stay in Europe where he

went to obtain a religious education that he was barred from obtaining in America. John Carroll, the brother of Daniel Carroll, the

only Catholic at the Constitutional Convention, and the cousin of

Charles Carroll, the only Catholic signer of the Declaration of Independence, was America’s first Catholic bishop and, as founder of

Georgetown University and other schools and colleges, the foundation stone of the contributions made by Catholic higher education

to the American Republic for over 200 years.

I use Bishop Carroll’s America as a point of reference because we

know that Catholics in America, in 1789, numbered little more

than 1 percent of the population. Today, Catholics number 70 million, the largest religious minority in the United States. Ironically,

those principles of religious freedom embedded in America’s Constitution have been a reason for the flourishing of our faith and the

faiths of others. But, sadly, our current application of the First

Amendment is now perhaps the greatest threat to the flourishing

of faith since earlier times of persecution, a word which I use intentionally and advisedly, as I will explain.

Time does not permit me to draw further attention to the long

association that Catholics in this land have to the issues before us

today, or the very active role we played in ensuring that the religious toleration first practiced in America by the Catholic majority

in Maryland be reflected in America’s founding charters. I will

29

briefly, however, draw attention to the language of the old Maryland Toleration Act, which is most closely linked to the language

of the Establishment and Free Exercise Clauses of the First

Amendment.

In 1649, the Maryland Assembly, which incidentally appears to

have had a Jewish member as early as 1641, passed the Maryland

Toleration Act of Religious Toleration, intended to deal with possible intolerance among Christians. It provided that no person shall

be, ‘‘in any way troubled, molested, or discountenanced for or in respect of his or her religion, nor in the free exercise thereof.’’ With

this gender-neutral language, Marylanders achieved the separation

of church and state which their experience had suggested to be

wise and that would later be grafted onto the U.S. Constitution.

In my opinion, their language of 1649 was better than that of the

First Amendment, in that it places an emphasis on religious liberty

and free exercise rather than the overly broad interpretation we

have given in recent times to the Establishment Clause. The Maryland example also reminds us how appropriate it is, in the apparent absence of any other constitutional enabling clause, for Congress to utilize the Commerce Clause to promote religious liberty

and the First Amendment’s Free Exercise Clause.

Today, we understand religious persecution as one type of thing,

marked by our experiences in this century of genocide and barbed

wire. But for the most part, for Catholics and other sects fleeing

England, persecution was felt in plainly economic ways. Roman

Catholics were made to pay fines and penalties for their religious

convictions, incurred cost and expense not applicable to the Anglican majority, were not allowed access to education or the benefits

of education, were limited in the use and rights of their property,

could not build chapels freely, and could not hold offices of public

trust.

English Catholics could not pray safely in public places or be

seen in their religious devotion, so much so that even on the voyage

to Maryland Catholics were warned by their Catholic benefactor,

Lord Baltimore, not to practice their faith in public aboard ship lest

they offend the few Protestant co-travelers. Nor could Catholics

count on the financial support of the State on equal terms as non–

Catholics, or on the equal protection of the law.

Most of these forms of persecution are not so different than the

impediments on religious liberty we experience today. The principal

distinction appears to be that such discrimination is carried out in

what appears to many to be the establishment of a secular state

hostile to religion rather than establishment of the Church of England, neither of which were intended by the Framers or the Founding Fathers who placed their trust in God.

I venture to say that a Maryland Catholic of 1649 deposited here

today would easily recognize current state actions discriminating

against people of faith as persecution, though we may be too patriotic or in denial to use the word as plainly. Such restriction on religious exercise is caused by the oppressive extension of the Establishment Clause and will not be cured by the Religious Liberty Protection Act alone. It is too painfully absurd that we live in a country that accepts and widely televises high school prayer after a

tragedy, but not before.

30

Second, religious liberty has been eroded by a failure to sufficiently protect and defend the Free Exercise Clause against encroaching laws. This, I hope, can be cured in part by this Act. I

must state, however, that the House bill, in my opinion, does not

go far enough in restoring a proper balance between the Free Exercise Clause and the Establishment Clause. Chiefly, I regret that it

does not include language protecting against laws which would,

without a compelling state interest, require action inconsistent

with religious tenets.

The House bill fails to deal with the hostility to religion reflected

in educational funding conditions, especially and ironically in

Maryland and other States that now fund some religiously affiliated colleges, while not others which are determined to be too religious.

In Washington State, financial aid funds paid directly to students cannot now be used by them at 11 Catholic and other religious colleges because, according to the ACLU and the Washington

courts, ‘‘indirectly benefit’’ religious colleges, while in New York

State, schools such as Jesuit-run Fordham University have long

had to deny their Catholic identity, removing crucifixes from classrooms, for example, so as to get financial support—a repugnant result, particularly in the Christian context.

As Justice Clarence Thomas recently wrote in his solitary dissent

in Columbia Union College v. Clark, it is time to, ‘‘reaffirm that the

Constitution requires neutrality not hostility toward religion.’’ But

the Religious Liberty Protection Act is a positive step and one

which I hope will borrow some energy away from the emotional

trigger issues and direct some serious attention to those solutions

that might restore those civilizing agents which for two centuries

successfully lighted the American way.

In addition to the direct effects which state action has on the free

exercise of religion, I am also concerned with the indirect but no

less intrusive effect that such legislation has in causing internal

conflict and division among members of the church and their leadership. This has been especially painful in the area of Catholic

higher education, where State and Federal funding have been used

as a foil for much mischief. Such intrusive legislation and the factiousness which it causes among people of faith was surely not intended by the Framers when they affirmed separation of church

and state.

In 1783, before our present Constitution was written, Benjamin

Franklin assured Vatican ambassadors in Paris that the American

Congress in Philadelphia, ‘‘should not in any case intervene in the

ecclesiastical affairs of any sect or any religion established in

America.’’ Mr. Franklin was not a lawyer, but he no doubt meant

to say ‘‘directly or indirectly.’’

The specter of state intrusion, directly and indirectly, is especially felt by the Catholic Church, which holds teaching on issues

of justice and morality and education at all levels as having an especially important place in its religious exercise and Christian mission. This year, Catholics are engaged in a year-long discussion on

the course of Catholic higher education. Benjamin Franklin would

be horrified at how much consideration Catholic leaders are having

31

to give to whether the State will allow them to assert their religious identity freely and without interference or penalty.

I believe Congress has a long-awaited role to play in restoring religious liberty, and the Religious Liberty Protection Act suggests

that we may be turning in the correct direction, even if against the

tide of popular opinion, for our children’s sake.

Thank you very much.

Senator KENNEDY [presiding]. Thank you very much.

[The prepared statement of Mr. Miranda follows:]

PREPARED STATEMENT OF MANUEL A. MIRANDA

Mr. Chairman, distinguished Senators, my name is Manuel Miranda, I am President of the Cardinal Newman Society for Catholic Higher Education, with offices

in Fairfax, Virginia. Our membership organization has worked for the past six years

on a variety of issues facing Catholic-affiliated colleges and universities, of which

there are 235 in the United States. I am proud as a citizen to have this opportunity

to offer my thoughts and support for the Religious Liberty Protection Act. As a naturalized American from a family that has crossed the Atlantic no less than five times

in three generations in search of a better and safer life, I fully understand the nature of my participation today as a distinct privilege.

It is providential that we should hold this hearing on this day which, almost to

the day, marks the 225th anniversary of the return of John Carroll to American

shores after a prolonged stay in Europe where he went to obtain a religious education that he was barred from obtaining in America. John Carroll was the brother

of Daniel Carroll, the only Catholic at the Constitutional Convention, and he was

the cousin of Charles Carroll, the only Catholic signer of the Declaration of Independence. It was John Carroll who would be, with a little help from his friend Benjamin Franklin, America’s first Catholic bishop and, as founder of Georgetown University and other schools and colleges, the foundation stone of the contributions

made by Catholic higher education to the American republic for over 200 years.

I use Bishop Carroll’s America as a point of reference because we know that

Catholics in America in 1789 numbered little more than 1 percent of the population.

Today Catholics number nearly 70 million, the largest religious minority in the

United States. Ironically, those principles of religious freedom embedded in America’s Constitution have been a reason for the flourishing of our faith and the faiths

of others, but sadly our current application of the First Amendment is perhaps the

greatest threat to that flourishing since earlier times of ‘‘persecution’’—a word which

I use intentionally and advisedly, as I will explain.

Time does not permit me to draw further attention to the long association that

Catholics in this land have to the issues before us today, or the very active role we

played in ensuring that the religious toleration and separation of church and state,

first practiced in America by the Catholic majority in Maryland, be reflected in

America’s founding charters. I will briefly, however, draw attention to the language

of the old Maryland Toleration Act which is most closely linked to the language of

the Establishment and Free Exercise clauses of the First Amendment than any

other source.

In 1649, the Maryland Assembly, which incidentally appears to have had a Jewish

member as early as 1641, passed the Maryland Act of Religious Toleration, intended

to deal with possible intolerance among Christians. It provided that no person shall

be ‘‘. . . in any way troubled, molested, or discountenanced for or in respect of his

or her religion, nor in the free exercise thereof . . .’’ With this language, Marylanders

achieved the separation of church and state which their experience had suggested

to be wise, and that would later be grafted onto the U.S. Constitution. In my opinion, their language of 1649 was better than that of the First Amendment in that

it places an emphasis on religious liberty and free exercise rather than the overlybroad interpretation we have given in recent times to the Establishment Clause.

The Maryland Act also reminds us how appropriate it is, in the apparent absence

of any other constitutional enabling clause, for Congress to utilize the Commerce

Clause to promote religious liberty and the First Amendment’s Free Exercise clause.

Today we understand religious persecution as one type of thing, marked by our

experiences in this century of genocide and barbed wire. But for the most part, for

Catholics and other sects fleeing England, persecution was felt in plainly economic

ways. Roman Catholics were made to pay fines and penalties for their religious convictions, incurred cost and expense not applicable to the Protestant majority, were

not allowed access to education or the benefits of education, were limited in the use

32

and rights of their property, could not build chapels freely, and could not hold offices

of public trust. English Catholics could not pray safely in public places or be seen

in their religious devotion. So much so, that even on the voyage to Maryland, Catholics were warned by their Catholic benefactor, Lord Baltimore, not to practice their

faith in public aboard ship lest they provoke their few Protestant co-travelers. Nor

could Catholics count on the financial support of the state on equal terms as nonCatholics, or on the equal protection of the law.

Most of these forms of persecution are not so different than the impediments on

religious liberty we experience today. The principal distinction appears to be that

such discrimination is carried out in what appears to many to be the establishment

of a secular state hostile to religion, rather than establishment of the Church of

England, neither of which were intended by the framers or the founding fathers who

placed their trust in God.

I venture to say, that a Maryland Catholic of 1649 deposited here today would

easily recognize current state actions discriminating against people of faith as ‘‘persecution’’ though we may be too patriotic, or in denial, to use that word as plainly.

Such restriction on religious exercise is caused first by the oppressive extension

of the Establishment Clause, and will not be cured by the Religious Liberty Protection Act alone. It is too painfully absurd that we live in a country that accepts and

widely televises high school prayer after a tragedy, but not before. Secondly, religious liberty has been eroded by a failure to sufficiently protect and defend the Free

Exercise Clause against encroaching laws. This I hope can be cured, in part, by this

Act.

I must state, however, that the House Bill, in my opinion, does not go far enough

in restoring a proper balance between the Free Exercise Clause and the Establishment Clause, and chiefly I regret that it does not include language protecting

against laws which would, without a compelling state interest, require action inconsistent with religious tenets. The House Bill fails also to deal with the hostility to

religion reflected in educational funding conditions, especially and ironically in

Maryland and other states that now fund some religiously affiliated colleges while

not others which are determined to be too religious.

In Washington State financial aid funds paid directly to students cannot now be

used by them at 11 Catholic and other religious colleges because, according to the

ACLU and the Washington courts, they ‘‘indirectly benefit’’ religious colleges. While

in New York State, schools such as Jesuit-run Fordham University have long had

to deny their Catholic identity, removing Crucifixes from classrooms, for example,

so as to get state financial support—a repugnant result, especially in the Christian

context. As Justice Clarence Thomas recently wrote in his solitary dissent in Columbia Union College v. Clarke, it is time to ‘‘reaffirm that the Constitution requires

neutrality not hostility toward religion.’’

But the Religious Liberty Protection Act is a positive step and one which I hope

will borrow some energy away from emotional trigger issues and direct some serious

attention to those solutions that might restore those civilizing agents which for two

centuries successfully lighted the American way.

In addition to the direct effects which state action has on the free exercise of religion, I am also concerned with the indirect, but no less intrusive effect that such

legislation has in causing internal conflict and division among members of the

church and their leadership. This has been especially painful in the area of Catholic

higher education, where state and federal funding have been used as a foil for much

mischief. Such intrusive legislation and the factiousness which it causes among people of faith was surely not intended by the framers when they affirmed separation

of church and state.

In 1783, before our present Constitution was written, Benjamin Franklin assured

Vatican ambassadors in Paris that the American Congress (in Philadelphia) ‘‘should

not in any case, intervene in the ecclesiastical affairs of any sect or any religion established in America.’’ Mr. Franklin was not a lawyer, but he no doubt meant to

say ‘‘directly or indirectly.

The specter of state intrusion, directly and indirectly, is especially felt by the

Catholic Church which holds teaching on issues of justice and morality, and education at all levels, as having an especially important place in its religious exercise

and Christian mission. This year Catholics are engaged in a year-long discussion on

the course of Catholic higher education. Benjamin Franklin would be horrified at

how much consideration Catholic leaders are having to give to whether the state

will allow them to assert their religious identity freely, and without interference or

penalty.

I believe Congress has a long-awaited role to play in restoring religious liberty

and the Religious Liberty Protection Act suggests that we may be turning in the

correct direction, even if against the tide of popular culture—for our children’s sake.

33

Thank you very much.

Senator KENNEDY. Mr. Mincberg.

STATEMENT OF ELLIOT M. MINCBERG

Mr. MINCBERG. Thank you very much, Senator Kennedy. I want

to thank you as well as Chairman Hatch for holding these hearings

and for your concern that we have seen over, I can’t even count

how many years, for the issue of religious liberty.

Religious liberty, as the Senators on this committee know, has

two critical components to it. Religious liberty includes both the

right of individuals to the free exercise of their religion, and the

right to be free from improper government coercion or promotion

of religious activity, otherwise known as the Establishment Clause.

The principle of religious liberty and true government neutrality

toward religion is protected both by the Free Exercise Clause and

by the Establishment Clause, and we see threats to both that are

poised on the horizon today. That is why these hearings could not

come at a better time.

With respect to the subject of religion and the subject of religious

neutrality, it is important to point out that sometimes true neutrality toward religion may mean that religion needs to be treated a

little bit differently. On the Establishment Clause side, for example, take a look at the Equal Access Act, which Chairman Hatch

was very involved in sponsoring in the early 1980’s.

The Equal Access Act says that if a middle or high school permits a non-curriculum-related chess club to meet, it also has to permit a religious or political club to meet. But the Act also says very

specifically that even though a paid teacher can sponsor the chess

club, that teachers can be present in a religious club meeting only

in a non-participatory capacity. Why? Because that prevents the

perception or reality of government promotion to sponsorship of

sectarian religious activity that would violate religious liberty. It,

in fact, preserves true neutrality, even if religion is treated a little

bit differently.

On the free exercise side of the coin, similarly, religion sometimes has to be treated a little bit differently to produce true neutrality. We know this from the pre-Smith free exercise jurisprudence that if you had a facially-neutral law that nonetheless had

a substantial negative impact on religious practice, a religious adherent might be entitled to an exemption that a non-religious adherent would not.

For example, a community could decide that it was totally dry,

but someone wanted to use wine with communion, the government

would have to have a very good reason, as you put it before, Senator Hatch, before that neutral law could be applied in a way that

would harm religious liberty.

Unfortunately, the Supreme Court, as we all know, deviated

from that rule of true neutrality in the Employment Division v.

Smith case. And as has been discussed before and I won’t repeat,

the Court compounded that error in Flores by, in fact, overturning

the Religious Freedom Restoration Act.

Fortunately, even without further action by Congress, Boerne has

not been the last word in terms of protecting the free exercise of

religion. First of all, a number of States have made clear that the

34

substantial burden compelling interest test does apply as a matter

of State law, either by interpreting their State constitutions or by

passing State legislation. This, I think, underlines the point made

by Senator Hatch before that the Government in this country is by

no means systematically hostile to religion even though there is

still a need for these protections.

In addition, particularly since the Boerne decision, lower Federal

courts have utilized the compelling interest rest to protect religious

free exercise in some cases. The best recent example was in the

Third Circuit Court of Appeals in a case out of New Jersey where

a police department had a health exemption to a ‘‘no beards’’ rule,

but wouldn’t enact a religious exemption.

And the Third Circuit Court said there that under those circumstances where you have a facially-neutral rule and you have

some exemptions, you have got to have a compelling interest before

you can deny religious exemptions. We think that is a very positive

development toward protecting religious liberty that I think this

committee should take cognizance of.

Nonetheless, we do believe that religious free exercise continues

to be substantially and unnecessarily burdened in some instances

around the country by facially-neutral laws. As the record before

Congress reflects, this is a particular problem in the land use area.

I won’t repeat some of the very poignant examples given by some

of my colleagues today. As a result of that, People for the American

Way has continued to support the Religious Liberty Protection Act.

I should point out that all that Act would do would be to restore

in some instances the compelling interest test. It doesn’t change

the outcome of cases. My colleague, Mr. Farris, and I disagreed

substantially in the Hawkins County case, which we considered an

example of censorship. He considered it an example of burden on

the free exercise of religion. Prior to the Smith decision—that decision came out our way, as a matter of fact, and we have no reason

to believe that RLPA would change that one iota, but it does restore the important compelling interest standard.

Now, we also recognize, as several members have pointed out

today, that some members have expressed reservations about how

RLPA would affect civil rights. PFAW shares some of these concerns. We believe, however, that the courts would not and should

not accept religious belief or exercise as a basis for an RLPA-created exemption from civil rights laws, and I elaborate more on this

in my written testimony. I won’t elaborate on it now. We hope that

as the legislative process concerning this continues, civil rights and

other concerns can be resolved, and we look forward to working

with you, Senator Hatch, and all to try to accomplish this objective.

But, finally, I want to note a different threat to religious liberty

that has recently arisen unfortunately during this Congress. The

House of Representatives has recently approved the so-called Ten

Commandments amendment to its juvenile justice bill. That

amendment will purport to authorize public display of the Ten

Commandments as a religious act, as well as captive-audience

prayer and religious expression by teachers, by principals, by drill

sergeants, by any other individual on public property.

This provision, in our view, threatens religious liberty for all. In

our public schools, where truly voluntary prayer and religious exVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 JUNE23.TXT SJUD2 PsN: SJUD2
35

pression is already permitted, it would turn religion into a source

of conflict and division. We urge the members of this committee

and the Senate to stand firm against this provision, as well as to

continue to explore very seriously the important issues that are

presented by the Free Exercise Clause.

Thank you very much.

The CHAIRMAN. Thank you, Mr. Mincberg.

[The prepared statement of Mr. Mincberg follows:]

PREPARED STATEMENT OF ELLIOT M. MINCBERG

Thank you very much for inviting me to testify before this Committee today on

the important subject of protecting religious liberty and its exercise. I am vice-president and legal director of People For the American Way, a non-partisan citizens’ organization with over 300,000 members vitally concerned with protecting and promoting religious liberty. This includes both the right of individuals to the free exercise of their religion and the right to be free from improper government coercion or

promotion of religious activity. I have been extensively involved in litigation and legislation relating to these issues, and have advised parents, teachers, religious leaders, school districts, and religious organizations on these subjects, including serving

on the Committee on Religious Liberty of the National Council of Churches.

The principle of religious liberty and government neutrality towards religion is

enshrined in the First Amendment’s twin guarantees against government interference with the free exercise of religion and against government establishment of

religion. Sometimes, however, true neutrality means that religion must be treated

a little differently. For example, with respect to Establishment Clause values, consider the Equal Access Act, passed by Congress in 1984. Under the Act, if a middle

or high school permits a chess club or a political club unrelated to the curriculum

to meet, it must also permit a religious club to meet. But even though a paid public

school teacher could be asked to guide and participate substantively in the activities

of a chess club, the Act specifically provides that teachers or other school employees

can be present at a religious club meeting ‘‘only in a nonparticipatory capacity.’’ 20

U.S.C. 4071(c)(3). That avoids the perception or reality of government promotion or

sponsorship of sectarian religious activity that would violate religious liberty. It preserves true neutrality even though religion may be treated a little differently than

non-religious activities.

Similarly, on the Free Exercise Clause side of the coin, religion is also sometimes

treated a little differently to ensure true neutrality. Congress has recognized that

principle in providing for an exemption for religious institutions from the anti-discrimination provisions of Title VII of the 1964 Civil Rights Act, an exemption upheld

by the Supreme Court. This principle was also recognized by free exercise jurisprudence prior to 1990. As the Supreme Court had held, where a government practice

or law imposed a substantial burden on the free exercise of religion, even if the law

or practice was neutral on its face, it could not be applied to religious free exercise

unless it was necessary to do so in order to promote a compelling government interest. For example, a town could decide to prohibit the consumption of alcohol, but

would need to prove a compelling interest in order to apply that prohibition to a

church that used wine in conjunction with communion.

Unfortunately, the Supreme Court changed that rule in its 1990 decision in the

Employment Division v. Smith case. After Smith, a government rule substantially

burdening free exercise can be challenged under the First Amendment only if it can

be shown that it specifically targets religion. Facially neutral laws that substantially burden religion, like the Prohibition hypothetical I just mentioned, cannot be

challenged under the Free Exercise Clause. A virtually unanimous Congress, backed

by President Clinton and by religious and civil liberties advocates across the spectrum, sought to restore the compelling interest rule as a matter of statutory law

through the Religious Freedom Restoration Act (RFRA) in 1993. But in 1997, in City

of Boerne v. Flores, the Supreme Court ruled that Congress did not have the power

to enact RFRA as applied to state and local governments.

Fortunately, even without further action by Congress, Boerne has not been the

last word in terms of protecting the free exercise of religion. First, a number of

states have made clear that the substantial burden/compelling interest test applies

to religious exercise as a matter of state law, either through state-level RFRA legislation or through state court decisions interpreting state constitutions. This development helps demonstrate that the government in this country is by no means systemVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
36

atically hostile to or discriminatory against religion, although there clearly is a need

for protection of religious liberty.

In addition, particularly since the Boerne decision, lower federal courts have utilized the compelling interest test to protect religious free exercise in cases involving

facially neutral rules where the government improperly refuses to provide religious

exemptions where non-religious exemptions are permitted. For example, in the recent case of Fraternal Order of Police v. Newark, 170 F.3d 359 (3rd Cir. 1999), the

court ruled that the police department was constitutionally obligated to accommodate police officers who wanted an exemption from the department’s ‘‘no facial hair’’

rule for religious reasons, since the department had agreed to accommodate officers

seeking an exemption for health reasons. This is based on a principle recognized

even in Employment Division v. Smith itself: when the government has provided for

a system of exemptions from a burdensome facially neutral rule on non-religious

grounds, ‘‘it may not refuse to extend that system to cases of religious hardship

without compelling reason.’’ Smith, 494 U.S. at 884. Decisions like Newark offer real

potential for helping protect religious free exercise.

Nevertheless, we believe that religious free exercise continues to be substantially

and unnecessarily burdened in some instances around the country by facially neutral laws and practices. As the record before Congress reflects, this is most serious

in the area of zoning and land use regulation. It is because of these problems, and

the importance to religious liberty of ensuring protection of religious free exercise

against substantial and unnecessary burdens by government, that PFAW has continued to support the Religious Liberty Protection Act (RLPA).

In my testimony before this Committee last year, I discussed the constitutional

bases for RLPA under the Commerce Clause, the Spending Clause, and Section 5

of the Fourteenth Amendment, so I will not repeat that testimony today. We recognize that as RLPA has been considered in the House this year, some members of

Congress have expressed reservations, including the issue of how RLPA would affect

civil rights laws. As an organization that actively works to defend the civil rights

of all Americans, PFAW shares some of these concerns. As an organization that has

also been involved in helping to draft and support RLPA, we believe that the courts

would not and should not accept religious belief or exercise as a basis for an RLPAcreated exemption from civil rights laws. The Supreme Court has already ruled, for

example, that government has a compelling interest in preventing race and sex discrimination. In the California Smith case, Smith v. Fair Employment and Housing

Commission, 12 Cal. 4th 1143 (1996), the state supreme court appropriately rejected

a RFRA defense to a law banning housing discrimination on the basis of marital

status. Courts that appear to have accepted such claims have based their decisions

on federal or state constitutional provisions, which would remain in effect regardless

of RLPA. Nonetheless, we hope that as the legislative process concerning RLPA continues, civil rights and other concerns can be resolved, and we hope to work with

all involved to help accomplish this objective.

Finally, it is important to note a different threat to religious liberty that has recently arisen during this Congress. The House of Representatives has recently approved the so-called ‘‘Ten Commandments’’ amendment to its juvenile justice bill.

That amendment would purport to authorize public display of the Ten Commandments as a religious act, as well as ‘‘captive audience’’ prayer and religious expression by teachers, principals, drill sergeants, and any other individual on public property. This provision threatens religious liberty for all. In our public schools, where

truly voluntary prayer and religious expression is already permitted, it would turn

religion into a source of conflict and division. We urge the members of this Committee and the Senate to stand firm against this provision.

Thank you again for the opportunity to testify today, and we look forward to continuing to work with Chairman Hatch and Senator Kennedy and their colleagues

on a truly bipartisan basis to seek to protect religious liberty in the future.

The CHAIRMAN. Mr. Farris, we will take your testimony at this

time.

STATEMENT OF MICHAEL P. FARRIS

Mr. FARRIS. Mr. Chairman, thank you so much for holding this

hearing and for inviting me to participate. It has been convened

today to consider the state of religious liberty and whether or not

it requires corrective action.

I have been an attorney for 23 years, and about 19 of those years

I have been engaged in constitutional litigation primarily in the

37

area of religious liberty. And I want to attempt to do three things

today: first, outline instances where people have been inappropriately, at least in my judgment, denied religious liberty, and the examples I will use will be exclusively from cases I have personally

handled; second, address underlying reasons that I believe that

such denials are occurring in our society; and, third, suggest some

general ideas for finding a solution.

The first case I will refer to occurred in Oak Harbor, WA, where

a mother had her son removed from her custody and placed in foster care solely because of a dispute over church attendance. The 13-

year-old boy was willing to attend church on Sunday morning, but

the family had a practice of attending on Sunday morning, Sunday

evening and Wednesday evening. The superior court judge ruled

that church once a week was enough for any 13-year-old boy, and

placed the boy in foster care.

A different high school student in Mead, WA, was assigned to

read a book full of what she and her family believed to be attacks

on her religious beliefs. I will cut to the most offensive of them, a

scene where a character proclaims, ‘‘I’m going to blow the ass off

of Jesus Christ, that long-legged white son-of-a’’—and I will omit

the rest of the statement. Cassie Grove refused to read that book,

and after a serious debate with her teacher was allowed an alternative book. But the price of the alternative was to be stood in

front of the class and be ridiculed by the teacher.

The Ninth Circuit Court of Appeals found no free exercise violation in this act of ridicule of Cassie Grove, and it denied her family’s claim that the disparagement of Jesus Christ violated the principle of religious neutrality that is demanded by the Establishment

Clause. The Supreme Court denied cert in that case.

About a dozen students were expelled in the case that Mr.

Mincberg mentioned, in the Hawkins County, TN, schools for refusing to read textbooks which the school district stipulated violated

the religious convictions of the students and their parents. The

Sixth Circuit held that it was not a violation of the Free Exercise

Clause to condition attendance at the public schools upon a child’s

willingness to be coerced to read religiously offensive material.

I will skip over some others that are in my written testimony

and just note this. The important thing about each of these cases

is that they arose prior to the Smith decision. All of these cases

were decided under the test of strict judicial scrutiny, using the

compelling interest, least restrictive means rubric that was in place

prior to Smith.

In a conversation I had with Mike McConnell, a professor at the

University of Utah, he said in another context—we were talking

about parents’ rights at the time, but he said when it comes right

down to it, the Government can make its interests seem pretty

darn compelling whenever it wants to. And I frankly have grown

less than enamored with the compelling interest test.

In my judgment, although religious liberty shouldn’t be an absolute right, it should be pretty darn close to an absolute right. And

the Government’s ability to overcome religious liberty needs a better protector than the compelling interest test has proven to be

over time. We lose far, far too many cases, and I think the basic

reason is that the compelling interest test is a balancing test. And

38

all balancing tests that are active in the current Supreme Court

docket, at least in this relevant area, are basically an opportunity

for the judges to substitute their opinions for the opinions of parents, in the case of how often you go to church in Oak Harbor, WA,

and other people. And the ability to use balancing tests as a

pretensive and objective law, I think, is frankly dangerous to our

liberty.

There is a second reason, I think, that we face these kinds of

problems, and that is one that I think, in my opinion at least, particularly affects conservative religious people these days. Conservative religious people, at least from my vantage point, includes

born-again and fundamental Evangelicals, Catholics who are serious about their faith, Orthodox Jews, and other socially conservative faiths, such as the LDS Church.

An example of this bigotry was reported in the Washington Post

on May 21 of this year. Mark Earley, the Attorney General of Virginia, requested a court to review certain government bonds which

were sought by Regent University, which on the political side I

don’t really particular agree with, Regent seeking such bonds.

But listen to what Barry Lynn from Americans United for Separation of Church and State said, ‘‘Regent University is not just a

school with a historical religious affiliation. This is a fundamentalist school. There is no way Virginia can drop over $50 million at

this school’s collection plate. We will not let that happen.’’

It should not matter that this school is fundamentalist. If Americans United was standing for a principle of equal treatment for all,

religious and non-religious alike, I would understand that. The

ACLU takes a principled stand, and even though I disagree with

them about 90 percent of the time, I admire their consistency on

principles they profess. But this kind of antipathy and bigotry that

finds its way against conservative religious people these days, I

think, needs to be addressed as bigotry for what it is.

What would we say if someone took the position of, well, it is not

just a historically religious college, it is a Jewish college, therefore

it shouldn’t get any funding? We would call that bigotry, and the

members of this Senate would stand up and condemn it for what

it is, and I would urge you to do that. No legislation is needed. Just

simply stand up and condemn it.

Very quickly, on the issue of carve-outs, I oppose all carve-outs

to religious liberty, including financial carve-outs, which is exactly

what the Commerce Clause approach will do. It protects in a favorable way the rich over the poor, the big over the small, the institution over the individual. I believe that religious liberty needs to be

for everybody, for every faith, every individual, no matter how rich,

how poor, no matter how Jewish, no matter how fundamentalist.

No matter who you are or where you are or what faith you profess,

everyone should have full religious liberty.

Thank you.

The CHAIRMAN. Thank you, Mr. Farris.

[The prepared statement of Mr. Farris follows:]

PREPARED STATEMENT OF MICHAEL P. FARRIS

Mr. Chairman and members of the Committee.

This hearing has been convened to consider whether the state of religious liberty

in this nation requires corrective action. I have been an attorney for 23 years and

39

have been engaged primarily in constitutional litigation, specifically religious liberty

litigation, for at least 19 of those 23 years.

My testimony today will endeavor to do three things:

1. outline instances where people have been inappropriately (in my judgment)

been denied religious liberty. The examples I use come exclusively from cases

that I have personally handled;

2. address the underlying reasons that such denials occur in our society; and

3. suggest some general ideas for finding a solution.

A mother in Oak Harbor, Washington, had her son removed from her custody and

placed in foster care solely because of a dispute about church attendance. The 13

year-old boy only was willing to attend church on Sunday morning. The family attended church on Sunday morning, Sunday evening, and Wednesday night. The Superior Court judge ruled that church once a week was enough for a 13 year-old and

placed the boy in foster care.

A high school student in Mead, Washington was assigned to read a book full of

what she and her family believed to be attacks on her religious beliefs. One character talked of a preacher who would ‘‘throw his Bible in the privy’’ in order to pursue an illicit sexual relationship. The main character, a teen-age boy who was designed to relate to the reader, concluded the book by saying he had enough church

for a while in his life. And many other minor disparaging remarks about religion

in general and Christianity specifically were found in this book. But the most offensive thing was a scene where a character proclaims, ‘‘I’m going to blow the a** off

of Jesus Christ, that long-legged white son-of-a-b****.’’

Cassie Grove refused to read the book and after a serious debate was allowed an

alternative book. But the price of this alternative was to be stood in front of the

class and be ridiculed by her teacher. The Ninth Circuit Court of Appeals found no

free exercise violation in this active ridicule of Cassie Grove and it denied her family’s claim that the use of this disparaging attack on Jesus Christ violated the principle of religious neutrality demanded by the Establishment Clause. The Supreme

Court denied certiorari. Caroline Grove v. Mead School District No. 354, 474 US

826, 88 L Ed 2d 70 (1985).

About a dozen students were expelled from the schools of Hawkins County, Tennessee for refusing to read textbooks which the school district stipulated violated

the religious convictions of the students and their parents. The Sixth Circuit Court

of Appeals held that it was not a violation of the Free Exercise Clause to condition

attendance in a public school upon a child’s willingness to be coerced to read religiously offensive material. Mozert v. Hawkins County Public Schools, 579 F.Supp.

1051 (E.D. Tenn. 1984), 582 F.Supp. 201, (E.D. Tenn. 1984), 765 F.2d 75 (6th Cir.

1985), 647 F.Supp. 1194, (E.D. Tenn. 1986), 827 F.2d 1058 (6th Cir. 1987), cert. denied, 98 L.Ed.2d 993 (1988).

For a number of years it was illegal to home school one’s children in North Dakota except in circumstances that only permitted about 2 percent of families to

qualified. The law limited home schooling to currently certified teachers even

though there was no evidence that teacher’s certification was necessary to achieve

good academic results in home education. When one of the 98 percent of the families

appeared before the Supreme Court of North Dakota arguing that the law violated

their free exercise of religion, the prosecutor defended the constitutionality of the

requirement arguing that teacher’s certification was necessary to protect important

state interests. The interests he identified were: (1) the need for children to learn

lessons from bullies on the playground; and (2) the need for children to have examination screenings in school. I pointed out to the court that one would hope that

certified teachers were not bullies on playgrounds so it was difficult to see the relevance of this justification for the intrusion into religious liberty. I also pointed out

that it was quite ironic to suggest that certified teachers in home schools could be

justified by the need for exams when the mother in the case at bar was a registered

nurse and the father was one of North Dakota’s very few physicians who specialized

in eye surgeries. Despite the lack of any evidence for a better justification for this

rule, the Supreme Court of North Dakota denied the family’s request for a free exercise based exemption from this law of general applicability. State v. Patzer, 382

N.W.2d 631 (N.D. 1986).

The important thing to note about each of these cases is that they arose prior to

the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). All were decided under the test

of strict judicial scrutiny using the compelling interest, least restrictive means rubric that was in place prior to Smith.

Constitutional scholar Michael McConnell, now a professor at the University of

Utah, and I once had a conversation about the validity of the compelling interest

40

standard in the context of parental rights legislation. He said, ‘‘When it comes right

down to it, the government can make its interest seem pretty dam compelling whenever it wants to.’’ I would agree with that but add this: The government can do a

pretty lousy job of providing evidence and argument to demonstrate a compelling

governmental interest, but it rarely matters—the pro-government anti-religious bias

of the courts is so strong that it seldom matters.

There are two underlying problems that result in the growing denial of religious

freedom that you will hear about today and as you study this issue. The first problem is the use of judicial balancing tests. Balancing tests have an appearance of

being a rule of law, but in practice are little more than mechanisms whereby judges

substitute their personal opinions for the opinions of others. The instance in Oak

Harbor is perhaps the best example, where a judge substituted his opinion on

church attendance for that of the child’s parents.

The compelling government interest test is a balancing test. It is better than some

other balancing tests, but has not proven to be an ideal tool for protecting religious

liberty. The balance has been struck far-too-often, in my opinion, in favor of the government. The First amendment deserves better.

There is a second reason that I believe we face these kinds of problems. There

is a pervasive anti-religious bigotry that has a grip on important components of the

societal elites. This bigotry is especially strong in the entertainment industry-although there are political forces who clearly capitalize on this fear and hatred of

religious people. From my perspective the groups which receive the brunt of these

attacks are born again evangelical and fundamental Christians, Catholics who are

serious about their faith, and other socially conservative faiths such as the LDS

church.

An example of this bigotry was reported in the Washington Post on May 21, 1999.

Virginia’s Attorney General, Mark Earley, requested court review of certain government bonds which were sought by Regent University. (As an aside let me say that

I will host a ground breaking ceremony for a new college in Virginia this Friday.

Patrick Henry College will not seek this kind of bond or any other form of government aid. I do not believe that direct government aid for religious institutions is

wise.) But listen to what Barry Lynn from Americans United for Separation of

Church and State said: ‘‘[Regent University] is not just a school with a historical

religious affiliation. This is a fundamentalist school * * *. There’s no way Virginia

can drop over $50 million in the school’s collection plate; we will not let that happen.’’

It should not matter that the school is fundamentalist. If Americans United was

standing for a principle of equal treatment of all—religious and non-religious alike—

I would understand. The ACLU takes such a principled stand and even though I

disagree with that organization at least 90 percent of the time, I admire their consistency on the principles they profess. But statements that strongly suggest antipathy for a particular kind of religion evidence only bigotry not a stand on principle.

People for the American Way came into existence to oppose the organized participation by fundamentalist and evangelical Christians in the political sphere. They

publish a report called Religious Right Watch. What would we call a group that

came into existence to oppose Jews or Episcopalians or Lutherans who had organized politically? What would we call a group that published a report called Jewish

Watch or some similar name? We would call such people religious bigots and we

would treat them like David Duke or other social pariahs who advocate positions

that are similar inappropriate in a civilized society.

I strongly believe that this kind of religious bigotry which holds sway among the

self-proclaimed elites lies at the heart of much of the denial of religious freedom we

see in our country.

I suggest two things.

First, is a non-legislative suggestion. I do not believe we ever ought to pass a law

to outlaw or control religiously bigoted words or attitudes. Those who want to deride

fundamentalist Christians, for example, ought to have the absolute freedom to do

so. My request would be to ask you good Senators from both parties to simply use

your public presence to marginalize such actions and statements. When someone

says that they are going to oppose government funding for a religious school especially because it is a fundamentalist school, then I would ask you to stand up and

publicly denounce that as bigotry. Do what you would do if David Duke stood up

and attacked a Jewish college’s right to participate in a government program, not

on constitutional grounds alone, but because it was a Jewish school.

If we want to improve the lot of religious litigants in courtrooms, we need to improve the lot of religious people in the way they are discussed in society at large.

You are a part of that public discussion and I urge you to use your speeches and

writings to stand up whenever anyone in this country is disparaged for their faith.

41

The second thing I would urge you to do is to refrain from enacting legislation

which fails to provide universal religious freedom protection for all.

In 23 years I have represented Jews, Black Muslims, Catholics, Mormons, Baptists, Pentecostals, and Protestants of every stripe. I have represented rich and poor,

young and old, black and white. I am convinced that if religious freedom is denied

to any group, in the long run no group is safe from the heavy hand of government.

The House has before it a bill called the Religious Liberty Protection Act which

has as its principle feature a provision that protects the free exercise of those who

can demonstrate a nexus to interstate commerce. The proponents of this feature

admit that it is not a universal provision and not every claimant will be able to

meet this test. The lines that are drawn with the pen of the Commerce Clause are

financial lines. This will favor rich over poor, big over small, the institution over

the individual. Those who need judicial protection the least are the big, the rich,

and the institutional. Those who need judicial protection the most are the small, the

poor, and the individual.

I urge you to consider solutions that include everyone and exclude no one-whether

the lines which are drawn are denominational or commercial. Religious freedom

must be for all or no one is truly safe.

The only other thing I would suggest for a solution is this: Craft a provision that

works more like Fourth Amendment jurisprudence than the last thirty years of

First Amendment jurisprudence. For the last five years I have been doing an increasing amount of Fourth Amendment work as social workers and police officers

invade home schooling homes without warrants, probable cause, or exigent circumstances. I have become a great admirer of the historical jurisprudence of the

Fourth Amendment. By comparison to the balancing tests in the First Amendment

area, the Fourth Amendment is far more objective and far more dependable in actually protecting freedom. We don’t need any more laws or tests which allow judges

to substitute their views for the views of parents, religious individuals, legislators,

or Congress. Even though the compelling interest test is better than minimal judicial scrutiny—at least on paper—we can and should and must do better. Free exercise cannot be absolute, but it should come reasonably close. And whatever lines are

drawn, they should never exclude people on the basis that they are too fundamentalist, or too Jewish, or too poor, or too small. Religious freedom must be for everyone or no one is truly safe.

The CHAIRMAN. Mr. Anders.

STATEMENT OF CHRISTOPHER E. ANDERS

Mr. ANDERS. Mr. Chairman and members of the committee, the

American Civil Liberties Union greatly appreciates the opportunity

to present this testimony on the importance of ensuring that any

Federal legislation enhancing the protection of religious exercise

will not cause any unintended harm to State and local civil rights

laws. Such properly drafted legislation would be consistent with

the longstanding practice of the Congress in refraining from undermining or preempting State and local civil rights laws that may be

more protective of civil rights than Federal law.

The ACLU historically supports legislation providing stronger

protection of religious exercise, even against neutral, generally applicable governmental restrictions. But our concern is that some

courts may turn a Federal statutory shield for religious exercise

into a sword against State and local civil rights laws. Thus, the

ACLU regrets that we must ask the committee to refrain from

passing any religious liberty legislation unless it will have no adverse consequences on the hard-won civil rights laws enacted and

enforced by State and local governments.

For nearly a decade, the ACLU has fought in Congress and the

courts to preserve or restore the highest level of constitutional protection for claims of religious exercise. In fact, we were founding

members of the coalition that supported the Religious Freedom

42

Restoration Act in 1993 and the Religious Freedom Protection Act,

RLPA, during most of the last Congress.

However, we are no longer part of the coalition supporting RLPA,

as introduced in the House, because we could not ignore the potentially severe consequences that it may have on State and local civil

rights laws. Although we believe that courts should find civil rights

laws compelling and uniform enforcement of the civil rights laws

the least restrictive means, we know that at least several courts

have already rejected that position.

We have found that landlords across the country have been 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 the landlords owned so many investment properties that

they were outside the State law’s exemptions for small landlords.

These landlords all sought to turn the shield of religious exercise

protections into a sword against the civil rights of prospective tenants.

The Ninth Circuit recently decided a claim by landlords that

compliance with the local civil rights law protecting persons from

discrimination based on marital status burdened the landlord’s 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 defendants in similar

civil rights may have a religious liberty defense against State civil

rights claims. The only two State court decisions that have found

in favor of the civil rights plaintiffs in similar cases are in California and Alaska, but both States are in the Ninth Circuit.

An improperly drafted Federal statute could 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 itself could find their protections

under State or local laws eroded by Federal law. The enactment of

an unamended RLPA would represent a sharp break from a long

congressional tradition of exercising restraint to avoid passing any

law that would undermine State or local civil rights laws.

In fact, Mr. Chairman, you and other members of this committee

have had an important role in encouraging States to develop their

own civil rights laws by publicly applauding the civil rights successes of many States. However, if Federal legislation such as an

unamended RLPA becomes law, an applicant for a job or housing

may have no State law protection against having to answer such

invasive questions 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, the committee should

not leave the problem of a Federal religious liberty statute’s potenVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 JUNE23.TXT SJUD2 PsN: SJUD2
43

tial effect on State and local civil rights laws unresolved. The

stakes are too high. Instead, the ACLU urges you to consider other

alternatives for providing a shield for religious exercise without

creating a sword against civil rights laws.

As Texas State Representative Hochburg will testify, Governor

Bush signed into law only 2 weeks ago a State RFRA that protects

Texas’ civil rights laws. On the House side, Congressman Nadler

offered today an amendment that would provide similar protection

as an amendment to RLPA.

The ACLU very much appreciates your willingness to consider

these concerns as you draft legislation. We believe that members

of Congress who justifiably care deeply about protecting both religious exercise and State and local civil rights laws should not be

forced to choose. It is a false choice because both goals can be made

compatible. We hope to work with members of the committee to resolve this problem.

Thank you once again for the opportunity to present our concerns.

The CHAIRMAN. Thank you, Mr. Anders.

[The prepared statement of Mr. Anders follows:]

PREPARED STATEMENT OF CHRISTOPHER E. ANDERS

I. INTRODUCTION

Mr. Chairman and members of the Committee, the American Civil Liberties

Union greatly appreciates the opportunity to present this testimony on the importance of ensuring that any federal legislation enhancing the protection of religious

exercise will not cause any unintended harm to the enforcement of state and local

civil rights laws. Such properly drafted legislation would be consistent with the

long-standing practice of the Congress in refraining from undermining or preempting state and local civil rights laws that may be more protective of civil rights than

federal law.

The ACLU historically supports legislation providing stronger protection of religious exercise—even against neutral, generally applicable governmental restrictions.

But our concern is that some courts may turn a federal statutory shield for religious

exercise into a sword against state and local civil rights laws.

Thus, the ACLU regrets that we have no choice but to ask the Committee to refrain from passing any religious liberty legislation unless it will have no adverse

consequences on the hard-won civil rights laws enacted and enforced by state and

local governments. For nearly a decade, the ACLU has fought in Congress and the

courts to preserve or restore the highest level of constitutional protection for claims

of religious exercise. 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

in 1993, and the Religious Liberty Protection Act (‘‘RLPA’’) during most of the last

Congress.

However, we are no longer part of the coalition supporting RLPA, as introduced

in the House, because we could not ignore the potentially severe consequences that

it may have on state and local civil rights laws. Although we believe that courts

should find civil rights laws compelling and uniform enforcement of those civil

rights laws the least restrictive means, we know that at least several courts have

already rejected that position.

We have found that landlords across the country have been 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 of the landlords owned so many investment properties

that they were outside the state laws’ exemptions for small landlords. These landlords all sought to turn the shield of religious exercise protections into a sword

against the civil rights of prospective tenants.

The U.S. Court of Appeals for the Ninth Circuit recently applied a strict scrutiny

standard of review to a local civil rights law in deciding a claim by landlords that

compliance with that law protecting unmarried couples from discrimination based

44

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 defendants in similar civil rights cases 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.

An improperly drafted federal statute could 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 itself, could find their protections under state or

local laws eroded by federal law.

The enactment of an unamended RLPA would represent a sharp break from a

long Congressional tradition of exercising restraint to avoid passing any law that

would undermine state or local civil rights laws. In fact, Mr. Chairman, you and

other members of this Committee have had an important role in encouraging states

to develop their own civil rights laws by publicly applauding the civil rights successes of many states.

However, if federal legislation such as an unamended 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, the Committee should not leave the

problem of a federal religious liberty statute’s potential effect on state and local civil

rights laws unresolved. The stakes are too high.

Instead, the ACLU urges you to consider other alternatives for providing a shield

for religious exercise without creating a sword against civil rights laws. As Texas

State Representative Scott Hochberg will testify, Texas Governor George W. Bush

signed into law—only two weeks ago—a state RFRA that protects Texas’ civil rights

laws. On the House side, the ACLU and many other groups are supporting a civil

rights amendment to RLPA offered by Congressman Nadler that will have a similar

result.

The ACLU very much appreciates your willingness to consider these concerns as

you draft legislation. We believe that members of Congress who justifiably care

deeply about protecting both religious exercise and state and local civil rights laws

should not be forced to choose. It is a false choice because both goals can be made

compatible. We hope to work with members of the Committee to resolve this problem. Thank you once again for this opportunity to present our concerns.

II. SCOPE OF THE POTENTIAL PROBLEM

The House of Representatives is presently considering H.R. 1691, the Religious

Liberty Protection Act of 1999 (‘‘RLPA’’), which would provide extensive federal statutory protection for religious exercise to replace or enhance the constitutional protection previously afforded religious exercise prior to a 1990 Supreme Court decision

that lowered the standard of review for religious exercise claims. H.R. 1691 is similar to legislation considered last year by both houses of Congress. H.R. 1691 provides, in relevant part, that:

a [state or local] government shall not substantially burden a person’s religious exercise in a program or activity, operated by a government, that receives federal financial assistance [or impose a substantial burden on religious exercise if the burden affects interstate commerce], even if the burden

results from a rule of general applicability * * *. [unless the] government

demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.

As introduced, H.R. 1691 does not have any provision specifically addressing its potential effect on state and local civil rights laws.

The scope of the potential civil rights problem raised by such religious freedom

statutes is broad. The U.S. Court of Appeals for the Ninth Circuit and four state

supreme courts have recently decided five cases with nearly identical fact patterns,

namely, landlords claiming that their religious beliefs defeat housing discrimination

45

1 In addition, the supreme courts of Michigan and Illinois recently vacated decisions that had

held that their respective state fair housing laws protecting persons based on marital status

served a compelling governmental interest and were narrowly tailored. McCready v. Hoffius,

1999 Mich. Lexis 694 (Mich. April 16, 1999), vacating and remanding, 586 N.W.2d 723 (Mich.

1998); Jasniowski v. Rushing, 685 N.E.2d 622 (Ill. 1997), vacating for lack of case or controversy,

678 N.E.2d 743 (Ill. App. 1997). The Michigan supreme court reversed its own earlier decision

after newly elected justices joined the court. The Illinois supreme court vacated an intermediate

appellate decision for the procedural reason of a lack of a case or controversy. 2 In Loving, the Supreme Court reversed a decision of the Virginia Supreme Court which had

affirmed, in part, a Virginia state trial court decision that stated:

Almighty God created the races white, black, yellow, malay and red, and he placed them

on separate continents. And but for the interference with this arrangement there would be no

Continued

claims brought by unmarried heterosexual persons based on marital status.1 The

decisions were split, with the Ninth Circuit and the Massachusetts and Minnesota

courts holding that a religious liberty defense could defeat civil rights claims based

on state or local laws. The courts could apply the reasoning in those decisions to

civil rights claims made by members of other groups that also receive less protection

from the courts and the federal government.

The intent of at least some of the supporters of H.R. 1691 is clear. Several witnesses during hearings before the House and Senate Judiciary Committees specifically stated their belief that RLPA could and should be used as a defense to civil

rights claims based on gender, religion, sexual orientation, and marital status.

In applying standards of review substantially similar to the RLPA religious exercise standard, numerous courts have recently decided cases in which defendants

raised a religious liberty defense to civil rights claims based on state or local laws

protecting against discrimination in housing based on marital status. See Thomas v. Municipality of Anchorage, 165 F.3d 692 (9th Cir. 1999) (governmental interest

in preventing marital status discrimination was not compelling); Smith v. Fair Employment & Housing Comm’n, 913 P.2d 909 (Cal. 1996) [hereinafter ‘‘Smith v. FEHC’’] (no substantial burden on religious exercise found); Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (remanding for further consideration of

whether the governmental interest in eliminating discrimination based on marital

status was compelling and whether uniform application of the state anti-discrimination law was the least restrictive means); Swanner v. Anchorage Equal Rights

Comm’n, 874 P.2d 274 (Alaska), cert. denied, 115 S. Ct. 460 (1994) (the government’s interest in providing equal access to housing was compelling and uniform application of the state anti-discrimination law was the least restrictive means); Cooper v. French, 460 N.W.2d 2 (Minn. 1990) (‘‘marital status’’ did not include unmarried cohabiting couples; a plurality of the court also found no compelling governmental interest in preventing marital status discrimination). Thus, in the Ninth Circuit and Massachusetts and Minnesota, defendants may successfully use their religious beliefs to defeat at least certain civil rights claims based on state or local laws.

In those housing cases, the owner-occupied exceptions found in all state fair housing laws did not apply; the rental properties at issue were not owner-occupied, but

instead were used solely for investment purposes. See Thomas, 165 F.3d 692 (statute provides exception for ‘‘space rented in the home of the landlord’’); Desilets, 636

N.E.2d at 238 n.8 (law applicable only to ‘‘dwellings that are rented to three or more

families living independently of each other’’); Swanner, 874 P.2d at—(statute provides exception for individual home ‘‘wherein the renter or lessee would share common living areas with the owner’’); French, 460 N.W.2d 2 (owner did not live in subject property, a two-bedroom house); Smith v. FEHC, 913 P.2d at 912 (Smith ‘‘does

not reside in any of the four units’’). The landlords all claimed that their sincerely

held religious beliefs about premarital sexual relations required them to deny housing to unmarried couples, despite state or local laws prohibiting discrimination on

the basis of marital status in housing. Although the religious liberty defense was

not always successful, the courts were split on whether the anti-discrimination laws

impose a substantial burden on the exercise of the landlord’s religion, and on whether the governmental interest in eradicating marital status discrimination in housing

is compelling and pursued by the least restrictive means.

Defendants in civil rights cases have also raised religious liberty defenses in cases

involving such characteristics as race or sexual orientation and in contexts ranging

from educational institutions to employment. For example, defendants or courts unsuccessfully raised religious rationales for racially discriminatory practices. E.g.,

Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (religious university

claimed that its religious beliefs about miscegenation justified racial discrimination

in admissions); see also Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a Virginia

antimiscegenation statute).2

46

cause for such marriages. The fact that he separated the races shows that he did not intend

for the races to mix. Decision of Circuit Court for Caroline County (Jan. 6, 1959), (quoted in

Loving, 388 U.S. at 3).

Prior to the Supreme Court lowering the standard of review for religious liberty

claims in Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), the use of

religious liberty defenses to civil rights claims was widespread. See, e.g., Bob Jones

Univ., 461 U.S. 574, 604; EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272

(9th Cir. 1982) (religious publishing house claimed that dismissing employee in retaliation for bringing discrimination charges was based on religious doctrine forbidding members of the church from bringing lawsuits against the church); Minnesota

ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985) (health

club’s owners insisted on hiring only employees whose religious beliefs were consistent with the owners’ religious beliefs despite state anti-discrimination law forbidding employment discrimination based on religion, sex, and marital status); Gay

Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. App. 1987) (religious university argued that its religious beliefs justified the denial of ‘‘university recognition’’

to gay student group, despite a District of Columbia civil rights law prohibiting discrimination on the basis of sexual orientation).

In addition, during congressional hearings last year, advocates for religious

groups testified that RLPA could be used as a defense to allow a sectarian vocational-tech school receiving federal funds to offer single-sex education, despite federal laws prohibiting sex discrimination in education; to permit a religiously-affiliated day care center to discriminate on the basis of religion in hiring instructors;

to permit employers with sincerely held religious beliefs to discriminate against gay

men and lesbians in hiring employees, despite state or local laws prohibiting discrimination on the basis of sexual orientation; and to allow landlords with religious

objections to refuse to rent to unmarried couples, despite state or local fair housing

laws protecting against discrimination based on marital status. State and local laws

also provide protection based on other characteristics that receive less than strict

scrutiny, such as disability, familial status, or pregnancy. The City of Los Angeles

filed an amicus brief in the Ninth Circuit Smith case, stating its concern that a religious liberty defense could undermine enforcement of its municipal law protecting

persons against discrimination based on HIV status.

Although the governmental interest in eradicating discrimination has usually

been found compelling, providing a new defense in civil rights actions will—at minimum—increase the cost of litigation for plaintiffs. However, the risk for persons

claiming civil rights protection based on characteristics that receive lower levels of

scrutiny is substantial. Because many of the groups claiming protection under state

and local civil rights laws do not currently receive heightened scrutiny for their

claims in court, and receive little or no explicit federal statutory protection from

Congress, it is likely that at least some courts would find that the governmental

interest in ending discrimination against these groups is not compelling. As noted

above, the courts are divided on the question, and these decisions have come from

states which traditionally have been vigorous and strict in enforcing their civil

rights laws.

III. APPLICATION OF THE FOUR-PART RLPA TEST TO CIVIL RIGHTS CLAIMS

H.R. 1691 provides, in relevant part, that:

a [state or local] government shall not substantially burden a person’s religious exercise in a program or activity, operated by a government, that receives federal financial assistance [or impose a substantial burden on religious exercise if the burden affects interstate commerce], even if the burden

results from a rule of general applicability * * *. [unless the] government

demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.

Thus, in deciding a federal RLPA challenge to a civil rights claim based on a state

or local anti-discrimination law, a court must apply a four-part test: (i) is the defendant’s discrimination ‘‘religious exercise’’?; (ii) does the applicable state or local

anti-discrimination law ‘‘substantially burden’’ the defendant’s religious exercise?;

(iii) is the government’s interest in eradicating the discrimination ‘‘compelling’’?; and

(iv) are uniformly applied anti-discrimination laws the least restrictive means of furthering any compelling governmental interest?

47

A. Is discrimination ‘‘Religious Exercise’’ under RLPA?

The first part of the RLPA test is whether a refusal to comply with civil rights

laws is religious exercise. Because H.R. 1691 defines religious exercise broadly as

‘‘an act or refusal to act that is substantially motivated by religious belief, whether

or not the religious exercise is compulsory or central to a larger system of religious

belief,’’ any civil rights defendants who can show that his or her discriminatory actions were ‘‘substantially motivated by religious belief’’ will be able to meet this

prong. Under the pre-Smith Free Exercise Clause jurisprudence which H.R. 1691

purports to restore, the ‘‘Supreme Court free exercise of religion cases have accepted, either implicitly or without searching inquiry, claimants’ assertions regarding

what they sincerely believe to be the exercise of their religion, even when the conduct in dispute is not commonly viewed as a religious ritual.’’ Desilets, 636 N.E.2d

at 237 (citing Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 137

(1987); United States v. Lee, 455 U.S. 252, 257 (1982); Thomas v. Review Bd. of the

Ind. Employment Sec. Div., 450 U.S. 707, 715 (1981)).

Courts have held that refusal to rent an apartment to an unmarried heterosexual

couple based on the landlord’s religious belief that promoting premarital sex is sinful in religious exercise. See, e.g., Smith v. FEHC, 913 P.2d at 923 (‘‘While the renting of apartments may not constitute the exercise of religion, if Smith claims the

laws regulating that activity indirectly coerce her to violate her religious beliefs, we

cannot avoid testing her claim under the analysis codified in RFRA.’’); Desilets, 636

N.E.2d at 237 (‘‘Conduct motivated by sincerely held religious convictions will be

recognized as the exercise of religion.’’). Similarly, in the employment context, courts

have accepted the argument that hiring decisions are religious exercise, if the employer can demonstrate that the decision was based on religious belief or doctrine.

See, e.g., Pacific Press, 676 F.2d at 1280 (retaliatory action taken by religious publisher against employee who instituted EEOC proceedings alleging sex discrimination was religious exercise because church doctrine prohibited lawsuits by members

against the church).

The question of whether a corporate employer or corporate landlord may raise a

religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense. In McClure, the Minnesota Supreme

Court held that a health club had standing to raise a free exercise defense, but

noted that because the ‘‘corporate veil’’ was pierced, the three owners were held liable for any illegal actions of the corporation, and the free exercise rights being asserted were their rights rather than the rights of the health club. McClure, 370

N.W.2d at 850–51. In contrast, the Minnesota Court of Appeals found that when a

corporation itself has been held liable for discrimination, it may not raise the free

exercise rights of its principals. See Blanding v. Sports & Health Club, Inc., 373

N.W.2d 784, 790 (Minn. App. 1985), aff’d without op., 389 N.W.2d 205 (Minn. 1986).

In Blanding, the court analyzed the representational standing issue and held that

the standing requirements were not met because the ‘‘evangelical religious commitment of its principals is not germane to the Club’s purpose, profit-seeking.’’

Blanding, 373 N.W.2d at 790.

B. Do state and local civil rights statutes ‘‘substantially burden’’ religious exercise?

The purpose of the second part of the RLPA test is to avoid litigation over neutral

laws which have only a minimal impact on religious exercise. Congress has not defined ‘‘substantial burden,’’ and there is no generally applicable test to determine

whether a substantial burden exists. See Smith v. FEHC, 913 P.2d at 924. However,

several circuit courts have adopted a broad reading of ‘‘substantial burden,’’ holding

that

a substantial burden on the free exercise of religion, within the meaning

of the [RFRA], is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that

manifests a central tenet of a person’s religious beliefs, or compels conduct

or expression that is contrary to those beliefs.

Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996); see also Werner v. McCotter,

49 F.3d 1476, 1480 (10th Cir. 1995) (‘‘To exceed the ’substantial burden’ threshold,

governmental regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person’s] individual beliefs.’’); BrownEl v. Harris, 26 F.3d 68, 70 (8th Cir. 1994) (substantial burden imposed when person is compelled, ‘‘by threat of sanctions, to refrain from religiously motivated conduct’’) (quotations omitted). But cf. Goodall v. Stafford Cty. Sch. Bd., 60 F.3d 168,

171–72 (4th Cir. 1995) (substantial burden not imposed where plaintiffs ‘‘have neither been compelled to engage in conduct proscribed by their religious beliefs, nor

have they been forced to abstain from any action which their religion mandates that

48

3 In Employment Division v. Smith, 494 U.S. 872, 888 (1990), the Supreme Court noted that

the compelling government interest test from Sherbert used to analyze free exercise cases was

less strict than the test used in strict scrutiny in equal protection or free speech cases. However,

RLPA uses language that suggests the strict scrutiny equal protection test. On the other hand,

the legislative history to RFRA includes statements that Congress intended to ‘‘restore’’ the preSmith free exercise jurisprudence. Thus, it is unclear whether RLPA would require courts to

apply a pre-Smith level of scrutiny or the higher level of scrutiny applied in strict scrutiny equal

protection analysis.

they take’’); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995) (same); Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) (per curiam) (same).

Economic cost alone does not constitute a substantial burden. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961); Smith v. FEHC at 926–27. However, even those

courts that have adopted a narrow definition of substantial burden—where a substantial burden is imposed only where someone is compelled to engage in conduct

forbidden by his or her religion, or forbidden to engage in conduct mandated by religious belief—have held that imposing liability on an employer for non-compliance

with employment anti-discrimination laws constitutes a substantial burden when

compliance would contradict religious belief or doctrine. See, e.g., Pacific Press, 676

F.2d at 1280 (‘‘there is a substantial impact on the exercise of religious beliefs because EEOC’s jurisdiction to prosecute * * * will impose liability on Press for disciplinary actions based on religious doctrine’’).

One court has held that compliance with state fair housing laws does not impose

a substantial burden, in part because ‘‘one who earns a living through the return

on capital invested in rental properties can, if she does not wish to comply with an

anti-discrimination law that conflicts with her religious beliefs, avoid the conflict,

without threatening her livelihood, by selling her units and redeploying the capital

in other investments.’’ Smith v. FEHC, 913 P.2d at 925. The court also noted that

‘‘the landlord in this case does not claim that her religious beliefs require her to rent

apartments; the religious injunction is simply that she not rent to unmarried couples. No religious exercise is burdened if she follows the alternative course of placing her capital in another investment.’’ Id. at 926.

Because the court in Smith v. FEHC used an analysis for ‘‘substantial burden’’

that may be more stringent than the analysis required by RLPA, other courts are

likely to view the ‘‘choice’’ of engaging in a different occupation or complying with

the anti-discrimination law and violating one’s religious beliefs as too harsh, and

conclude that the burden is substantial. See, e.g., Desilets, 636 N.E.2d at 237–38

(substantial burden imposed because the civil rights law ‘‘affirmatively obliges the

defendants to enter into a contract contrary to their religious beliefs and provides

significant sanctions for its violation,’’ and ‘‘both their nonconformity to the law and

any related publicity may stigmatize the defendants in the eyes of many and thus

burden the exercise of the defendants’ religion’’). Indeed, all courts, other than the

court in Smith v. FEHC, that have considered the question in the housing context

have found that the state or local anti-discrimination law substantially burdened

the defendant’s exercise of his or her religious beliefs.

C. Is the governmental interest in eradicating discrimination compelling?

The third part of the RLPA test provides that only a compelling governmental interest justifies imposing a substantial burden on the exercise of religion.3 The courts

that recently decided civil rights cases in which a defendant raised a religious liberty defense have split most sharply on this part of the test.

The governmental interest in eradicating certain types of discrimination, particularly racial and sex-based discrimination, should meet the compelling interest standard. See Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (‘‘The governmental interest at stake here is compelling * * *. [T]he government has a fundamental, overriding interest in eradicating racial discrimination in education

* * *. That governmental interest substantially outweighs whatever burden denial

of tax benefits places on petitioners’ exercise of their religious beliefs.’’); Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (the state government’s ‘‘compelling

interest in eradicating discrimination against its female citizens justifies the impact

* * * on the male members’ associational freedoms’’). Such plaintiffs, however,

should anticipate incurring litigation costs as defendants raise the defense.

Because sexual orientation, marital status, disability, and other newly protected

classes currently do not receive the same level of judicial scrutiny as race and sex,

however, it may be more difficult to persuade all courts that the governmental interest in preventing discrimination on those grounds is compelling. For example, courts

have reached divided results in determining whether preventing discrimination

based on characteristics such as sexual orientation or marital status is compelling.

See, e.g., Thomas, 165 F.3d at 717 (a municipality did not have a compelling interest

49

4 Because the California Supreme Court found that there was no substantial burden imposed

on Smith’s religious exercise, the court did not reach the issue of whether the government’s interest was compelling. See Smith v. FEHC, 913 P.2d at 929.

in eradicating discrimination based on marital status); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 37 (D.C. App. 1987) (District of Columbia’s interest

in prohibiting educational institutions from denying equal access to tangible benefits

on the basis of sexual orientation is compelling); Swanner, 874 P.2d at 282–83 (Anchorage’s interest in prohibiting marital status discrimination in housing is compelling), Desilets, 636 N.E.2d 233 (remanding for further consideration of whether the

government’s interest in prohibiting marital status discrimination is compelling);

French, 460 N.W.2d at 10–11 (plurality op.) (no compelling governmental interest

in ending discrimination against unmarried couples).

Because H.R. 1691 requires that the ‘‘government demonstrate[] that application

of the burden to the person is in furtherance of a compelling governmental interest’’

(emphasis added), courts could require the government to prove that there is a compelling interest in requiring the specific landlord or employer to comply with the

civil rights law. See, e.g., Desilets, 636 N.E.2d at 238 (the issue is whether the

record establishes that the Commonwealth has or does not have an important governmental interest that is sufficiently compelling that the granting of an exemption

to people in the position of the defendants would unduly hinder that goal’’); French,

460 N.W.2d at 9 (‘‘French must be granted an exemption * * * unless the state can

demonstrate compelling and overriding state interest, not only in the state’s general

statutory purpose, but in refusing to grant an exemption to French.’’). However, the

majority of courts interpreting RFRA considered simply whether the government

had a compelling interest in enforcing the law at issue.

When a state or municipality chooses to target and prohibit a specific form of discrimination, presumably it does so because it believes that there is a serious problem. See EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1280 (9th Cir.

1982) (‘‘By enacting Title VII, Congress clearly targeted the elimination of all forms

of discrimination as a ‘highest priority.’ ’’). Courts have sometimes found that legislative determination alone, however, is not always dispositive of whether the state’s

interest is compelling. See Gay Rights Coalition, 536 A.2d at 33 (‘‘While not lightly

to be disregarded, the Council’s strong feelings do not resolve the issue whether its

ban an sexual orientation discrimination represents a compelling governmental interest.’’); Desilets, 636 N.E.2d at 240 (‘‘we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the state has’’ a compelling interest in ending marital status discrimination in housing).

To the extent that other state or municipal laws or policies discriminate against

the class, courts are sometimes less likely to find that the governmental interest in

ending discrimination against that class is compelling. Thus, anti-fornication or sodomy statutes have provided additional support for concluding that there is no compelling governmental interest in protecting against discrimination based on marital

status or sexual orientation. See, e.g., Thomas, 165 F.3d at 716–17 (citing state statutes providing less favorable benefits to unmarried couples than to married couples);

French, 460 N.W.2d at 10 (plurality op.) (‘‘How can there be a compelling state interest in promoting fornication when there is a state statute on the books prohibiting it?’’); Desilets, 636 N.E.2d at 240 (the existence of a criminal statute against fornication ‘‘suggests some diminution’’ in the state’s interest).

Similarly, state or local policies favoring married couples also have been used by

courts to determine that the governmental interest in ending discrimination against

unmarried couples is not compelling. See, e.g., Desilets, 636 N.E.2d at 239–40 (‘‘in

various ways, by statute and by judicial decision, the law has not promoted cohabitation and has granted a married spouse rights not granted to a man or woman cohabiting with a member of the opposite sex’’); French, 460 N.W.2d at 10 (plurality

op.) (noting differential treatment of married couples in employee life and health insurance benefits); Smith v. Fair Employment and Housing Comm’n, 39 Cal. App.

4th 877, 894 (Cal. App. 1994) (relying on the absence of strict scrutiny for marital

status classifications and the existence of other state laws or policies favoring married couples, including insurance benefits and conjugal visits to determine that state

interest was not compelling), rev’d on other grounds, 913 P.2d 909 (Cal. 1996) (plurality op.); 4 but see Swanner, 874 P.2d at 283 (noting that differential treatment

of married and unmarried people in areas other than housing does not prove that

the state views marital status discrimination in housing as insignificant).

Courts have taken different positions on defining the scope of the governmental

interest at stake in prohibiting discrimination. Defining the governmental interest

broadly, the Swanner court had no difficulty in concluding that the state’s ‘‘interest

50

in preventing discrimination based on irrelevant characteristics’’ is compelling.

Swanner, 874 P.2d at 282–83. ‘‘The government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing. Allowing housing discrimination that degrades individuals, affronts human dignity, and

limits one’s opportunities results in harming the government’s transactional interest

in preventing such discrimination.’’ Id.; accord Gay Rights Coalition, 536 A.2d at 37

(‘‘The compelling interests * * * that any state has in eradicating discrimination

against the homosexually or bisexually oriented include the fostering of individual

dignity, the creation of a climate and environment in which each individual can utilize his or her potential to contribute to and benefit from society, and equal protection of the life, liberty, and property that the Founding Fathers guaranteed to us

all.’’).

In contrast, the Massachusetts Supreme Court in Desilets insisted on a much

more narrow reading of the governmental interest, noting that ‘‘[t]he general objective of eliminating discrimination of all kinds * * * cannot alone provide a compelling State interest that justifies the * * * disregard of the defendants’ right to free

exercise of their religion. The analysis must be more focused.’’ Desilets, 636 N.E.2d

at 238. This narrow reading led the court to insist that Massachusetts ‘‘demonstrate

that it has a compelling interest in the elimination of discrimination in housing

against an unmarried man and an unmarried woman who have a sexual relationship and wish to rent accommodations to which [the civil rights statute] applies.’’

Id.

D. Are uniformly applied anti-discrimination laws the least restrictive means available?

The fourth part of the RLPA test is whether the challenged state or local law uses

the least restrictive means to achieve the government’s compelling interest. Several

courts have held that uniform application of anti-discrimination laws is the least restrictive means available. See, e.g., Swanner, 874 P.2d at 280, n.9 (‘‘The most effective tool the state has for combating discrimination is to prohibit discrimination;

these laws do exactly that. Consequently the means are narrowly tailored and there

is no less restrictive alternative.’’); Gay Rights Coalition, 536 A.2d at 39 (‘‘The District of Columbia’s overriding interest in eradicating sexual orientation discrimination, if it is ever to be converted from aspiration to reality, requires that Georgetown

equally distribute tangible benefits to the student groups.’’); McClure, 370 N.W.2d

at 853 (‘‘the state’s overriding compelling interest of eradicating discrimination

based upon sex, race, marital status, or religion could be substantially frustrated if

employers, professing as deep and sincere religious beliefs as those held by appellants, could discriminate against the protected class’’). However, the Massachusetts

Supreme Court remanded that question when it held that the government may be

required to prove that ‘‘uniformity of enforcement of the statute * * * [is] the least

restrictive means for the practical and efficient operation of the antidiscrimination

law.’’ Desilets, 636 N.E.2d at 241.

Persons using a religious liberty defense to a civil rights claim have argued that

uniform application of civil rights laws cannot be the least restrictive means if the

civil rights statute in question contains exemptions for religious organizations and

small landlords or employers. Those defendants have argued that a less restrictive

means is available, namely, granting an exemption to persons who hold sincere religious beliefs. For example, one court found that ‘‘the compulsion of the state’s interest appears somewhat weakened because the statute permits discrimination by a religious organization in certain respects * * * if to do so promotes the principles for

which the organization was established.’’ Desilets, 636 N.E.2d at 240. Similarly, the

Ninth Circuit cited the state’s ‘‘ ‘underenforcement’ of its purported interest in eradicating marital status discrimination,’’ as expressed in statutory exemptions within

the state fair housing law, as evidence that the state’s interest was not compelling.

Thomas, 165 F.3d at 717. However, another court recognized that while the government permits exemptions for ‘‘religious corporations when religious beliefs shall be

a bona fide occupational qualification,’’ ‘‘the state’s overriding interest permits of no

exemption to appellants in this case. * * * [W]hen appellants entered into the economic arena and began trafficking in the market place, they have subjected themselves to the standards the legislature has prescribed not only for the benefit of prospective and existing employees, but also for the benefit of citizens of the state as

a whole in an effort to eliminate pernicious discrimination.’’ McClure, 370 N.W.2d

at 853. The split on how to apply the least restrictive means part of the strict scrutiny test is particularly important when most state and local civil rights laws have

numerous exemptions.

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IV. CONCLUSION

The ACLU urges the Committee, as it addresses the problem of increasing protection for religious exercise against neutral state and local laws, to avoid unintentional harm to the enforcement of state and local civil rights laws. Without careful

drafting, a federal religious liberty statute could provide a new federal defense

against state and local civil rights claims made by persons who already receive the

least protection from the courts and the federal government. Several court decisions

holding that religious liberty claims could defeat civil rights claims based on marital

status protection portend an undermining of civil rights protection for many persons

who only recently gained protection from discrimination, and an increase in litigation for persons belonging to groups that receive heightened scrutiny. For that reason, Congress should not pass any religious liberty legislation without ensuring that

it will not deprive persons of their civil rights under state and local laws.

The CHAIRMAN. Representative Hochburg.

STATEMENT OF REPRESENTATIVE SCOTT HOCHBURG

Representative HOCHBURG. Thank you, Mr. Chairman. I appreciate your leadership on this issue and I appreciate the opportunity

to share some thoughts with you today.

As Chris mentioned, 2 weeks ago Governor George Bush signed

the Texas Religious Freedom Restoration Act into law. I was privileged to work with Governor Bush as the House author of this important bill, and I am proud of the bill because I truly believe it

strengthens religious freedom in Texas without weakening other

fundamental individual rights. I would ask that in crafting your

legislation that you not preempt what we have carefully worked

out as a bipartisan effort in Texas.

Long before I ever heard of the Smith case or your Federal

RFRA, I knew how hard it was for individuals to assert their First

Amendment religious freedoms against the bureaucracy. I fought

battles for a long time with our prison system over allowing Jewish

prisoners to practice their faith, and I found I actually had to pass

a law before I could be sure that judges would not repeat the incident that occurred in a Houston courtroom where an Orthodox

Jewish man was required to remove his skull cap before he could

testify, in direct conflict with his religious practice.

So when the American Jewish Committee and the Anti–Defamation League, on whose local boards I serve, put the State Religious

Freedom Restoration Act on their legislative agendas, I was eager

to become the lead sponsor. And I was certainly encouraged by the

early and strong support of Governor Bush, who announced just before the opening of our legislative session that Texas RFRA would

be one of his legislative priorities as well.

Of course, as you well know, and as this panel reflects, no bill

is a simple bill. Early on, it became apparent to me that the model

RFRA language left open the possibility that the Act could be used

to get around Texas civil rights laws. That concern was first raised

to me by AJC and the later by ADL, two groups that had initially

brought me the legislation and two groups with long histories of

defending civil rights internationally.

Clearly, the intended purpose of this bill was not to weaken civil

rights laws. When Governor Bush and others talked about the need

for RFRA, he cited examples, including the skull cap situation,

where RFRA could be used to help protect a person’s religious practice from government interference. None of the examples were

about giving any individual the right to deny any other person’s

52

equal protection rights, even under the guise of religion, nor were

civil rights cases amongst those cited by constitutional experts that

we heard from when they explained the need for RFRA to our committees.

The Texas Constitution is very clear about the primacy of civil

rights. The third and fourth sections of our bill of rights in the

Texas Constitution guarantee equal protection under the law. The

next three sections protect religion and guarantee freedom of worship. So, clearly, our framers saw those fundamental rights as

being on the same plain.

I wanted to pass a strong RFRA in Texas, but I didn’t want to

use RFRA to rewrite Texas civil rights laws. The good news is it

was possible to solve this problem with some careful drafting. Now,

some of the RFRA coalition members argued that to completely

move civil rights out from under RFRA might imply that a religious organization could not use religion as a criteria in hiring, an

exemption that is included in our State labor code and also in Federal law, as you know.

So we worked to craft language to apply RFRA to the special circumstances of religious organizations, while continuing to leave the

task of balancing religious and equal protection rights to the

courts. The language we agreed to was unanimously adopted in a

bipartisan amendment on the House floor and remained intact in

the bill as it was signed by the governor.

The RFRA coalition in Texas endorsed the civil rights language

and strongly supported the bill, from the Texas Freedom Network

on the left, to the Liberty Legal Institute on the right. I must tell

you, however, that one or two conservative groups in this very

broad coalition objected and went so far as to ask Governor Bush

to veto the bill. He chose not to do so. Those particular groups said

they had hoped to use RFRA to do exactly what others had feared,

to seek to override in court various civil rights laws that they had

not been able to override legislatively.

Mr. Chairman, I urge you to adopt a strong law to reinforce what

we have done in Texas. But in so doing, I would ask that you follow

the wisdom of our legislature and our governor and include language to protect State civil rights laws. I offer whatever assistance

I can be in this effort. This is too important a bill to be lost as a

result of a fear of weakening civil rights, but likewise national and

State civil rights policies are too important to be weakened as an

unintended by-product of a bill with the noble purpose of strengthening religious rights.

Thank you again for your consideration, for your time and your

hard work.

The CHAIRMAN. Well, thank you, Representative Hochburg.

[The prepared statement of Representative Hochburg follows:]

PREPARED STATEMENT OF REPRESENTATIVE SCOTT HOCHBURG

Mr. Chairman and Members of the Committee, I appreciate the opportunity to

share some thoughts with you today.

Two weeks ago, Governor George W. Bush signed the Texas Religious Freedom

Restoration Act (Texas RFRA) into law. I was privileged to work with Gov. Bush

as the House author of this important bill. And I’m proud of the bill, because I believe it strengthens religious freedom in Texas without weakening other fundamental individual rights.

53

Long before I ever heard of the Smith case or the federal RFRA, I knew how hard

it was for individuals to assert their first amendment religious freedoms against the

bureaucracy. I’ve fought battles with our prison system over allowing Jewish prisoners to practice their faith. And I found I had to pass a law before I could be sure

that judges would not repeat the incident that occurred in a Houston courtroom,

where an Orthodox Jewish man was required to remove his skullcap, in direct conflict with his religious practice, before he could testify.

So when the American Jewish Committee and the Anti-Defamation League, on

whose local boards I serve, put the state Religious Freedom Restoration Act on their

legislative agendas, I was eager to become the lead sponsor. And I was certainly

encouraged by the early and strong support of Gov. Bush, who announced just before the opening of our legislative session that Texas RFRA would be one of his legislative priorities as well.

Of course you know that no bill is a simple bill. Early on, I saw that the model

RFRA language left open a possibility that the act could be used to get around

Texas’ civil rights laws. That concern was first raised. to me by the AJC, and then

later by the ADL, the two groups that had initially brought me the legislation, and

two groups with long histories of defending civil rights internationally.

Clearly, the intended purpose of this bill was not to weaken civil rights laws.

When Gov. Bush talked about the need for RFRA, he cited examples, including the

skullcap situation, where RFRA could be used to help protect a person’s religious

practice from government interference. None of the examples were about giving any

individual the right to deny another person’s equal protection rights.

The Texas Constitution is very clear about the primacy of civil rights. The third

and fourth sections of our Bill of Rights guarantee equal protection under the law.

The next three sections protect religion and guarantee freedom of worship. So, clearly, our framers saw these fundamental rights as being on the same plane.

I wanted to pass a strong RFRA in Texas, but not one that would rewrite Texas

civil rights laws. So I added language clarifying that the act neither expanded nor

reduced a person’s civil rights under any other law. That language drew no objection

initially. But later, some RFRA coalition members argued that to completely move

civil rights out from under RFRA might imply that even a religious organization

could not use religion as a criteria in hiring—an exemption that is included in our

state labor code as well as in federal law.

So coalition members helped craft language to apply RFRA to the special circumstances of religious organizations, while continuing to leave the task of balancing religious and equal protection rights to the courts. That language was unanimously adopted in a bipartisan amendment on the House floor, and remained intact

in the bill as it was signed by Gov. Bush.

The RFRA coalition in Texas endorsed the civil rights language and strongly supported the bill, from the Texas Freedom Network on the left to the Liberty Legal

Institute on the right. I must tell you, however, that one or two conservative groups

in this very broad coalition objected and went so far as to ask Gov. Bush to veto

the bill. He chose not to do so. Those particular groups said that they had hoped

to use RFRA to do exactly what others had feared—to seek to override, in court,

various civil rights laws that they had not been able to override legislatively.

I urge you to adopt a strong law to reinforce what we have done in Texas. But

in so doing, I would also ask that you follow the wisdom of our governor and our

legislature and include language to protect state civil rights laws.

I offer whatever assistance I can be to help develop and refine the language of

this bill so that those goals are met.

This is too important a bill to be lost as a result of a fear of weakening civil

rights. But likewise, national and state civil rights policies are too important to be

weakened as an unintended by-product of a bill with the noble purpose of strengthening religious rights.

Thank you again for your consideration, your time and your hard work.

The CHAIRMAN. Let me just go to the first four——

Senator LEAHY. Mr. Chairman, I was going to note that I have

put a statement in the record and I am going to have to leave for

an appropriations meeting. But I did especially want to hear Representative Hochburg’s testimony because the carve-out is an area

that I am most interested in, and how we do that with a balance

between the laws in your State, my State, Texas and others, how

we make sure we do not repeal them.

So thank you, Mr. Chairman.

54

The CHAIRMAN. Well, thank you, Senator. Like everything else

around here, it is the art of the doable, and I think it is very important that we advance religious freedom, regardless. I was bitterly

disappointed in the Supreme Court’s decision in Boerne, no question about it. I thought it was a lousy decision, but it is there and

we want to find some way of advancing the cause of religious freedom. And I think all of your testimonies here today have been helpful in helping to understand that a little bit better.

Let me just take Mr. McFarland, Mr. Diament, Mr. Miranda and

Mr. Mincberg, and let me ask you these questions. In the City of

Boerne opinion, the Supreme Court stated with respect to the hearing record on the Religious Freedom Restoration Act that, ‘‘The history of persecution in this country detailed in the hearings on

RFRA mentions no episodes occurring in the past 40 years.’’

Now, I would like to know how you react to that statement, and

could you each take a few moments and give us a few specific examples of problems encountered by believers or of religious liberties put at risk without this legislation? We will start with you,

Mr. McFarland, and go right across.

Mr. MCFARLAND. Well, Mr. Chairman, to be honest, I would not

use the term ‘‘persecution’’ to be applied to this Nation at the close

of this century. Certainly, there has been persecution in the past,

but I think it demeans the term when Christians are being crucified and enslaved in the Sudan, when Jews are being arrested

and imprisoned without due process in Iran, when Chinese Christian churches are being torched in Indonesia, to talk about persecution here in the United States.

However, that does not mean that there is nothing for the Congress to do to shore up meaningful protection against religious discrimination, and there are certainly instances of that. Of course,

time only permits one or two examples, but an example would be

the case in which we are representing a church in St. Petersburg,

FL, called the Refuge. Its ministry in downtown St. Petersburg is

to street kids, to HIV-positive individuals, to drug addicts, to the

homeless.

And when St. Petersburg got their Major League Baseball franchise, the Devil Rays, they decided to, ‘‘clean up’’ the downtown

CBD, and the first thing they wanted to do is get off the streets

those unsightly characters that would hang around the Refuge.

And so they decided, cleverly, they could not just boot them out,

but they said, well, it looks like your parishioners are more like patients, and so you are now dubbed a social service agency. We don’t

allow social service agencies in this zone, so you are out of here.

And so we are wading our way through years of litigation trying

to allow a social service ministry by the church to continue. The

creativity of zoning officials to manipulate decisions in this area

against religious land use are amazing and apparently full of energy.

Another example. We just finished arguing in March before the

Washington Supreme Court on behalf of Pastor Rich Hamlin, of Tacoma, WA. Pastor Hamlin was requested to come to the home of

an individual who was greatly distraught. His 3-month-old child

had just died. He counseled with him. He had a confidential confession, received confession from the individual.

55

And the prosecutor, rather than resorting to good police work,

decided to depose, and indeed compel Reverend Hamlin to betray

the confidences of the accused, Mr. Martin, in open court. He refused to do that and he was found in contempt of court. He was

sentenced to jail in Pierce County, and we argued successfully before the Washington Court of Appeals and the State supreme court

that this simply was a violation of not only the statutory priestpenitent privilege, but also the State constitution.

What was said, Mr. Chairman, is we couldn’t invoke any Federal

law. We had to use the very questionable hybrid doctrine that was

left to us by Justice Scalia in the Smith case to have any kind of

an argument to make under Federal law. That should not be, neither should the Refuge have to depend upon its political power in

city hall simply to continue to minister to the least of these my

brethren, as Jesus said.

So those are just two examples that I hope are responsive to your

question.

The CHAIRMAN. Thank you.

Mr. Diament.

Mr. DIAMENT. Senator, two of the three zoning land use cases

that I recited in my testimony are current. The struggle right now

in New Rochelle, in Westchester County, NY, by an Orthodox synagogue to expand to a larger facility is ongoing. And the controversy

in Miami Beach, where a group of Orthodox Jews are seeking to

rent a hotel room to have weekly services—that has been denied

and that is ongoing.

The incident that I mentioned in Cleveland, OH, where again an

Orthodox community was seeking to expand and build a new synagogue facility—that just occurred last year. That is only with regard to the land use area. Other examples that come to mind which

occurred, I would say, within the last 5 years include, in New Jersey, an Orthodox attorney was killed in a tragic Amtrak train derailment, and this was at the time when RFRA was on the books

and had not yet been struck down.

But the example is illustrative, in that the coroner was insisting

that an autopsy be performed, and from a traditional Jewish perspective autopsies are problematic, to say the least. And it was

clear that the information that the coroner was seeking could have

been obtained through an MRI and CAT scan procedures, which

are non-invasive procedures.

Only by virtue of the fact that RFRA was then on the books, and

the family had to go so far as to threaten a lawsuit on the basis

of RFRA, did the coroner finally come around and say, OK, we will

try to do with the MRI and the CAT scan, and things worked out.

Today, with RFRA having been declared unconstitutional and nothing replaced it yet, that kind of issue would be clearly problematic.

Similarly, within the last 5 years, in South Carolina there was

an issue with regard to the schools having banned wearing hats in

school and an Orthodox Jewish boy wished to wear his skull cap

to school, and that generated some considerable controversy. In Illinois, within the last few years the Illinois Athletic Association was

requiring ball players to play bare-headed in the little league—the

hats might fly off—as a safety matter or what have you. And that

is a case that actually was litigated to the Seventh Circuit when

56

an Orthodox school wanted to play in the little league, and they

said the skull caps could be attached with clips or bobby pins. And

the Seventh Circuit said, OK, you have to explore that as an option. The fact that that kind of thing had to be litigated to a court

of appeals in the United States is quite remarkable.

Those are just a few examples of recent cases, and there are

many more, unfortunately.

The CHAIRMAN. Thank you.

Mr. Miranda.

Mr. MIRANDA. Senator, when you stepped out a minute ago, I

used the word ‘‘persecution,’’ but I did so advisedly, suggesting that

an English Catholic who came to this country in 1649 might have

identified some of the things which occur in this country today as

persecution. It was the use of their word.

I, too, would be hesitant to use ‘‘persecution’’ in the way it has

been traditionally used, given what is happening to Christians in

the Sudan and in so many other places to people of all faiths. But

it is nevertheless discrimination. I deal mostly with religious institutions rather than persons, natural persons, and in the case of

universities and colleges that speak about their faith and that contribute to the pluralism of the country with the perspective of their

faith, there have been laws, such as, for example, the public accommodations law, which here in the District of Columbia is called the

human rights law.

But it is a public accommodations law which, on the basis of the

fact that you provide public accommodations and are otherwise engaged in the stream of business, you have to provide certain equal

benefits. And Catholic universities have been engaged in very expensive and painful litigation to basically preserve their right to

run their universities and colleges as they see fit according to their

religious convictions.

Perhaps, today, under the Smith hybrid situation, they might

have argued freedom of expression to protect their rights. That

wasn’t in place when these litigations were pursued. But it

shouldn’t be the case that you have to argue freedom of expression;

you should simply be able to argue the Free Exercise Clause in the

First Amendment.

The CHAIRMAN. Thank you.

Mr. Mincberg.

Mr. MINCBERG. Mr. Chairman, I shared your dismay at what the

Court said in Boerne about the record that all of us worked to build

in the case of RFRA. But I do think that we have all to a certain

extent take the Court’s words to heart and have built an even more

impressive record this time around with respect to difficulties with

respect to religious liberty.

Land use is certainly the one that there has been an enormous

amount of devotion of effort to, and I would note for the record that

since the decision in Boerne there have been studies, one by the

LDS Church and one, I think, by the Presbyterian Church, that

have documented on a systematic basis difficulties that religious

organizations and individuals have had with respect to land use. I

think it is already in the Senate record, but if it is not, we would

certainly love to put those studies there.

57

With respect to what Mr. Diament mentioned, his example with

respect to religious conflict and autopsy is more than a hypothetical

because prior to RFRA, there were, in fact, two cases, one involving

an Orthodox Jew, one involving a Hmong Asian, who felt quite violated from a religious perspective from having to have autopsies

conducted on family members who had died in tragic accidents,

even though there were alternatives. And in both those cases, prior

to RFRA, the courts quite unfortunately had to rule that those religious individuals had absolutely no alternative and had to undergo

what was for them a very painful experience as a result of the lack

of protection for religious liberty.

I would not agree with Mr. Miranda that the DC Human Rights

Act constitutes an example of something that causes the same sorts

of difficulties. But I think it is very clear that there are both on

an individual basis and a more systematic basis plenty of examples

that document the need for some protection, particularly in the

land use area, with respect to religious free exercise.

The CHAIRMAN. Thank you. I have a lot of other questions, but

I am going to submit them in writing. But I want to ask one question to all of you, and we will start with you, Mr. Hochburg, if we

can. Let me just move to a consideration of civil rights protections

in the context of a religious liberty measure.

Now, would each of you provide me with your thoughts on

whether such a civil rights protection must be explicitly included

in any religious liberties measure or not? And if you wish, you

might reference here the specific bill I sponsored last year or the

current House bill, if you are familiar with it. But I would like to

have your thoughts on it. Some of you have said you are not for

any carve-outs and I just want to know what you all think about

it.

We will start with you, Mr. Hochburg and go across this way.

Mr. HOCHBURG. Thank you, Mr. Chairman. This was an important part of the measure in Texas because of, first of all, from a

political standpoint the concerns by a number of members that

RFRA would be used in Texas in a manner that we had testimony

it would be used, which was directly to attack civil rights laws. As

I mentioned to you, at least from the Texas standpoint our constitution is very clear about the importance of both sets of liberties,

and the testimony that we had taken and the cases that you have

just heard about, the sort of day-to-day, incidental, unintended impacts of various facially-neutral laws that go against religious practice.

We never turned our attention to dealing with one individual’s

ability to impose their religious beliefs over and above somebody

else’s civil rights. I would think, as Chris said before, that courts

would find a compelling interest in the enforcement of civil rights

laws. But I frankly could not offer that kind of assurance to many

of the members of my legislature who believed very strongly that

that provision was necessary. So I think that is why it was vital

for us to put the provision in in Texas.

We were very careful to deal with the concerns of religious organizations. The first concern I heard was that under RFRA, with

civil rights language in it, Baylor University could be required to

hire a Jewish president. Well, that was never our intent. So we

58

went in and very carefully marked out and almost carved back in

the needs of religious institutions to function in a religious manner.

And, again, we patterned our language after labor code issues and

after employment issues.

So I believe that it is necessary. I believe it has to be carefully

crafted because it in itself could be overly broad if we are not careful. And given the testimony that I have heard and the concerns

that I have heard raised, and given the Texas law that we have,

to the extent that you are attempting to pass a law which reaches

down to the States, I would hope that there would be a provision

that would not override what we have already done.

The CHAIRMAN. Thank you.

Mr. Anders.

Mr. ANDERS. We believe that it is extremely important that there

be an explicit provision put into the legislation as it goes forward.

And our concern is that when RFRA passed in 1993, there was only

one case on the books in this kind of cluster of cases that we are

seeing in the housing area, and that was actually a plurality decision from the Minnesota Supreme Court.

And I think our belief at that time was that that was just an

outlier case and that we wouldn’t be seeing a lot of cases where

people would be using their religion to defeat someone else’s civil

rights, and that if those kinds of cases were brought, the courts

would find that the States had compelling interest in enforcing

their civil rights laws, in that those are narrowly tailored.

But as it turns out, those courts since RFRA passed, using similar State laws, are split, and so we have the Ninth Circuit, the

Massachusetts Supreme Court and a plurality of the Minnesota Supreme Court all really putting State civil rights laws at risk under

similar State provisions, or with the Ninth Circuit with their hybrid theory.

Now, California and Alaska have—those supreme courts have

gone the other way and are protecting State and local civil rights

laws from these claims. But both of those States are in the Ninth

Circuit, so in those places they can have access to a Federal claim

where they don’t have access to a State claim under their State

law.

I guess we should add that it really is very rare to have any Federal defense to a State civil rights claim. It would be highly unusual, and this is what, without an explicit provision, we would end

up with, with civil rights defendants in State courts defending

against State claims having access to a new Federal defense.

And I guess just to kind of sum up, our belief is that this has

been kind of a political box that has been created by the coalition’s

view that there should be no exceptions whatsoever for anything.

And that political box is that you have to choose between protecting religious exercise and protecting State and local civil rights

laws. We believe that the approach that Texas took or the approach

that Congressman Nadler is suggesting in the House are ways to

get out of that box, but we certainly would be happy to work with

you and your staff on finding other ways to do that.

The CHAIRMAN. Thank you. I appreciate it.

Mr. Farris.

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Mr. FARRIS. We talked with our friends who run an independent

home school organization in Texas about their view of the legislation that Representative Hochburg has talked about because,

frankly, the issues that are confrontational between religion and

civil rights are about homosexuality and marital discrimination.

That is it. I mean, any other civil rights application is so rare as

to be simply inapplicable. Those are the issues where religion and

civil rights come in conflict.

The reason that many of the conservatives supported the Texas

compromise is there are no gay rights laws in Texas, is what they

told us, and so there is no realistic threat there are going to be any

gay rights laws in Texas. And the problem is where you have situations like the case I observed being litigated in the early 1970’s in

San Francisco, where a Presbyterian church fired a member of

their staff, who was the organist of the church, who was a professing, practicing homosexual. And the church has a doctrinal stand

against that. I think that churches and religious people should be

able to stand to their moral code, and I would strongly oppose any

carve-outs for any reason whatsoever. I think religion should be robust and free.

The CHAIRMAN. Mr. Mincberg.

Mr. MINCBERG. Mr. Chairman, as I said in my testimony, regardless of whether there is a specific provision, we believe that the

courts wouldn’t and shouldn’t accept religious belief or practice as

a basis for an RLPA-created exemption from civil rights laws.

In the California Smith case, which is the closest case to this

where RFRA itself was considered, the California Supreme Court

rejected a RFRA-type defense from the civil rights laws there. Mr.

Anders is right that there have been cases that have gone the other

way, but those cases have all been decided under State constitutions or the Federal Constitution, which RLPA wouldn’t affect.

With the Ninth Circuit, there is nothing that can be done other

than what we hope will occur, which is a reconsideration of that

decision by the full Ninth Circuit or, if necessary, by the Supreme

Court.

Despite that, we do appreciate and understand the concerns

raised by Mr. Anders and by Representative Hochburg. We hope

that as the legislative process concerning RLPA continues that civil

rights and other concerns can be resolved in a way that is satisfactory to all parties. And we look forward very much to working with

you, Mr. Chairman, and others to help accomplish that objective.

The CHAIRMAN. Thank you.

Mr. Miranda.

Mr. MIRANDA. Mr. Chairman, I am familiar with the Texas legislation and I support it, provided it continues to hold the language

which provides an exemption for religious institutions, which I believe—and perhaps the Representative would correct me if I am

wrong—would treat and handle the situation that Mr. Farris mentioned of a parish or a church or a religious school that would have

to hire someone who perhaps advocates a position contrary to their

religious convictions. With that exception within the carve-out, I

think that it makes sense.

In the Catholic education field, we often hear that if you decided

to attend a school like Georgetown University, which is Catholic,

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or Yeshiva, which is Jewish, you should expect certain things. You

should expect to see, in the case of a Catholic university, crucifixes

in the classrooms; in the case of Yeshiva, other demonstrations of

Jewish faith.

I come to my position because I think when you enter the stream

of commerce as an individual, you should expect certain things to

occur. In this case, when you are putting out apartments for rent

or you are otherwise engaging and taking the benefits of society,

you have to accommodate certain things.

It is already the case that if those laws exist, whether in Texas

or anywhere else, they have already undergone the scrutiny of the

political process. And notwithstanding the Religious Liberty Protection Act, they would still have to show a compelling State interest.

So I think that we are sufficiently protected, but I do recommend

the Texas wording as it was carved out.

The CHAIRMAN. That is interesting to me; very good.

Mr. Diament.

Mr. DIAMENT. Yes, Senator. To some degree, I would concur in

what my colleagues on the panel have said, but in a slightly different way. There are carve-outs and there are carve-outs, and one

that doesn’t consider religious institutions, as all the previous

speakers have said, I think we would find totally unacceptable and

inconsistent with what has gone before. Title VII of the Federal

law makes special solicitude for religious institutions and the like,

but it is not just religious institutions.

Even Mr. Nadler, who has offered an amendment to try to get

at this issue in the House, has also contemplated tracking the exceptions in the Fair Housing Act which relate to landlords of small,

two-family homes or three-family home kinds of contexts which is

carved out in the Fair Housing Act, and small businesses where

you have people working in a very small, close-knit environment.

But even that approach, while certainly more acceptable than no

consideration for religious individuals or institutions, is also imperfect. First of all, Mr. Nadler’s amendment, in particular—and I assume you will be studying it closely—doesn’t perfectly track the

privileges that title VII has afforded religious institutions.

But, second, there is a more fundamental philosophical problem.

We are not creating religious liberty from whole cloth; we are not

writing the First Amendment for the first time. The Free Exercise

Clause is out there, and we have said that on a fundamental level

our understanding of religious liberty in this country has taken a

wrong turn. And we don’t understand what the Supreme Court is

doing, and it is time for Congress to try again to address this issue

and to restore religious liberty to its rightful prominence.

And if that is the case, if religious liberty is indeed going to be

our first freedom, then I think we have to really mean it and we

have to really go as far as we can in that regard and say that on

a fundamental level, it has a priority above and beyond many other

societal interests, and stand firm on that ground.

Mr. MCFARLAND. Mr. Chairman, the Christian Legal Society will

have to vigorously oppose any bill that has a carve-out in it, for

several reasons. The first is it violates the principle that our fundamental right, indeed our first freedom, should not always categorically lose or yield to any genre of claimed government interVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6601 JUNE23.TXT SJUD2 PsN: SJUD2
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ests. The civil rights laws will do just fine in the balancing process

of the compelling interest test. The idea that our first freedom

should be categorically subordinated to any claim, whether it is

civil rights, whether it would be the interests of wardens against

inmates, is simply a fundamental violation of principle.

The second reason that we would oppose such a carve-out is the

simple fact that one carve-out leads to another. As you are well

aware, when the Reid amendment was proffered in 1993, the coalition heard that, boy, we just aren’t going to be able to pass RFRA

unless we yield to inmates, and let’s just protect 98 percent of

Americans and let the prisoners fend for themselves. And as a matter of principle, we opposed that. You did, and we are very grateful

for your leadership in that regard. And you will remember we beat

them, and then you wisely went back to the PLRA and passed that

to deal with the prisoner litigation problem.

But now in contrast is the Texas bill, which we urged the governor to veto even though it would have protected by far most Texans because one carve-out leads to another. When Mr. Hochburg

put in his civil rights carve-out, he was hardly in a position to object when Senator Sibley put in a carve-out for prison inmates and

for land use claims. So all three are in that bill and they will infect

other State legislatures. In our coalition’s efforts to pass clean

State RFRA’s, they will now trumpet the fact that, well, George W.

gave in for three different exemptions, so you certainly need to do

that here in Utah or in Washington State. We simply can’t afford

that kind of compromise, and that is why all 80 organizations of

this coalition urge a clean bill, no carve-outs, no exemptions.

The CHAIRMAN. This has really been interesting to me. You guys

have all done a very good job, in my opinion, in expressing your

particular points of view.

Mr. Farris, let me just ask you a question that I would like to

ask you because I have watched your career and I admire you, as

you know. It seems to me much of your concern is with the constitutional grounding of any religious liberty protection measure

that is passed. Are you opposed to the use of the spending power

or the Commerce Clause power, or both, and if you are, for what

reason?

Mr. FARRIS. We are opposed to the Commerce Clause power

being used to protect religious liberty because we believe that

drawing a nexus between a burden on religious liberty and a necessity to show interstate commerce connection creates a jurisdiction

over churches, over religious institutions, over religious individuals,

over home schoolers on the basis that we spend money. And if that

is the basis for gaining jurisdiction over us, today it is for a benign

purpose, for a good purpose, a purpose that we agree with.

But, tomorrow, the legislation that will be introduced to regulate

home schoolers at the Federal level will be used—the Commerce

Clause will be used as the basis for that and we will have 15 years

of litigation experience under RLPA where we have gone out and

proved, yes, home schoolers are engaging in interstate commerce.

And so our ability to object to that future regulatory bill will be undercut by our use of this bill. So we, on the basis of principle,

refuse to engage in a wedding between faith and commerce. We believe that it is a dangerous wedding.

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The CHAIRMAN. A principled position, but as I read the Court’s

jurisprudence, and focus particularly on the Supreme Court’s 1995

decision, the Lopez decision, which, as you know, struck down the

Gun–Free School Zones Act, it becomes clear that there are very

real limits to what the Congress can do under the Commerce

Clause. Now, doesn’t this fact respond to your concern that a religious liberty protection passed under that section will extend too

broadly into our private lives?

Mr. FARRIS. Mr. Chairman, if I could——

The CHAIRMAN. Well, let me just add this. And if so, and if your

concern then is that a bill passed under the Commerce Clause will

be under-inclusive, what is wrong with such a bill that is at the

very least a good start at protecting religious liberty?

Mr. FARRIS. Two responses, quickly. One, under inclusion, if

there was a next step planned and a method for helping the poor

and the weak and the powerless and the individual, then I can see

a gradual step. But nobody can tell me what the next step is, and

so because it is more or less all we can do, I think it is an unprincipled move in that respect because it is under-inclusive of those who

absolutely need the protection the most.

The second comment I would make about the Commerce Clause

is I don’t see how the use of the Commerce Clause, when you are

only regulating State government, is going to survive a different

branch of Commerce Clause jurisdiction, New York v. United States

being the 1992 example of that, where they have said basically, if

you are only regulating State government with the Commerce

Clause, you can’t do it. You have got to regulate all employers, and

if you catch State government as an employer in the context of regulating all employers, you can do that. But if you are only regulating State government, the Commerce Clause cannot be used in that

fashion.

The Supreme Court granted cert on May 17 of this year in a case

called Condon v. Reno, a Fourth Circuit decision. If Condon is

upheld, there is no way on this Earth that the Commerce Clause

provision of RLPA will be held to be constitutional.

The CHAIRMAN. Well, this has been interesting to us. We would

appreciate any additional written comments you would care to provide the committee. I would like to get this done this year because,

like I say, I was bitterly disappointed with the Supreme Court’s decision on our prior bill. And although it wasn’t a total loss, it

seemed like one to me. So we would like to resolve this.

And as you can see, this is not the same coalition that we had

together on the Religious Freedom Restoration Act. We are going

to have to work hard to try and resolve some of the differences. So

we need all of your help to do that, so I would appreciate any additional information you would care to submit in writing. And, of

course, I would be glad to chat with you anytime.

This is an important bill, this is an important effort, and we are

going to need everybody working together to get this done because

it is a crying shame that we still have a lot of religious persecution

in this country. And I don’t care what the Supreme Court says; it

is persecution and it is not right. And to the extent that we resolve

that, I think you folks will have played a significant, very precedential role. So I really appreciate it.

63

Well, with that, I think we will submit any further questions in

writing. We will keep the record open until the end of the day for

more questions from others who may not have been able to be here

today and we hope that you will answer them as quickly as you

can.

Thank you all for coming, and we will adjourn until further notice.

[Whereupon, at 12:44 p.m., the committee was adjourned.]

(65)

PROTECTING RELIGIOUS LIBERTY

THURSDAY, SEPTEMBER 9, 1999

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 10:52 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators Ashcroft, Leahy, and Feingold.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

The CHAIRMAN. Good morning. I apologize for the delay, but one

of the most important things we do around here is vote, so we just

had to do that.

Good morning, and welcome to today’s hearing on religious liberty protection. We are pleased to have four impressive witnesses,

whom I shall introduce in short order.

As we begin, I want to point that in recent months Congress has

focused on how to combat societal ills the likes of which we have

never before witnessed. I speak of school shootings and other types

of juvenile violence, hate crimes that appear unprecedented in their

unique types of viciousness, and other conduct which can only be

described as soulless.

Frequently, Congress’s well-intentioned responses have been met

with protests that moral behavior cannot be legislated, and that

these societal problems are ones for which a change in culture will

provide the only antidote. My own response to that question is unequivocal. Even if problems require solutions that extend in part

beyond Congress’s jurisdiction, Congress must nonetheless do all it

can to stem these forms of viciousness.

But before us today is a measure which truly does have the

power to shape our country’s moral conscience in a way that other

legislation cannot match. As Lord Bacon recognized more than 350

years ago, religion is the ‘‘chief bond of human society.’’

Today’s religious liberty measure would permit our citizenry to

engage in an unburdened exercise of religious faith that might reinvigorate our citizens throughout the country’s sense of humanity.

And it is precisely such a sense of humanity that is the surest

means to disarm a violent high school student or hate crime assailant from that vicious temperament that destroys instead of respecting life.

Today’s hearing is the second one this year that I have held on

this most important matter, which is a top priority for me during

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this legislative session. I believe as much because this debate forces

a fundamental reexamination of no less a question than why America, despite such problems as I have just referred to, is the most

successful multi-faith country in all recorded history. The answer

is to be found, I submit, in both components of the phrase ‘‘religious liberty.’’

Surely, it is because of our Constitution’s zealous protection of

liberty that so many religions have flourished and so many faiths

have worshipped on our soil. But liberty without the type of virtue

instilled by religion is a ship that is all sail and no rudder.

Our country has achieved its greatness because, with its respectful distance from our private lives, our Government has allowed all

its citizens to answer for themselves and without interference those

questions that are most fundamental to humankind. And it is in

the way that religion informs our answers to these questions that

we not only survive, but thrive as human beings, that we not only

endure those difficulties that are at some point invariably affecting

each of our lives, but are able to achieve a sense of character, to

gain a recognition of the good, and to enrich our lives by contemplating that which is divine.

In the first hearing I held on religious liberty, we heard testimony from seven witnesses who brought a broad array of policy

perspectives to the question of the need for a religious liberty protection measure. Today’s witnesses will instead focus on the constitutionality of a religious protection measure.

Today’s witnesses are all familiar with the bill that I sponsored

last year, which has been largely duplicated by a bill passed by the

House this summer. And so we shall use that bill as a basis for

our discussion today on how we can best guarantee the constitutionality of any religious liberty protection measure we pass into

law.

Indeed, this point bears repeating. It would be utterly futile to

pass a measure that aggressively protects religious exercise, but is

thereafter invalidated by the courts as unconstitutional. This is

particularly true given the history that precedes us in this matter.

Here we stand in the fall of 1999 endeavoring to respond to an

unfortunate decision of the Supreme Court handed down in the

1990 Employment Division v. Smith case. And we have gone

through this exercise once before with the passage in 1993 of the

Religious Freedom Restoration Act, only to watch the Supreme

Court strike down that effort in 1997 with its decision in the City

of Boerne case.

I therefore believe that the obligation is firmly upon the Senate

to act not only expeditiously, but with painstaking clarity to ensure

that the action we take rests on the most solid of constitutional

footing, and to best guarantee that our work constitutes the last

word in our legislative effort to protect religious liberties.

Of course, though I believe it would be preferable for the Court

to return to its previous solicitude for religious liberty claims, until

it does this Congress must do what it can to protect religious freedom in cooperation with the Court.

By doing our best, we help ensure that in our communities Bible

study will not be zoned out of believers’ own homes, that Americans’ places of worship will not be zoned out of their neighborVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00070 Fmt 6601 Sfmt 6601 JUNE23.TXT SJUD2 PsN: SJUD2
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hoods, and ultimately that the Framers’ free exercise guarantee

will demand that government have a compelling reason before it

prohibits any religious practice.

The legislative framework I advocated last year, which forms the

basis of the efforts of this Congress, will, among other things, establish the rule of strict scrutiny review for rules that burden religious practice in interstate commerce, in federally funded programs, and in land use matters.

Consequently, in areas within Congress’s authority to legislate as

a matter of Federal statutory right, it will be impermissible to substantially burden religious practice except for the most compelling

of reasons. Such protection is necessary not because there is systematic oppression to certain sects now, as there has been in the

earlier part of our history. No. Hostility to religious freedom encroaches subtly, extending its domain through the reaches of blind

bureaucracies of the regulatory state.

Rule-bound, and often hypersensitive to the charge of assisting

religion, government agencies all around us cling to the creed that,

‘‘rules are rules,’’ and pay no heed to the damage that might be inflicted on the individual in the process.

Witness the recent decision by a Mississippi school district to

prohibit a Jewish youth from openly wearing at school a Star of

David his grandmother had given him. Though that decision was

ultimately reversed following the commencement of litigation, it is

unconscionable that any high school student must first become a

litigant in order to worship freely even if some school board, as incredible as it sounds, prohibits the display of a Star of David on

the ground that this sacred symbol of the Jewish faith resembles

a gang insignia.

Such an extension of arbitrary rules into every corner of our lives

is fundamentally incompatible with the infinite variety of religious

experiences we enjoy and cultivate in America. The freedom to

practice one’s religion is, in my opinion, one of the most fundamental of rights. And the discussion we are having about protecting

that right is one we need to have here in Congress and across the

Nation.

So this morning we will hear from four legal scholars and practitioners at the top of their field, and I certainly, for one, will look

forward to that discussion.

We will now turn to Senator Leahy, our Democratic leader.

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

Senator LEAHY. Thank you very much, Mr. Chairman. As I mentioned before, like so many of our members on both sides of the

aisle, I am juggling three different committee meetings. But I did

want to make a statement here, and I am pleased you are having

this hearing. In fact, this is our second hearing on religious liberty

and the Religious Liberty Protection Act, or RLPA.

As I remarked in our first hearing, we have to proceed cautiously. We have got to have thorough hearings and thoughtful

treatment before we make another attempt to respond to the Supreme Court’s decision in the Smith case. There, the Court struck

down our last effort, the Religious Freedom Restoration Act, or

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RFRA, in part because it said the legislative record was inadequate.

I have been critical of the Supreme Court’s disrespectful treatment of the Congress as a sort of least-favored administrative

agency. It is interesting for those who concern themselves about activist judges that the Supreme Court in this and in the recent patent cases and others is about as activist a Supreme Court as I have

ever seen. And I would be sure, realizing that a majority of the Supreme Court is represented by the majority party in this body, that

we will soon hear from others on the other side of the aisle about

the activist U.S. Supreme Court.

Be that as it may, they do show their attitude toward the Congress, but that is the way it is. The Constitution is what they say

it will be, and I think unless we want to be back here 3 years from

now debating the very same issues, we should work diligently to

develop the legislative record that the Court said was wanting.

So we will focus on some of the constitutional questions raised

by RLPA. These are serious and difficult questions; they deserve

our careful consideration. The bill makes very aggressive use of

Congress’s commerce and spending authority. It also relies on

Congress’s 14th Amendment enforcement power, which proved to

be an ineffective basis for the Religious Freedom Restoration Act.

The Department of Justice has suggested there may be ways to

amend the bill to make it less vulnerable to constitutional challenge, and I welcome any suggestion by the Department and by today’s distinguished witnesses on how we can best ensure against

another setback in the Supreme Court.

Aside from the constitutional concerns raised by the bill, there

are a number of practical considerations that require our attention.

Like the RFRA, the RLPA is sweeping in its scope. It is difficult

to predict all the ways in which the bill could be asserted in litigation. I know the Chairman and I could put our heads together and

try to think of all the different ways. I doubt if we could, or all our

superb staff on both sides of the aisle could. But we can at least

learn from the Court’s brief experience with the RFRA while that

statute was in effect.

For example, I will use my own State of Vermont. A father used

RFRA to avoid having to pay child support. The father was a member of the Northeast Kingdom Community Church. This church requires members to pool income and forbids support for family members who live outside of a closed religious community. He was

found in contempt of court for failure to comply with a court order

to pay child support.

But the Vermont Supreme Court, based on its understanding of

the legislation we had passed, dismissed the contempt citation.

There was no way then for the State to enforce the order for support. In another case, in the same year, the RFRA was used to

force a public school district to permit Sikh elementary school children to carry sharp ceremonial knives to school with them each

day. That is Cheema v. Thompson.

The Children’s Defense Fund, the National Network for Youth,

the Child Welfare League of America, the American Academy of

Pediatrics, and other children’s organizations oppose RLPA. They

point out child neglect, including medical neglect, is often justified

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on religious grounds. We should be careful before we approve legislation that would undermine the ability of State and local communities to protect children.

We should also be careful not to undermine the efforts of States

and localities to administer their civil rights laws. We heard some

testimony about this issue at our last hearing, including testimony

from Texas Representative Scott Hochberg about how his State was

able to craft a statute that protected religious liberty without sacrificing civil rights.

I think a vast majority of Americans want to protect religious liberties, but they also want to protect civil rights. We want to make

sure in a democracy we do the proper balancing act. We have received a letter signed, I believe, by 10 civil rights organizations expressing their concerns about the bill’s impact on anti-discrimination protections, and urging the committee to hold a hearing on

this issue.

So we need more hearings, we need to do more work. We have

not begun to examine all the ways in which this legislation could

cause unintended harm. The former Republican Governor of California, Pete Wilson, vetoed a State version of the bill last year,

based in part on concerns that the bill would be used by criminal

defendants to raise religious objections to drug laws, or to seek to

justify domestic violence based on purported religious beliefs that

wives have to be submissive to husbands. A Maryland bill failed in

the Maryland General Assembly in 1998 and 1999 based on concerns that it would endanger the public’s health, safety and welfare.

So, again, the bottom line is everybody on this committee cherishes religious liberty. We have different religions represented

here. Each one of us wants our religious rights protected. We also

want to protect our civil rights. I supported the RFRA in 1993. I

think everybody, Mr. Chairman, who is on this committee who was

a member at that time did, too. It has always been a bipartisan effort. But we want to make sure that we do it right so we don’t pass

legislation raising a lot of questions in the States and have it

thrown out by the Supreme Court again.

So I thank you, Mr. Chairman, for having this hearing.

The CHAIRMAN. Thank you, Senator Leahy.

I understand that the ranking member of the Constitution Subcommittee would like to make a short statement, so we will allow

that in this case.

Senator FEINGOLD. Thank you very much, Mr. Chairman, for

holding this hearing. I was pleased to——

Senator LEAHY. Mr. Chairman, would the Senator from Wisconsin withhold just a moment?

Senator FEINGOLD. Sure.

Senator LEAHY. I know Senator Kennedy, who has been a leader

in this effort for a long time, also has conflicts in his committee.

And I would ask that his statement, and actually the statements

of any Senators on either side of the aisle be included in the record.

The CHAIRMAN. Without objection, we will do that.

Senator LEAHY. Thank you.

[The prepared statement of Senator Kennedy follows:]

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PREPARED STATEMENT OF SENATOR EDWARD KENNEDY

I commend Chairman Hatch for scheduling this additional hearing on the issue

of protecting religious liberty.

Two years ago, the Supreme Court struck down the Religious Freedom Restoration Act, which had been passed by Congress with overwhelming bipartisan support.

Since then, many of us have worked together to meet the court’s objectives and prepare needed legislation to protect religious liberties. Our goal in such legislation is

to reach an effective and constitutionally sound approach to protect the ability of

people to freely exercise their religion. Today’s hearing will provide the Committee

with valuable insight on how best to achieve that goal.

I also hope that before the Committee takes final action on this legislation, we

will hear from those—especially the NAACP Legal Defense Fund, the National Fair

Housing Council, the National Women’s Law Center and the Human Rights Campaign. Their concerns and desire to be heard by this Committee are expressed in

a letter they sent this week to the Chairman and the Ranking Member.

In our efforts to strengthen the religious liberties of all Americans, we must be

careful not to do so in ways that undermine existing laws to protect other important

civil rights and civil liberties. Action by Congress to protect religious liberty should

not be a setback for the nation’s ongoing commitment to provide equal opportunity

and equal justice for all our citizens.

I look forward to the testimony of today’s witnesses, and to their insights on these

important and difficult issues.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR

FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you, Mr. Chairman, and I was pleased

to be able to support the original legislation. I very much hope that

I will be able to do it again, and I am grateful for the statements

of both the Chairman and the Ranking Member about the great

importance of caution in making sure that this bill would actually

be constitutional.

As the Senate considers how to protect the right to practice religion free of government intrusion, it is essential that the Senate

work carefully and thoroughly. The House considered and passed

the Religious Liberty Protection Act in July, but it appears that the

House bill may be potentially much more far-reaching and broader

than originally contemplated, and could then have unintended consequences.

As we know, the Supreme Court has already created certain

challenges to the Congress in enacting this law again. In addition,

however, many advocates concerned with the rights of women and

children and civil rights in general recently have changed their position on the House bill, and now many believe the bill is dangerously broad.

The ACLU, an organization that was one of the original supporters of a religious freedom law, has withdrawn from the coalition

supporting this legislation. The ACLU fears that a new law to protect religious freedom could trump existing State and local civil

rights laws. And the ACLU is now joined by other civil rights organizations, including the NAACP Legal Defense and Education

Fund. As a strong defender of civil rights and of federalism, I

would like to be sure before voting for a statute that is intended

to protect religious freedom that it, of course, doesn’t undermine

other freedoms.

In addition, some have raised concerns about the effect of a religious freedom law on existing protections for children and women.

Without necessarily endorsing that view, I want to point out that

there is concern that the House bill in its current form could be

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used as a tool to justify child and spousal abuse. Some say an

attacker could argue that his religious beliefs allow him to physically abuse his children or wife. And all of us, of course, want to

be sure that our efforts to protect religious freedom would not in

any way undermine State criminal laws and the other important

protections for women and children that I think we all support.

Mr. Chairman, our country’s legacy of religious liberty is so fundamental that it existed even before it was memorialized in the

Constitution. The Pilgrims braved crossing the Atlantic Ocean precisely because they were fleeing religious persecution and sought

the free exercise of their religious beliefs.

But just as the Pilgrims established that religious freedom would

be forever cherished in this Nation, Abraham Lincoln, Susan B.

Anthony, Martin Luther King, Jr. and numerous other Americans

fought to establish civil rights as a pillar of our great democracy.

So as you say, Mr. Chairman, these are very complicated legal

issues and they deserve a searching examination before we act. I

believe even more hearings are needed because the Senate has yet

to have a full hearing of these important issues. The ACLU

touched on the civil rights issue at the June hearing, and there

may be hopefully some discussion of these issues today.

But of the numerous organizations and scholars the Senate has

called to testify on religious freedom so far, the issue of the bill’s

effect on the rights of children and women has not yet been explored at all. The Senate has not yet heard from a single children’s

group or women’s rights group. So, Mr. Chairman, I respectfully request that this committee hold additional hearings that will fully

examine and address the effect of a religious freedom law on civil

rights, children’s rights and women’s rights.

We have the committee process to ensure that the Senate carefully and thoroughly considers all the facts surrounding pending

legislation, and I hope the committee process will be used in full

here. It is especially important that it be used here when we have

such a difficult and complex constitutional issue to work through.

This committee should fully execute its fact-finding function

through hearings and then proceed to a markup of potential religious freedom legislation before a religious freedom bill goes to the

full Senate. I understand that the House bill, Mr. Chairman, has

been held at the desk rather than referred to the committee. I will

strongly object to the Senate considering this bill before the committee does its job, and I hope, Mr. Chairman, that you will act to

protect the committee’s role in the legislative process within your

party leadership.

Mr. Chairman, I do sincerely thank you for your hard work on

the issue. I agree with you, in view of the importance of it, and I

look forward to additional substantive hearings about the likely effect of this legislation. I thank you for your courtesy in letting me

make an opening statement.

The CHAIRMAN. Thank you, Senator.

We will now turn to our witnesses. I am very pleased to welcome

the four members of our panel. First, we will hear from Professor

Douglas Laycock, who teaches at the University of Texas School of

Law.

Please come and take your seats.

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Professor Laycock has studied and lectured extensively on matters involving religion and constitutional law, and has produced an

impressive body of scholarship on these subjects. He has represented religious and secular civil liberties organizations in various seminal cases that have reached the U.S. Supreme Court.

Second will be Professor Chai Feldblum, who is a professor at

Georgetown University Law Center, as well as the founder and director of the Federal Legislative Clinic. She has testified in legislative hearings on RLPA and, prior to teaching, played an instrumental role in the negotiating and drafting of the Americans With Disabilities Act.

Third will be Professor Jay Bybee, who is currently teaching constitutional law and other subjects at the William S. Boyd School of

Law at the University of Nevada, Las Vegas. His testimony should

be particularly illuminating since Professor Bybee believed RFRA

to be an unconstitutional exercise of the 14th Amendment by Congress and filed a brief to that effect before the U.S. Supreme Court

in the City of Boerne case. However, Professor Bybee also holds the

position that the current House-passed RLPA bill properly invokes

the 14th Amendment and has cured the constitutional defects suffered by RFRA.

Fourth, we will hear from Mr. Gene Schaerr, a law partner at

the firm of Sidley and Austin. Mr. Schaerr is the co-chair of his

firm’s Religious Institutions Practice Group and was involved in

the litigation involving the constitutionality of the Religious Freedom Restoration Act.

So we will turn to you, Professor Laycock, and then go right

across the table.

Senator FEINGOLD. Mr. Chairman, excuse me. I just would like

to ask unanimous consent to have seven items of testimony and letters included in the record, if I could.

The CHAIRMAN. Without objection, we will put them in.

Senator FEINGOLD. Thank you very much.

[The information referred to appears in the appendix:]

The CHAIRMAN. Professor Laycock.

PANEL CONSISTING OF DOUGLAS LAYCOCK, ALICE McKEAN

YOUNG REGENTS CHAIR IN LAW, UNIVERSITY OF TEXAS

SCHOOL OF LAW, AUSTIN, TX; CHAI R. FELDBLUM, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER,

WASHINGTON, DC; JAY S. BYBEE, PROFESSOR OF LAW, UNIVERSITY OF NEVADA, LAS VEGAS, LAS VEGAS, NV; AND GENE

C. SCHAERR, CO-CHAIR, RELIGIOUS INSTITUTIONS PRACTICE GROUP, SIDLEY AND AUSTIN, WASHINGTON, DC

STATEMENT OF DOUGLAS LAYCOCK

Mr. LAYCOCK. Thank you, Mr. Chairman. The challenge before

the Congress is how to protect religious liberty consistent with the

Supreme Court’s understanding of its powers and the Supreme

Court’s limitation of the section 5 enforcement power in the City

of Boerne case. And the bill that this committee considered in the

last Congress and a similar version that the House has passed in

this Congress does what it can, invoking different powers to reach

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what those powers can reach, and let me briefly speak to each of

them.

There is a Spending Clause power in Congress to attach conditions when it distributes money to State and local governments.

There is a long history of using that power to protect individual liberty and civil rights, and the Spending Clause provisions in the

earlier Senate bill and the current House bill are based on Title VI

of the Civil Rights Act of 1964 which prohibits race discrimination,

on the education amendments which prohibit sex discrimination in

federally-assisted higher education, and similar provisions about

disability and a whole range of individual rights matters.

The Federal interest here is simply that the intended beneficiaries of a Federal program should not be excluded from the program because of their religious practice and should not be forced

to surrender their religious practice as a condition of participating

and benefitting in the federally-assisted program, and that Federal

funds should not be used unnecessarily to impose burdens on religious exercise. It doesn’t reach lots of things, but it reaches those

programs that are federally-assisted and it is a familiar use of Federal power.

The Commerce Clause provisions would protect religious liberty

and require a compelling interest for burdens on religious liberty

in cases where the burden or the removal of the burden would affect interstate or foreign commerce. And that formulation is designed to fit squarely into United States v. Lopez and the subsequent cases interpreting United States v. Lopez, in which the courts

say if the claimant shows in each individual case an effect on commerce, an effect on a commercial transaction, then the courts will

infer that in the aggregate all similar commercial transactions

have a substantial effect on commerce.

And this has been applied in the religion context in a Supreme

Court case in 1997, Camps Newfound/Owatonna v. Town of Harrison. The Court said that that particular church camp had a relatively insignificant effect on commerce, but it had some effect, and

all church camps in the aggregate were presumed to have a substantial effect.

They took a case just this year, United States v. Ray, for arson

of church property. That church property was used in an activity

that affected interstate commerce. Some of it had bought in interstate commerce. It was a relatively de minimis effect, but in the

aggregate all churches buying their property for religious uses

could have a substantial effect on commerce, and that is the theory

of the Commerce Clause sections.

The Enforcement Clause sections are in two parts. The critical

part is about State land use regulations. This committee and the

House Subcommittee on the Constitution have assembled a massive record of individualized decisionmaking that burdens churches

in land use regulation, discrimination against churches as compared to places of secular assembly, of discrimination against minority churches as compared to large, mainstream churches.

The Jewish community is 2 percent of the national population,

but they are 20 percent of the reported church land use cases.

There is a clear pattern here of the sort the Supreme Court said

is required in the Boerne case, and the land use provisions would

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codify the Supreme Court’s First Amendment rules as they apply

to land use, largely tracking the standards in the Supreme Court

cases themselves. They are justified both because they so closely

track the Supreme Court standard, would make it more visible and

easier to enforce, and because of the very strong record of a pattern

of discrimination that has been developed in both Houses.

I believe that this bill is consistent with the federalism limitations that have been emphasized by the Court in recent cases. This

is not a bill to regulate the States. This is a bill to deregulate the

exercise of religion. The congressional policy is to burden religion

as little as possible. That is implemented through RFRA against

the Federal Government, through a variety of statutes affecting the

private sector, title VII, the Church Arson Act, and others.

And this bill would implement it in areas where Congress could

regulate, but States continue to regulate, by preempting State legislation that is inconsistent with the Federal policy. It is very parallel to other recent bills that preempt State regulation inconsistent with a Federal policy of deregulation. The Internet Tax Freedom Act, passed just last year, says no State may enact any of the

following taxes, and lists the prohibited taxes, on transactions that

Congress wanted to protect.

The Airline Deregulation Act has a preemption section very

much like the substantive provisions in RFRA which identifies a

category of activity that is not to be regulated, and says no State

can enact any law that burdens these activities. It does not require

the States to administer a Federal regulatory program. It does not

impose any affirmative duty on any State officer. It does not conscript State officials. It says, States, choose your own policies,

choose your own means. There is only one means that is off limits.

You cannot substantially burden religious exercise without a compelling reason.

You can change the policy, you can have an exemption and enforce the policy with respect to everybody else. Often, these cases

can be worked by negotiation so the policy is fully accommodated

and the religious exercise is also accommodated. All those options

are left to the States. But just as States cannot discriminate on the

basis of race or refuse to make provisions for the handicapped,

States cannot refuse to take account of the burdens their regulation

imposes on religious liberty.

I believe that this is carefully crafted to fit within the recent Supreme Court cases. We can’t guarantee the Supreme Court will

change the rules at some point in the future, but I am fairly confident this is constitutional under existing Supreme Court case law.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Professor.

[The prepared statement of Mr. Laycock follows:]

PREPARED STATEMENT OF DOUGLAS LAYCOCK

Summary

Thank you for the opportunity to testify in support of new legislation to protect

religious liberty. This statement is submitted in my personal capacity as a scholar.

I hold the Alice McKean Young Regents Chair in Law at The University of Texas

at Austin, but of course The University takes no position on any issue before the

Committee.

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I regret the length and detail in my written statement, but many remarkable

charges have been made against religious liberty legislation, and it takes longer to

responsibly answer such charges than it takes to make them. I have provided a detailed, point-by-point response. But I will begin with a more readable summary.

In 1993, Congress by overwhelming margins passed the Religious Freedom Restoration Act to protect the religious liberty of the American people. The Supreme

Court held that that Act exceeded Congress’s power to enforce the Fourteenth

Amendment. The need for such protection continues unabated, and is now better

documented than in 1993.

Congress has power to protect religious liberty within the scope of Congress’s general power to regulate. One way to exercise this power is the proposed Religious Liberty Protection Act, H.R. 1691, as passed by the House in this Congress. Of course

the Senate may amend that bill, or even start over, but the House RLPA provides

a specific model for concrete analysis. The House RLPA is based on the Spending

Clause, the Commerce Clause, and in carefully targeted provisions, on the Enforcement Clause of the Fourteenth Amendment. In my judgment, the House bill is constitutional under existing law.

Section 2 of the House bill tracks the substantive language of RFRA, providing

that government shall not substantially burden a person’s religious exercise without

compelling reasons, and applies that standard to cases within the spending power

and the commerce power.

Spending Clause. The Spending Clause provision is modeled directly on similar

provisions in other civil rights laws, including Title VI of the Civil Rights Act of

1964, which forbids race discrimination in federally assisted programs, 42 U.S.C.

§ 2000d (1994), and Title IX of the Education Amendments of 1972, which forbids

sex discrimination in federally assisted educational programs, 20 U.S. C. § 1681

(1994). Congressional power to attach conditions to federal spending has been consistently upheld since Steward Machine Co. v. Davis, 301 U.S. 548 (1937); see South

Dakota v. Dole, 483 U.S. 203 (1987). The federal interest is simply that the intended

beneficiaries of federal programs not be excluded because of their religious practice,

and that federal funds not be used to impose unnecessary burdens on religious exercise.

Commerce Clause. The Commerce Clause provision requires proof of a jurisdictional element in each case—that the burden on religious exercise, or removal of

that burden, will affect interstate or foreign commerce. The courts assume that if

such a jurisdictional element is proved in each case, the aggregate of all such effects

in individual cases will be a substantial effect on commerce. United States v. Lopez,

514 U.S. 549, 556, 558 (1995) (expressly preserving the aggregation rule); Camps

Newfound/Owatanna v. Town of Harrison, 520 U.S. 564 (1997) (holding that Commerce Clause protects a small church camp from discriminatory taxation); United

States v. Rea, 169 F.3d 1111 (8th Cir. 1999) (affirming conviction for arson of church

property used in an activity that affected commerce).

Enforcement Clause. Section 3(a) of the House bill shifts the burden of persuasion

in cases where the claimant shows a prima facie violation of the Free Exercise

Clause. No element of the Court’s definition of a free exercise violation is changed,

but in cases where a court is unsure of the facts, the risk of nonpersuasion is placed

on government instead of on the claim of religious liberty.

The land use regulation sections of the House bill enforce the Free Exercise and

Free Speech Clauses, as interpreted by the Supreme Court, in the land use context.

These provisions are constitutional if Congress has ‘‘reason to believe that many of

the laws affected by the congressional enactment have a significant likelihood of

being unconstitutional.’’ City of Boerne v. Flores, 521 U.S. 507, 532 (1997). These

provisions satisfy the standard as a matter of law, because they track the legal

standards in Supreme Court opinions, codifying those standards for easier enforceability.

These provisions also satisfy the standard as a matter of fact, because this Committee and the House Subcommittee on the Constitution have compiled a massive

record of individualized assessment of land use plans, of discrimination against

churches as compared to secular places of assembly, and of discrimination against

small and unfamiliar denominations as compared to larger and more familiar ones.

Remedies. The remedies provisions of the House bill track RFRA. The bill is expressly subject to the Prison Litigation Reform Act.

Rules of Construction. The rules of construction in sections 5 and 6 of the House

bill ensure that the bill is not misinterpreted to authorize new restrictions on religious liberty, and that the bill is neutral on all issues of government funding for

religious activities. They confirm the broad discretion of state and local governments

in deciding how to eliminate burdens on religious exercise, and they provide that

proof that a burden on religious exercise affects commerce for purposes of the House

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RLPA bill raises no inference about Congressional intent in enacting other legislation under the Commerce Clause.

RFRA Amendments. Section 7 of the House bill amends RFRA to delete all references to the states, leaving RFRA in effect only as to the United States.

Definitions. Section 8 of the House bill contains definitions. The definition of religious exercise incorporates the First Amendment, with two clarifications that have

been the subject of litigation. A religious practice need not be compulsory or central

to be protected, and the use or conversion of real property for religious exercise shall

itself be considered religious exercise.

Establishment Clause. Broad-based protection for religious liberty does not violate

the Establishment Clause. Regulatory exemptions for religious exercise are constitutional if they lift a government imposed burden on religious exercise. Board of Education v. Grumet, 512 U.S. 687, 705 (1994); Corporation of the Presiding Bishop v.

Amos, 483 U.S. 327, 335–36 (1987).

Federalism. The House bill is consistent with constitutional protections for federalism. The bill does not attempt to override state sovereign immunity, so it is unaffected by the three sovereign immunity cases decided this past June. One of those

cases, Florida Prepaid Postsecondary Education Expense Board v. College Savings

Bank, 119 S.Ct. 2199 (1999), emphasized that prophylactic legislation under the Enforcement Clause must be a proportionate response to a pattern of constitutional

violations. Id. at 2210. It was undisputed that there was no such pattern in Florida

Prepaid, where the bill’s supporters had identified only eight claims against states

in a century. Id. at 2207. This holding is irrelevant to the massive record of probable

constitutional violations in church land-use regulation.

The House bill does not violate Printz v. United States, 521 U.S. 898 (1997). It

does not impose any specific affirmative duty, implement a federal regulatory program, or conscript state officers. The substantive provisions of the bill are entirely

negative; they define one thing that states cannot do, leaving all other options open.

The bill thus pre-empts state laws inconsistent with the overriding federal policy of

protecting religious liberty in areas constitutionally subject to federal authority.

Printz and other recent federalism cases necessarily continue to recognize Congressional power to make ‘‘compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field.’’ Printz, 521 U.S. at 925–26;

see New York v. United States, 505 U.S. 144, 167 (1992); Federal Energy Regulatory

Commission v. Mississippi, 456 U.S. 742, 765 (1982); Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 291 (1981).

It follows that the House bill does not single the states out for regulation that

is not generally applicable. It is not a bill to regulate the states; it is a bill to deregulate religion. Like other deregulation bills, it pre-empts state law that would

impose regulation inconsistent with the federal policy of deregulation. The House

bill is parallel to the Internet Tax Freedom Act, 112 Stat. 2681–719 (1998), and to

the pre-emption section of the Airline Deregulation Act, 49 U.S.C. § 41713(b) (1994).

Civil Rights. A civil rights exception to the House bill would be both unnecessary

and unwise. A civil rights exception is unnecessary, because most civil rights claims

satisfy the compelling interest test. Bob Jones University v. United States, 461 U.S.

574, 604 (1983); Board of Directors v. Rotary Club, 481 U.S. 537, 549 (1987); Roberts

v. United States Jaycees, 468 U.S. 609, 623–29 (1984). A civil rights exception is unwise, because it would eliminate religious liberty arguments in those few cases in

which religious liberty should prevail over other civil rights claims, or should at

least get a fair hearing. For example, a civil rights exception would mean that religious organization would have no RLPA defense when their statement of faith for

officers or voting members is challenged as religious discrimination. See Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839 (2d Cir. 1996). The House bill

provides for case by case balancing under the substantial burden and compelling interest tests; a civil rights exception would be a blunderbuss in which civil rights

other than religious liberty always prevail without regard to context or the weight

of competing interests.

Detailed Statement

Other witnesses have addressed the need for religious liberty legislation, in this

hearing and in earlier hearings. I will not repeat that testimony, except to say that

RLPA is not a bill for left or right, or for any particular faith, or any particular tradition or faction within a faith. RLPA will protect people of all races, all ethnicities,

and all socio-economic statuses. Religious liberty is a universal human right.

The Supreme Court has taken the cramped view that one has a right to believe

a religion, and a right not to be discriminated against because of one’s religion, but

no right to practice one’s religion. Under that standard, the protection for religious

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liberty accorded to all citizens is in some ways less than the protection accorded to

prisoners prior to Employment Division v. Smith, 494 U.S. 872 (1990). In Samett

v. Sullivan, the district court recently said that it could not hold on cross-motions

for summary judgment that the prison’s rules had a reasonable relationship to any

legitimate penological purpose. No. 94–C–52–C (W.D. Wis. 1999). But it held that

under Smith, no such relationship is required. Under existing free exercise law, the

American people are subject even to irrational burdens on religious liberty if the

burdensome law is generally applicable.

Witnesses and lobbyists who are opposed to further legislation on religious liberty

are implicitly defending that standard. Make them defend it explicitly. Make them

explain why Americans should have less legal protection for religious liberty than

that formerly accorded prisoners, why government should be able to burden religious practices with no reason and no standard of justification, and why religion

should be regulated to the same extent as everything else in our pervasively regulated society. Congress rejected that view by overwhelming margins when it passed

the Religious Freedom Restoration Act. To the extent that it still has power to do

so, Congress should again enact substantive protection for religious liberty.

The House bill would use those powers that are available to Congress to provide

as much protection as is possible under existing Supreme Court interpretations.

There is ample precedent in other civil rights legislation for using such a combination of federal powers to protect as much as possible of what Congress wanted to

protect. The Civil Rights Act of 1964 used the power to enforce the Fifteenth

Amendment in Title I, the commerce power and the power to enforce the Fourteenth

Amendment in Title II, the power to enforce the Fourteenth Amendment in Title

III, the spending power and the power to enforce the Fourteenth Amendment in

Title IV, the spending power in Titles VI, VIII, and X, the commerce power in Title

VII, and all these powers in Title V. The Federally Protected Activities Act uses the

enforcement power, the commerce power, the spending power, and power to prohibit

interference with federal programs and activities (thus invoking all the powers

which Congress used to create such programs and activities) to protect a broad list

of activities. 18 U.S.C. § 245 (1994). RLPA is more focused and less miscellaneous,

but it is similar in its use of those powers that are available to protect activities

in need of protection.

I. THE SPENDING CLAUSE PROVISIONS

Section 2(a) of the House RLPA bill tracks the substantive language of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (1994), providing that government shall not substantially burden a person’s religious exercise, and applies

that language to cases within the spending power and the commerce power. Section

2(b) also tracks RFRA. It states the compelling interest exception to the general rule

that government may not substantially burden religious exercise.

Section 2(a)(1) specifies the spending power applications of RLPA. The bill applies

to programs or activities operated by a government and receiving federal financial

assistance. ‘‘Government’’ is defined in § 8(6) to include persons acting under color

of state law. In general, a private-sector grantee acts under color of law only when

the government retains sufficient control that ‘‘the alleged infringement of federal

rights [is] ‘fairly attributable to the State.’ ’’ Rendell-Baker v. Kohn, 457 U.S. 830,

838 (1982).

Section 2(a)(1) would therefore protect against substantial burdens on religious

exercise in programs or activities receiving federal financial assistance and operating under color of state law. It would protect a wide range of students and faculty

in public schools and universities, job trainees, workfare participants, welfare recipients, tenants in public housing, and participants in many other federally assisted

but state-administered programs. An individual could not be excluded from a federally assisted program because of her religious dress, or because of her observance

of the Sabbath or of religious holidays, or because she said prayers over meals or

at certain times during the day—unless these burdens served a compelling interest

by the least restrictive means.

The federal interest is simply that the intended beneficiaries of federal programs

not be excluded because of their religious practice, and that federal funds not be

used to impose unnecessary burdens on religious exercise. The provision should be

interpreted to protect both the person who avoids violation of his religious beliefs

by refusing to participate in a federally-assisted program for which he is eligible,

and the person who participates in the program at the cost of violation his religious

beliefs. The burden on religious exercise is the same in each case: each has been

subjected to the choice of abandoning the practice of his religion or of forfeiting governmental benefits. The Supreme Court has long recognized that government burVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00081 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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1 Cf. Salinas v. United States, 118 S.Ct. 469, 475 (1997). Salinas interpreted 18 U.S.C.

§ 666(a)(1)(B) (1994), part of the federal bribery statute, to apply to any bribe accepted in a covered federally assisted program, whether or not the federal funds were in any way affected. The

Court also concluded that under that interpretation, ‘‘there is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case.’’ Preferential treatment accorded to one federal prisoner (the briber) ‘‘was a threat to the integrity and proper operation

of the federal program,’’ even if it cost nothing and diverted no federal funds. The Court did

not find it necessary to consider whether there might someday be an application in winch the

statute would be unconstitutional as applied.

dens religious liberty when it imposes such a choice. Sherbert v. Verner, 374 U.S.

398 (1963). The Court has not questioned that part of Sherbert, although it has

largely eliminated the government’s duty to justify such burdens.

The Spending Clause provision is modeled directly on similar provisions in other

civil rights laws, including Title VI of the Civil Rights Act of 1964, which forbids

race discrimination in federally assisted programs, 42 U.S.C. § 2000d (1994), and

Title IX of the Education Amendments of 1972, which forbids sex discrimination in

federally assisted educational programs, 20 U.S.C. § 1681 (1994).

Congressional power to attach conditions to federal spending has been consistently upheld since Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Conditions

on federal grants must be ‘‘[]related to the federal interest in particular national

projects or programs.’’ South Dakota v. Dole, 483 U.S. 203, 207 (1987). Federal aid

to one program does not empower Congress to demand compliance with RLPA in

other programs; the bill’s protections are properly confined to each federally assisted

‘‘program or activity.’’ Dole upheld a requirement that states change their drinking

age as a condition of receiving federal highway funds, finding the condition directly

related to safe interstate travel. Id. at 208. The connection between the federal assistance and the condition imposed on that assistance by RLPA—ensuring that the

intended beneficiaries actually benefit—is even tighter than the connection in Dole.

Section 2(a)(1) is clearly constitutional under existing law.

‘‘Program or activity’’ is defined in § 8(4) by incorporating a subset of the definition of the same phrase in Title VI of the Civil Rights Act of 1964. The facial constitutionality of that definition has not been seriously questioned. If it turns out, in

the case of some particularly sprawling state agency, that federal assistance to one

part of the agency is wholly unrelated to a substantial burden on religious exercise

imposed by some other and distant part of the agency, the worst case should be an

as-applied challenge and a holding that the statute cannot be applied on those facts.

Given the variety of ways in which agencies are structured in the fifty states, I believe that it would be difficult to draft statutory language for such unusual cases.

We may be able to agree on such language, or we may leave such cases to caseby-case adjudication.1

Section 2(c) provides that the bill does not authorize the withholding of federal

funds as a remedy for violations. This provision is modeled on the Equal Access Act,

another Spending Clause statute that precludes the withholding of federal funds. 20

U.S.C. § 4071(e) (1994). Withholding funds is too harmful, both to the states and to

the intended beneficiaries of federal assistance. Because the remedy is so harmful,

it is rarely used. A far more effective remedy is provided in § 4, which authorizes

individuals to sue for appropriate relief, and authorizes the United States to sue to

enforce compliance. States may accept or reject federal financial assistance, but if

a state accepts federal assistance subject to the conditions imposed by the House

bill, it is obligated to fulfill the conditions and the courts may enforce that obligation. Private rights of action have been the primary and effective means of enforcement under other important Spending Clause statutes, including Title IX (see Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999); Franklin v. Gwinnett

County Public Schools, 503 U.S. 60 (1992); Cannon v. University of Chicago, 441

U.S. 677 (1978)), and of course the Equal Access Act (see Board of Education v. Mergens, 496 U.S. 226 (1990).

The rule of construction in § 5(c) provides that the House bill neither creates nor

precludes a right to receive funding for any religious organization or religious activity. The bill is therefore neutral on legal and political controversies over vouchers

and other forms of aid to religious schools, charitable choice legislation, and other

proposals for funding to religious organizations. The Coalition for the Free Exercise

of Religion includes groups that disagree fundamentally on these issues, but all

sides agreed that this language is neutral and that no side’s position will be undermined by the House bill.

As already noted, private-sector grantees not acting under color of law are excluded from the bill. This exclusion is important, because some private-sector grantees are religious organizations, and applying the bill to them would sometimes create conflicting rights under the same statute. The result in such cases might be to

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2See the Clayton Act, 15 U.S. C. § 18 (1994) (‘‘person engaged in commerce or in any activity

affecting commerce’’); the Federal Trade Commission Act, 15 U.S.C. § 45 (1994) (‘‘unfair or deceptive acts or practices in or affecting commerce’’); the Federal Fire Prevention and Control Act,

15 U.S.C. § 2224 (1994) (‘‘places of public accommodation affecting commerce’’); the Petroleum

Marketing Practices Act, 15 U.S.C. § 2801 (1994) (trade, etc., ‘‘which affects any trade, transportation, exchange, or other commerce’’ between any state and any place outside of such state);

the Semiconductor Chip Protection Act, 17 U.S.C. § 910 (1994) (‘‘conduct in or affecting commerce’’); the criminal provisions of the Health Insurance Portability and Accountability Act, 18

U.S.C. § 24 (Supp. II 1996) (‘‘any public or private plan or contract, affecting commerce’’); the

Federally Protected Activities Act, 18 U.S.C. § 245 (1994) (‘‘engaged in a business in commerce

or affecting commerce’’); the National Labor Relations Act, 29 U.S.C. § 152 (1994) (‘‘affecting

commerce’’); the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 402 (1994) (‘‘industry affecting commerce’’); the Age Discrimination in Employment Act, 29 U.S.C. § 630 (1994)

(‘‘industry affecting commerce’’); the Occupational Safety and Health Act (OSHA), 29 U.S.C.

§ 652 (1994) (‘‘engaged in a business affecting commerce’’); the Employment and Retirement Income Security Act (ERISA), 29 U.S.C. § 1003 (1994) (‘‘in commerce or in any industry or activity

affecting commerce’’); the Employee Polygraph Protection Act, 29 U.S.C. § 2002 (1994) (‘‘any employer engaged in or affecting commerce’’); the Family and Medical Leave Act, 29 U.S.C. § 2611

(1994) (‘‘industry or activity affecting commerce’’); Title 11 of the Civil Rights Act of 1964, 42

U.S.C. § 2000a (1994) (‘‘if its operations affect commerce’’); Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e (‘‘engaged in an industry affecting commerce’’); the Privacy Protection

Act, 42 U.S.C. § 2000aa (Supp. II 1996) (‘‘public communication, in or affecting interstate or foreign commerce’’); the Energy Policy and Conservation Act, 42 U.S.C. § 6291 (1994) (trade, etc.,

‘‘which affects any trade, transportation, exchange, or other commerce’’ between any state and

any place outside of such state); the Americans with Disabilities Act, 42 U.S.C. § 12111 (1994)

(‘‘engaged in an industry affecting commerce’’); the Commercial Motor Vehicle Safety Act, 42

U.S.C. § 31101 (1994) (‘‘engaged in a business affecting commerce’’).

restrict religious liberty rather than protect it. Congress has provided similar statutory protections where needed in the private sector, most notably in the employment

discrimination laws, the public accommodations laws, and the church arson act. The

free exercise of religion has historically been protected primarily against government action, with statutory protection extended to particular contexts where Congress or state legislatures found it necessary. Religious liberty legislation need not

change the existing scope of protection in the private sector.

II. THE COMMERCE CLAUSE PROVISIONS

Section 2(a)(2) of the House bill protects religious exercise in any case in which

a substantial burden on religious exercise, or the removal of that burden, would affect interstate or foreign commerce. This language embodies the historic constitutional standard, and it is similar to language in many other statutes that require

an effect on commerce as a condition of applicability.2 The bill protects all that religious exercise, and only that religious exercise, that Congress is empowered to protect. This part of the bill is constitutional by definition; any religious exercise beyond the reach of the Commerce Clause is simply outside the bill.

Hearings held in the previous Congress documented parts of the enormous volume

of commerce that is based on religious exercise. See especially the testimony of Marc

Stern before the House Subcommittee on the Constitution (June 16, 1998). These

data make clear that the activity of religious organizations substantially affects

commerce; the religious exercise of these organizations is protected by the bill, subject to the compelling interest test. The construction of churches, the employment

of people to do the work of the church, and the purchase of supplies and materials

all are conducted in interstate commerce. The religious exercise of individuals will

sometimes be protected by the bill, as when religious exercise requires the use of

property of a kind that is bought and sold in commerce and used in substantial

quantities for religious purposes, or when an individual is denied an occupational

license or a driver’s license because of a religious practice.

Substantial burdens on religious exercise prevent or deter or raise the price of religious exercise. On standard economic models, such burdens reduce the quantity of

religious exercise and therefore the quantity of commerce dependent on religious exercise. Religious exercise and associated commerce that is not prevented may be diverted or distorted, which are other ways of interfering with the free flow of commerce. Congress has plenary power to protect the commerce generated by religious

exercise or inhibited by substantial burdens on religious exercise, and Congress’s

motive for acting is irrelevant. United States v. Darby, 312 U.S. 100 (1941).

Models for the Commerce Clause provisions include the Privacy Protection Act of

1980, 42 U.S.C. § 2000aa (Supp. II 1996), protecting papers and documents used in

preparation of a publication in or affecting commerce, which has not been challenged, the public accommodations title of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000a (1994), forbidding racial and religious discrimination in places of public acVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00083 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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3The Court has also applied regulatory statutes based on the Commerce clause to religiously

affiliated not-for-profit organizations. Tony & Susan Alamo Foundation v. Secretary of Labor,

471 U.S. 290 (1985); NLRB v. Yeshiva University, 444 U.S. 672, 681 n. 11 (1980) (noting that

‘‘Congress appears to have agreed that non-profit institutions ‘affect commerce’ under modern

economic conditions.’’).

commodation affecting commerce, which the Supreme Court has upheld, the commerce clause provisions of the Federally Protected Activities Act, 18 U.S.C. 245

(1994), which the Tenth Circuit has upheld, United States v. Lane, 883 F.2d 1484,

1489–93 (10th Cir. 1989), the church arson act, 18 U.S.C. § 247 (1994 and Supp. II),

which has not been challenged, and many other provisions of Title 18.

The public accommodations law is particularly instructive. Congress’s first public

accommodations law was the Civil Rights Act of 1875, enacted to enforce the Thirteenth and Fourteenth Amendments. The Supreme Court struck that law down as

beyond the enforcement power. Civil Rights Cases, 109 U.S. 3 (1883). Congress’s second public accommodations law was the Civil Rights Act of 1964, enacted with substantially the same scope in practical effect but pursuant to the commerce power.

The Court upheld this Act in Katzenbach v. McClung, 379 U.S. 294 (1964), and

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

United States v. Lopez, 514 U.S. 549 (1995), does not invalidate the House bill.

Lopez struck down the Gun Free Schools Act as beyond the reach of the Commerce

Clause. 18 U.S.C. § 922 (1994). The offense defined in that Act was essentially a possession offense; neither purchase nor sale of the gun nor any other commercial

transaction was relevant. The Court emphasized that the offense ‘‘has nothing to do

with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms,‘‘ 514 U.S. at 561, and that the offense ‘‘is in no sense an economic

activity that might, through repetition elsewhere, substantially affect any sort of

interstate commerce.’’ Id. at 567.

Equally important, the offense in Lopez contained no jurisdictional element. That

is, the government was not required to prove an effect on commerce, or a jurisdictional fact from which an effect on commerce could be inferred. The House bill does

have such a jurisdictional element. In every case under the commerce clause section

of the House bill, plaintiff must prove either that the burden on religious exercise

affects commerce, or that removal of the burden would affect commerce.

These distinctions have been critical in the interpretation of Lopez, both in the

Supreme Court and the lower courts. Lopez’s skeptical attitude toward the commerce power has been confined to cases in which Congress tries to dispense with

case-by-case proof of any connection to the commerce power. Lopez reaffirms the

long-standing rule that Congress may regulate even ‘‘trivial’’ or ‘‘de minimis’’ intrastate transactions if those transactions, ‘‘taken together with many others similarly

situated,’’ substantially affect interstate commerce. Id. at 556, 558. I will refer to

this rule as the aggregation rule: in considering whether an activity substantially

affects commerce, Congress may aggregate large numbers of similar transactions.

The Supreme Court recently held, after Lopez, that a religious organization affects

commerce, is subject to the aggregation rule, and is protected by the dormant commerce clause. ‘‘[A]lthough the summer camp involved in this case may have a relatively insignificant impact on the commerce of the entire Nation, the interstate

commercial activities of non-profit entities as a class are unquestionably significant.’’ Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564 (1997), citing

Lopez and Wickard v. Filburn, 317 U.S. 111, 127–28 (1942), for the aggregation rule.

The dissents were based on the view that Maine could legitimately subsidize local

charities, and on disagreements about the scope of the dormant commerce clause.

No Justice suggested that religious or not-for-profit corporations do not affect commerce.3

In United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999), and cases there

cited, the court held Lopez inapplicable to statutes that require proof of a jurisdictional element, and further held that when Congress requires proof of such an element, ‘‘even a de minimis connection to interstate commerce’’ is sufficient. By contrast, when the Fourth Circuit struck down the Violence Against Women Act, it emphasized that ‘‘in contrast to the statutes that the Supreme Court has previously

upheld as permissible regulations under the substantially affects test, but analogously to the Gun-Free Schools Zones Act, [VAWA] neither regulates an economic

activity nor contains a jurisdictional element.’’ Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 833 (4th Cir. 1999). Because RLPA contains a jurisdictional

element, requiring proof of a connection to commerce in each case, it raises no serious constitutional question under the commerce clause.

The aggregation rule is important to the scope of the bill, and especially to the

protection of small churches and individuals. A small church with a RLPA claim

81

need not show that the burden on that church substantially affects commerce all

by itself; it is enough to show that the burden affects commerce to some extent. An

individual need not show that the burden on his religious practice substantially affects commerce all by itself, it is enough to show that the burden affects commerce

to some extent. If the statute’s jurisdictional element is satisfied case by case, Congress can rely on the aggregate effect of all similar burdens that satisfy the jurisdictional element to infer that the aggregate effect on commerce is substantial.

It would be a mistake to require proof of a substantial effect on commerce in every case. Lopez does not require that each individual case substantially effect commerce,

and it is not workable to require each claimant to prove the substantial aggregate

effect of all similar transactions as an element of his individual case. The constitutional solution is for the substantial aggregate effect to be inferred from the proof

of a jurisdictional element that shows some effect on commerce in each case. The

Gun Free Schools Zone Act was unconstitutional because it dispensed with that

step; the prosecution asked the court to assume a substantial aggregate effect on

commerce without proof of even one specific transaction that had been affected.

There will likely be cases in which the effect on commerce cannot be proved even

in the individual case, and which therefore fall outside the protections of the bill.

That is the nearly unavoidable consequence of being forced to rely on the Commerce

Clause. But there will be many cases in which the burdened religious exercise affects commerce when aggregated with ‘‘many others similarly situated,’’ Lopez, 514

U.S. at 558, and in those situations, restricting or eliminating the religious exercise

by burdensome regulation would also affect commerce. I am certain that the Commerce Clause provisions are constitutional, and I am confident that they will have

a wide range of applications.

Persons who would normally defend religious liberty have attacked the House

RLPA bill for treating religion as commerce. Of course the bill does no such thing;

at most it recognizes that commercial transactions are sometimes necessary to enable persons to exercise their religion. But the current House version does not even

do that. It does not require a finding that the religious exercise affects commerce;

it requires a finding that the burden, or the removal of the burden, affects commerce. The spending clause section protects only those people who accept government

benefits or participate in government programs, and only within the scope of the

program. The land use section protects only land use decisions. The only protection

for churches outside the land use context, and the only protection for individual believers outside the scope of government funded programs, is the commerce clause

section. We should not abandon the House bill’s principal protection for religious liberty to accommodate a theory of the commerce clause that was itself abandoned

more than a century ago.

III. THE ENFORCEMENT CLAUSE PROVISIONS

Section 3 of the House bill would be enacted as a means of enforcing the Fourteenth Amendment. Section 3 attempts to simplify litigation of free exercise violations as defined by the Supreme Court, facilitating proof of violations in cases where

proof is difficult.

A. Shifting the burden of persuasion

Section 3(a) provides that if a claimant demonstrates a prima facie violation of

the Free Exercise Clause, the burden of persuasion then shifts to the government

on all issues except burden on religious exercise. No element of the Court’s definition of a free exercise violation is changed, but in cases where a court is unsure of

the facts, the risk of nonpersuasion is placed on government instead of on the claim

of religious liberty. This provision facilitates enforcement of the constitutional right

as the Supreme Court has defined it. City of Boerne v. Flores, 521 U.S. 507 (1997),

of course reaffirms broad Congressional power to enforce constitutional rights as interpreted by the Supreme Court.

This provision applies to any means of proving a free exercise violation recognized

under judicial interpretations. See generally Church of the Lukumi Babalu Aye, Inc.

v. City Of Hialeah, 508 U.S. 520 (1993); Employment Division v. Smith, 494 U.S.

872 (1990). Thus, if the claimant shows a burden on religious exercise and prima

facie evidence of an anti-religious motivation, government would bear the burden of

persuasion on the question of motivation, on compelling interest, and on any other

issue except burden on religious exercise. If the claimant shows a burden on religious exercise and prima facie evidence that the burdensome law is not generally

applicable, government would bear the burden of persuasion on the question of general applicability, on compelling interest, and on any other issue except burden on

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4See, e.g., Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995); Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995); Lamb’s Chapel v. Center Moriches

Union Free School Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981);

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1984); Carey v. Brown, 447 U.S. 455 (1980);

Police Dept. v. Mosley, 408 U.S. 92 (1972).

dence of a hybrid right, government would bear the burden of persuasion on the

claim of hybrid right, including all issues except burden on religion. In general,

where there is a burden on religious exercise and prima facie evidence of a constitutional violation, the risk of nonpersuasion is to be allocated in favor of protecting

the constitutional right.

The protective parts of the Smith and Lukumi rules create many difficult issues

of proof and comparison. Motive is notoriously difficult to litigate, and the court is

often left uncertain. The general applicability requirement means that when government exempts or fails to regulate secular activities, it must have a compelling reason for regulating religious activities that are substantially the same or that cause

the same harm. See, e.g., Lukumi, 508 U.S. at 543 (‘‘The ordinances * * * fail to

prohibit nonreligious conduct that endangers these interests in a similar or greater

degree’’); id. at 538–39 (noting that disposal by restaurants and other sources of organic garbage created the same problems as animal sacrifice); Fraternal Order of

Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (rule against beards must have

religious exception if it has a medical exception; exception for undercover officers is

distinguishable and would not require religious exception). As these examples suggest, there can be endless arguments about whether the burdened religious activity

and the less burdened secular activity are sufficiently alike, or cause sufficiently

similar harms, to trigger this part of the rule. The scope of hybrid rights claims remains uncertain. Burden of persuasion matters only when the court is uncertain,

but the structure of the Supreme Court’s rules leave many occasions for uncertainty.

The one issue on which the religious claimant always retains the burden of persuasion is burden on religion. Note that in the free exercise context, the claimant

need prove only a burden, not a substantial burden. The lower courts have held that

where the burdensome rule is not generally applicable, any burden requires compelling justification. Hartmann v. Stone, 68 F.3d 973, 978–79 & nn.3–4 (6th Cir. 1995);

Brown v. Borough of Mahaffey, 35 F.3d 846, 849–50 (3d Cir. 1994); Rader v. Johnston, 924 F. Supp. 1540, 1543 n.2 (D. Neb. 1996).

B. Land use regulation

Section 3(b) enacts prophylactic rules for land use regulation. Section 3(b) is an

overlapping alternative to the commerce clause provision in section 2. Many land

use cases will be covered by both sections, because the burden affects commerce and

because one or more of the elements of section 3(b) is satisfied. Some cases may fall

under only one section, or the elements of one section may be easier to prove than

the elements of the other section.

Section 3(b)(1)(A) provides that ‘‘in any system of land use regulation or exemption’’ in which ‘‘a government has the authority to make individualized assessments

of the proposed uses to which real property would be put,’’ government may not substantially burden a person’s religious exercise except in furtherance of a compelling

interest. This applies the language of Employment Division v. Smith, 494 U.S. 872,

884 (1990), in the context of land use regulation; it is a provision to enforce the Free

Exercise Clause as interpreted in that case.

Section 3(b)(1)(B) requires that land use regulation treat religious assemblies or

institutions on equal terms with nonreligious assemblies or institutions. Section

3(b)(1)(C) forbids discrimination against any assembly or institution on the basis of

religion or religious denomination. These subsections also enforce the Free Exercise

Clause as interpreted in Smith and the Free Speech Clause as interpreted in many

cases. Discrimination between different categories of speech, and especially discrimination between different viewpoints, already requires strong justification; 4 these

subsections implement this rule as applied to land use regulation that permits secular assemblies while excluding churches.

Section 3(b)(1)(D) provides that zoning authority shall not be used to ‘‘unreasonably exclude from the jurisdiction,’’ ‘‘or unreasonably limit within the jurisdiction,’’

assemblies or institutions devoted to religious exercise. This enforces the Free

Speech Clause as interpreted in Schad v. Borough of Mount Ephraim, 425 U.S. 61

(1981), which held that a municipality cannot entirely exclude from its boundaries

a category of first amendment activity. It enforces the analogous right to assemble

for worship or other religious exercise under the Free Exercise Clause, and the hybrid free speech and free exercise right to assemble for worship or other religious

exercise under Schad and Smith.

83

5See The need for Federal Protection of Religious Freedom and Boerne v. Flores, II: Hearing

Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong.

(forthcoming) [hereinafter March 1998 House Hearing] (statement of Von Keetch, Partner,

Kirton & McConke, <http://www.house.gov/judiciary/222358.htm>) (reporting the study); see also

Religious Liberty Protection Act of 1998: Hearing on H.R. 4019 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. (1998) [hereinafter June 1998 House

Hearing] (forthcoming) (statement of Prof. W. Cole Durham, Brigham Young Univ., <http://

www.house.gov/judiciary/durham.htm>) (summarizing the study); Religious Liberty Protection

Act of 1999, Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. (1999) (forthcoming) [hereinafter 1999 House Hearing] (statement of Von

Keetch, <http://www.house.gov/judiciary/keet0512.htm>) (again reporting the study).

Legislative power to enforce constitutional rights depends on Congress having

‘‘reason to believe that many of the laws affected by the congressional enactment

have a significant likelihood of being unconstitutional.’’ City of Boerne v. Flores, 521

U.S. 507, 532 (1997). Note that the standard is not certainty, but ‘‘reason to believe’’

and ‘‘significant likelihood.’’ The House bill, and the hearing record on which it is

based, satisfy that test in two ways.

First, the test is satisfied legally. Each of these subsections is designed to enforce

a specific element of a constitutional right as interpreted in Smith and Lukumi or in Schad. No further showing of constitutional power is required. In cases of discrimination, or of exclusion of first amendment activity from a jurisdiction, all or

nearly all the laws affected will violate the Constitution. Similarly, in cases in which

religious exercise is burdened despite a system of individualized assessments and

exemptions, many of the laws affected will be unconstitutional under Smith and

Lukumi. Constitutionality follows from the close connection between the legal standard in the bill and the legal standard in the Supreme Court’s interpretation of the

Constitution. The point of this section is not to change the Supreme Court’s standard, but to codify that standard in the land use context in a place and form that

will be visible and understandable to regulators and trial judges.

Second, and independently, the Boerne test for constitutionality is satisfied factually. This Committee and the House Subcommittee on the Constitution in this Congress and the previous one have assembled a massive factual record on land use

regulation of churches. I believe this factual record is ample to support § 3(b) as legislation to enforce the Fourteenth Amendment.

Some of this testimony is statistical—surveys of cases, churches, zoning codes,

and public attitudes. Some of it is anecdotal. Some of it is sworn statements by individuals or representatives of organizations with wide experience in the field who

said that the anecdotes are representative—that similar problems recur frequently.

This evidence is cumulative and mutually reinforcing; it is greater than the sum of

its parts. It demonstrates that land use regulation is a substantial burden on religious liberty.

A study conducted at Brigham Young University shows that small religious

groups, including Jews, small Christian denominations, and nondenominational

churches, are vastly overrepresented in reported church zoning cases.5 Religious

groups accounting for only 9 percent of the population account for 50 percent of the

reported litigation involving location of churches, and 34 percent of the reported litigation involving accessory uses at existing churches. These small groups plus unaffiliated and nondenominational churches account for 69 percent of the reported location cases and 51 percent of the reported accessory use cases. Jews account for only

2 percent of the population, but 20 percent of the reported location cases and 17

percent of the reported accessory use cases.

These small faiths are forced to litigate far more often, which results from their

having less ability to resolve their land use problems politically. Land use authorities are less sympathetic to their needs and react less favorably to their claims. Yet

once they get to court, these small faiths win their cases at about the same rate

as larger churches. It is not that small churches bring weak cases, but that small

churches are more likely to be unlawfully denied land use permits.

The overrepresentation of small faiths is greater in location cases, where the issue

is whether there can be a church on a particular site, than in accessory use cases,

where the issue is whether one of the church’s activities is permitted in an existing

church. The explanation for this difference is that land use authorities often have

a narrow idea of what a church is and does. Churches that confine their activities

to the zoning board’s understanding of a basic worship service are treated differently from churches that do anything more than that. This difference in treatment can be understood as discrimination based on the scope of the religious mission, or simply as a governmental restriction on the scope of religious missions. Accessory use cases bring more mainstream churches into court, but even there, the

small faiths are significantly overrepresented.

84

6 Conversation with John Mauck in Washington, D.C., on June 16, 1998. This estimate is

based on regular review of the Board’s posted docket sheet. 7June 1998 House Hearing, supra note 5 (Compilation of Zoning Provisions Affecting Churches in 29 Suburbs of Northern Cook County by John W. Mauck [as] of 7–10–98 Based Upon 1995

Published Standards, attached to statement of John Mauck, partner, Mauck, Bellande, Baker

O’Connell, <http://www.house.gov/judiciary/mauck.pdf>.

In considering the significance of discrimination against small faiths, keep in

mind that there is no majority religion in the United States, and that adherents of

different faiths are distributed quite unevenly across the nation. Every faith is a

small faith somewhere and may be the subject of discrimination somewhere. Faiths

that are small nationally are just small in more places.

A second piece of survey evidence was provided by the Presbyterian Church

(U.S.A.), the largest Presbyterian body in the United States. Late in 1997, it surveyed its congregations about land use issues. This survey uncovers the unreported

cases of a mainline denomination, and it greatly informs our understanding of the

Brigham Young study of reported cases. These data are attached at the end of this

statement.

The Presbyterians surveyed their 11,328 congregations and received 9,603 responses. Twenty-three percent of those responding, or 2,194 congregations, had

needed a land use permit since January 1, 1992. All further percentages are percentages of these 2,194 congregations that needed a land use permit.

The Presbyterians are a well-connected, mainline denomination if anybody is.

Even so, 10 percent of their congregations reported significant conflict with government or neighbors over the land use permit, and 8 percent reported that government imposed conditions that increased the cost of the project by more than 10 percent. Some congregations may have reported both significant conflict and a cost increase of more than 10 percent; at least 15 percent, and perhaps as many as 18 percent, reported one or the other.

These data mean that between 325 and 400 Presbyterian congregations, or sixty

to eighty per year over the last five years, experienced significant difficulty in getting a land use permit. In twenty-eight of these cases, or more than five per year,

the permit was refused or the project was abandoned because the church expected

the permit to be refused. Yet the Brigham Young study reveals only five reported

cases involving Presbyterian churches. We know that reported cases are the tip of

the iceberg; this comparison gives some sense of how enormous is the iceberg and

how tiny is the reported tip.

Another window on the volume of unreported cases comes from zoning attorney

John Mauck, who estimates that 30 percent of the cases in the Chicago Board of

Zoning Appeals involve churches.6 Of course churches are no where near 30 percent

of the land uses in the city, or even of the nonresidential land uses in the city. In

Mr. Mauck’s experience, churches are so overrepresented because they are more

likely than secular uses to be subject to the requirement of a special use permit,

and because authorities are less likely to grant the permit when it is required.

One percent of responding Presbyterian congregations reported that ‘‘a clear rule

that applied only to churches forbade what we wanted to do.’’ These rules would

seem to be in clear prima facie violation of the Free Exercise Clause as interpreted

in Employment Division v. Smith. Ten percent reported that ‘‘a clear rule that applied only to churches permitted what we wanted to do.’’ This tends to confirm what

no one disputes—that some communities accommodate the needs of churches. Land

use discrimination against churches is widespread but not universal.

There is also evidence of discrimination in the zoning codes themselves. John

Mauck described a survey of twenty-nine zoning codes from suburban Chicago. In

twelve of these codes, there was no place where a church could locate as of right

without a special use permit.7 In ten more, churches could locate as of right only

in residential neighborhoods, which is generally impractical. A right to locate a

church in built-up residential neighborhoods is illusory for all but the tiniest congregations. Unless your congregation can meet in a single house, the only way to

build a church in a residential area is to buy several adjacent lots and tear down

the houses. But several adjacent lots never come on the market at the same time,

and if they did, any church pursuing this strategy would likely provoke an angry

reaction from the neighborhood. It is only in commercial zones that significant tracts

of land are bought and sold with any frequency. To exclude new churches from commercial zones goes far to exclude them from the city.

Counting only the total exclusions and the confinement to residential zones, twenty-two of these twenty-nine suburbs effectively excluded churches except on special

use permit, which means that zoning authorities hold a discretionary power to say

yes or no. These individualized decisions are made under standards that are often

85

8See June 1998 House Hearing, supra note 5 (oral testimony of John Mauck). 9 Keetch Statement, supra note 5 (describing Corporation of the Presiding Bishop v. Board of

Comn’rs, No. 95–1135 (Chancery Ct. Davidson County, Tenn., Jan. 27, 1998). 10See Christian Gospel Church, Inc. v. City of San Francisco, 896 F.2d 1221, 1224 (9th Cir.

1990) (zoning ‘‘protects the zones’ inhabitants from problems of traffic, noise and litter’’); State v. Cameron, 445 A.2d 75, 80 (N.J. Super. 1982) (collecting cases on traffic problems associated

with churches), rev’d on other grounds, 498 A.2d 1217 (N.J. 1985). Permits denied for flimsy

traffic reasons are sometimes granted on judicial review, especially in states where churches are

a protected use, and sometimes even where they are not. See Kali Bari Temple v. Board of Adjustment, 638 A.2d 839 (N.J. Sup’r 1994) (ordering permit for occasional Hindu worship services,

in home of clergyman (situated on 7.24 acres!), finding little traffic impact); Grace Community

Church v. Planning & Zoning Comm’n, 615 A.2d 1092, 1103–04 (Conn. Sup’r 1992) (collecting

cases); Lucas Valley Homeowners Ass’n, Inc. v. County of Marin, 284 Cal. Rptr. 427, 441–42

(Cal. App. 1991) (approving permit for synagogue, find that traffic impact would not be great

enough to justify withholding permit). 11See Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 467 (8th Cir. 1991) (quoting

city council resolution justifying exclusion of churches on ground that ‘‘no business or retail contribution or activity is generated’’); International Church of the Foursquare Gospel v. City of Chicago Heights, 955 F. Supp. 878, 881 (N.D. Ill. 1996) (distinguishing church from permitted uses

‘‘which will encourage shopper traffic in the area during shopping hours’’); City of Chicago

Heights v. Living Word Outreach Full Gospel Church and Ministries, Inc., 707 N.E.2d 53, 59

(Ill. App. 1999) (‘‘The city submitted evidence that its zoning plan [excluding churches from commercial zones] was designed to invigorate the commercial corridor to regenerate declining revenues and create a strong tax base.’’), appeal allowed,—N.E.2d—(Ill., June 2, 1999). 12Family Christian Fellowship v. Winnebago County, 503 N.E.2d 367, 372 (Ill. App. 1986)

(‘‘While traffic is a factor in zoning cases, ordinarily it is not accorded much weight because traffic is a problem in most areas and is constantly getting worse.’’). 13See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (‘‘If the permit

scheme ‘involves appraisal of facts, the exercise of judgment, and the formation of an opinion,’

by the licensing authority, ‘the danger of censorship and of abridgment of our precious First

Amendment freedoms is too great’ to be permitted.’’ (citations omitted)); City of Lakewood v. Plain Dealer Pub’g Co., 486 U.S. 750, 770 (1988) (refusing to presume good faith in administration of vague standards for permits affecting First Amendment rights); Griffin v. City of Lovell,

303 U.S. 444, 452 (1938) (stating that completely discretionary permit requirement ‘‘would restore the system of license and censorship in its baldest form’’); see also Shelley Ross Saxer, Zoning Away First Amendment Rights, 53 Wash. U.J. Urb. & Contemp. L. 1, 63–76 (1998) (arguing

that exclusion of churches is a prior restraint). 14George Gallup, Jr., The Gallup Poll: Public Opinion 1993 at 75–76, 78 (1994). 15George Gallup Jr., The Gallup Poll: Public Opinion 1989 at 63, 67 (1990).

vague, discretionary, or subjective. ‘‘The zoning board did not have to give a specific

reason. They can say it is not in the general welfare, or they can say that you are

taking property off the tax rolls.’’ 8 Forest Hills, Tennessee denied a permit to the

Mormons on the ground that a temple would not be ‘‘in the best interests of and

promote the public health, safety, morals, convenience, order, prosperity, and general welfare of the City;’’ 9 the judge concluded that the real reason for excluding

all new churches was ‘‘essentially aesthetic, to maintain a ‘suburban estate character’ of the City.’’ Churches can be excluded from residential zones because they

generate too much traffic,10 and from commercial zones because they don’t generate

enough traffic.11 Every use of land adds traffic, so the real question is how much

traffic is too much.12 Except at the extremes, that question is as subjective as ‘‘aesthetics’’ or ‘‘the general welfare.’’

Typical proposed projects do not pose cases at the extremes. Every land use imposes some cost on its neighbors, so there is always some reason to say no. But of

course, authorities do not always say no; most urban land is eventually developed.

So there is a very wide range of proposed projects that impose some costs but not

more than the city is willing to accept if it welcomes the use. And in this very broad

range, subjective judgments about questions of degree can be consciously or unconsciously distorted by other factors, including how the neighbors or the authorities

feel about the proposed use and the proposed occupant. In the free speech context,

we would call this standardless licensing, and it would be unconstitutional.13

These individualized and often standardless systems of regulation are occasionally

administered by officials who are hostile to religion, and are often administered in

a community climate of suspicion or hostility toward religious intensity. In a 1993

Gallup Poll, 45 percent of Americans admitted to ‘‘mostly unfavorable’’ or ‘‘very unfavorable’’ opinions of ‘‘religious fundamentalists,’’ and 86 percent admitted to mostly or very unfavorable opinions of ‘‘members of religious cults or sects.’’ 14 In 1989,

30 percent of Americans said they would not like to have ‘‘religious fundamentalists’’

as neighbors, and 62 percent said they would not like to have ‘‘members of minority

religious sects or cults’’ as neighbors.15 A desire not to have members of a minority

sect as neighbors is closely related to a desire not to have the minority sect’s church

as a neighbor. Churches and believers often encounter such attitudes among persons

86

16See City of Chicago Heights v. Living Word Outreach Full Gospel Church and Ministries,

Inc., 707 N.E.2d 53 (Ill. App. 1999), appeal allowed,—N.E.2d—(Ill., June 2, 1999); In this case,

the trial judge had held that denial of the special use permit was arbitrary and capricious.

in elite positions, and it is reasonable to infer that hostility shared by 45 percent

or more of the public is well represented among government officials with discretionary powers. Land use regulators must respond to these attitudes whether or not

they share them; land use regulation is intensely local and responsive to the views

of community activists. The hostile attitudes are real, not theoretical, and individualized processes under vague standards give such attitudes ample opportunity for

expression. If the neighbors or the authorities are not comfortable with a church,

or with a particular church, these attitudes inevitably affect such discretionary judgments as the general welfare, the character of the neighborhood, aesthetics, and

traffic. Each of these labels can readily be used to disguise a decision made for quite

different reasons. And each is almost impossible to prove or disprove.

The suburban Chicago zoning code survey also showed that places of secular assembly are often not subject to the same rules as churches. The details vary, but

uses such as banquet halls, clubs, community centers, funeral parlors, fraternal organizations, health clubs, gyms, places of amusement, recreation centers, lodges, libraries, museums, municipal buildings, meeting halls, and theaters are often permitted as of right in zones where churches require a special use permit, or permitted on special use permit where churches are wholly excluded. Every one of the

twenty-nine zoning codes surveyed treated at least one of these uses more favorably

than churches; one treated twelve of these uses more favorably; the average was

better treatment for about 5.5 such uses. Many business uses are also generally permitted as of right without special use permits.

All these data are mutually reinforcing. Religious biases are widespread in the

population. Individualized decision making and discretionary standards provide

ample opportunity for any biases to operate. Legislation is necessarily political and

discretionary, so any biases that may exist can also operate when the city enacts

its zoning code.

We see evidence of discrimination in the places that leave a published record. On

the face of the zoning codes, churches are often treated worse than secular meeting

places. In the reported cases, small and unfamiliar churches are forced to litigate

far more often than large, mainstream churches. These differences are not random.

These patterns appear because views about churches distort discretionary decisions

under vague and subjective standards. Consciously or unconsciously, land use authorities discriminate against religion and among religions.

Finally, we see that there are many times more unreported church land use conflicts than reported cases. We have no systematic way to study this vast number

of unreported conflicts. But the same attitudes, rules, and procedures are at work

in the reported and unreported cases. The same individualized processes and discretionary standards apply. The same biases are present in the population. If these factors lead to discrimination against churches and among churches in the visible parts

of the process—in the zoning codes and the reported cases—it is reasonable to infer

that they also lead to discrimination against churches and among churches in the

invisible part of the process, in the vast number of unreported, discretionary decisions on individual permit applications. If 15 to 18 percent of Presbyterian churches

are having significant trouble with land use permits, then surely the figure is much

higher for Jehovah’s Witnesses, Pentecostals, Jews, and other groups more likely to

be subject to prejudice.

The evidence based on anecdote and experience supports this inference. John

Mauck’s written testimony in the House described twenty-one cases of zoning permits denied for apparently illegitimate or discriminatory reasons. Most of these did

not even involve new construction. Rather, the cities refused to permit church use

of existing buildings—often buildings that had been used as secular places of assembly. Family Christian Center in Rockford, Illinois was not allowed to use a former

school building as a church; this decision was ultimately set aside as arbitrary and

capricious. Family Christian Fellowship v. County of Winnebago, 503 N.E.2d 367,

371–73 (Ill. App. 1986) Living Word Outreach Full Gospel Church and Ministries

in Chicago Heights, Illinois was not allowed to use a Masonic Temple as a church.16

Gethsemane Baptist in Northlake, Illinois was not allowed to use a VFW hall as

a church. Faith Cathedral Church in Chicago was not allowed to use a funeral parlor, which had a chapel and plentiful parking. Vinyard Church in Chicago was not

allowed to use a former theater as a church. Evanston Vinyard Church in Evanston,

Illinois was not allowed to use an office building with an auditorium for a church.

Cornerstone Community Church in Chicago Heights was not allowed to use a

former department store as a church. A flower shop, a former branch bank, and a

87

17See March 1998 House Hearing, supra note 5 (statement of Marc D. Stern, American Jewish

Congress). 18Keetch Statement, supra note 5. 19See The Need for Federal Protection of Religious Freedom and Boerne v. Flores, I, Hearing

Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong.

(1998) (forthcoming) [hereinafter February 1998 House Hearing] (statement of Rabbi Chaim BaContinued

theater were each rezoned as single-parcel manufacturing zones to prevent their

being used as a church. Mr. Mauck spends nearly all his time handling such cases

in the Chicago area, and he gets calls about such cases from all over the country.

Marc Stern described five more examples in his House testimony.17 A Long Island

beach community excluded a synagogue because it would bring traffic on Friday

nights, but an astute judge noted that it would bring no more traffic than the large

secular parties that were already common in the community on Friday nights. Unfortunately, many judges are not so astute. Stern described an Ohio case where Jewish leaders wholly satisfied the land use officials, but their project was disapproved

in a referendum. He described a case in Clifton, New Jersey, in which an abandoned

building sat empty for years, but when a church tried to move in, officials suddenly

decided they wanted an art theater at the site.

In Forest Hills, Tennessee, four large churches sat on or near the intersection of

two major arterial roads—one Methodist, one Presbyterian, and two Churches of

Christ.18 One of these churches closed, and the Mormons bought the property. Yet

the city refused permission to locate a Mormon temple on the site, citing its desire

to have no more churches in the community, and a state trial judge upheld that exclusion. Corporation of the Presiding Bishop v. Board of Commissioners, No. 95–

1135 (Chancery Ct. Davidson County, Tenn., Jan. 27, 1998).

The Forest Hills case also illustrates the tactic, visible only on the ground and

not on the face of the codes, of authorizing churches to locate as of right in all those

places, and only those places, where an existing church is already located. The code

shows multiple sites for churches, but in fact all new churches are totally excluded.

All three of the existing churches were properly zoned; the fourth church had been

properly zoned before the Mormons bought it. Mr. Mauck described the use of this

technique in Northwood, Illinois.

The case of Morning Star Christian Church in Rolling Hills Estates, California,

illustrates this technique and the lengths to which municipalities will sometimes go

to exclude churches. Rolling Hills Estates created an ‘‘Institutional Zone,’’ in which

a variety of public buildings, including churches, should be located. The Institutional Zone consisted of all the spots on which a church or other covered institution

was already located—and no other land whatever. In effect, all existing churches

were grandfathered in, and a presumption was raised against any new churches.

The presumption was not absolute, because churches could still locate in commercial zones with a conditional use permit. Morning Star Christian Church acquired

rights to a building in a commercial zone. The building had formerly been a theater

with 884 seats; then it had been converted to a skating rink with occupancy limited

to 300 during business hours and to 500 on evenings and weekends. The church’s

congregation was much smaller, with about 170 adult members, and that size had

been stable. During extended consideration of its permit application, the time limits

on the church’s contract ran out, and it was forced to buy the property. The church

agreed to limit further growth in the conditional use permit, so as to comply with

the most restrictive reading of parking requirements.

When it became clear that the church had satisfied all requirements for a conditional use permit, the city passed an emergency ordinance declaring a moratorium

on all institutional uses in commercial zones. No application was pending except the

church’s. During the moratorium, the city amended its zoning code to ban churches

in commercial zones. It is now the law in Rolling Hills Estates that new churches

are banned. Churches are conditionally permitted in the Institutional Zone, which

is entirely occupied by existing churches and other institutions. The city’s zoning

law makes extensive provision for places of secular assembly, including public and

private schools, government buildings, public and private clubs, recreational centers,

movie theaters, live theaters, clubs for games with spectator seating, and many others. The city’s zoning law violates every provision of section 3(b) of the House bill.

It also violates the Constitution, but obviously the Constitution is not sufficiently

explicit for the city council to understand.

Rabbi Chaim Rubin described how the City of Los Angeles refused to let fifty elderly Jews meet for prayer in a house in the Hancock Park neighborhood, an area

of some six square miles, because Hancock Park had no place of worship and the

City did not want to create a precedent for one.19 That is, the City’s express reason

88

ruch Rubin, Congregation Etz Chaim, Los Angeles, California, <http://www.house.gov/judiciary/

22382.htm>). 20See id. (citing information from national conference of Agudath Israel); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995) (finding violation of fair housing act by village incorporated for purpose of excluding Orthodox Jews); Grosz v. City of Miami Beach, 721 F.2d 729

(11th Cir. 1983) (upholding exclusion of prayer services from rabbi’s residence); Orthodox

Minyan v. Cheltenham Township Zoning Hearing Board, 552 A.2d 772 (Pa. Com. 1989) (reversing denial of special use permit for conversion of residence to Orthodox synagogue). 21See Religious Liberty Protection Act of 1998, Hearing on H.R. 4019 Before the Subcomm. on

the Constitution of the House Comm. on the Judiciary, 105th Cong. (forthcoming) [hereinafter

cited as July 1998 House Hearing) (statement of Bruce D. Shoulson. attorney, <http://

www.house.gov/judiciary/222494.htm>). 22See id.; Stern Statement, supra note 17. 23Stern Statement, supra note 17. 24Mauck Statement, supra note 7, at 1. 25June 1998 House Hearing, supra note 7 (oral testimony of John Mauck).

for excluding a place of worship was that it wanted to exclude places of worship!

Yet the City permitted other places of assembly in Hancock Park, including schools,

recreational uses, and embassy parties. Whittier Law School was just down the

street from Rabbi Rubin’s shul. Eighty-four thousand cars passed the building every

day, and hundreds of law students came and went to both the day school and the

night school. But we are supposed to believe that fifty Jews arriving on foot once

a week would irrevocably change the neighborhood.

These conflicts over Jews meeting for prayer are common.20 Orthodox Jews must

live within walking distance of a synagogue or shul, because they cannot use motorized vehicles on the Sabbath. Thus, a community that excludes synagogues and

shuls effectively excludes Orthodox Jews from living in the community at all. Attorney Bruce Shoulson testified in the House to a pattern of such exclusion in northern

New Jersey, where he has handled more than thirty such cases.21 Land use authorities often refuse permits for Orthodox synagogues because they do not have as many

parking spaces as the city requires for the number of seats.22 This is pretextual,

because on the Sabbath when the seats are occupied, the people cannot arrive by

car. Cheltenham Township, Pennsylvania, carried this to the lengths of insisting on

the required parking spaces, refusing to count leased spaces off-site, and then, when

synagogue offered to construct the parking spaces and let them sit empty, denying

the permit on the ground that cars for that much parking would aggravate traffic

problems. Orthodox Minyan v. Cheltenham Township Zoning Hearing Board, 552

A.2d 772, 773 (Pa. Com. 1989).

Sometimes, religious hostility is openly expressed in the zoning process. Most

chillingly, Shoulson described a hearing in which ‘‘an objector turned to the people

in the audience wearing skull caps and said ‘Hitler should have killed more of you.’ ’’

In another New Jersey community, the board invited testimony on the effect that

substantial Orthodox Jewish populations had had on other communities. Anti-Semitic views were openly expressed in the campaign for the Ohio referendum voting

down the Jewish proposal that had received land use approval.23 Residents created

the Village of Airmont, New York, for the openly stated purpose of using the zoning

power to exclude Orthodox Jews. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412,

418–19, 431 (2d Cir. 1995) (quoting statements such as ‘‘the only reason we formed

this village is to keep those Jews from Williamsburg out of here’’).

In the Family Christian Center case, a neighbor said, outside the hearing process,

‘‘Let’s keep these God damned Pentecostals out of here.’’ 24 The judge in that case

said from the bench that ‘‘We don’t want twelve-story prayer towers in Rockford,’’

apparently because there was a twelve-story prayer tower at Oral Roberts University in Oklahoma, and the Illinois church in the case had a loose affiliation with

the University, although that was not in the record and the judge had to have

learned it outside of court. The church had not applied to build anything, let alone

a twelve-story tower; it wanted to use an existing school for worship purposes.

Churches often have an ethnic as well as a religious identity, and permits are denied in whole or in part for reasons of racial discrimination. John Mauck testified

to a case in which the mayor told the city manager to deny the permit because ‘‘We

don’t want Spics in this town.’’ 25 The city manager who disclosed this statement

was fired. In the Faith Cathedral case, in which the city refused permission to use

a funeral chapel as a church, the funeral chapel was one-hundred feet west of Western Avenue, and thus on the white side of the main racial boundary in south Chicago. Amazing Grace Church, another black church that located in the same neighborhood, was met first with racial slurs and thrown eggs, and then with charges

of zoning violations. In the Living Word Outreach case, in which the city refused

permission to use a Masonic temple as a church, the Masons had been white and

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26Mauck Statement, supra note 7, at 2, 3, 5 (describing Ira Iglesia de la Biblia Abierta, Christ

Center, Pipe Stream Morning Star Retreat, and Korean Central Covenant Church); Mauck Oral

Testimony, supra note 25 (providing further details about Christ Center). 27Stern Statement, supra note 17. Mr. Stern identified the city in each of these cases in a

conversation on June 22, 1999. 28See Keetch Statement, supra note 5; Stern Statement, supra note 17; Mauck Statement,

supra note 7. 29See Village of Arlington Heights v. Metropolitan Community Dev. Corp., 429 U.S. 252, 268

n. 17 (1977) (holding that proof of equal protection violation requires proof of actual governmental motive, but noting that ‘‘judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of the other branches of governmental). 30See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48 (1986) (holding that zoning

ordinance confining adult theaters to less than five percent of city, in which no land was for

sale or lease, furthered purpose unrelated to suppression of communication, and refusing to inquire into city’s actual motive); Palmer v. Thompson, 403 U.S. 217, 224–26 (1971) (refusing to

inquire into reasons why Jackson, Mississippi, closed its public swimming pools in wake of order

to desegregate them); United States v. O’Brien, 391 U.S. 367, 383–86 (1967) (holding that law

against burning draft cards furthered purpose unrelated to suppression of communication, and

refusing to inquire into actual Congressional purpose). 31See Scott-Harris v. City of Fall River, 134 F.3d 427, 436–38 (1st Cir. 1997) (collecting conflicting cases), rev’d in part, on other grounds, sub nom. Bogan v. Scott-Harris, 118 S.Ct. 966

(1998); compare Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,

269 (1977) (noting that opponents of low income housing who spoke at public hearings ‘‘might

have been motivated by opposition to minority groups,’’ but affirming district court’s refusal to

infer that officials shared that motive); with LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 419 (2d

Cir. 1995) (inferring official motive to exclude Orthodox Jews, in part from public statements

to that effect by members of private organization that led campaign to create new village and

that supplied the new village’s public officials); compare Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540–42 (1993) (Kennedy, J., joined by Stevens, J.) (relying on

clear statements of hostility to plaintiff church by citizens, public employees, and members of

city council); with id. at 558–59 (Scalia, J., joined by Rehnquist, C.J.) (refusing to join that part

of Kennedy’s opinion, on ground that motive is irrelevant); cf United States v. O’Brien, 391 U.S.

367, 385–86 (1967) (after holding motive irrelevant, considering motive in dictum and refusing

to infer Congressional motive from express statements of the only Senator and only two Representatives to speak to the issue, or from more subtle statements in committee reports). 32See Hunter v. Underwood, 471 U.S. 222, 224–31 (1985) (unanimously finding that openly

stated motive to disenfranchise blacks accounted for voting eligibility rules in Alabama Constitution of 1901, affirming court of appeals, which had reversed district court which had refused

to find racial motive); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 417–24, 429–31 (2d Cir. 1995)

(finding egregious evidence of motive to exclude Orthodox Jews, and reinstating jury verdict that

district judge had set aside). 33See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (unanimously concluding that ordinances burdening religion were neither neutral nor generally applicable, and ‘‘fall well below the minimum standard necessary to protect First Amendment rights,’’

although district judge and court of appeals had unanimously upheld ordinances and no circuit

judge requested vote on rehearing en banc); id. at 558 (Scalia, J., concurring) (‘‘I agree with most

of the invalidating factors set forth in part II of the Court’s opinion’’); id. at 559 (Souter, J.,

concurring) (ordinances were ‘‘aimed at suppressing religious belief or practice’’); id. at 577

(Blackmun, J., concurring) (ordinances were ‘‘explicitly directed at petitioners’ religious practice’’).

the church members were black. Mauck also had reason to suspect racial motivations in several other cases involving black and Korean churches.26

Wayne, New Jersey denied a permit to a black church after one official opposed

the permit on the ground that the city would soon look like Patterson, a predominantly African-American city nearby.27 Clifton, New Jersey denied permits for a

black mosque four times, offering parking concerns as the reason, then approved a

white church nearby that raised the very same parking issues, In the other Clifton

case, in which officials suddenly decided they wanted an art theater, the church that

sought to move in had a multi-racial congregation.

Discrimination is difficult to prove in any individual case.28 Supreme Court precedent is skeptical of attempts to prove bad motive, even when Supreme Court doctrine requires the attempt.29 Sometimes the Court says that ‘‘otherwise valid’’

laws—including laws that are valid because they further a ‘‘legitimate purpose’’ unrelated to suppression of a constitutional right—are valid even if enacted with actual motive to violate that constitutional right.30 Even if some unsophisticated citizen or commissioner blurts out an unambiguously bigoted motive, courts are often

reluctant to attribute the collective decision to that motive.31 Trial judges are reluctant to find that local officials acted for improper motives, and often fail to so find

even in egregious cases in which appellate courts find clear error.32

Even the bare fact of unequal treatment, without regard to motive, can be difficult

to litigate in land use cases, and the same judicial deference sometimes appears

even in easy cases.33 No two pieces of land are identical, and in the context of deference to local authority, different zoning outcomes can be attributed to minor difVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00093 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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34See Korean Buddhist Dae Won Sa Temple v. Sullivan, 953 P.2d 1315, 1344–45 n.31 (Hawaii

1998); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992); Keeler v. Mayor of

Cumberland, 940 F. Supp. 879 (D. Md. 1996).

ferences in legitimate zoning factors instead of the obvious but illegitimate difference in race or religion. Subjective criteria aggravate this problem, enabling officials to describe almost any zoning result in terms of a reason that is neutral and

legitimate on its face.

In a pending Michigan case, the township denied a permit to a black church, despite the contrary recommendation of the township’s independent land-use consultant, and even though the township had approved five white churches that had

drawn similar objections from neighbors. Fountain Church of God v. Charter Township, 40 F.Supp.2d 899, 901 (E.D. Mich. 1999). The township’s stated reason for refusing the black church was that its proposed use was not ‘‘harmonious and in accordance with the objectives and regulations of the ordinance.’’ The court held that

this was a legitimate nondiscriminatory reason, and that the church lost unless it

hired ‘‘an expert to compare in detail the sites of the five churches that were granted a conditional use permit with the subject property and the proposed use.’’ Id.

(emphasis in original). The township carried its burden with a vague slogan; the

church was required to offer a detailed expert study. The township opposed the decision to allow the church time to hire such an expert. The trial judge seemed to think

he was going to great lengths to be fair.

I have summarized the House hearing record at some length, because the Senate

must make its own judgment, but it need not invite all the same witnesses to return

and tell their stories. The combined House and Senate hearing record shows that

land use regulation is administered through highly individualized determinations

not controlled by generally applicable rules. Land use regulation thus regularly falls

within the Smith exception for regulatory schemes that permit ‘‘individualized governmental assessment of the reasons for the relevant conduct.’’ Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993); Employment

Div. v. Smith, 494 U.S. 872, 884 (1990). The hearing record also shows that these

individualized determinations frequently burden religion and frequently discriminate against religious organizations and especially discriminate against smaller and

non-mainstream faiths. Even without the benefit of the Congressional hearing

record, some courts have recognized that land use cases can fall within exceptions

to the general rule of Employment Division v. Smith.34

The practice of individualized determinations makes this discrimination extremely

difficult to prove in any individual case, but the pattern is clear when Congress examines large numbers of cases through statistical surveys and anecdotal reports

from around the country. This record of widespread discrimination and of rules that

are not generally applicable shows both the need for, and the constitutional authority to enact, clear general rules that make discrimination more difficult.

It is important to summarize this hearing record and to report Congressional findings in the committee report. It would probably also be prudent to insert a conclusory statement of those findings in the text of the bill itself. RFRA was criticized

because its findings were in the committee reports instead of in the statutory text,

and while the argument seemed to me absurd, it was made repeatedly. So it may

be better to put basic findings in the bill and to elaborate in the report.

Let me also report what I know about one more case, which has not yet entered

the public record. It is an important example, not only because it again illustrates

the dangers of discretionary land use regulation, but also because it illustrates how

religious liberty legislation could protect churches at all points on the political spectrum. Corinth, Texas is a small city in the Dallas-Fort Worth metroplex. It has a

conservative citizenry and a conservative mayor, and you might expect it to be

friendly to churches. But it has a church in its industrial zone that it is determined

to eliminate, and the mayor has devoted enormous effort to the cause. The church

has no harmful impact on its neighbors, which are more intense uses than it is. The

city simply says that churches in the industrial zone are inconsistent with its plan.

The mayor testified to the Texas House Committee on State Affairs that after RFRA

was held unconstitutional, the church withdrew its challenge to the city’s zoning

and decided to await enactment of a Texas RFRA. Both the mayor and the church

expected a state or federal RFRA to make the difference.

The other essential fact about this case is that the church is the Metropolitan

Community Church, a denomination with basically Protestant theology that especially ministers to gays and lesbians. It has been perfectly foreseeable that the Metropolitan Church would be especially vulnerable to zoning problems outside the

largest and most tolerant cities, and now we have a clear example. As I said at the

91

35 Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999), cert. filed (No. 98–2042); Tyler v. Murphy, 135 F.3d 594 (8th Cir. 1998); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998), cert. denied,

Continued

beginning, this is not a bill about left or right. Every American with any beliefs

about religion needs religious liberty legislation.

Section 3(b)(2) would guarantee a full and fair adjudication of land use claims

under subsection (b). Procedural rules before land use authorities may vary widely;

any procedure that permits full and fair adjudication of the federal claim would be

entitled to full faith and credit in federal court. But if, for example, a zoning board

with limited authority refuses to consider the federal claim, does not provide discovery, or refuses to permit introduction of evidence reasonably necessary to resolution

of the federal claim, its determination would not be entitled to full faith and credit

in federal court. And if in such a case, a state court confines the parties to the

record from the zoning board, so that the federal claim still can not be effectively

adjudicated, the state court decision would not be entitled to full faith and credit

either.

Full and fair adjudication should include reasonable opportunity to obtain discovery and to develop the facts relevant to the federal claim. Interpretation of this provision should not be controlled by cases deciding whether habeas corpus petitioners

had a ‘‘full and fair hearing’’ in state court. Interpretation of the habeas corpus

standard is often influenced by hostility to convicted criminals seeking multiple

rounds of judicial review. Whatever the merits of that hostility, a religious organization seeking to serve existing and potential adherents in a community is not similarly situated.

Subsection 3(b)(3) provides that equally or more protective state law is not preempted. Zoning law in some states has taken account of the First Amendment needs

of churches and synagogues, and to the extent that such law duplicates or supplements RLPA, it is not displaced.

IV. JUDICIAL RELIEF

A. General remedies provisions

Section 4 of the bill provides express remedies. Section 4(a) is based on the corresponding provision of RFRA; it authorizes private persons to assert violations of

the Act either as a claim or a defense and to obtain appropriate relief. This section

should be read against a large body of federal law on remedies and immunities

under other civil rights legislation. Appropriate relief includes declaratory judgments, injunctions, and damages, but government officials have qualified immunity

from damage claims, and states and their state-wide instrumentalities are immune

from any claim for damages or other retrospective relief. The House bill does not

exercise Congressional power to override state sovereign immunity in legislation to

enforce the Fourteenth Amendment; an override of immunity requires a clear statement of intent to override immunity, and the House bill has no such clear statement.

Section 4(b) provides for attorneys’ fees; this is based squarely on RFRA and is

essential if the Act is to be enforced.

Section 4(d) provides that the United States may sue for injunctive or declaratory

relief to enforce the Act.

B. Prisoner litigation

Section 4(c) makes clear that litigation under the bill is subject to the Prison Litigation Reform Act. This provision effectively and adequately responds to concerns

about frivolous prisoner litigation. In the first full year under the Prison Litigation

Reform Act, federal litigation by state and federal prisoners dropped 31 percent. Administrative Office of the United States Courts, L. Meacham, Judicial Business of

the United States Courts: 1997 Report of the Director 131–32 (Table C–2A). Further

reductions may be reasonably expected, as the Act becomes better known; some provisions of the Act, such as the authorization of penalties on prisoners who file three

or more frivolous actions, had not yet had much opportunity to work when this firstyear drop was recorded.

There has been substantial litigation over the constitutionality of some provisions

of the Prison Litigation Reform Act, but that litigation does not affect RLPA. The

courts of appeals have taken seriously the claim that provisions on existing consent

decrees unconstitutionally reopen final judgments. Even so, six out of seven courts

of appeals have upheld that part of the Act. Only the Ninth Circuit has struck it

down, and only with respect to reopening final judgments, and that judgment has

been vacated by the court en banc.35

92

118 S.Ct. 2368 (1998); Dougan v. Singletary, 129 F.3d 1424 (11th Cir. 1997), cert. denied, 118

S.Ct. 2375 (1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 657–58 (1st Cir. 1997),

cert. denied, 118 S.Ct. 2366 (1998); Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), cert. denied, 118 S.Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996), cert. denied, 117 S.Ct.

2460 (1997); but cf. Taylor v. United States, 143 F.3d 1178 (9th Cir.), vacated and rehearing

en banc granted, 158 F.3d 1059 (9th Cir. 1998).

I have followed this litigation closely for my casebook, Modern American Remedies. I expect that the PLRA will be upheld even in the highly problematic context

of reopening final decrees, because the Act addresses only the prospective effect of

those decrees. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 (1995) (noting

Congressional power to ‘‘alter[] the prospective effect of injunctions’’). But however

that difficult issue is resolved, it does not affect RLPA. RLPA does not require that

any final judgment be reopened, and the provisions of the Prison Litigation Reform

Act most important to RLPA are not the structural reform provisions that have

drawn so much litigation, but the provisions that deter frivolous individual claims.

I am confident that those provisions are constitutional in all but unusual applications.

If further legislative action on prisoner claims is needed, it should follow the approach of the Prison Litigation Reform Act, which addresses prisoner litigation generally. Congress should not exclude prisoners from the substantive protections of

RLPA. RFRA did not cause any significant increment to prisoner litigation. The Attorney General of Texas has stated that his office handles about 26,000 active cases

at any one time. Of those, 2,200 are ‘‘inmate-related, non-capital-punishment cases.’’

Of those, sixty were RFRA claims when RFRA applied to the states. Thus, RFRA

claims were only 2.7 percent of the inmate caseload, and only .23 percent (less than

one-quarter of one percent) of the state’s total caseload. It is also reasonable to believe that many of these sixty RFRA cases would have been filed anyway, on free

exercise, free speech, Eighth Amendment, or other theories. This data is reported

in Brief of Amicus Curiae State of Texas 7–8, in City of Boerne v. Flores (No. 95–

2074), 521 U.S. 5047 (1997).

Members are well aware that prisoners sometimes file frivolous claims. But they

should also be aware that prison authorities sometimes make frivolous rules or commit serious abuses. Examples include Mockaitis v. Harcleroad, 104 F.3d 1522 (9th

Cir. 1997), in which jail authorities surreptitiously recorded the sacrament of confession between a prisoner and the Roman Catholic chaplain; Sasnett v. Sullivan, 91

F.3d 1018 (7th Cir. 1996), vacated on other grounds, 521 U.S. 1114 (1997), in which

a Wisconsin prison rule prevented prisoners from wearing religious jewelry such as

crosses, on grounds that Judge Posner found barely rational; and McClellan v. Keen

(settled in the District of Colorado in 1994), in which authorities let a prisoner attend Episcopal worship services but forbad him to take communion.

RLPA is needed to deal with such abuses to the extent that Congress can reach

them. Whether RLPA applies will depend on whether the particular prison system

receives federal financial assistance, on whether the prisoner can show a substantial

effect on commerce, or on whether the prisoner can show a prima facie violation of

the Free Exercise Clause. Probably some prisoner claims will be covered and others

will not. But it is important not to exclude those that can be covered.

V. RULES OF CONSTRUCTION

The rules of construction in § 5 clarify the bill and greatly reduce the risk of misinterpretation.

Section 5(a) is based on RFRA. It provides that the Act does not authorize government to burden any religious belief, avoiding any risk that the compelling interest

test might be transferred from religious conduct to religious belief. Section 5(b) provides that nothing in the bill creates any basis for regulating or suing any religious

organization not acting under color of law. These two subsections serve the bill’s

central purpose of protecting religious liberty, and avoid any unintended consequence of reducing religious liberty.

Sections 5(c) and 5(d) keep the House bill neutral on all disputed questions about

government financial assistance to religious organizations and religious activities.

Section 5(c) states neutrality on whether such assistance can or must be provided

at all. Section 5(d) states neutrality on the scope of existing authority to regulate

private entities as a condition of receiving such aid. Section 5(d)(1) provides that

nothing in the bill authorizes additional regulation of such entities; § 5(d)(2), perhaps in an excess of caution, provides that existing regulatory authority is not restricted except as provided in the bill. Agencies with authority to regulate the receipt of federal funds retain such authority, but their specific regulations may not

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36Sasnett v. Sullivan, 908 F. Supp. 1429, 1440–47 (W.D. Wis. 1995), aff’d, 91 F.3d 1018, 1022

(7th Cir. 1996), vacated on other grounds, 521 U.S. 1114 (1997); Muslim v. Frame, 891 F. Supp.

226, 229–31 (E.D. Pa. 1995), rehearing denied, 897 F. Supp. 216, 217–20 (E.D. Pa. 1995), aff’d

mem., possibly on other grounds, 107 F.3d 7 (3d Cir. 1997); Mack v. O’Leary, 80 F.3d 1175,

1178–80 (7th Cir. 1996), vacated on other grounds, 522 U.S. 801 (1997). 37 City of Boerne v. Flores, 521 U.S. 507, 538 (Scalia, J., concurring) (‘‘religiously motivated

conduct’’); id. at 540 (same); id. at 546 (O’Connor, J., concurring) (same); id. at 548 (same);

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 (‘‘conduct motivated

by religious beliefs’’); id. at 533 (‘‘religious motivation’’); id. at 538 (same); id. at 543 (‘‘conduct

with religious motivation’’); id. at 545 (‘‘conduct motivated by religious belief’’); id. at 546 (‘‘conduct with a religious motivation’’); id. at 547 (‘‘conduct motivated by religious conviction’’); id.

Continued

sions were carefully negotiated with Americans United for Separation of Church and

State, People for the American Way, and the American Civil Liberties Union, in exchange for their commitment to vigorously support the bill.

Section 5(e) states explicitly what would be obvious in any event—that a government that burdens religious exercise has discretion over the means of eliminating

the burden. Government can modify its policy to eliminate the burden, or adhere

to its policy and grant religious exceptions either on the face or the law or in application of the law, or make any other change that eliminates the burden. The bill

would not impose any affirmative policy on the states, nor would it restrict state

policy in any way whatever in secular applications or in religious applications that

do not substantially burden religious exercise. The bill would require only that substantial burdens on religious exercise be eliminated or justified.

Section 5(f) provides that proof that a burden on religious exercise affects commerce for purposes of the House bill, or that removal of such a burden would affect

commerce for purposes of the House bill, does not give rise to an inference or presumption that the religious exercise is subject to any other statute regulating commerce. Different statutes exercise the commerce power to different degrees, and the

courts presume that federal statutes do not regulate religious organizations unless

Congress manifested the intent to do so. NLRB v. Catholic Bishop, 440 U.S. 490

(1990).

Section 5(g) states that the Act should be construed ‘‘in favor of a broad protection

of religious exercise, to the maximum extent permitted by its terms and the Constitution.’’

Section 5(h) states that each provision and application of the bill shall be severable from every other provision and application.

Section 6 is also a rule of construction, taken directly from RFRA, insuring that

the House bill does not change results in litigation under the Establishment Clause.

VI. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT

Section 7 of the bill amends RFRA to delete any application to the states and to

leave RFRA applicable only to the federal government. Section 7(a)(3) amends the

definition of ‘‘religious exercise’’ in RFRA to conform it to the RLPA definition, discussed below.

VII. DEFINITIONS

Section 8 contains definitions. Section 8(1) defines ‘‘religious exercise’’ by incorporating the ‘‘exercise of religion,’’ the phrase that is used in the First Amendment,

and adding two clarifications of issues that have been the subject of litigation. First,

religious exercise ‘‘need not be compelled by, or central to, a larger system of religious belief.’’ Second, ‘‘the use, building, or converting of real property for religious

exercise shall itself be considered religious exercise.’’

This definition, with the clarifications, codifies the intended meaning of RFRA as

reflected in its legislative history. The decisions that most thoroughly examined the

legislative history and precedent concluded that Congress intended to protect conduct that was religiously motivated, whether or not it was compelled.36

The Supreme Court’s cases have not distinguished religiously compelled conduct

from religiously motivated conduct. The Congressional Reference Service marshalled

these opinions for the RFRA hearings, noting that the Court has often referred to

protection for religiously motivated conduct. Letter from the American Law Division

of the Congressional Research Service to Hon. Stephen J. Solarz (June 11, 1992),

in Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the

Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary,

102d Cong., 2d Sess. 131, 131–33 (1992). Since that compilation, justices on both

sides of the issue have treated the debate as one over protection for religious motivation, not compulsion.37

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at 560 n.1 (Souter, J., concurring) (‘‘conduct motivated by religious belief’’); id. at 563 (‘‘religiously motivated conduct’’); id. (‘‘conduct * * * undertaken for religious reasons’’) (quoting Employment Div. v. Smith, 494 U.S. at 532); id. at 578 (Blackmun, J., concurring) (‘‘religiously motivated practice’’).

Congress nowhere expressed any intention to confine the protection of RFRA to

practices that were ‘‘central’’ to a religion. This concept did not appear either in statutory text or legislative history; it was read into the statute by some courts after

RFRA’s enactment. Other courts rejected or ignored this misinterpretation; the most

extensive opinion concluded that Congress did not intend such a requirement, that

pre-RFRA cases did not contain it, and that courts could not resolve disputes about

the centrality of religious practices. Muslim v. Frame, 891 F. Supp. 226, 230–31

(E.D. Pa. 1995), aff’d mem., possibly on other grounds, 107 F.3d 7 (1997).

Insistence on a centrality requirement would insert a time bomb that might destroy the statute, for the Supreme Court has repeatedly stated that courts cannot

hold some religious practices to be central and protected, while holding other religious practices noncentral and not protected. Employment Div. v. Smith, 494 U.S.

872, 886–87 (1990); Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.

439, 457–58 (1985). The Courtin Smith unanimously rejected a centrality requirement. 494 U.S. at 886–87 (opinion of the Court); id. at 906–07 (O’Connor, J., concurring); id. at 919 (Blackmun, J., dissenting). The Court’s disagreement over whether

regulatory exemptions are constitutionally required does not depend on any disagreement about a centrality requirement.

In the practical application of the substantial burden and compelling interest

tests, it is likely to turn out that ‘‘the less central an observance is to the religion

in question the less the officials must do’’ to avoid burdening it. Mack v. O’Leary,

80 F.3d 1175, 1180 (1996), vacated on other grounds, 522 U.S. 801 (1997). The concurring and dissenting opinions in Smith imply a similar view, in the passages cited

in the previous paragraph. But this balancing at the margins in individual cases

is a very different thing from a threshold requirement of centrality, in which all religious practices are divided into two categories and cases are dismissed as a matter

of law if the judge finds, rightly or wrongly, that a practice falls in the noncentral

category. Such an either-or threshold requirement greatly multiplies the consequences of the inevitable judicial errors in assessing the importance of religious

practices. RLPA properly disavows any such interpretation.

Section 8(2) cautiously defines the Free Exercise Clause to include both the clause

in the First Amendment and the application of that clause to the states through the

Fourteenth Amendment.

Section 8(3) defines ‘‘land use regulation’’. This definition was negotiated at a time

when the draft bill provided different standards in section 3(b)(1)(A) and in section

2; under that draft, much more turned on what was a land use regulation. The definition is now less important, but it still matters to the application of section 3(b).

The application of section 3(b)(1)(A) matters when plaintiff cannot show, or chooses

not to show, that the burden or removal of the burden affects commerce. And sections 3(b)(1)(B), (C), and (D) provide protections not expressly found in section 2.

Land use regulation is a law or decision that restricts a private person’s use or

development of land or structures affixed to land, where the private person has any

kind of property interest in the land or a contract to acquire such a property interest. The law or decision must apply to ‘‘one or more particular parcels of land,’’ as

in spot zoning or a permit requirement, or ‘‘within one or more designated geographical zones,’’ as in conventional zoning rules. The intention here is to exclude

regulation that applies generally to all real property, such as housing discrimination

laws.

The definition of ‘‘program or activity’’ in section 8(4) has been discussed in connection with the spending clause provision.

The definition of ‘‘demonstrates’’ in § 8(5) is incorporated verbatim from the Religious Freedom Restoration Act.

Section 8(6) defines government to include both state and local governments

throughout the bill, and to include the federal government in sections 3(a) and 5.

These are the sections shifting the burden of proof in free exercise cases and the

rules of construction, some of which are not included in RFRA. The federal government is not included in the rest of the bill because it is already subject to the compelling interest test under RFRA as amended. RFRA was struck down only insofar

as it attempted to enforce the Fourteenth Amendment against the states; it still applies to the federal government. In re Young, 141 F.3d 854 (8th Cir.), cert. denied,

119 S.Ct. 43 (1998); EEOC v. Catholic University, 83 F.3d 455, 470–71 (D.C. Cir.

1996).

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VIII. OTHER CONSTITUTIONAL OBJECTIONS

A. The establishment clause

Justice Stevens suggested that RFRA might violate the Establishment Clause.

City of Boerne v. Flores, 521 U.S. 507, 536–37 (1997). He got no vote but his own,

and his view has no support in the Court’s precedents. Government is not obligated

to substantially burden the exercise of religion, and government does not establish

a religion by leaving it alone. RLPA would not violate the Establishment Clause.

The Supreme Court unanimously upheld regulatory exemptions for religious exercise in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). There the

Court held that Congress may exempt religious institutions from burdensome regulation. The Court so held even with respect to activities that the Court viewed as

secular, id. at 330, even though the Court expressly assumed that the exemption

was not required by the Free Exercise Clause, id. at 336, and even though the exemption applied only to religious institutions and not to secular ones, id. at 338–

39. Amos held that alleviation of government-imposed burdens on religion has a secular purpose, id. at 335–36, and that the religious organization’s resulting ability

better to advance religious ends is a permitted secular effect, id. at 336–37. Exempting religious practice also avoids entanglement between church and state ‘‘and effectuates a more complete separation of the two.’’ Id. at 339. Amos expressly rejected

the assumption that exemptions lifting regulatory burdens from the exercise of religion must ‘‘come packaged with benefits to secular entities.’’ Id. at 338.

The Court reaffirmed these principles, after Employment Division v. Smith, in

Board of Education v. Grumet:

[T]he Constitution allows the state to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious

to impositions that legitimate exercises of state power may place on religious belief and practice.

512 U.S. 687, 705 (1994).

The Supreme Court has at times questioned or invalidated exemptions that focus

too narrowly on one religious faith or one religious practice, that do not in fact relieve any burden on religious exercise, or that shift the costs of a religious practice

to another individual who does not share the faith. Id. at 703; Texas Monthly v. Bullock, 489 U.S. 1 (1989); Estate of Thornton v. Caldor, 472 U.S. 703 (1985). RLPA

avoids these constitutional dangers. The bill minimizes the risk of denominational

preference by enacting a general standard exempting all religious practices from all

substantial and unjustified regulatory burdens; its even-handed generality serves

the important Establishment Clause value of neutrality among the vast range of religious practices. By its own terms, the bill does not apply unless there is a substantial burden on the exercise of religion. And if particular proposed applications unfairly shift the costs of a religious practice to another individual, those applications

will be avoided by interpreting the compelling interest test or by applying the Establishment Clause to the statute as applied.

Religion and the exercise of religion should be understood generously for purposes

of RLPA, and unconventional beliefs about the great religious questions should be

protected. But the Constitution distinguishes religion from other human activities,

and it does so for sound reasons. In history that was recent to the American Founders, government regulation of religion had caused problems very different from the

regulation of other activities. The worst of those problems are unlikely in America

today, and our tradition of religious liberty is surely a large part of the reason.

Today the greatest threat to religious liberty is the vast expansion of government

regulation. Pervasive regulation regularly interferes with the exercise of religion,

sometimes in discriminatory ways, sometimes by the mere existence of so much regulation written from a majoritarian perspective. Many Americans are caught in conflicts between their constitutionally protected religious beliefs and the demands of

their government. RLPA would not establish any religion, or religion in general; it

would protect the civil liberties of people caught in these conflicts.

B. Federalism

RLPA is consistent with general principles of federalism that sometimes limit the

powers granted to Congress, including the Supreme Court’s three decisions last

June. Those decisions have drawn a lot of attention, but really have very little to

do with this case.

All three are cases about Congress’s power to authorize suits against states. These

cases, like all past cases, distinguishes ‘‘state immunity from suit’’ from ‘‘the entirely

different question of whether substantive provisions of Commerce Clause legislation

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38Mack v. O’Leary, 80 F.3d 1175, 1177 (7th Cir. 1996); Commack Self-Service Kosher Meats

Inc. v. New York, 954 F.Supp. 65, 66–70 (E.D.N.Y. 1997); Gilmore-Bey v. Coughlin, 929 F.Supp.

146, 149–50 (S.D.N.Y. 1996); Weir v. Nix, 890 F.Supp. 769, 785 (S.D. Iowa 1995); Woods v. Evatt, 876 F.Supp. 756, 770 n.16 (D.S.C. 1994); Rust v. Clarke, 851 F.Supp. 377, 381 (D. Neb.

1994).

cation Expense Board, 119 S.Ct. 2219, 2228 n.3 (1999). ‘‘The constitutional privilege

of a State to assert its sovereign immunity in its own courts does not confer upon

the State a concomitant right to disregard the Constitution or valid federal law.

* * * The State of Maine has not questioned Congress’ power to prescribe substantive rules of federal law to which it must comply.’’ Alden v. Maine, 119 S.Ct.

2240, 2266, 2269 (1999).

RLPA is on the permitted side of this distinction. The House Bill does not authorize suits against states, and the Coalition for the Free Exercise of Religion has

abandoned any desire to have Congress override state immunity even in those sections where Congress has power to do so. Congress cannot override state immunity

by accident; only an unmistakably clear statement will suffice. Authorizing suits

against ‘‘governments’’ is not a sufficiently clear statement to ever be read as authorizing suits against states, as the RFRA cases repeatedly held.38 The means of

enforcing federal law without suing states are summarized in Alden v. Maine, 119

S.Ct. at 2266–68, and those are the means RLPA will use—suits against state officers and local governments, but not against states.

One of those cases also addressed the scope of Congress’s substantive authority

to enforce the Fourteenth Amendment, emphasizing Boerne’s requirement that prophylactic enforcement legislation must be a proportionate response to a pattern of

constitutional violations. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2199, 2210 (1999). It was undisputed that there

was no such pattern in Florida Prepaid, where the bill’s supporters had identified

only eight claims against states in a century, and where the bill’s sponsors had stated on the record ‘‘we do not have any evidence of massive or widespread violation

of patent laws by the States either with or without this State immunity.’’ Id. at

2207. If there is anything new here, it is only the holding that the requirement of

a pattern applies to statutes overriding sovereign immunity.

The sponsors of religious liberty legislation have been well aware of Boerne’s pattern requirement, and they have assembled a record of widespread probable violations of constitutional rights in land use cases. They have produced evidence of some

four hundred reported cases, evidence that there are many times that number of

unreported cases—sixty to eighty cases per year in a single mainline denomination—statistical evidence of substantial discrimination among religions in these

cases, and evidence of widespread discrimination on the face of suburban zoning

codes. The holding that eight cases per century is not enough is irrelevant to discrimination on the face of the law and scores of cases every year is enough.

RLPA is also consistent with other recent federalism cases, including Printz v. United States, 521 U.S. 898 (1997). Printz struck down federal imposition of specific

affirmative duties on state officers to implement federal programs. It held that Congress ‘‘cannot compel the States to enact or enforce a federal regulatory program,’’

and that it ‘‘cannot circumvent that prohibition by conscripting the State’s officers

directly.’’ Id. at 935.

The proposed bill does not impose any specific affirmative duty, implement a federal regulatory program, or conscript state officers. The substantive provisions of the

bill are entirely negative; they define one thing that states cannot do, leaving all

other options open. The bill thus pre-empts state laws inconsistent with the overriding federal policy of protecting religious liberty in areas constitutionally subject

to federal authority.

The bill operates in the same way as other civil rights laws, which pre-empt state

laws that discriminate on the basis of race, sex, and other protected characteristics,

and in the same way as other legislation protecting the free flow of commerce from

state interference. Congress could itself regulate all transactions affecting interstate

commerce, and then exempt burdened religious exercise from its own regulation; it

has instead taken the much smaller step of pre-empting state regulation that unnecessarily burdens religious exercise. Cf. New York v. United States, 505 U.S. 144, 167

(1992):

Where Congress has power to regulate private activity under the Commerce

Clause, we have recognized Congress’s power to offer states the choice of

regulating that activity according to federal standards or having state law

pre-empted by federal regulation.

RLPA would pre-empt to the minimum extent compatible with the federal policy;

it pre-empts the unjustified burden on religious exercise but leaves all other options

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39Thomas C. Berg, The Constitutional Future of Religious Freedom Legislation, 20 UALR L.J.

715, 761–62 (1998).

open. As already noted, § 5(e) makes explicit what would be clear in any event—

states can pursue any policy they choose, and remove burdens in any way they

choose, so long as they do not substantially burden religious exercise without compelling reason.

Printz distinguished and left unchanged two important pre-emption cases upholding federal statutes in the era of National League of Cities v. Usery, 426 U.S. 833

(1976). In each case, the Printz majority noted that the federal law ‘‘merely made

compliance with federal standards a precondition to continued state regulation in

an otherwise pre-empted field.’’ 521 U.S. at 925–26.

The first of these cases was Hodel v. Virginia Surface Mining & Reclamation

Ass’n, Inc., 452 U.S. 264 (1981), which upheld a federal statute that required states

either to affirmatively implement a specific federal regulatory program or turn the

field over to direct federal regulation. The Court said that ‘‘nothing’’ in National

League of Cities ‘‘shields the States from pre-emptive federal regulation of private

activities affecting interstate commerce.’’ Id. at 291. Hodel is reaffirmed not only in

Printz, but also in New York v. United States, 505 U.S. 144, 161 (1992).

The Court reached similar conclusions in Federal Energy Regulatory Comm’n v.

Mississippi, 456 U.S. 742 (1982) (the FERC case). The statute there went further,

and required the state to ‘‘consider’’ implementing an affirmative federal policy. But

the state was not required to adopt the policy, and law’s provisions ‘‘simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals.’’ Id. at 765.

In Hodel, the Court commented that ‘‘Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining.’’ Id. at 290.

RLPA would not go nearly so far. It would prohibit only some state regulation of

religious exercise—regulation that falls within the reach of spending or commerce

powers, that substantially burdens religious exercise, and that cannot be justified

by a compelling interest.

Hodel and FERC also went much further than RLPA in another way, because

they required states either to implement or consider specific and affirmative federal

policies or cede the field to federal regulation. RLPA imposes no specific policies, but

only the general limitation that whatever policies they pursue, states can not substantially burden religious exercise without compelling reason.

Some provisions of the statutes in Hodel and FERC were directed expressly to the

states and, in a sense, applied only to the states. Only the state agency could implement or consider the federal policy. But this did not render the statutes invalid for

singling out the states for regulation under Article I. Compare Condon v. Reno, 155

F.3d 453 (4th Cir. 1998), cert. granted, 119 S.Ct. 1753 (1999). In Hodel and FERC

(and in RLPA if it is enacted) Congress was pursuing a policy for the appropriate

regulation of private conduct, and it required the states to conform to that policy

of to vacate the field. This is the classic work of federal pre-emption. Pre-emption

of regulation necessarily applies only to state and local governments because private

entities have no power to regulate.

If RLPA seems in any way odd, it is because Congress does not want to impose

regulatory burdens of its own in place of the pre-empted state regulation. The Congressional policy is that religious exercise not be substantially burdened without

compelling reason. This is not a bill to regulate the states, but a bill to deregulate

religion.

Pre-emption in support of deregulation is not unique either, and Congress has

equal powers of pre-emption whether its own preferred policy is regulation or deregulation. Two recent examples are laws prohibiting state or local taxes on features

of electronic commerce that Congress meant to protect. The Internet Tax Freedom

Act, 112 Stat. 2681–719 (1998) (reprinted as note to 47 U.S.C.A § 151 (Supp. 1999),

provides that ‘‘No State or political subdivision thereof shall impose any of the following taxes.’’ It then lists and defines the prohibited taxes, and sets out certain

exceptions. It does not impose a federal tax in lieu of the pre-empted state and local

taxes; it simply pre-empts state taxes on a set of transactions in interstate commerce. There is a similar provision in § 602 of the Telecommunications Act, 110

Stat. 144 (printed as note to 47 U.S.C.A. § 152 (Supp. 1999), pre-empting local taxes

(but not state taxes) on ‘‘direct-to-home satellite service.’’

As Professor Thomas Berg points out in an excellent article on a range of constitutional objections to RFRA and RLPA,39 the statutes deregulating the transportation

industries broadly pre-empted state regulation and substituted only minimal federal

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40See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 19 (1989) (Brennan. J., for plurality) (‘‘We

noted that ‘[n]ot all burdens on religion are unconstitutional, and held that’ the state may justify

a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest;’’); Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 142 (1987)

(‘‘Only those interests of the highest order and those not otherwise served can overbalance legitiregulation in its place. He cites the Staggers Rail Act of 1980, 40 U.S.C. § 10505

(1994), and the Airline Deregulation Act of 1978, 49 U.S.C. § 41701 et seq. (1994).

It is instructive to compare the pre-emption provision of the Airline Deregulation

Act with the central provision of RLPA:

Airline Deregulation Act, 49 U.S.C. § 41713(b) (1994)

Except as provided in this subsection, a State, political subdivision of a

state, or political authority of at least 2 States may not enact or enforce

a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

Religious Liberty Protection Act, § 2

Except as provided in subsection (b), a government [defined elsewhere to

mean states and their subdivisions] shall not substantially burden a person’s religious exercise; (1) in a program or activity, operated by a government, that receives Federal financial assistance; or (2) in any case in which

the substantial burden on the person’s religious exercise affects, or in which

a removal of that substantial burden would affect, commerce with foreign

nations, among the several States, or with Indian tribes.

There is no difference in structure or in principle between these two provisions.

Both on their face regulate state laws and only state laws. Both in their operation

pre-empt state laws that are inconsistent with a federal policy of deregulation. The

Airline Deregulation Act provision was broadly construed, without constitutional

challenge, in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). Nothing

in either Printz or the National League of Cities line of cases casts doubt on federal

power to pre-empt state regulation inconsistent with federal policy in areas where

Congress could regulate directly if it chose. That is all the Religious Liberty Protection Act would do.

In place of the pre-empted state burdens, Congress would substitute only its policy of religious liberty. Congress has applied the same rules to itself and to federal

agencies and officials, universally and across the board, whether or not there is government spending, or land use regulation, or an effect on commerce. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (1994). Congress has provided similar statutory protections where needed in the private sector, most notably in the employment discrimination laws, the public accommodations laws, and the church

arson act. The federal policy is one of religious liberty; that policy is pursued quite

generally; and inconsistent state law is pre-empted to the extent that Congress has

power to do so. There is nothing constitutionally suspect about that under existing

law.

IX. POLICY OBJECTIONS

A. Professor Hamilton’s parade of horribles

I wish also to address a few of the principle policy objections to the bill. They are

remarkable. Professor Marci Hamilton has repeatedly testified that no public policy

is safe from RLPA. Wives will be beaten, children will be abandoned, people will

die—all in the name of religious liberty. Of course she offered no examples of these

dire consequences.

The truth is that religious liberty legislation has been underenforced, not overenforced. Courts have been quite cautious about taking risks with religious liberty.

The great danger with RLPA is not that important public policies will be undermined, but that courts will too often defer to bureaucratic rationalizations and permit the suppression of harmless religious practices.

When confronted with the long history of judicial underenforcement of religious

liberty rights, or with precedents holding certain government interests to be compelling, Professor Hamilton has said that those cases were decided without benefit of

the least restrictive means test. With respect to the RFRA cases, this is obviously

false; RFRA had an express least restrictive means test. With respect to the preSmith free exercise cases, it is also false. Least restrictive means and similar formulations were a regular part of the Court’s formulation of the pre-Smith free exercise

standard.40 The least restrictive means test never had the terrible consequences

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mate claims to the free exercise of religion.’’); Bowen v. Roy, 476 U.S. 693, 728 (1986) (O’Connor,

J., for plurality) (‘‘Once it has been shown that a governmental regulation burdens the free exercise of religion, ‘only those interests of the highest order and those not otherwise served can over- balance legitimate claims to the free exercise of religion.’ This Court has consistently asked the

Government to demonstrate that unbending application of its regulation to the religious objector

‘is essential to accomplish an overriding governmental interest,’ or represents ‘the least restrictive means of achieving some compelling state interest.’ ’’); Bob Jones University v. United States,

461 U.S. 574, 603–604 (1983) (‘‘The state may justify a limitation on religious liberty by showing

that it is essential to accomplish an overriding governmental interest. * * * The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, and

no ‘less restrictive means’ are available to achieve the governmental interest.’’); United States

v. Lee, 455 U.S. 252, 257–58 (1982) (‘‘The state may justify a limitation on religious liberty by

showing that it is essential to accomplish an overriding governmental interest. * * * This mandatory participation is indispensable to the fiscal vitality of the social security system.’’); Thomas

v. Review Board, 450 U.S. 717, 718 (1981) (‘‘The state may justify an inroad on religious liberty

by showing that it is the least restrictive means of achieving some compelling state interest.’’);

McDaniel v. Paty, 435 U.S. 618, 628 (1978) (Burger, C.J., for plurality) (‘‘The essence of all that

has been said and written on the subject is that only those interests of the highest order and

those not otherwise served can overbalance legitimate claims to the free exercise of religion.’’);

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (‘‘The essence of all that has been said and written

on the subject is that only those interests of the highest order and those not otherwise served

can overbalance legitimate claims to the free exercise of religion.’’); Sherbert v. Verner, 374 U.S.

398, 407 (1963) (‘‘For even if the possibility of spurious claims did threaten to dilute the fund

and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing

First Amendment rights.’’) (all emphases added). Professor Hamilton has seen this list of

quotations, but she continues to misstate the prior law.

In City of Boerne v. Flores, 521 U.S. 507, 535 (1997), the Supreme Court actually said—in

a parenthetical phrase inserted without citation of any authority—that least restrictive means

was not part of the pre-Smith law. This erroneous statement was taken from the City’s brief,

written by Professor Hamilton. The Court can change the law for the future, but neither the

Court nor Professor Hamilton can rewrite the past, and the Court’s own past opinions are clear.

Least restrictive means, or equivalent formulations such as ‘‘no alternative forms of regulation,’’

‘‘essential to accomplish,’’ ‘‘not otherwise served,’’ or ‘‘indispensable to,’’ were part of nearly every

significant Supreme Court case on the free exercise of religion prior to 1990. Least restrictive

means is not a new and untried standard; it was the law for thirty-one years, under the federal

Constitution and under RFRA, with no untoward consequences.

that Professor Hamilton predicts, and it was not interpreted in the bizarre way that

she claims to interpret it. The conclusive answer to her parade of horribles is that

for four years under RFRA and for twenty-seven years under the free exercise

clause, they did not happen.

B. The demand for a civil rights exception

Other witnesses have demanded an exception for civil rights claim, across the

board, without regard to context, wholly subordinating any exercise of religious liberty to any interest that can be slipped into a civil rights law. This demand is a

betrayal of the fundamental agreement on which the Coalition for Free Exercise has

depended—neither right nor left would demand carveouts for its own special interests. A civil rights carve out would be wholly unnecessary in the great bulk of cases,

and wrongheaded in those few cases where the religious liberty interest is entitled

to a respectful hearing.

A civil rights exception is unnecessary, because most civil rights claims satisfy the

compelling interest test. The Supreme Court has held, in a free exercise case, that

eradicating racial discrimination in education serves a compelling interest by the

least restrictive means. Bob Jones University v. United States, 461 U.S. 574, 604

(1983). The Court has held, in free speech cases, that eliminating sex discrimination

in places of public accommodation serves a compelling interest by the least restrictive means. Board of Directors v. Rotary Club, 481 U.S. 537, 549 (1987); Roberts v.

United States Jaycees, 468 U.S. 609, 623–29 (1984). Dictum in Rotary Club said generally (without regard to the basis of discrimination) that ‘‘public accommodations

laws ‘plainly serv[e] compelling state interests of the highest order.’ ’’ 481 U.S. at

549. Race discrimination is even more suspect than sex discrimination, and employment is at least as important as public accommodations. Those who resist civil

rights laws in the name of religion will, in nearly every case, lose.

A civil rights exception is also unwise, because it would eliminate any RLPA defense in those few cases in which the religious practice should clearly be protected

or at least receive an individualized hearing. The clearest example is the line of

cases typified by Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839 (2d

Cir. 1996). Similar cases have arisen on college campuses around the country. Each

such case involves a student religion club of a particular faith, which requires a

statement of faith for membership, for voting, and/or for holding office. In the name

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of civil rights, the school argues that the statement of faith is a form of religious

discrimination, and demands that the club abandon the statement of faith or be dissolved as a campus organization. In Hsu, the court reached the remarkable conclusion that a Christian club could require that its President, Vice-President, and

Music Coordinator be Christians, but that it could not require that its Secretary,

its Activities Coordinator, or its members be Christian. On the same theory pursued

in Hsu, a church may be a place of public accommodation that discriminates on the

basis of religion. These cases mistake the existence of religious organizations for religious discrimination. In Hsu, the club relied on the Equal Access Act, but that Act

does not apply to the college cases. RLPA should be available; a civil rights amendment would make it unavailable.

RLPA is needed in other cases where civil rights laws are overextended or simple

religious speech is mischaracterized as religious harassment vulnerable to a civil

rights claim. A Pennsylvania court has held that an employer engaged in illegal religious discrimination when he printed religious articles in the company newsletter

and printed Bible verses on company checks. Brown Transport Corp. v. Commonwealth, 578 A.2d 555, 562 (Pa. Commw. Ct. 1990). In Colorado, the civil rights law

protects smoking, gambling, collecting pornography, and any other ‘‘lawful activity

off the premises of the employer during nonworking hours.’’ Colo. Rev. Stat. § 24–

34–402.5 (1) (Supp. 1998). It is simply not possible to say, across the board, that

any religious liberty claim is subordinate to any other claim that can be brought

under a civil rights statute.

A civil rights exception would also invite challenges to familiar religious practices,

presenting difficult issues that should be left unresolved until and unless they arise.

Catholics and Orthodox Jews restrict the priesthood and rabbinate to males, in violation of the literal language of the employment discrimination laws. Convents and

monasteries rent dwellings, within the definitions in some fair housing acts, to only

one sex and to adherents of only one religion. Religious organizations operate retirement residences and nursing homes, and some may give priority to their own members. Some churches and other religious organizations require church employees to

adhere to the religion’s moral code; as applied to unwed mothers, this is easily converted to a claim of pregnancy discrimination.

Current law permits religious organizations to prefer employees of their own faith

to do the organization’s work, but there are many ambiguous limits to that exemption. A preference for Jews might be attacked as racial rather than religious. Shaare

Tefila Congregation v. Cobb, 481 U.S. 615 (1987). The Texas Attorney General has

attacked a preference for Christians as unprotected, insisting that only a preference

for particular denominations is within the statutory exception. Speer v. Presbyterian

Children’s Home, 847 S.W.2d 227 (Tex. 1993). That issue remains unresolved. A

preference for persons of any faith so long as they are not overtly hostile to the religious mission is probably unprotected by these exceptions.

Reasonable people can disagree about how such issues should be resolved. If such

cases arise, both sides will be fully heard under the statutory standards of substantial burden and compelling interest. Fair and just results may depend on context:

a pastor is different from a youth director, and both are different from a custodian;

a convent is different from a retirement home. There are few occasions for religious

exceptions from the civil rights laws, but it would not be right to simply enact that

any civil rights claim automatically trumps any religious liberty claim without debate or discussion.

Any exception to RFRA violates the core agreement that has held together supporters of religious liberty legislation. Religious liberty legislation has broad support

across the political spectrum from left to right, bipartisan, interfaith, religious and

secular. The core agreement that has held that broad coalition together is that

RFRA bills should enact uniform standards, applicable to all religious practices and

all governmental interests, and that the groups within the coalition will argue out

their disagreements under those standards. Every private interest group and every

government agency has an agenda that could be insulated from future argument by

an exception exempting that agenda from RFRA or RLPA. Some of those potential

exceptions involve deep moral commitments, as deeply felt as civil rights. It is impossible to make one exception without inviting many others. It is impossible even

to consider many exceptions without abandoning the principle of religious liberty

and substituting a series of votes on what religious practices can hold a majority

vote in a crowded legislative session. Rep. Stephen Solarz, the sponsor of RFRA, explained the most fundamental reason why he would not entertain proposed exceptions to his bill:

If Congress succumbs to the temptation to pick and choose among the religious practices of the American people, protecting those practices the majority finds acceptable or appropriate, and slamming the door on those reliVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00104 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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gious practices that may be frightening or unpopular, then we will have

succeeded in codifying rather than reversing Smith.

He correctly described the effect of exceptions then, and that would still be the

effect of exceptions today.

Let me say that this should not be an issue that divides left and right. It should

not be a litmus test of support for civil rights. I spent most of April helping to write

a brief defending the constitutionality of affirmative action in a renewed appeal in

Hopwood v. Texas, and I worked publicly and privately for three years to make that

renewed appeal happen. Turning to the agenda that is principally driving the demand for a civil rights carve out, I voted for my city’s gay rights ordinance, and I

have publicly defended the constitutional rights of sexually active gays and lesbians.

The dispute over a civil rights carve out is not about whether one supports civil

rights; it is about whether civil rights is for all Americans and all their fundamentally personal beliefs and activities, or only for selected groups, selected beliefs, and

selected activities.

Civil rights and religious liberty are both about living together with our differences. There should be legal protection for gays and lesbians and also for persons

with religious commitments to traditional sexual morality. There should be a general gay rights law, and there should be religious exemptions. And it should be obvious that gay rights laws will be far easier to enact if there are exemptions for religious objectors—the most legitimate and often the most intensely felt source of opposition.

It should also be clear that gays and lesbians also have religions, and exercise

them, and are especially likely to need the protection of religious liberty legislation.

I have already mentioned the zoning problems of the Metropolitan Community

Church. Let me describe another case, in which I have just filed a friend of the court

brief supporting the religious liberty of a lesbian mother.

In re G, now pending in the state court of appeals in Texas, involves a lesbian

mother, now divorced from her former husband. She and the father have joint custody, and a complicated agreement concerning their respective rights to guide the

religious instruction of the child. The mother was taking the daughter to the Metropolitan Community Church. The father objected. The mother offered in evidence the

tape of a typical service, and expert testimony on the best interests of the child;

there is no suggestion of any age-inappropriate content at the church. The father

offered no evidence about the church and refused to visit a service; he simply objected. The court decided that the mother could take the daughter to ‘‘mainline’’

churches and no others, and that the court would decide what counted as mainline.

The Metropolitan Community Church was unacceptable.

The source of hostility here is the sexual orientation of the mother. But the target

of discrimination is her church and her religious exercise. The court has not suppressed her sexual behavior; it has suppressed her religious behavior. In the course

of doing that, it has undertaken to decide what are acceptable religions and what

are not.

I doubt that RLPA can reach that case, because no commercial transactions depends on the outcome. But the Constitution might reach it, and state law certainly

could reach it. The recently enacted Texas Religious Freedom Restoration Act

strengthens the mother’s case, and a federal bill could reach other cases in other

states that are within reach of Congressional power. The point is not that federal

religious liberty legislation will fix that particular case, but that religious liberty

should be important to both sides of the dispute over sexual orientation. I will join

in defending the rights of gays and lesbians. I wish their leaders would join me in

defending the rights of religious believers. And I wish that all concerned would recognize that these are not mutually exclusive categories.

X. CONCLUSION

Religious liberty legislation is needed for the reasons set forth by other witnesses

and in earlier hearings. The bill’s opponents seem to be few in number, but they

are able and creative; they can think of many arguments. In this testimony, I have

tried to anticipate those arguments.

No one can predict how the Supreme Court might change the law in the future.

But Congress should not be intimidated into not exercising powers that have been

established for decades because of the risk that the law might change in the future.

Broad (but not universal) protection for religious liberty is clearly Congressional

power under existing law, and I urge its enactment.

The CHAIRMAN. Professor Feldblum.

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STATEMENT OF CHAI R. FELDBLUM

Ms. FELDBLUM. Thank you, Mr. Chairman and members of the

committee. Good morning. My name is Chai Feldblum and I am

professor of law at Georgetown University Law Center here in DC.

I have been asked, like my co-panelists, to speak to the question

of whether you have the constitutional authority to enact the Religious Liberty Protection Act as drafted and passed by the House

this past July. But as I prepared this testimony and I read the

statements that have been made in the House, it seems to me that

the relevant question for you is not really is RLPA within your constitutional power to enact. You will always find many individuals,

including myself, who will tell you that a case can be made for

RLPA’s constitutionality, and you will find many individuals who

will tell you you absolutely do not have the power to enact this law.

You don’t have any here today, but they definitely testified on the

House side. So while that type of testimony is certainly illuminating, I am not sure how instructive it is for you to achieve the goals

that a number of you noted in the opening statements.

So the more relevant question, it seems to me, and certainly the

more judicious one, is the following: what law can you pass that

will have the strongest constitutional basis and still protect the

greatest extent of the religious liberty problem. What will have the

strongest constitutional basis and still reach the greatest extent of

the problem?

The reason this seems the better and more judicious question to

me is that if the Supreme Court cases over the last 7 years have

taught us anything, it is that there are significant long-term effects

when Congress passes a law for which a case can be made, but in

which significant questions still remain about that case.

Now, you can decide that you want to push the envelope, that

you want to pass the broadest law possible, you want to fix every

aspect of the problem that you see, and if the Supreme Court

doesn’t like it, they will tell you. But, of course, that is exactly the

problem. They will tell you, and they will tell you in a way that

will bind your power to pass future legislation and that may cast

doubt on existing legislation. But you are not passive in this; you

are an active player in the dance between the courts and Congress.

You decide how broad a law to pass, and therefore how broad a target to set up for the Supreme Court.

So to take the example of protecting religious liberty, I think the

committee needs to consider the following questions as a judicious

matter. Where does Congress clearly have the power to act, and

where are there open questions about Congress’ power?

Two, how does RLPA as currently drafted match up to that picture of congressional power? Are there some aspects of RLPA that

are more clearly within Congress’s power and others that are more

within Congress’s questionable power?

Three, what is the actual extent of the religious liberty problem

that Congress is trying to remedy? Are there some areas where the

problem is more acute and others where it is less acute? Will fixing

the problem in one area cause other problems? What is the specific

extent of the problem?

Given the answers to these three questions, Congress should

think about what type of law would fix the greatest amount of the

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problem of religious liberty, while still using the strongest basis for

Congress’s constitutional authority. Crafting this type of law, in my

mind, would do three things.

It would ensure that you reach the bulk of the problem that exists. Two, it will ensure that you have crafted a law that has the

greatest chance of being sustained by the Supreme Court. And,

three, you will have crafted a law that will not cause harm in the

long run to other power. So my written testimony basically goes

through these three questions and tries to give you my best sense,

and here is the nutshell of it at this point.

First, I think a relatively strong case can be made for Congress’s

section 5 authority under the 14th Amendment with regard to land

use. And actually I think Professor Laycock’s testimony in both

May 1998 and June 1999, you know, makes the best case. I would

vote for it if I were on the Supreme Court.

I think that the supporters of RLPA have put forward evidence

of comparable discrimination against houses of worship, particularly belonging to small and unpopular religions. And while it is

hard to know whether the Supreme Court will agree that the

record is the correct evidence that they need to see and whether

the rule you have crafted is proportional to that evidence, I think,

certainly, a case can be made for that section.

Second, I think there are problems in using the Commerce

Clause power to address a whole range of areas that may, in the

long run, be found not to meet the Lopez requirement of substantial effect on interstate commerce. I agree with Professor Laycock

that one can aggregate the effect in order to find an effect on interstate commerce. But you have not solved the problem by putting

a jurisdictional element in the bill, like showing an effect on commerce, and then assuming that the courts will infer the aggregation. I don’t think that is what is going to happen. I don’t think

constitutionally you can do that.

The courts will still have to decide whether there is a substantial

effect on commerce, and the result will be a series of individual,

random RLPA cases analyzing Congress’s commerce power. And as

Gene Schaerr says in his written testimony, the commerce power

is like an accordion, you know, larger or smaller. And therefore the

bill as it stands will be constitutional if the bill you write will determine how broad that accordion is. And so if you put a bill out

there that addresses a lot of areas that may not be able to withstand that Commerce Clause power, you will end up with a series

of cases restricting your Commerce Clause power in the future.

Finally, I think invoking the spending power in a very broad way

that Congress does in RLPA sets up a very broad target. There is

actually very little case law from the Supreme Court on this, but

to the extent we have, in South Dakota v. Dole, I think you might

find some problems with the general welfare prong because of some

of the problems about children and women. And I think you might

have some problems with the Federal interest prong.

I want to conclude with some very general comments on religious

liberty. I spent the first 20 years of my life in a very insular and

very orthodox Jewish household and world, and then I spent the

next 20 years in this world, a non-religious and secular world. And

I think that life experience has given me two senses. One is how

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1The Federal Legislation Clinic, which I direct, represents several organizational clients. In

addition, outside of my academic work, I serve as a legal consultant to the National Gay and

Lesbian Task Force (NGLTF). I am not representing any entity or individual, other than myself,

in this testimony, and the views I present here today should not be attributed to any of the

Clinic’s clients or my personal clients. I also state that I have not received any federal grant,

contract, or subcontract during the current or preceding two fiscal years. 2Testimony of Douglas Laycock before the U.S. House of Representatives Committee on the

Judiciary, Subcommittee on the Constitution, Hearing on H.R. 1691, The Religious Liberty Protection Act of 1999, May 12, 1999 (hereinafter the ‘‘Laycock testimony’’.) 3Testimony of Marci A. Hamilton before the U.S. House of Representatives Committee on the

Judiciary, Subcommittee on the Constitution, Hearing on H.R. 1691. The Religious Liberty Protection Act of 1999, May 12, 1999 (hereinafter the ‘‘Hamilton testimony’’.)

important religious liberty is. There is a sense in which a religious

person feels the need to comply with the religious belief that is

simply qualitatively different from any other type of belief.

And so, for example, while there might be some Establishment

Clause problems that have been raised by the bill, I would want

to believe that this is not an Establishment Clause problem to give

some extra deference to that religious belief. And I would say from

living in the secular world I have found that non-religious people

often don’t get that, and I think that is why we sometimes see a

lack of accommodation and a lack of understanding.

Much as I care about religious liberty, however, I also believe it

is critical for Congress to have a clear and accurate sense of the

problem it is trying to fix. And then as a matter of judicious policy,

I think Congress should craft a law that reaches the bulk of the

problems, while remaining within the deep end of its congressional

constitutional power.

Thank you.

The CHAIRMAN. Thank you.

[The prepared statement of Ms. Feldblum follows:]

PREPARED STATEMENT OF CHAI R. FELDBLUM

I. INTRODUCTION

Good morning. My name is Chai Feldblum and I am a law professor at the

Georgetown University Law Center in Washington, D.C. I teach courses in civil

rights law, constitutional law, and the legislative process at the Law Center, and

I founded and direct a Federal Legislation Clinic at the Law Center. I am testifying

today in my personal capacity as a law school professor.1

I have been asked to speak to the question of whether Congress has the constitutional authority to pass the Religious Liberty Protection Act (RLPA), as drafted and

passed by the House of Representatives in June 1999. The problem, of course, is

that it is difficult for anyone to give Congress a definitive answer to that question.

Professor Douglas Laycock of Texas Law School has testified before the House of

Representatives that ‘‘[t]he bill is clearly within Congressional power under existing

law,’’ and he has systematically laid out his case for that conclusion.2 By contrast,

Professor Marci Hamilton of Cardozo School of Law has testified before the House

of Representatives that ‘‘Congress lacks the power to institute this broad-ranging attempt to privilege religion in a vast array of arenas,’’ and has also laid out a systematic case for that conclusion.3

My sense in reading the testimony from Professors Laycock and Hamilton is that

each individual has made a number of valid points regarding Congressional authority and RLPA, but each has also tended to either overstate or understate certain

problems with the law. This, of course, is not unusual in legal discourse, where arguments can always be made on each side of an issue.

But it seems to me, then, that Congress perhaps is asking the wrong question

when it asks: ‘‘is RLPA within Congress’ constitutional power?’’ You will always find

many individuals (including, myself) who will say ‘‘a case’’ can be made that RLPA

is within Congress’ power to enact. But I think the better, and more judicious, question to ask instead is: ‘‘What law can Congress pass that will have the strongest con- stitutional basis for its enactment, and will still reach the greatest extent of the

problem Congress is trying to fix?’’

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4Some of the major cases dealing either with Congress’ constitutional authority or with

States’ Eleventh Amendment immunity to suit over the past seven years have been: New York

v. United States, 505 U.S. 144 (1992), U.S. v. Lopez, 514 U.S. 549 (1995), Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), Alden v. Maine, 1999 WL 412617 (US), Printz v. United

States, 521 U.S. 898 (1997), City of Boerne v. P.F. Flores, 117 S.Ct. 2157 (1997), College Savings

Bank v. Florida Prepaid Postsecondary Education Expense Board, 1999 WL 412639 (US), and

Florida v. College Savings Bank, 1999 WL 412723 (US).

This seems to me to be the better question because there are significant long-term

ramifications when Congress passes a law for which simply ‘‘a case’’ for constitutionality can be made, but in which significant questions regarding that case remain

open. Even the most ardent supporters of RLPA agree the Supreme Court can always modify current constitutional doctrine in a manner that would undermine not

only Congress’ authority to pass RLPA, but also other pieces of legislation that Congress might seek to pass or that it has already passed. Thus, it behooves Congress

to consider not simply whether ‘‘a case’’ may be made for a piece of legislation, but

rather, how strong that case is and whether that case might provide the Supreme

Court with unnecessary opportunities to cut back further on Congressional power.

The series of cases decided by the Supreme Court over the past seven years, beginning with New York v. United States in 1992, and culminating with the trio of

cases decided in June 1999, gives us some sense of how a majority of the Supreme

Court might approach questions of Congressional authority and state sovereign immunity.4 Some might say these cases represent appropriate corrections to a federal

legislature that has operated as if there are no limits to its constitutional authority.

Others would say these cases represent a cramped view of the extent of that authority. For me, the sole relevant point for today’s hearing is that these cases remind

us that the Supreme Court is acutely attuned to whether Congress has constitutional authority to enact specific pieces of legislation, and that a majority of the

Court is not concerned with restricting such authority even if it ultimately means

Congress will have a more limited capacity to address issues it believes warrants

federal action.

The mood of the Supreme Court may perhaps best be discerned in Justice Scalia’s

pronouncement in College Savings, one of the trio of cases decided in the last day

of the 1999 term: ‘‘Today, we drop the other shoe: Whatever may remain of our decision in Parden [a case dealing with constructive waiver of immunity by a State] is

expressly overruled.’’ This is not a Supreme Court that will have difficulty ‘‘dropping

the other shoe’’ and limiting Congressional authority in future cases if it believes

such a restriction is constitutionally mandated. The question is: what type of opportunities will Congress give to the Supreme Court to drop that other shoe?

Given this legal landscape, I believe the Committee should consider the following

questions as it takes up the prospect of passing legislation to protect religious liberty:

(1) Where does Congress clearly have power to act, and where are there open

questions regarding such power? In other words, at what point does Congress

venture into an arena where ‘‘other shoes’’ could possibly be dropped by the Supreme Court?

(2) How does RLPA, as currently drafted, match up against this picture of

Congress’ power? In other words, are there some aspects of RLPA that fall more

within Congress’ clear power and others aspects that fall more within Congress’

questionable power?

(3) What is the actual extent of the religious liberty problem that Congress

is attempting to remedy? Are there some areas where the problem is more

acute, and others where it is less acute? Will fixing the problem in one area

cause problems in other areas?

(4) Based on the answers to the questions above, what law would fix the greatest amount of the problem of religious liberty in this country while still remaining within the strongest basis of constitutional authority?

I have no doubt that this more cautious and measured approach to the problem

of religious liberty may not reach each and every instance of religious liberty currently encompassed by RLPA. I believe, however, that it is the one most likely to

be sustained by the Supreme Court in the long-term—and the one least likely to

do harm to Congressional power over that long-term.

II. SOURCES OF CONGRESSIONAL POWER AND RLPA

A. Fourteenth Amendment power

The most powerful source of Congressional authority, at least vis-a-vis the States,

continues to be Section 5 of the Fourteenth Amendment (‘‘Section 5 ’’). The FourVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00109 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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teenth Amendment provides that no State may ‘‘deprive any person of life, liberty,

or property, without due process of law,’’ or ‘‘deny to any person within its jurisdiction the equal protection of the laws.’’ Section 5 of that Amendment provides that

‘‘Congress shall have power to enforce, by appropriate legislation, the provisions of

this article.’’

The bounds of Congressional power under Section 5 have been clearly delimited

by the Supreme Court, for better or worse, in City of Boerne v. P.F. Flores, 117 S.Ct.

2157 (1997). The Court held in that case that Congress’ power to enforce the Fourteenth Amendment was restricted to enforcing the substance of the Amendment as

understood and interpreted by the Supreme Court. As the Court explained, ‘‘Congress does not enforce a constitutional right by changing what the right is.’’ 117

S.Ct. at 2164. While the Court granted Congress some latitude in this area, by countenancing ‘‘preventive measures’’ that Congress might take if ‘‘many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional,’’ id. at 2170, the bar set by City of Boerne for Congress to invoke its Section 5 authority is relatively high.

In one of the trio of cases decided this past June, Florida Prepaid Postsecondary

Education Expense Board v. College Savings Bank, 1999 WL 412723 (U.S.), the Supreme Court made clear that it would apply the City of Boerne test quite strictly.

In that case, the Court concluded that when Congress enacted the Patent Remedy

Act, it had ‘‘identified no pattern of patent infringement by the States, let alone a

pattern of constitutional violations.’’ Id. at *7. It noted that Congress had barely

considered the availability of state remedies for patent infringement, and that the

evidence suggested that most state infringement was innocent or at worst negligent.

The Court concluded that ‘‘[t]he legislative record thus suggest that the Patent Remedy Act does not respond to a history of ‘widespread and persisting deprivation of

constitutional rights’ of the sort Congress has faced in enacting proper prophylactic

§ 5 legislation,’’ and that the provisions of the Act were thus ‘‘ ‘so out of proportion

to a supposed remedial or preventive object that [they] cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.’ ’’ Id. at *11 (quoting

City of Boerne.)

While the bar for invoking Section 5 authority has been set high by the Court,

it has also been set relatively clearly. Thus, particularly with regard to a bill such

as RLPA, it should be well understood what Congress needs to demonstrate to invoke its Section 5 authority. It must find that there is a likelihood that states and

localities are acting in an unconstitutional manner in restricting religious liberty

(unconstitutional, as defined by the Supreme Court), and the rules Congress drafts

to remedy or prevent such actions must be congruent and proportionate to such actions.

The only section of RLPA in which Congress relies on its Section 5 power is the

section establishing, rules regarding land use. While that section displays some coherence problems, its major thrust (beyond what the constitution would already require) is to prohibit the government in land use regulation from imposing a substantial burden on a person’s religious exercise, unless the government demonstrates

that application of the burden is the least restrictive means of furthering a compelling governmental interest.

Six members of the House Judiciary Committee, who filed dissenting views to the

House Judiciary Committee Report, concluded that Congress does not have authority under Section 5 to enact this provision. According to those Members, ‘‘[t]he proponents of RLPA have proffered the same sort of legislative record as Congress established in 1993,’’ and the Supreme Court found that record deficient to meet its

requirements. (House Report at 34 and n.5.) Similarly, Professor Hamilton asserts

‘‘[t]o my knowledge, there is no evidence that the states and local governments have

engaged in a pattern of free exercise violations through their land use laws.’’ (Hamilton testimony at 4.)

Despite these assertions, it seems to me the proponents of RLPA have done quite

a thorough job in presenting evidence of discriminatory actions engaged in by localities who wish to preclude houses of worship, particularly those belonging to small

or unpopular religions, from siting in their neighborhoods. It is difficult to know at

this point whether the Supreme Court will find that this evidence sufficiently demonstrates a ‘‘widespread and persisting deprivation of constitutional rights,’’ and if

so, whether it will find that the rule promulgated by Congress is a congruent and

proportional response to such deprivation. But RLPA’s record certainly seems different from the record developed in support of RFRA, at least insofar as supporters

of RLPA have explained their evidence in a manner that comports with the Supreme Court’s requirement of describing likely unconstitutional behavior. Indeed,

Professor Laycock’s marshaling of that evidence in his testimony of July 1998 (and

summarized in his May 1999 testimony), and his argument that such evidence

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meets the requirements of invoking Congress’ Section 5 authority, is quite compelling.

Beyond the fact that a relatively strong case can probably be made for basing a

land use section on Section 5 authority, it is important to note that there is minimal

additional harm that can come from invoking such authority and passing such a section. In the area of Section 5 authority, the Supreme Court has already ‘‘dropped

the shoe.’’ The only question now is whether any particular legislative enactment

will fit into that shoe. Moreover, in the area of religious liberty, the Court has already explained what will constitute unconstitutional behavior. Thus, the only questions the Court will need to decide if Congress passes the land use section under

its Section 5 authority is whether the evidence demonstrates likely unconstitutional

actions, and whether the Congressional rule is proportional to those actions. Based

on the record, I believe it would be appropriate for the Court to rule in the affirmative on both those questions.

B. Commerce clause power

For decades, Congress’ power under Article 8 of the Constitution ‘‘to regulate

Commerce * * * among the several States’’ has been a mainstay of its authority to

pass legislation in a range of areas. The Supreme Court’s ruling in U.S. v. Lopez,

514 U.S. 549 (1995), however, sent a shock wave through that foundation and has

forced Congress to more carefully evaluate its Commerce Clause power.

The Court in Lopez certainly did not characterize its opinion as a shock wave. To

the contrary, it presented its opinion as primarily reaffirming past case law and traditional constitutional structure. Thus, the Court set forward three areas that it had

always ‘‘identified’’ as areas in which Congress could legislate under its Commerce

Clause power. The first two categories of activities were straightforward: Congress

could regulate ‘‘the use of the channels of interstate commerce,’’ and Congress could

‘‘regulate and protect the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may come only from intrastate activities.’’ 514 U.S. at 558.

A significant part of Congressional legislation, however, would not entail these

two categories of activities, but rather the third category identified by the Court:

those activities ‘‘having a substantial relation to interstate commerce.’’ One of the

important aspects of the Lopez decision was that the Court stated the regulated activity had to ‘‘substantially affect’’ interstate commerce, and not merely ‘‘affect’’

interstate commerce. The Court reaffirmed, however, that economic activity, which

may be minimal by itself, could still ‘‘substantially affect’’ interstate commerce if a

series of such activities cumulatively would substantially affect commerce. Thus, in

Lopez, the Court distinguished the Gun-Free School Zone Act, which it noted as having ‘‘nothing to do with ’commerce’ or any sort of economic enterprise,’’ from the line

of cases ‘‘upholding regulations of activities that arise out of or are connected with

a commercial transaction, which viewed in the aggregate substantially affects interstate commerce.’’ 514 U.S. at 560.

The question, then, is whether the section of RLPA which provides that a government shall not substantially burden a person’s religious exercise (unless such burden is the least restrictive means of furthering a compelling government interest)

‘‘in any case in which the substantial burden on the person’s religious exercise affects, or in which removal of that burden would affect, commerce * * * among the

several States,’’ may constitutionally be enacted pursuant to Congress’ Commerce

Clause power. To Professor Laycock, the language of the bill answers the question

itself. As he noted in his testimony to the House Judiciary Committee: ‘‘Because

RLPA contains a jurisdictional element, requiring proof of a connection to commerce

in each case, it raises no serious constitutional question under the commerce

clause.’’ (Laycock testimony at 6.) Or, as Professor Laycock has also explained it:

‘‘This part of the bill is constitutional by definition: any religious exercise beyond

the reach of the Commerce Clause is simply outside the bill.’’ (Id. at 4.)

In one respect, Professor Laycock is correct. By placing a jurisdictional element

in the bill, Congress may have moved the constitutional question into the statutory

construction question. But engaging in that technical move will not shield the law

from the ultimate judicial determination of whether the law, as applied, is based

on sufficient constitutional authority. While the adjudication of that question may

occur in the context of interpreting the statute, it will still necessarily occur. Thus,

to the extent Congress should be concerned about Supreme Court review of the laws

it passes (a concern I believe Congress should have), adding the jurisdictional element will not protect Congress from that ultimate review.

Let me explain this point in a concrete manner. In any particular case in which

a person invokes this section of RLPA, the person will demonstrate that the substantial burden on his or her religious exercise affects interstate commerce, or that

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5Some commentators have explicitly called for such action. See, e.g., Lynn Baker, Conditional

Federal Spending After Lopez (95 Colum. L. Rev. 1911):

The Lopez majority has signalled its intent to resume a meaningful constitutional role as

guardian of ‘‘a healthy balance of power between the States and the Federal Government.’’

[Footnote omitted]. But confirming that the Commerce Clause does not grant Congress plenary

regulatory power will not be enough. * * * [P]revailing Spending Clause doctrine appears to vitiate much of the import of Lopez and any progeny it may have. Thus, a reexamination of Dole

should be next on the Lopez majority’s agenda.

removing the burden would affect interstate commerce. Meeting that test will meet

the initial jurisdictional element of the law. But assume the defendant challenges

the law as being beyond Congress’ Commerce Clause power to enact. At that point,

meeting the jurisdictional element will not be sufficient to meet that challenge.

Rather, the RLPA claimant or the United States as intervenor must argue that an

aggregation of the type of activity engaged in by the claimant substantially affects

interstate commerce.

It may well be that the courts, in order to avoid interpreting RLPA in a manner

that would give rise to a constitutional problem, would require the RLPA claimant

to demonstrate, from the outset, that the burden on religion substantially affects

interstate commerce, rather than simply affects commerce. In such cases, the constitutional question will become subsumed into the statutory construction question.

In either event, however, the constitutional threshold of demonstrating a substantial

effect on commerce must be met.

Allowing this constitutional question to be adjudged in a series of individual

RLPA cases, with varying degrees of connection to commerce, may prove problematic to the future vitality of Congress’ Commerce Clause power. Such an adjudication will probably not be problematic in the land use area. Cases concerning construction or renovation of a house of worship might well be viewed as ‘‘activities

that arise out of or are connected with a commercial transaction’’ and thus the burden on all houses of worship that are restricted from construction or renovation in

particular areas could be viewed in the aggregate to potentially demonstrate a substantial effect on interstate commerce. But based on the record currently before

Congress, it would be difficult to characterize many of the other activities intended

to be covered by RLPA as arising out of, or connected with, a commercial transaction. Moreover, even if one could discern a commercial transaction in such activities, without evidence that the particular burden at issue has been repeated in several places (in the way that such evidence has apparently been collected with regard

to land use and with regard to prison rules), it may be difficult to prove that such

burdens, when aggregated, cause a substantial effect on interstate commerce. The

end result may be a body of case law establishing, in a range of contexts, the limitations of Congress’ Commerce Clause power.

It seems unfortunate to allow Congress’ Commerce Clause power to be adjudicated in this random, individualized manner. The better approach would be for

Congress to consider now—prior to passage of the law—what burdens on religious

liberty arise out of, or are connected with, commercial transactions, and what burdens are sufficiently widespread that, when aggregated, they substantially affect

interstate commerce. Burdens on certain forms of land use and burdens resulting

from prison rules, may fall into this category, as may certain other burdens. The

key is for Congress to consider carefully those areas likely to justify invocation of

Commerce Clause power, and then to invoke that power for those areas.

Serious consideration by Congress in this manner can only help to ensure that

the law it passes will ultimately be upheld by the Supreme Court. As the Court

noted, it will make its own ‘‘independent evaluation of constitutionality under the

Commerce Clause’’ apart from any legislative findings that Congress may make.

Nevertheless, such findings can be helpful ‘‘to the extent that congressional findings

would enable [the Court] to evaluate the legislative judgment that the activity in

question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.’’ Lopez, 514 U.S. at 563.

C. Spending clause power

Because Congress has so often relied on its Article I, § 8 Commerce Clause power

to pass legislation, rather than its Article I, § 8 Spending Clause power (‘‘to pay the

Debts and provide for the * * * general Welfare of the United States’’), there are

significantly fewer Supreme Court cases construing the limitations of the latter

power. Unfortunately, this may mean the area of Spending Clause power is ripe for

Supreme Court action,5 and thus, it behooves Congress to be particularly careful

and astute in invoking this power.

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6This cross-reference states the following:

Sec. 606. For the purposes of this title, the term ‘‘program or activity’’ and the term ‘‘program’’

mean all of the operations of—

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or

of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such

department or agency (and each other State or local government entity) to which the assistance

is extended, in the case of assistance to a State or local government; [or]

(2)(A) a college, university, or other postsecondary institution, or a public system of higher

education; or

In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court noted that Congress’ spending power had three limitations, none of which were contested in the

Dole case. First, the exercise of the spending power had to be ‘‘in pursuit of ‘the general welfare.’ ’’ Id. at 207. In the Dole case, a spending condition encouraging States

to lower the drinking age was seen as clearly ‘‘designed to serve the general welfare.’’ Second, the condition on the States had to be explicit, so that the States could

‘‘ ‘exercise their choices knowingly, cognizant of the consequences of their participation.’ ’’ Id., quoting Pennhurst State School v. Halderman. Again, in Dole, the Court

found that the condition on the States ‘‘could not be more clearly stated by Congress.’’ Id. at 208. Finally, the Court observed that ‘‘conditions on federal grants

might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’ ’’ Id., quoting Massachusetts v. United States. Again, in

Dole, the Court found this requirement to be met, noting, that ‘‘the condition imposed by Congress is directly related to one of the main purposes for which highway

funds are expended—safe interstate travel.’’ Id. at 208.

Each of these requirements becomes a bit more complicated to satisfy in the context of justifying RLPA’s mandate that states and localities defend every neutral

law that may burden religion as the least restrictive means of furthering a compelling government interest. This is not to say that RLPA would not necessarily meet

each of these requirements. It is only to say that as the analysis becomes more complicated, opportunities may be created for the Supreme Court to narrow Congress’

Spending Clause power. These possible complications mean that Congress might

well consider whether there are specific forms of religious liberty that are best justified as protected under the Spending Clause power—and then use the spending

power to protect those specific interests.

The complications are as follows. First, the Court has noted that it will generally

defer to Congress on the concept of ‘‘general welfare.’’ Nevertheless, in any case

challenging RLPA on Spending Clause power, one might expect amicus curia briefs

from groups representing children, minorities and women, and environmental

groups challenging the notion that it is in the ‘‘general welfare’’ to pass a broadbased rule requiring that any governmental action taken to protect the interests of

these groups must be limited to the ‘‘least restrictive manner’’ of achieving that interest, when any religious belief is burdened by that governmental action. Indeed,

the testimony submitted to this Committee by Professor Barbara Bennett

Woodhouse of University of Pennsylvania Law School and Co-Director of the Center

for Children’s Policy Practice and Research, and Robert J. Bruno, an attorney who

has represented Children’s Healthcare is a Legal Duty and the American Professional Society on the Abuse of Children, make a compelling case for why the general

welfare of children will not be advanced by this rule. Similar testimony regarding

the fact that such a rule does not advance the general welfare of individuals protected by state and local civil rights laws has been noted by many groups over the

past several months. While it seems unlikely to me that the Supreme Court would

rule that a Congressional condition on spending was not in the general welfare

(given its stated deference to Congress on this issue), how Congress addresses and

deals with these specific concerns during the legislative process on RLPA may well

affect the Court’s determination of whether the rule ‘‘is designed to serve the general welfare.’’

Second, RLPA provides that a government shall not substantially burden a person’s religious exercise ‘‘in a program or activity, operated by a government, that

receives federal financial assistance.’’ Program or activity is defined through a crossreference to part of section 606 of the Civil Rights Act of 1964.6 Under this definition, a ‘‘program’’ means ‘‘all of the operations’’ of a department or agency of a State

or local government.

(B) a local educational agency (as defined in section 14101 of the Elementary and

Secondary Education Act of 1965), system of vocational education, or other school

system; * * *

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I assume the Court would conclude that this condition is clear enough to the

States, even though the condition is not explicit in each of the federal programs that

funnel financial assistance to the various state and local program and activities, but

rather, is embodied in a general law that subsequently applies to all those programs

and activities. A more difficult question may be whether the breadth of federal financial assistance implicated by RLPA makes the ‘‘choice’’ of States to reject both

the assistance and the mandate illusory, rather than real. The Court noted in Dole

that a State’s choice to reject both the federal funds and the accompanying federal

condition had to be real, and that the Court’s decisions had thus ‘‘recognized that

in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ ’’ Dole, 483 U.S.

at 211 (quoting Steward Machine Co. v. Davis). Justice Scalia emphasized this point

again just this past term in College Savings Bank, while refuting an argument made

by Justice Breyer. 1999 WL 412639, at *12.

It is probably an open question whether the breadth of financial assistance implicated here makes the choice on the States coercive. RLPA includes a provision that

federal funds may not be withdrawn as a remedy for a violation of the Act. (Sec.

(c)). But that provision does not seem relevant to the issue at hand. The coercion,

if it exists, would lie in the fact that once a State takes any federal financial assistance for any agency, it must then agree to defend all neutral rules in ‘‘all of the

operations’’ of that agency which might burden religious exercise under a very strict

standard. The coercion is not that federal funds might be withdrawn as a remedy

(they won’t); it is that it may not be realistic for the State to reject the federal financial assistance in the first place. In any event, this is a question that is made more

difficult by the breadth of financial assistance covered by the bill.

The final question is whether the rule imposed by RLPA is related ‘‘to the federal

interest in particular national projects or programs.’’ Professor Hamilton argues

that: ‘‘On the current state of the record, Congress has not begun to ask what the

nexus is between its national interest in any spending and burdens on religious conduct. Neither House of Congress has even attempted to survey the vast sweep of

spending programs implicated by this bill.’’ (Hamilton testimony at 4.)

Professor Laycock responds, however, with an (initially) appealing argument. He

notes that the federal interest here is the same as applies in other major laws where

Congress has attached civil rights conditions to its funding. As Laycock puts it, ‘‘The

federal interest is simply that the intended beneficiaries of federal programs not be

excluded because of their religious practice, and that federal funds not be used to

impose unnecessary burdens on religious exercise.’’ (Laycock testimony at 2).

Laycock analogizes this to Congress’ interest in Title VI of the Civil Rights Act of

1964, prohibiting race discrimination in any program or activity receiving federal financial assistance, and Title IX of the Education Amendments of 1972, prohibiting

sex discrimination in any educational program or activity receiving federal financial

assistance. Two other laws Laycock might have mentioned as well are Section 504

of the Rehabilitation Act of 1973, prohibiting disability discrimination in any program or activity receiving federal financial assistance, and Title III of the Age Discrimination Act of 1975, prohibiting age discrimination in employment in any program or activity receiving federal financial assistance.

The problem with Laycock’s argument is that it may prove why Congress should

be concerned about setting up RLPA as a target for a ruling on Spending Clause

power, rather than an argument as to why Congress should feel safe using its

Spending Power in this broad manner. RLPA adopts part of the broad definition of

‘‘program or activity’’ set forth in the Civil Rights Restoration Act of 1987. Let us

presume that Congress articulates its interest in establishing this mandate (per Professor Laycock’s formulation) as ensuring that when any part of an agency receives

federal money, no person who comes into contact with any of the operations of that

agency should be burdened in his or her religious exercise (unless that burden is

the least restrictive means for furthering a compelling government interest).

We already know a majority of the Justices on the Supreme Court does not believe this type of broad rule is necessary to protect religious liberty. They believe,

instead, that religion may not be treated unequally by governmental action, and

that when governmental accommodations are provided for a range of reasons, but

not for religious reasons, the government must be put to a strict scrutiny test to

justify such denials. But beyond those areas, the Court does not believe religious

liberty needs to be further protected—at least as a matter of the Free Exercise

Clause.

Although the Supreme Court’s view of religious liberty is different from the view

embodied in RLPA, the Court cannot challenge Congress’ belief that its view of religious liberty represents an important federal interest. But the Court does have the

power to rule whether the spending, condition is related to the federal interest in

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7 Cases may be brought against localities and local officials without any concern of Eleventh

Amendment immunity.

particular national projects or programs. Thus, the Court could rule that this interest is related to the particular part of the program that receives federal financial

assistance, but not to the rest of the program. While this would resurrect, as a practical matter, part of the Supreme Court’s decision in Grove City v. Bell (at least to

the extent the condition on spending is based on Spending Clause power, as opposed

to Fourteenth Amendment power), one has no reason to presume the Court would

not be comfortable with that result.

D. Eleventh Amendment immunity

In numerous laws, Congress has sought to establish a cause of action against the

States and to abrogate a State’s sovereign immunity to suit. In 1996, in Seminole

Tribe of Fla. v. Florida, 517 U.S. 44 (1996), and just recently again in 1999, in

Alden v. Maine, 1999 WL 412617, the Court has clarified for Congress that it may

not abrogate a State’s sovereign immunity when Congress acts pursuant to an Article I power, such as the Commerce Clause or the Spending Clause. Thus, when Congress enacts a federal law under those powers, a State may be subject to suit under

those laws only when the State has consented to suit. By contrast, when Congress

acts pursuant to its Fourteenth Amendment power, it may subject a State to suit

because States are presumed to have consented to such derogation of their immunity when they consented to the Fourteenth Amendment.

In Seminole Tribe, the Supreme Court announced that Congress could not abrogate a State’s sovereign immunity in federal court under Article I powers; in Alden,

the Court announced that Congress similarly could not abrogate a State’s sovereign

immunity in state court under Article I powers. But since 1908, the Court has also

provided a mechanism by which individuals may obtain relief from certain state actions, by proceeding against state officials for injunctive relief. Ex parte Young, 209

U.S. 123 (1908). Under the ‘‘Young fiction,’’ proceeding against a state official for

injunctive relief is not considered as a proceeding against the State itself.

It seems clear that many cases brought under RLPA against state officials for injunctive relief should fall within the Young fiction.7 Any case requesting damages,

however, would not come within this exception. It is worth noting, however, that

in recent cases, various Justices have expressed some concern with interpreting the

Young fiction so broadly that it swallows the rule of State immunity. In Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), five Justices joined the section

of Justice Kennedy’s opinion which admonished:

To interpret Young to permit a federal court action to proceed in every case

where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle, reaffirmed just last Term in Seminole Tribe, that Eleventh Amendment immunity represents a real limitation on a federal court’s federal-question jurisdiction.

521 U.S. at 270. Only Justice Rehnquist joined Justice Kennedy in the section of

the Coeur d’Alene opinion that significantly reformulated the situations in which the

Young fiction would apply. Nevertheless, to the extent the Young fiction might be

modified by the Court in the future, Congress should again consider being cautious

about the range of injunctive relief it establishes in RLPA.

III. RLPA AND THE ESTABLISHMENT CLAUSE

Even assuming that Congress has the constitutional authority under Article I or

the Fourteenth Amendment to enact RLPA, it certainly has no authority to enact

a law that is unconstitutional. Thus, at least some attention must be paid to the

question of whether RLPA is unconstitutional under the Establishment Clause because it so significantly favors religion over other beliefs.

Some commentators on RLPA are adamant that the legislation violates the Establishment Clause. As Professor Hamilton has articulated it:

RLPA privileges religion over all other interests in the society. While the

Supreme Court indicated in Smith that tailored exemptions from certain

laws for particular religious practices might pass muster, it has never given

any indication that legislatures have the power to privilege religion acrossthe-board in this way.

Hamilton testimony at 6.

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tive means to achieving a compelling government interest, was articulated briefly,

but succinctly, by Justice Stevens, in his concurrence to City of Boerne:

If the historic landmark on the hill in Boerne happened to be a museum

or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure.

Because the landmark is owned by the Catholic Church, it is claimed that

RFRA gives its owner a federal statutory entitlement to an exemption from

a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church

with a legal weapon that no atheist or agnostic can obtain. This government preference for religion, as opposed to irreligion, is forbidden by the

First Amendment.

City of Boerne, 117 S.Ct. at 2171 (Stevens, J., concurring).

I find the Establishment Clause issue troubling. Perhaps because I grew up in a

very Orthodox Jewish home, I have a keen sense of how the need to respond to the

dictates of religious belief feels qualitatively different from the need to respond to

other beliefs. Thus, it is hard for me to imagine that government should not be allowed to respond to that qualitatively different situation by accommodating religious

beliefs in a more preferential manner than other beliefs.

Nevertheless, I do recognize the force of the Establishment Clause issue, given

that RLPA quite clearly prefers the force of religious belief over the force of any

other belief. For example, assume Susan feels a strong ethical (but not religious) belief that she should feed the hungry. If Susan seeks a conditional use permit from

the locality to open a food bank in a particular neighborhood, she might well be denied that permit. The only thing the locality must do in that case is follow its own

permit procedures as a matter of due process. By contrast, if Julie has a strong religious belief that she should feed the hungry, and similarly seeks a conditional use

permit for herself, or her church group, to open a food bank, the locality must prove

that denial of such a permit is the least restrictive means of achieving a compelling

government interest.

While obviously this preference for religion may raise Establishment Clause concerns, I continue to believe there must be a way for government to constitutionally

accommodate religious beliefs, even when it does not similarly accommodate other

beliefs. Moreover, with regard to this constitutional concern, I see no way for Congress to proceed other than to pass some law protecting religious liberty, and see

how the Supreme Court will respond. It may well be that a more targeted bill will

raise fewer Establishment Clause concerns, but at bottom, the challenge will exist

whenever government provides religious belief with a preference over other beliefs

through a mandated ‘‘least restrictive means’’ test. My hope, however, is that such

a law would withstand Establishment Clause scrutiny.

Thank you for giving me the opportunity to testify today on the best way of protecting religious liberty in our country through a law that will be sustained as constitutionally valid. I remain ready to answer any questions Members of the Committee may have.

The CHAIRMAN. Professor Bybee.

STATEMENT OF JAY S. BYBEE

Mr. BYBEE. Thank you, Mr. Chairman. Mr. Chairman, I come before the committee in a rather unusual posture. As you noted in

your remarks introducing me, 5 years ago I wrote a law review article based on an extensive study of both the First and 14th

Amendments in which I concluded that the Religious Freedom Restoration Act was beyond Congress’s section 5 authority.

I also participated before the Supreme Court in the case of

Boerne v. Flores, writing an amicus brief on behalf of the

Clarendon Foundation in support of the City of Boerne. I believed

then and I believe today that the Court correctly decided Boerne v.

Flores. I am in an unusual posture because I believe today that in

RLPA, at least as to section 3(b), Congress has answered the challenge of Boerne.

In one of the early civil rights acts enacted during Reconstruction, Congress provided a remedy against State officials who vioVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00116 Fmt 6601 Sfmt 6601 JUNE23.TXT SJUD2 PsN: SJUD2
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lated constitutional rights. We are very familiar today with the use

of section 1983. Section 1983 provides a remedy against State officials who, under color of State law, exercise their authority in a

way that denies persons their constitutional rights, provides a

damage remedy.

Section 1983 does not prevent State officials from violating constitutional rights. We hope it serves as a deterrent to State officials

who would abuse their power in that way. Section 1983 is an appropriate response by Congress to the problem of State officials

overstepping their bounds and violating constitutional norms.

But if section 5 means anything, it surely means that Congress

may not only respond by creating a remedy, but that Congress may

respond by seeking to prevent—that is, to anticipate, based on its

experience, violations of the Constitution. It may act to prevent

State officials from committing violations before they occur.

The problem with RFRA, in my view—and I think the Supreme

Court bore me out on this—was that RFRA prescribed an acrossthe-board prophylactic. RFRA, in essence, assumed that all State

actions burdening religion were violations of the Constitution. The

Congress obviously disagreed with the Court. There were deep-held

feelings that they disagreed with the Court’s decision in Employment Division v. Smith, but as a measure enforcing the 14th

Amendment, RFRA looked very much like the presumption that all

State actions burdening religion were actions in violation of the

First Amendment. The Court held that that was not a proportional

or congruent response to the problem of State action.

In section 3(b) of H.R. 1691, enacted by the House in July of this

year, RLPA has adopted what I believe is a measured response to

an identified problem. It is measured and thus proportional to an

identified problem, which makes it congruent, and I believe that it

will satisfy the Court’s decision in Boerne.

Section 3(b) addresses only a single problem, that of land use

regulation. Zoning matters tend to lend themselves to giving voice

to religious animus. Here, I am not faulting the States or suggesting that State zoning boards or local zoning boards are deliberately

vindictive. Nor am I necessarily suggesting that land use planning

is a breeding ground for religious discrimination. It is simply the

nature of the act. Property is unique; no two items of property are

the same.

Because zoning affects a unique good, it also affects an intimate

and personal decision. Zoning matters and land use regulation matters generally regulate some of the most personal and intimate decisions that we make, how we will use our land, where and how

we may live, and who will be our neighbors. And thus zoning hearings are a fertile ground to give voice to religious animus. It simply

presents an opportunity for local communities to act upon their religious prejudices.

In Boerne, the Court acknowledged that there was some record

in Congress—that there was some evidence of violation of constitutional rights in zoning matters. But it faulted Congress in those

zoning cases as having provided only anecdotal support. I believe

that in RLPA, Congress has the opportunity—having identified one

specific area to be addressed under its section 5 authority, that it

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1 Jay S. Bybee, Taking Liberties With the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995). 2 Brief of Clarendon Foundation, City of Boerne v. Flores, 521 U.S. 507 (1997) (No. 95–2074). 3 494 U.S. 872 (1990).

4 42 U.S.C. § 2000bb–1(a) (1994). 5 Remarks on Signing the Religious Freedom Restoration Act of 1993, 29 Weekly Comp. Pres.

Doc. 2377 (Nov. 16, 1993). 6See S. Rep. No. 11, 103d Cong., 1st Sess. 13–14 (1993); H.R. Rep. No. 88, 103d Cong., 1st

Sess. 9 (1993). 7 384 U.S. 641, 649 (1966).

8See id. at 652–53.

has the opportunity of creating a record that will withstand Court

scrutiny.

And I would urge Congress to either make formal findings or to

prepare a record that can stand in the Court demonstrating that

in these zoning matters, again, which are opportunities fraught for

religious animus, that Congress has indeed addressed a problem

that is worthy of section 5. Based on proper findings and a proper

record, section 3(b) will, in my view, withstand scrutiny under

Boerne. It is both a congruent and proportional response to the act

of religious discrimination.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Professor Bybee.

[The prepared statement of Mr. Bybee follows:]

PREPARED STATEMENT OF JAY S. BYBEE

Mr. Chairman: I am pleased to be here to testify before the Judiciary Committee

on the Religious Liberty Protection Act of 1999, H.R. 1691. I am currently Professor

of Law at the new William S. Boyd School of Law at the University of Nevada, Las

Vegas. I teach and write in the areas of constitutional law, administrative law, and

civil procedure. My research interests focus on separation of powers and federalism.

I previously taught at the Paul M. Hebert Law Center at Louisiana State University. I also served for five years in the Department of Justice and two years as Associate White House Counsel.

I am here before the Committee in an unusual posture. I publicly opposed the Religious Freedom Restoration Act as an unconstitutional exercise of congressional authority. I did so both in an extensive article in the legal literature 1 and in an amicus brief to the Supreme Court in the case of Boerne v. Flores.2 I am pleased today

to testify concerning a more measured response by Congress in the Religious Liberty

Protection Act. I do not represent and am not affiliated professionally with any organization or group working on behalf of, or opposed to, this legislation. I am before

the Committee in my individual capacity as a student of the Constitution.

BOERNE V. FLORES AND THE SOURCES OF CONGRESSIONAL AUTHORITY FOR THE

RELIGIOUS LIBERTY PROTECTION ACT

In the Religious Freedom Restoration Act of 1993, Congress declared its intention

to overturn the Supreme Court’s decision in Employment Division v. Smith3 and to

impose statutory requirements on all ‘‘government,’’ including the states.4 In his

Rose Garden signing ceremony, President Clinton indicated that he too believed

that RFRA ‘‘reverse[d]’’ the Supreme Court’s decision.5 The source for Congress’ alleged authority to reverse a decision of the U.S. Supreme Court was never clear.

Certainly the Constitution does not grant the political branches the power to revise

decisions of the Court. Congress claimed its authority to revise the Smith opinion

and reinstate a ‘‘compelling government interest’’ standard from Section 5 of the

Fourteenth Amendment,6 which grants Congress the ‘‘power to enforce, by appropriate legislation, the provisions of the [Fourteenth Amendment].’’

RFRA tested the limits of dicta in a prior decision by the Court, Katzenbach v.

Morgan, which suggested that Congress could ‘‘prohibit the enforcement of * * *

state law’’ under Section 5 ‘‘[w]ithout regard to whether the judiciary would find

[that Section 1 of the Fourteenth Amendment so required].’’ 7 Morgan had been read

as approving two different functions under Section 5: First, that Congress possessed

a remedial authority to eliminate the case-by-case process of adjudicating constitutional violations.8 That is, Congress might find that states were systematically vioVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00118 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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9See id. at 653–56. 10 Boerne, 521 U.S. at 532. 11 42 U.S.C. § 2000bb–1(a). 12 Boerne, 521 U.S. at 534. 13 Id.

lating the Constitution and prohibit those practices without waiting for the courts

either to address the violations one-by-one or to amass evidence demonstrating the

violations. Second, Morgan was read for the proposition that Congress could determine for itself the substantive meaning of the Fourteenth Amendment and then enforce it, even if that meaning departed from the Court’s own views.9

The first of these powers under Morgan should not be questioned. If Section 5

means anything, it surely means that Congress does not need to wait on the judiciary and that, using its unique powers of inquiry, Congress may be proactive. Congress may determine that the states are violating provisions of the Constitution and

provide a remedy or a prophylactic measure to address the violations. The Court

made clear in Boerne, however, that Congress may not assume the second Morgan

power: Under the guise of enforcing the Fourteenth Amendment, Congress may not

legislate in a way that openly departs from the Court on the construction of that

amendment, at least when Congress seeks to exercise greater authority than would

be afforded it under the Supreme Court’s interpretation. Presumably, Congress

could disagree with the Court and enforce its own interpretation of the Fourteenth

Amendment so long as it believed that the Fourteenth Amendment should be construed more narrowly.

I have some initial observations on Congress’ authority to enact the Religious Liberty Protection Act. This Act takes a markedly different path from RFRA. Absent

from this legislation is any evidence of Congress’ hostility to, the Smith decision;

gone is the comprehensive scope of RFRA, which the Court called ‘‘[s]weeping coverage [that] ensures its intrusion at every level of government, displacing laws and

prohibiting official actions of almost every description and regardless of subject matter.’’ 10 The Religious Liberty Protection Act is a more temperate, modest response

by Congress. Indeed, the scope of the Religious Liberty Protection Act is much narrower than the Religious Freedom Restoration Act. While RFRA applied to all government actions, the Religious Liberty Protection Act only applies to state actions

in federally funded programs, actions substantially affecting commerce, and a narrow class of activities involving land use planning. That means that some state activities will simply not be covered by the Act when it is enacted. Furthermore, because the Spending Clause serves as one basis for the Act, states may opt out of

federal funding and thereby avoid some regulation under this Act.

The Religious Liberty Protection Act is also a more complex statute. Instead of

relying exclusively on Section 5, this Act relies on at least three sources of congressional authority: Section 5, the Spending Clause, and the Commerce Clause. Considered together, these sections do not give the Act the comprehensive coverage that

RFRA exercised. Considered separately, each of these sources of authority presents

its own constitutional questions. Although I believe that Congress has resolved

many of the problems that lead me to oppose RFRA and the Court to strike it down,

I also believe that there remain some constitutional obstacles to the Religious Liberty Protection Act in its present form. Some of the questions I wish to raise are

practical and easily addressed; some are more conceptual; and one, concerning the

Commerce Clause, may prove insurmountable.

II. COMMENTS ON CONGRESSIONAL SOURCES OF AUTHORITY FOR THE RELIGIOUS

LIBERTY PROTECTION ACT

A. Section 5 of the Fourteenth Amendment

Congress, as it did in RFRA, relies on its power under Section 5 of the Fourteenth

Amendment. That section grants Congress the ‘‘power to enforce, by appropriate legislation, the provisions of this article.’’ Unlike RFRA, however, I believe that the Religious Liberty Protection Act takes a measured response under Section 5 to a specific, identified problem. RFRA was breathtaking in its scope. Without findings

based on any particular incident or incidents, and openly disagreeing with the Supreme Court’s decision in Smith, RFRA simply declared that ‘‘government shall not

substantially burden a person’s exercise of religion.’’ 11 The Court found that RFRA

imposed burdens on the states that ‘‘far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause.’’ 12 RFRA, the Court said, was ‘‘not

designed to identify and counteract state laws likely to be unconstitutional because

of their treatment of religion.’’ 13 RFRA was ‘‘so out of proportion to a supposed remedial or preventative object that it cannot be understood as responsive to, or deVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00119 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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14 Id. at 532. 15 Bybee, supra note 1, at 1633. 16 Boerne, 521 U.S. at 531. 17 374 U.S. 398, 402–03 (1963). 18 406 U.S. 205, 215 (1972). 19 42 U.S.C. §§ 2000bb(b)(1), 2000bb–1(b). 20 42 U.S.C. § 1983. 21 Boerne, 521 U.S. at 532 (quoting Civil Rights Case, 109 U.S. 3, 13 (1883)).

signed to prevent, unconstitutional behavior.’’ 14 In my own study I concluded that

‘‘[i]n RFRA, Congress has simply willed itself power it cannot possess.’’ 15

By contrast to RFRA, in Section 3(b) of H.R. 1691, the Religious Liberty Protection Act identifies a single area of concern to be addressed under Section 5: land

use regulation. There was some evidence in the record in Boerne that Congress had

considered religious discrimination in zoning when it enacted RFRA, but the Court

thought this evidence largely ‘‘anecdotal’’ and lacking in proof of ‘‘some widespread

problem of religious discrimination in this country.’’ 16

In my view, the Act is a substantial improvement over RFRA for two reasons.

First, the very fact that Congress has focused on a single area of concern should

demonstrate that Congress has surveyed the area of religious discrimination generally and found state treatment of religious institutions in zoning matters deficient.

Because the Act specifies a much narrower scope of the problem than RFRA, it suggests that Congress has given careful consideration to religious discrimination and

identified a single area requiring remediation.

Land use matters are a uniquely fertile area for religious discrimination because

land and land-related projects are unique, and such matters usually turn on the

facts of the particular case. Zoning hearings, for example, lend themselves to discriminatory treatment—whether based on religion, race, sex, or some other distinguishing characteristic—precisely because any given zoning case will not easily compare with any other zoning case. Zoning cases are sensitive because they involve

deeply personal decisions about what we may do with our property, where we live,

and who will be our neighbors. And because zoning cases involve such personal decisions, religious animus is more easily disguised. Congress’ response here bears a

justification similar to petitions for congressional corrective for race discrimination

in public housing or the provision of other public services: There may be evidence

that the states have denied the equal protection of the laws in the provision of zoning services to religious persons, religious institutions or projects sought for a religious purpose.

The Act would require states to demonstrate that any substantial burden imposed

on religious exercise resulting from land use regulation serves a compelling governmental interest and is the least restrictive alternative. The familiar ‘‘compelling government interest’’ language comes from cases such as Sherbert v. Verner 17 and Wisconsin v. Yoder 18 and was the standard required by RFRA.19 Its presence here

might suggest that the Religious Liberty Protection Act is merely a second run at

RFRA, that Congress has failed to learn the lessons of Boerne. I believe, however,

that the Act properly employs the compelling governmental interest test as a prophylactic remedy to identified state discrimination. Congress has already provided

a damages remedy against state officials who, under color of state law, deprive persons of their rights under the First and Fourteenth Amendments.20 The Religious

Liberty Protection Act seeks to prevent such deprivations in the first place by demanding that government not only explain its zoning decisions, but justify them

under the compelling government interest standard. Given the difficulty in proving

discrimination in land use matters, requiring governments to demonstrate a compelling governmental interest is a proportional and congruent response to the problem

Congress has identified.

Second, by focusing on a single area, Congress has the opportunity to make specific findings of fact or supply a record in support of Section 3(b). As I understand

the record placed before the House of Representatives, there are studies demonstrating that minority religious have consistently suffered discrimination in land use

planing or zoning matters. I am generally aware of, but have not examined, those

studies in any detail, but studies dedicated to a single problem should go a long way

to demonstrating that Congress is indeed enforcing the Equal Protection and Due

Process Clauses of the Fourteenth Amendment.

I do have two brief suggestions. First, Congress may wish to strengthen its hand

by making specific findings in the Act in support of Section 3. This would help demonstrate that Section 3(b) is indeed ‘‘ [r]emedial legislation under § 5 [and] * * *

‘adapted to the mischief and wrong which the [Fourteenth] Amendment was intended to provide against.’ ’’ 21 Second, Section 3(b)(1)(B)–(D) address discrimination

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22 508 U.S. 520 (1993) (striking down a city ordinance barring the ritual slaughter of animals). 23 Boerne, 521 U.S. at 535. 24 Id. at 546 (O’Connor, J., dissenting) (citing cases). 25 U.S. Const. art. I, § 8, cl. 1. 26See Steward Machine Co. v. Davis, 301 U.S. 548 (1937); United States v. Butler, 297 U.S.

1 (1936). 27 New York v. United States, 505 U.S. 144 (1992); South Dakota v. Dole, 483 U.S. 203 (1987). 28Dole, 483 U.S. at 207–08 (quotation marks and citation omitted). 29 Id. at 215 (O’Connor, J., dissenting). 30See FCC v. League of Women Voters, 468 U.S. 364 (1984) (invaliding a federal statute that

required nonprofit radio and TV stations, as a condition of receiving federal funds, to refrain

from editorializing).

against ‘‘religious assemblies or institutions.’’ Subsection (B) requires that states

treat religious institutions on ‘‘equal terms’’ with non-religious institutions; subsection (C) prohibits states from ‘‘discriminat[ing] against’’ any institution on the

basis of religion; and subsection (D) forbids states from ‘‘unreasonably exclud[ing]’’

religious institutions. Each of these subsections uses the language of equality, language that seems consistent with the Court’s Smith decision and subsequent decisions such as Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.22 Subsection 3(b)(1)(A), however, prohibits states from substantially burdening a ‘‘person’s

religious exercise’’ unless the government demonstrates a compelling governmental

interest and that government has adopted the ‘‘least restrictive means.’’ In Boerne,

the Court called attention to this same language in RFRA. It stated that the ‘‘least

restrictive means’’ language was ‘‘not used in the pre-Smith jurisprudence,’’ and the

Court pointed to this as further evidence that RFRA was broader than appropriate

‘‘if [its] goal [was] to prevent and remedy constitutional violations.’’ 23 In her dissent

in Boerne, Justice O’Connor wrote that prior to Smith, the Court had ‘‘required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest.’’ 24 Whether, as a practical matter, we can

tell the difference between a compelling government interest that uses the least restrictive means and a compelling government interest that uses a narrowly tailored

means is irrelevant here. Congress has the opportunity to eliminate some friction

between its legislation and the Court. I would thus recommend that Congress substitute the Court’s preferred language and use the ‘‘narrowly tailored’’ formula.

B. The Spending Clause

In Section 2(a) of the Act, Congress has made compliance with the Act a condition

of receipt of federal funds. This provision broadens the scope of the Religious Liberty

Protection Act well beyond its scope under Congress’ Section 5 authority in Section

3(b), although, as I previously noted, this portion of the Act reaches only programs

receiving federal funds, and states may avoid regulation by refusing federal funding.

In general, the Supreme Court has long held that Congress may employ its spending power in behalf of the ‘‘general Welfare of the United States’’ 25 and that the

‘‘general Welfare’’ is not defined or limited to Congress’ enumerated powers.26 Except as prohibited by some other provision of the Constitution, Congress may place

conditions on the use of federal monies.27 The Court has also suggested that ‘‘conditions * * * [may] be illegitimate if they are unrelated to the federal interest in a

particular national project or program.’’ 28 Congress, for example, apparently may

not condition receipt of federal funds on a state agreeing to relocate its state capital

to another City.29 The textual foundation for this limitation is not entirely clear, but

that is apparently what the Court has in mind. This Act does not approach that

level of intrusiveness.

Moreover, Congress’ has not made the most aggressive use of its conditional

spending power. The coercive potential in the conditional spending power is Congress’ ability to take federal funding from state programs that refuse or fail to conform to federal conditions. Yet Section 2(c) specifically states that withdrawal of federal funds is not authorized as a remedy for violations of the Act. Thus the Act expressly withdraws from the federal arsenal the most potent use of its conditional

spending power.

I have one area of conceptual concern that I will mention briefly here. Aside from

not imposing some theoretical, but undefined, conditions on federal spending, Congress may not impose conditions that would cause others to violate the Constitution.

For example, Congress may not require the states, as a condition of receiving federal funds, to adopt a scheme that would deny its citizens due process or violate

their free speech rights.30 Nor may Congress itself violate the Constitution in the

imposition of the conditions. In Section 2(a)(1), Congress prohibits states from substantially burdening a person’s religious exercise in a government program or activity receiving federal financial. assistance ‘‘even if the burden results from a rule of

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31 E.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). 32 E.g., Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) (upholding a limited exemption for religious employers under Title

VII). 33Smith, 494 U.S. at 890. 34See, e.g., Boerne, 521 U.S. at 537 (Stevens, J., concurring) (finding that an exemption, as

a ‘‘governmental preference for religion * * * is forbidden by the First Amendment’’). 35See, e.g., Agostini v. Felton, 521 U.S. 203 (1997) (overruling Aguilar, v. Felton, 473 U.S. 402

(1985)). See also In re Young, 141 F.3d 854 (8th Cir.) (upholding RFRA against Establishment

Clause challenge), cert denied, 119 S. Ct. 43 (1998). But see Texas Monthly, Inc. v. Bullock, 489

U.S. 1 (1989) (striking down, under the Establishment Clause, a statute exempting magazines

and books published by religious faiths from sales tax). 36See, e.g., Steven D. Smith, Foreordained Failure: The Quest for Constitutional Principle of

Religious Freedom (1995); Steven D. Smith, The Religion Clauses in Constitutional Scholarship,

74 Notre Dame L. Rev. 1033 (1999); Bybee, supra, note 1; Jay S. Bybee, Common Ground: Robert Jackson, Antonin Scalia, and A Power Theory of the First Amendment (draft in my possession). 37See Akhil Reed Amar, Anti-Federalists, The Federalist Papers, and the Argument for Big

Union, 16 Harv. J.L. & Pub. Pol’y 111, 115 (1993). 38The Debates in the Several State Conventions on the Adopt of the Federal Constitution 330

(Jonathan Elliot, ed. 2d ed. 1888) (statement of James Madison). 39Printz v. United States, 521 U.S. 898, 937 (1997) (Thomas, J., concurring) (referring to the

First Amendment as an example of how the Constitution ‘‘places whole areas outside the reach

of Congress’ regulatory authority’’); id. at 941 (Stevens, J., concurring) (‘‘the First Amendment

* * * prohibits the enactment of a category of laws that would otherwise be authorized by Article I’’). 40See, e.g., Amos, 483 U.S. 327 (Title VII). 41 Board of Educ. v. Mergens, 496 U.S. 226 (1990) (upholding, against Establishment Clause

challenge, the Equal Access Act); Bowen v. Kendrick, 487 U.S. 589 (1988) (upholding, against

a facial challenge under the Establishment Clause, the Adolescent Family Life Act, which authorized grants to public and nonpublic organizations, including religiously affiliated organizations).

general applicability.’’ This last phrase, of course, departs from the Free Exercise

Clause as explained by the Court in Smith. In light of Boerne, this section cannot

be said to enforce the First Amendment because it requires more than the First

Amendment demands. That fact, in and of itself, would not be troublesome; Congress routinely demands conduct of state and private fund recipients that the Constitution does not demand of them.

Might the First Amendment itself restrict Congress’ power to demand that the

states treat religion more solicitously than required by the First and Fourteenth

Amendments? In this regard, I do not believe that the Act runs afoul of the Establishment Clause per se because it requires religious exemptions. The Court has not

only insisted that such exemptions may be demanded by the Constitution,31 but has

approved statutory exemptions 32 and invited further statutory exemptions.33 While

the strictest of separationists may view the Act as a violation of the Establishment

Clause,34 that view seems at odds with the Court’s recent, more inclusive approach

to the Establishment Clause.35

Beyond the Establishment Clause, some scholars have suggested that the First

Amendment, considered as a whole, is ‘‘jurisdictional.’’ That is, the First Amendment places the subject matter of religion beyond the power of Congress.36 Scholars

have pointed out that the First Amendment begins with the words ‘‘Congress shall

make no law * * *,’’ which is in form an inverted Necessary and Proper Clause,37

as evidence that the framers meant that Congress did not possess ‘‘a shadow of

right * * * to intermeddle with religion.’’ 38 Quite recently, both Justice Thomas and

Justice Stevens have observed that the First Amendment places a whole category

of laws beyond the reach of Congress.39 In contrast to laws in which Congress has

exempted religion from a broader regulatory scheme,40 or provided that religion may

be included in a regulatory scheme on an equal basis,41 the Religious Liberty Protection Act is a law dedicated wholesale to the subject of religious rights. We simply

have not seen federal legislation devoted as conspicuously to the subject of religion.

The Court has not yet adopted this view of the role of the First Amendment, although its decision in Smith may have moved the Court in that direction. Accordingly, while there is no direct authority for the proposition that the First Amendment constrains this use of Congress’ spending authority, there is some risk here.

We have never tested the relationship between the Spending Clause and the First

Amendment in this way.

C. The Commerce Clause

Finally, I wish to turn to the section I consider most vulnerable. Section 2(a)(2)

of the Act covers activities in which government burdens religious exercise that ‘‘affect commerce’’ with foreign nations, among the several states, or with Indian tribes.

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42 514 U.S. 549 (1995). 43 As revised, Section 2(a)(2) would read: ‘‘in any case in which the substantial burden on the

person’s religious exercise substantially affects, or in which a removal of that substantial burden

would substantially affect, commerce with foreign nations, among the several states, or with Indian tribes; * * *.’’ 44Lopez, 514 U.S. at 559. 45 Id. 46 Id. at 630 (Breyer, J., dissenting). 47 Compare, e.g., Lopez, 514 U.S. at 565–66 (finding that education does not substantially affect commerce) with id. at 628–29 (Breyer, J., dissenting) (finding that education does affect

commerce). 48Lopez, 524 U.S. at 564. 49 Article I, Section 10 may authorize Congress to regulate the states directly with respect to

certain matters affecting commerce. U.S. Const. art. I, § 10, cl. 2 (‘‘No State shall, without the

Consent of the Congress, lay any Imposts or Duties on Imports or Exports * * *.’’); cl. 3 (No

State shall, without the Consent of Congress, * * * enter into any Agreement or Compact with

Continued

This language obviously tracks the language of the Commerce Clause, Article I, § 8,

cl. 3. I have several observations on this use of the Commerce Clause.

First, in light of United States v. Lopez,42 I would strongly urge the Senate to conform the language of Section 2(a)(2) to that decision and substitute the phrase ‘‘substantially affects commerce’’ for ‘‘affects commerce.’’ 43 The Court observed in Lopez

that its ‘‘case law has not been clear whether an activity must ‘affect’ or ‘substantially affect’ interstate commerce in order to be within Congress’ power to regulate

it under the Commerce Clause.’’ 44 The Court left us without doubt on this question

that ‘‘the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce.’’ 45 Although Justice Breyer, dissenting in Lopez,

noted that more than 100 sections of the U.S. Code use the word formula ‘‘affecting

commerce,’’ 46 substitution of the correct phrase would eliminate doubt that Congress intended to work within the current limitations on its commerce authority.

(For precision, I have used the phrase ‘‘substantially affects’’ throughout my testimony.)

Second, as with the spending condition, Congress has limited the scope of the

Act’s coverage. Unlike RFRA, the Religious Liberty Protection Act will not apply to

all state activities, because not all state activities that may burden religious liberty

are activities that substantially affect commerce. Domestic relations and education

are two areas, for example, in which states may have policies that may cause friction with religious beliefs or practices, but are areas that may fall outside the scope

of the Act because they do not affect substantially commerce.47

Here we should note that the Court has also warned us that there are areas

where the states have ‘‘historically’’ been sovereign. The Court stated in Lopez, that

if it had adopted the government’s reasoning concerning the Gun-Free School Zones

Act of 1990,

Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents * * *, it is difficult to perceive any limitation on federal

power, even in areas such as criminal law enforcement or education where

States historically have been sovereign.48

It is not clear from this whether the Court believes that family law, criminal law

enforcement and education belong to the states ‘‘constitutionally’’ as well as ‘‘historically.’’ In any event, the Court may be slow to recognize an assertion of federal control over areas such as family law and education. That observation does not counsel

that Congress should forebear from enacting legislation, but it should serve as a

warning that by expressly tying the Religious Liberty Protection Act to the Commerce Clause, the Act may not address areas of religious liberty that may be of immediate concern to members of Congress.

Finally, and most importantly, the Commerce Clause provision raises serious concerns under the Court’s federalism jurisprudence. The Supreme Court has long held

that Congress and the states share concurrent power to regulate commerce. The

states may not regulate areas pre-empted by Congress, matters that require a national rule, or in such a way that the law discriminates against commerce from

other states. Subject to those restrictions, the states may regulate a whole host of

activities even if those activities substantially affect interstate commerce. Ordinarily, Congress and the states regulate the market activities of private entities

such as manufacturing, transportation, agriculture, and the service industries. In

the course of congressional regulation of the market, federal laws have occasionally

swept within their path state-run entities.49 When the states complained that ConVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00123 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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another State * * *.’’). These instances provide specific circumstances authorizing Congress to

deal with the states as states in matters regarding commerce. 50See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (holding that a state-operated transit system was subject to the Fair Labor Standards Act on the

same terms as all other businesses covered by the act); United Transportation Union v. Long

Island Railroad Co., 455 U.S. 678 (1982) (applying the Railway Labor Act to a state-owned railroad). 51 456 U.S. 742 (1982). 52 Id. at 765. 53 505 U.S. 144 (1992). 54 521 U.S. 898 (1997). 55 505 U.S. at 175. 56 521 U.S. 898, 933 (1997) (quoting New York, 505 U.S. at 188).

gress’ power to regulate commerce among the states did not include the power to

regulate the states themselves, the Court (through a very tortured line of cases)

held that Congress’s regulations may reach state entities to the same extent as the

regulations reach private entities.50

When Congress acts under its commerce authority in an area in which it shares

concurrent power with the states, it sometimes pre-empts state regulation. Congress

may pre-empt state regulation by stating so expressly; by in fact occupying the field

so that there is no room for additional state regulation; or by adopting a law that

conflicts with a state law, so that a regulated party must choose between obeying

federal law or state law. When Congress pre-empts state law under any of these

schemes, it does so by regulating the non-governmental activity directly; it does not

command the states not to enact laws, but rather it renders such state laws unenforceable. Once Congress has pre-empted state law, if the state has any obligation

to follow federal law, it is because the state itself participates in the activity regulated by federal law. In such cases, the federal government regulates the state as

a participant in the interstate market and not as a market regulator. The federal

government regulates the state as a polluter, the state as a transportation provider,

or the state as an employer on the same terms as it regulates other polluters, transportation providers, or employers.

Congress sometimes gives the states the option of regulating an activity in a particular way, or suffering the consequences of direct federal regulation (and federal

pre-emption). In FERC v. Mississippi,51 for example, the Public Utility Regulatory

Policies Act of 1978 (‘‘PURPA’’) directed state utility commissions to ‘‘consider’’ adoption of federal regulatory standards. The Court held that ‘‘PURPA * * * [was] not

invalid simply because, out of deference to state authority, Congress adopted a less

intrusive scheme and allowed the states to continue regulating in the area on the

condition that they consider the suggested federal standards.’’ 52 The consequences

of state failure to ‘‘consider’’ and then adopt federal standards was the risk that

Congress would adopt comprehensive public utility laws and regulate the matter

itself. PURPA did not mandate state regulation according to federal standards (although it surely provided a powerful incentive to the states); it did not regulate

states either as market regulators or as market participants.

In New York v. United States 53 and Printz v. United States,54 the Court held that

Congress had attempted to regulate the states as regulators and held the legislation

unconstitutional. In New York, the Court struck down a provision of the Low-Level

Radioactive Waste Policy Amendments Act of 1985 that required New York to regulate nuclear waste within the state according to certain requirements or to take title

to the waste. The Court held that the take title provision ‘‘crossed the line distinguishing encouragement from coercion’’ and regulated the ‘‘states as states.’’ 55 In

Printz, the Court struck a provision of the Brady Act that required local law enforcement officials to aid in the enforcement of the federal handgun licensing scheme.

The Court ‘‘conclude[d] categorically * * *: ‘The Federal Government may not compel the States to enact or administer a federal regulatory program.’ ’’ 56

Section 2(a)(2) pushes the boundaries of the Supreme Court’s recent cases in this

area. We might characterize Section 2(a)(2) as pre-empting all state laws insofar as

they burden religious exercise and the burden substantially affects commerce. That

argument has some appeal in theory, but if so, it is an extraordinary use of Congress’ commerce authority. In the past, Congress has pre-empted state regulation

in a particular area—navigable waterways, air pollution, strip mining, or auto safety. The Religious Liberty Protection Act, by contrast, pre-empts state activities

across the board, but only where those activities burden religion and the burdens

substantially affect commerce. This use of pre-emption is thus fundamentally unlike

any other congressional act pre-empting state regulation of which I am aware.

Furthermore, Section 2(a)(2) looks very much like an act regulating the states as

states. Section 2(a)(2)—unlike, say, the Fair Labor Standards Act—does not apply

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to private entities whose burdens on religious exercise may also substantially affect

commerce. The Act, for example, could have prescribed a rule requiring employers

to accommodate their employees’ religious exercises or demonstrate a compelling

reason why not. As I read Garcia, that use of Congress’ commerce authority would

apply to the states as employers. But the Act does not do that. Instead, it singles

out the states for a special rule, and then regulates the states both as market participants and as market regulators. Section 2(a)(2) will govern state relationships

with their employees and their citizens; and given the options available in Section

5(e) of the Act, it will affect state legislation, state administration, and state judicial

proceedings.

Although I am inclined to believe that this section of the Act exceeds Congress’

authority under the Commerce Clause, the matter is not free from all doubt in my

mind. As the Committee is surely aware, this has been a sensitive area for the

Court, and the Court has been closely divided on matters of federalism. Section

2(2)(a) is likely to supply ample grounds for litigation over this Act.

Thank you. I appreciate having had the opportunity to provide the Committee

with my views, and I would be pleased to address (orally or in writing) any questions the Committee might have.

The CHAIRMAN. We will take your testimony now, Mr. Schaerr.

We have a vote coming up, but we will certainly take your testimony.

STATEMENT OF GENE C. SCHAERR

Mr. SCHAERR. Thank you, Mr. Chairman. During the past 5

years, I have had the privilege of representing the chairman and

a number of Senators and Congressmen in your efforts to defend

RFRA in court, including the Supreme Court in the Boerne case.

Fortunately, we have done quite well in defending it as applied

to the Federal Government. And I noticed in Justice Scalia’s recent

opinion in June, in the Florida Prepaid case, that even he appears

to acknowledge that RFRA is valid as applied to the Federal Government. And the appellate courts that have ruled on that issue

have gone that way as well.

Unfortunately, as we all know, we have been less successful in

defending RFRA as applied to State and local governments, thanks

to the efforts of Professor Bybee and other eminent scholars acting

in complete good faith. But it is because of the Boerne decision that

RLPA is sorely needed, and I believe RLPA does exactly what Professor Feldblum said that Congress should do, and that is pass legislation that protects the maximum amount of religious freedom

that Congress fairly has the power to protect. I think RLPA does

exactly that, and let me explain why.

First, there appears to be a consensus at least on this panel that

to the extent RLPA relies on section 5 that it is within Congress’s

power. Six years ago when my late partner, Rex Lee, and I were

preparing testimony on RFRA, I think it was clear to everybody

that that use of section 5 would be at least controversial to some

members of the Supreme Court, and that proved to be the case.

But I think the panelists and most legal scholars who have

looked at the question seem to agree that RLPA resolves the problems that were identified there. There also seems to be a wide,

though not complete consensus that RLPA is consistent with the

Establishment Clause. The contrary argument got only one vote in

the Boerne case. And there also seems to be general, although not

complete consensus that RLPA does not violate general separation

of powers principles.

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So let me address the issues where there does seem to be some

disagreement, and I think the answer to just about all of the concerns that have been raised is that most of RLPA’s central provisions are either expressly or by implication tied to the Supreme

Court’s own interpretation of the Constitution or other laws. This

is perhaps most obvious in section 3(a), which simply provides a

remedy for government action recognized by the Supreme Court to

violate the Free Exercise Clause.

So, like an accordion, this provision could bring within its sweep

more or fewer government decisions, depending on the Supreme

Court’s interpretation of the Free Exercise Clause. Now, the same

thing is true of section 2(a)(2), which imposes the strict scrutiny

test on government decisions that affect interstate or foreign commerce. This provision would also bring within its sweep more or

fewer government decisions, depending on the courts’ interpretation of Congress’s Article I commerce power, and there would thus

be no occasion for the court to ever invalidate that provision.

Now, unlike Professor Feldblum, I have no problem at all placing

in the courts’ hands the task of deciding how far RLPA extends

based on the sweep of Congress’s commerce power. Courts do that

all the time and I don’t think it creates a constitutional crisis for

a court simply to say, even based on constitutional considerations,

that a particular act of Congress simply does not extend as far as

some person or other would like it to extend.

I also do not read the Lopez decision to require that the burden

at issue in any application of the statute has to substantially affect

commerce. According to the Lopez decision itself, it is enough that

the religious burdens that are addressed in the statute as a whole

within the aggregate have a substantial effect on commerce.

Another accordion-like provision in RLPA is section 4(a) which

provides for appropriate relief against the government. That provision leaves it to the court to decide what kind of relief can appropriately be attained against the particular government that is

being sued, and it therefore minimizes the risk that this provision

would be struck down on 11th Amendment grounds or State sovereign immunity grounds.

The Act is also accordion-like in its approach to other federalism

issues. For example, it does not clearly specify whether it would

apply to such core functions of State governments as determining

who the State’s high officials will be and how much they will be

paid. And under the Supreme Court’s approach to dealing with

these issues, the Court says that if Congress wants to intrude into

core functions of a State government, Congress has to make that

clear and explicit in the statute.

Therefore, that leaves it to the court to decide in a particular

case whether a proposed application of RLPA would extend that far

and therefore intrude too far into State functions. The same is true

of claims that a particular application of RLPA might commandeer

State governments in some way. If the Supreme Court believes

that a particular proposed application would have that problem, it

can simply say as it did in the case of Ashcroft v. Gregory that it

is not going to interpret the statute to do that because of constitutional concerns.

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The Court did the same thing in the famous case of New York

v. United States, where it actually upheld a couple of provisions of

the nuclear waste law based on a somewhat narrow reading of the

statute that was designed to avoid constitutional problems. And I

think this same approach would cure any problems that the Supreme Court might conceivably find in RLPA’s use of the spending

power.

Now, I really don’t think that provision is that controversial, but

in the event that the Supreme Court thought that a particular application of that was somehow problematic, it would be a simple

matter for the Court to say, as it did in the Ashcroft case and in

the New York case, that it is simply going to construe the statute

somewhat more narrowly than the proponent would like. And once

again, that would avoid any need for the Court to hold the statute

unconstitutional. It would simply be an interpretation of the statute.

As I pointed out in my testimony, another factor that I think will

be helpful in defending RLPA before the U.S. Supreme Court and

the other courts around the country is that it is in a lot of other

respects which I won’t detail right now—it is well within what Congress could do. It does not attempt to go to the very limit of

Congress’s power. In my view, it stays well within what Professor

Feldblum called the deep water or the clear channels of Congress’s

power. And so for those reasons, I believe it is constitutional. I believe it makes sense for Congress to go ahead and pass this bill and

put the accordion in the hands of public officials.

[The prepared statement of Mr. Schaerr follows:]

PREPARED STATEMENT OF GENE C. SCHAERR

Good morning Mr. Chairman and members of the Committee. I am honored to appear before this Committee in the company of such distinguished legal scholars, to

discuss the proposed Religious Liberty Protection Act (‘‘the Act’’).

I am a lawyer in private practice with the international law firm of Sidley & Austin, where I serve as co-chair of the firm’s Religious Institutions Practice Group.

While the views expressed here are mine alone, much of my practice is devoted to

representing religious institutions and individuals, either in lawsuits or in disputes

with government agencies.

During the past five years, I have also had the privilege of representing a number

of Senators and Congressmen in your efforts to defend the Religious Freedom Restoration Act (or ‘‘RFRA’’) in court, including the Supreme Court in the Flores case.

Fortunately, we have done quite well in defending RFRA as it applies to the federal

government. Unfortunately, as everyone here well knows, we have been less successful in defending it as applied to state and local governments. And that is why a Religious Liberty Protection Act is sorely needed.

Today I would like to respond first to a major concern that has been expressed

in some circles: that the proposal passed this Spring by the House—or the version

introduced last year in the Senate—will be futile because the Supreme Court is likely to strike it down on federalism-related grounds, just as the Court invalidated the

state portion of RFRA. As I will explain in a moment, I believe that concern is misguided. I will also briefly explain why, as one who is solicitous of states’ interests,

I believe the Act is an appropriate use of federal power, and why I believe it will

provide significant protection for religious freedom.

I. WILL THE ACT BE UPHELD?

The principal constitutional arguments against RLPA have been ably refuted by

Professor Laycock, Professor Michael McConnell, Professor Thomas Berg, and others, and I will not repeat all their analyses here. But let me emphasize a few of

the key reasons why I believe those arguments will not be adopted by the Supreme

Court.

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1Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct.

2199, 2202–11 (1999). 2 City of Boerne v. Flores, 521 U.S. 507, 519, 532 (1997). 3See, e.g., 42 U.S.C. § 2000e–2(k)(1)(A)(i) (1994) (providing that once a Title VII plaintiff demonstrates that a particular employment practice results in a disparate impact on the basis of

race, color, religion, sex, or national origin, the burden of production shifts, requiring the defendant to demonstrate that the allegedly discriminatory practice is job-related and consistent with

business necessity); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (explaining

that once a Title VII plaintiff makes a prima facie showing of discrimination, the burden shifts

to the defendant to articulate some ‘‘legitimate, nondiscriminatory reason for the employee’s rejection’’); see also Batson v. Kentucky, 476 U.S. 79, 97 (1986) (‘‘Once the defendant makes a

prima facie showing [that the prosecution exercised its peremptory challenges in a racially discriminatory manner], the burden shifts to the State to come forward with a neutral explanation

for challenging black jurors.’’). 4 494 U.S. 872 (1990).

5 508 U.S. 520 (1993).

A. Ample justification for invoking section 5

First, in my view, both the House version and the earlier Senate version comply

with the Supreme Court’s recent teachings about the scope of Section 5. Six years

ago, when my late partner Rex Lee and I were working with Committee staff on

RFRA, it was clear to everyone that the use of Section 5 in that statute would, at

a minimum, be controversial with at least some members of the Supreme Court.

And it was those very concerns that gave rise to the Flores decision.

This legislation, in my view, amply addresses those concerns. In Flores, and again

just a few months ago in the Florida Prepaid case,1 the Court explicitly recognized

that Congress has the power under Section 5 to enforce the protections of the Fourteenth Amendment through substantive or even ‘‘preventive’’ legislation where two

conditions are satisfied: (1) ‘‘there is reason to believe that many of the laws affected

by the congressional enactment have a significant likelihood of being unconstitutional’’; and (2) there is ‘‘a congruence and proportionality between the injury to be

prevented or remedied and the means adopted to that end.’’ 2 In my view, RLPA easily passes muster under that test.

The only provision that expressly relies upon Section 5 as a source of congressional authority is Section 3 of the House bill. Section 3(a) of that provision takes

the Supreme Court’s views on the scope of the Free Exercise Clause as a given, and

then simply makes it easier to enforce whatever free exercise rights the Court is

willing to recognize. That provision is based on a finding—and an ample record—

that burden-shifting measures are necessary to enable individuals and religious institutions to vindicate their constitutional rights as recognized by the Supreme

Court. In that respect, Section 3(a) resembles other burden-shifting mechanisms

that courts routinely apply when adjudicating disputes brought under many of our

existing civil rights laws.3 Accordingly, I do not think anyone can plausibly argue

that this provision exceeds Congress’s authority under Section 5 of the Fourteenth

Amendment.

Most of Section 3(b)—the land-use provision—likewise does not go beyond what

the Supreme Court has recognized as violations of the Free Exercise Clause. The

only part of that provision that arguably goes beyond that is Section 3(b)(1)(A),

which imposes a ‘‘least restrictive alternative’’ test on land-use decisions that substantially burden religion. But because Section 2 also imposes that standard in

cases that have an affect on commerce, I think it unlikely that anyone would ever

need to invoke Section 3(b)(1)(A).

Even it that provision were invoked in some unusual case, I believe it could be

justified under Section 5. Land-use regulation is usually administered through highly individualized processes, not through generally applicable rules, and for that reason fall outside the rule of Employment Division v. Smith.4 As a matter of First

Amendment law, they are therefore still subject to the narrow tailoring interest test

articulated in Flores and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,5

to the extent they burden religion.

And even where land-use regulation is administered through general rules, as the

legislative record shows, there is strong evidence that these land-use decision making has been widely abused to the detriment of religion. Indeed, it would appear

that land-use regulation in general is repeatedly being used throughout the United

States to discriminate against religious minorities, denying them houses of worship

in communities where they—and perhaps religion in general—are unpopular. This

type of discrimination is clearly unconstitutional, but is often extremely difficult to

detect and prevent.

This documented, widespread abuse, combined with the difficulty of proving a constitutional violation in particular cases, justifies the imposition of a standard—in

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6See 42 U.S.C. § 2000d et seq. (1994). 7 483 U.S. 203 (1987).

8Moreover, as with all federal spending conditions, the recipients of federal money are free

to decline payment for a particular program if they do not wish to comply with the requirements

established by Congress for that program. 9 505 U.S. 144 (1992).

10 521 U.S. 898 (1997).

this limited area of governmental decision making—that is a little more rigorous

than the ‘‘narrow tailoring’’ standard that the Supreme Court would currently apply

to specific cases in which a constitutional violation has occurred. This I think is the

justification for using a ‘‘least restrictive alternative’’ standard in Section 3(b), rather than a narrow tailoring standard. That remedy, though somewhat beyond the

constitutional minimum, should satisfy the Flores criteria because it (a) is limited

to a discrete problem area as to which Congress can (and presumably will) make

well-supported findings, and (b) is ‘‘proportional’’ to and congruent with the constitutional injury documented in the record.

B. Uncontroversial use of the spending power

To the extent the Act relies upon Congress’s spending power, it does so in a way

that is similarly uncontroversial. Congress has frequently attached conditions to the

use of federal funds to ensure that such funds are not used in a manner that undermines the interests of the United States or the rights of its citizens. For example,

under Title VI of the Civil Rights Act of 1964, Congress has long required that state

participants in federal programs not engage in racial discrimination,6 and no one

could seriously question the validity of that requirement under the Spending

Clause.

So too here: Section 2(a)(2) simply requires that all those who operate federally

funded programs respect religious freedom, as defined by Congress, in the administration of those programs. That is no different in principle from Title VI.

It is also far easier to defend than the law that was upheld in South Dakota v.

Dole,7 and which permitted the Secretary of Transportation to withhold all highway

funds from states in which minors could purchase alcohol. There, the federal government essentially forced the states to take action that was entirely separate from operating federally funded programs as a condition of participating in those programs,

which would be like forcing the states to enact religious-freedom legislation as a

condition of participating in Medicaid. Here, by contrast, the spending condition—

respecting religious freedom as defined by Congress—applies only on a program-byprogram basis, and does not require the state to take any external action.8

C. Commerce and other key provisions tied to Supreme Court’s constitutional interpretations

Another reason I believe RLPA will ultimately be upheld is that many of its central provisions are tied to the Supreme Court’s own interpretation of the Constitution. I already mentioned section 3(a), which would simply expand or contract if the

Supreme Court’s interpretation of the Free Exercise Clause expands or contracts in

the future.

The same is true of Section 2, which imposes the compelling interest test on government decisions ‘‘affecting’’ interstate or foreign commerce. This provision depends

on the Supreme Court’s view of the extent of Congress’s power to regulate such commerce. Like an accordion, it could bring within its sweep more or fewer government

decisions as the Supreme Court’s interpretation of the commerce power expands or

contracts. But I think it most unlikely that the provision itself could be invalidated

as exceeding Congress’s commerce power.

The same is also true of the relief the Act provides against state and local governments. Section 4(a) provides that a person who establishes a violation of the Act can

obtain ‘‘appropriate relief against a government.’’ That of course leaves it to the

Court to decide what kind of relief can appropriately be obtained against a particular government being sued.

D. Avoidance of ‘‘commandeering’’

Equally important, the Act carefully avoids ‘‘commandeering’’ the states, which is

of course verboten under the Supreme Court’s recent decisions in New York v.

United States 9 and Printz v. United States.10 For example, Section 2(d) expressly

gives a state or local government great latitude in choosing a remedy for a violation

of the statute. The government may not only change or abandon the policy that results in a burden on religion; it may also leave the policy in place but grant religious

exemptions—or do anything else that eliminates the religious burden.

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11Printz invalidated specific affirmative duties imposed upon state officials to participate in

the implementation of a federal program of handgun regulation. 521 U.S. at 935. The Court

there held that Congress ‘‘cannot compel the States to enact or enforce a federal regulatory program,’’ nor can it ‘‘circumvent that prohibition by conscripting the State’s officers directly.’’ Id.

The unconstitutional provision in the statute at issue in New York was a ‘‘take title’’ provision

requiring States to either regulate according to Congress’s instructions or accept ownership of

waste generated within their borders. 505 U.S. at 174–75. The Court concluded that ‘‘[e]ither

type of federal action would ‘commandeer’ state governments into the service of federal regulatory purposes, and would for this reason be inconsistent with the Constitution’s division of authority between federal and state governments.’’ Id. at 175. 12Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555 (1985) (Fair Labor Standards

Act); EEOC v. Wyoming, 460 U.S. 226 (1983) (Age Discrimination in Employment Act); Transportation Union v. Long Island R. Co., 455 U.S. 678, 687–88 (1982) (application of Railway

Labor Act to state-owned railroad company); see also FERC v. Mississippi, 456 U.S. 742, 764

(1982) (holding Public Utility Regulatory Policies Act of 1978 did not unconstitutionally command state regulation of electric energy); Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264, 288 (1981) (holding Surface Mining Control and Reclamation Act of 1977

did not unconstitutionally command state regulation of surface mining). 13See supra n. 13. 14 E.g., Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987); Zorach v. Clausen,

343 U.S. 306 (1952); Walz v. Tax Comm’n of New York City, 397 U.S. 664 (1970). 15 141 F.3d 854 (8th Cir. 1998), cert. denied, 119 S.Ct. 43 (1998). 16 521 U.S. at 515–536. 17The argument that the Act violates the ‘‘enumerated powers requirement’’ is frivolous. Of

the key operative provisions, Section 2(a)(1) is obviously based on Congress’s commerce power

under Article I, Sec. 8, cl. 3; Section 2(a)(2) is plainly based on the spending power under Article

1, Sec. 8, cl. 1, & Sec. 9; and Section 3 is expressly based on Section 5 of the Fourteenth Amendment. And the fact that the Act does not identify a specific arena of commerce or spending is

Unlike the statutes struck down in New York and Printz, moreover, this proposal

does not force state or local governments to go out of their way to implement and

manage a federally mandated regulatory scheme.11 All the proposal does is preempt

governmental action that violates the provisions of the statute. Beyond that, it imposes no affirmative obligations on the States. It is thus indistinguishable from a

host of other laws preempting state and local governmental action.12

To be sure, the statute does operate directly and exclusively on state and local

governments and their officials. But that has never been thought a sufficient basis

for invalidating legislation. Indeed, one of the main purposes of the commerce power

granted to Congress in Article I was to provide a way to prohibit the states, as

states, from interfering with interstate commerce. And the Supreme Court has

upheld numerous statutes—under commerce power as well as the spending power

and Section 5—that operated directly on the states.13

In any event, when combined with RFRA, RLPA would simply become part of a

broader system of protection applicable to all governments, federal, state, and local.

So the states cannot complain that they are being singled out for special treatment.

E. No establishment clause violation

Because RLPA is narrower than RFRA, the Establishment Clause argument

against the Act is even weaker than the Establishment Clause argument that garnered only one vote in Flores. The Supreme Court has repeatedly upheld laws that

exempt religious beliefs and practices from generally applicable rules against Establishment Clause claims.14 That is all RLPA does. And the Court has never remotely

suggested that preserving religious freedom in more than one area of public policy

at the same time is an ‘‘establishment of religion,’’ whereas doing the same thing

on a statute-by-statute basis is perfectly acceptable.

Thus, those who contend that RLPA violates the Establishment Clause do so on

the basis of a theory that has never been accepted by the Supreme Court. I do not

find the theory at all convincing as an original matter. But in all events, it does

not, in my view, represent a serious litigation risk.

F. No separation-of-powers violation

Finally, the separation-of-powers attack on the Act is also weaker than a similar

argument that was made in Flores. That argument got no votes there. It was also

rejected by the Eighth Circuit in Christians v. Crystal Evangelical Free Church,15

in which the Chairman appeared as an amicus, and the Supreme Court declined to

review that decision.

To be sure, Justice Kennedy’s majority opinion in Flores discussed separation-ofpowers principles, but only in the context of explaining and justifying the Court’s

interpretation of Section 5.16 The Court did not suggest, much less hold, that RFRA

violated the constitutional separation of powers in addition to being beyond

Congress’s Section 5 authority.17

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irrelevant. The Act’s opponents have not cited a single decision suggesting that such a requirement applies. 18 494 U.S. 872 (1990). 19 494 U.S. at 890. 20 521 U.S. at 544 (Scalia, J., concurring).

In contrast to RFRA, moreover, the Act does not purport to be a full-blown ‘‘restoration’’ by Congress of the rules applicable to free-exercise claims prior to the Supreme Court’s decision in Employment Division v. Smith.18 So no one can plausibly

claim that Congress in this legislation is somehow trying to second-guess or ‘‘overrule’’ the Court as to the proper interpretation of the Constitution in litigated cases.

Nor, for the same reason, can anyone plausibly claim that the act is an effort to

‘‘amend the Constitution’’ without proper ratification procedures.

Rather, by enacting this legislation, Congress is simply taking up the Supreme

Court’s invitation in Smith to resolve issues of religious freedom through the democratic process. In Smith, the Court characterized its decision as ‘‘leaving [religious]

accommodation to the political process,’’ and further stated: ‘‘Just as a society that

believes in the negative protection accorded to the press by the First Amendment

is likely to enact laws that affirmatively foster the dissemination of the printed

word, so also a society that believes in the negative protection accorded to religious

belief can be expected to be solicitous of that value in its legislation as well.’’ 19 That

same invitation was reiterated by Justice Scalia, the author of Smith, in his concurrence in Flores: ‘‘The issue presented by Smith is, quite simply, whether the people,

through their elected representatives, or rather this Court, shall control the outcome

of [religious accommodation] cases. * * * The historical evidence. * * * does nothing to undermine the conclusion we reached in Smith: It shall be the people.’’ 20

Obviously, there is no guarantee the Supreme Court will uphold RLPA, as limited

as it is. However, given this explicit invitation in Smith and Flores to the people’s

elected representatives, I believe it is highly unlikely that the Court would fault

Congress for having carried out the will of the people within the sphere of

Congress’s enumerated powers.

II. IS THE ACT A WISE USE OF FEDERAL POWER?

I recognize that even if a statute does not exceed Congress’s power under existing

interpretations of the commerce clause, or Section 5, or whatever provision Congress

invokes, it may still be objectionable on federalism grounds as a matter of policy.

But this is not such a statute, in my view.

A. Limited interference with the interests of state and local governments

First of all, the Act’s impact on the States is carefully limited in key ways and,

indeed, clearly does not extend to the limits of congressional power. For example,

the proposal does not attempt to invoke Congress’s power to override the states’ immunity from liability under the Eleventh Amendment and sovereign immunity principles. The proposal also does not invoke Congress’s power to override the official

immunity of individual state or local government officials. And Section 2(c) expressly prohibits the federal government from denying or withholding financial assistance as a remedy for violations.

Similarly, the Act does not use the spending power to force states to adopt RLPA’s

standards for state programs other than those that are directly supported by federal

funding—something Dole seems to say Congress could do. And Section 4(c) greatly

reduces the litigation burden on states by subjecting prisoner claims brought under

the Act to the Prison Litigation Reform Act of 1995 and subsequent amendments.

In short, the Act does not ‘‘push the envelope’’ of Congressional power. All it does

is extend to religious exercise the same types of protections that Congress has traditionally used to protect other values such as non-discrimination. And in many respects it is less of a threat to states than these other statutes.

B. The importance of religious freedom

And so the fundamental policy issue presented by the Act is this: Is religious freedom as important as the value of non-discrimination, or even other values—such as

protection of the environment—that have been protected through even more expansive uses of federal power? If not, then perhaps an additional application of the federal commerce and spending powers is not worth the price. But if religious freedom

is as important as the other values that Congress has protected through similar

measures, the Act is a wise and sensible use of those powers.

I believe religious freedom is at least as important as those values, for two related

reasons.

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21 John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious

Freedom 72–74 (1998) (quoting James Madison). 22 Id. 23See McGowan v. Maryland, 366 U. S. 420, 462 (1961) (Frankfurter, J., concurring) (observing that both state codes and dictates of faith ‘‘aim at human good,’’ and ‘‘[i]nnumerable civil

regulations enforce conduct which harmonizes with religious canons.’’). 24See Noonan, supra, at 74. 25 E.g., Ark. Code Ann. § 42–815; Idaho Code § 16–1620; La. Rev. Stat. § 14403(F); Wash Rev.

Code § 2644060(3); W. Va. Code §§ 49–6A–2 & 49–6A–7.

First, as James Madison and others taught repeatedly, the freedom to form one’s

own religious or moral beliefs, and then to act on those beliefs, is fundamental to

a person’s moral development.21 And moral development is an overriding value in

virtually all religious and philosophical belief systems. Thus, for most of us, religious freedom is inherently important, regardless of its impact on the nation as a

whole. That was one of the main reasons for adoption of the religion clauses back

in 1791.22

Second, in adopting the First Amendment, our founding fathers acted on a firm

belief that religion, where it is not interfered with by the State, tends to nurture

in individuals the very virtues that make for better citizens.23 I believe they were

right, and that religion generally fosters in individuals the values of tolerance, respect, and compassion that Congress often seeks to promote or enforce through legislation.

To be sure, there have been times when religion has been the focus of enormous

civil strife. But that has never been because of an excess of religious freedom. If one

studies the history of those events, one finds that the strife generally resulted either

from an attempt by some to deprive others of the right to believe and practice as

they choose, or from the efforts of those to whom religious freedom was denied to

acquire that precious freedom. As Madison pointed out, ‘‘[t]orrents of blood have

been spilt in the old world,’’ not because there was too much religious freedom, by

because of what he called ‘‘vain attempts of the secular arm to establish uniformity

of religion.’’ 24

In our day, these ‘‘torrents of blood’’ have often been replaced with torrents of litigation that result when governments attempt to impose uniform standards on everyone regardless of religious sensibilities. And this is another reason why RLPA

will be valuable: By giving religious people and institutions an additional lever to

use in negotiating with public officials over matters that impact religious practices,

RLPA, in all likelihood, will eventually lead to more accommodation and compromise, and less, not more, litigation over such matters.

For all these reasons, religious freedom is at least important as the other values

that Congress has sought to promote in other legislation that impacts the interests

of state and local governments at least as much as RLPA. It deserves no less protection.

III. WILL THE ACT ACTUALLY HELP PROTECT RELIGIOUS LIBERTY?

This leads me to the final issue: Given that the Act has been carefully limited

to avoid impinging unduly on the states’ interests, is it too limited to actually help

protect religious liberty? As it now stands, I believe the proposal will have a salutary, discernible impact on religious liberty.

A. Salutary effects

Certainly, each of the three main operative provisions of the Act will materially

increase the level of legal protection for religious liberty throughout the nation.

Section 2. First, by reinstating the ‘‘compelling interest’’ test for government decisions falling within Congress’s power under the commerce and spending clauses,

Section 2 will go some distance toward closing the remaining gap between the level

of protection provided for religious freedom prior to Smith and the protection that

currently exists.

In my law practice, I have seen a number of situations in which this provision

would help protect religious liberty. Many states, for example, are slowly but surely

abrogating the clergy-penitent privilege under laws that, on their face, are generally

applicable.25 Predictably, this trend has made both clergy and their parishioners

much more reluctant to talk with one another about the parishioners’ spiritual problems. Although Section 2 of RLPA would not necessarily prevent the abrogation of

this privilege in every case, it would at least force legislators and judges to confront

the question of whether the state’s interest is really strong enough to justify that

action, and whether there might not be some other, less intrusive way of achieving

the state’s objective.

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26 Eg., Byrd v. Faber, 565 N.E.2d 584 (Ohio 1991); Nally v. Grace Community Church, 763

P.2d 948 (Cal. 1988); Schiffer v. Catholic Archdiocese, 508 N.W.2d 907 (Neb. 1993). 27 Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556 (1993). 28This would be true, for example, in a state that has a statutory prohibition on religious discrimination, but without no exemption for religious institutions. 29 Cf. Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998) (reversing decision of Federal Communications Commission challenging practice of religious radio station of

preferring employees of the same faith). 30See, e.g., June 4, 1998 memorandum from Steve McFarland of the Center for Law and Religious Freedom to Hon. Charles Canady at 6 (‘‘McFarland Memorandum’’) (citing this and other

examples).

As mentioned earlier, Section 2 would likewise help stem the rising tide of personal-injury litigation against churches. Many of these suits allege what amounts

to ‘‘clergy malpractice,’’ such as a failure to counsel a parishioner properly, or a failure to refer a parishioner to an appropriate professional counselor.26 And even when

such suits are ultimately thrown out—and they often are—they are very expensive

to defend. Obviously, when a church or other religious institution has to spend its

time and money defending against lawsuits, its ability to pursue its religious mission is curtailed.

Section 2 would not curtail lawsuits directly. But it would make judges think

twice before they allow a plaintiff to pursue a tenuous legal claim against a church.

And it would give judges an additional legal basis for dismissing frivolous lawsuits

at an early stage. And this, of course, would deter the filing of such lawsuits.

This provision of the Act would also help protect churches and other religious institutions from the ever-increasing volume of litigation challenging personnel decisions that are based, in whole or in part, on religious considerations. For example,

in some states a Seventh-Day Adventist hospital that fires someone for violating the

church’s prohibition on extra-marital sex may find itself sued for violation of a state

statute barring discrimination on the basis of pregnancy.27 In others, a Catholic hospital may be sued for discrimination on the basis of religion for choosing an administrator who adheres to Catholic teachings on abortion.28 Or a Baptist radio station

may be sued for preferring employees who are Baptist rather than Buddhist.29

Once again, the ‘‘compelling interest’’ standard in Section 2 will not always foreclose such litigation. But it will help weed out frivolous suits, those in which the

state’s interest is weak, and those in which the state has made no reasonable effort

to accommodate religious beliefs.

Exactly how much help Section 2 provides will depend to some extent on how the

Supreme Court construes the scope of the commerce power. But even if the Court

significantly narrows its interpretation of that power, Section 2 would still likely

protect a great deal of religious activity. At a minimum, religion would be protected

under federal law to the same extent as other important values such as non-discrimination. And that is perhaps the most anyone can hope for.

Section 3(a). Section 3(a) is equally if not more important to the protection of religious liberty. It will provide a means of redressing a broad range of violations of

the Free Exercise Clause that cannot be enforced effectively today because some of

the elements of a violation are so difficult to detect and prove. As a litigator, I can

tell you that shifting the burden of proof on some of those elements will, by itself,

have a powerful, salutary impact on the way in which government bodies respond

to actual or potential free-exercise claims.

Consider for example a school district that rents its facilities to private users on

weekends, but because of hostility to religion, is considering whether to prevent

those facilities from being used for worship services. If the school district knows that

an adversely affected religious group would have to prove that the district acted

with an anti-religious purpose, they may simply agree to adopt the restriction, keep

silent about their motivations, and hope for the best. But if they know they will have

to prove that they acted for legitimate reasons, they will think twice before adopting

the restriction. Or at least their lawyers will so advise them.30

Section 3(b). Section 3(b) will provide a very important institutional benefit to

churches and other religious bodies by making it more difficult for local land-use

regulators to exclude religious buildings. Few things are more central to most peoples’ religious practice than the ability to worship in a nice building, in a nice location, and not too far from one’s home.

Much testimony has already been presented on the widespread use of land-use

regulation to thwart the efforts of religious institutions to carry out their religious

missions. I would refer the Committee in particular to the excellent testimony presented by Mr. Keetch and Professor Durham before the House Judiciary Committee.

Let me add just a few additional examples from the landmarking area.

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31Society of Jesus v. Boston Landmark Comm’n, 564 N.E.2d 571 (Mass 1990). 32 E.g., NCAA v. Tarkaman, 488 U.S. 179 (1988).

Not so long ago, for example, the City of Boston used landmark regulations to prevent a group of Jesuits from changing the interior design of their chapel. The City

even prohibited them from moving the altar and removing a cross.31

And in San Francisco, when the Korean United Methodist Church outgrew its

current church building, it decided to sell the property and use the proceeds to purchase a larger church. It even found a willing buyer. But the Board of Supervisors,

responding to intense local pressure, voted to landmark the Church, despite the

finding of the planning commission that there was nothing historically or

architecturally significant about the building. As soon as the landmark designation

occurred, the buyer backed off. The Church spent its entire building fund, almost

$200,000 fighting the designation, until it was vetoed by the Mayor. See Letter of

Assembly Speaker Willie Brown to Governor Pete Wilson, September 8, 1994, at 5

(attached).

Similarly, the Sacred Heart Catholic Church of San Francisco had a dwindling

congregation of 180 members, although the church was built to accommodate 1,300

worshipers. Damaged in the Loma Linda Prieta earthquake, the church faced $5

million in seismic retrofit costs. To make matters worse, as a house of worship it

could not qualify for seismic retrofit grants under FEMA. When the Church decided

it could not afford the repairs, and would instead replace the building with a smaller chapel, the landmark authority immediately voted to designate Sacred Heart as

a landmark. But for the Legislature’s passage shortly thereafter of a religious exemption, Sacred Heart would have been forced to divert millions of dollars from its

private school program to continually maintain a building that it did not need. Id.

at 9.

These and other examples led former California Assembly Speaker Willie Brown

to conclude several years ago that ‘‘it is increasingly common for landmarking to be

used not for the purpose of historical preservation, but simply as a tool to thwart

a religious community from carrying out its plans.’’ Id. RLPA would go a long way

to redress that situation, especially in states that have not enacted a landmarking

exemption for religious entities.

At the end of the day, I believe a combination of RFRA and RLPA, supplemented

by the Supreme Court’s existing interpretation of the Free Exercise Clause, will

likely cover about 90 percent or more of the religious-liberty problems that were covered by the compelling interest test prior to Smith. But without RLPA, a great deal

of religious freedom will be irretrievably lost.

B. Alleged negative effects

I also disagree with those who claim that the Act will subtly hurt religious liberty.

Preliminarily, it is important to remember that the Act is carefully crafted to avoid

any unintended, adverse impact on religion. Section 5(e), for example, makes clear

that a finding under the Act that a particular religious exercise affects commerce

‘‘does not give rise to any inference or presumption that the religious exercise is subject to any other law regulating commerce.’’ Similarly, Section 5(b) precludes any effort to use the Act as a basis for any claims against a religious organization, including a religiously affiliated school or university, whose activities do not rise to the

level of ‘‘acting under color of law.’’ Under Supreme Court precedent, that is a very

difficult showing to make.32

I also do not believe the commerce requirement of Section 2 would in any way

‘‘cheapen’’ religion, as some have claimed. That provision does not require a claimant to show that his or her religious exercise is a commercial activity. All it requires

is that the burden on that exercise have some impact on commerce. I think people

are smart enough to draw a distinction between actions that are themselves commercial, and burdens on those actions that, in the aggregate, have an impact on

commerce.

Nor do I think Section 2 would create discrimination in favor of large, mainstream

religions and religious groups against smaller or less mainstream groups, as some

have claimed. Under Section 2, the burden on a wide range of religious groups could

be aggregated in determining whether the commerce requirement has been satisfied. This greatly reduces any advantage large religious groups might otherwise

enjoy in establishing an impact on interstate commerce. Accordingly, do not believe

the commerce features of the Act will in any way harm religious freedom.

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IV. CONCLUSION

In sum, the proposed Act is constitutional. It is a wise and prudent use of federal

power. And it will have an enormous, positive impact on religious freedom in this

country. Thank you again for the opportunity to testify on this important subject.

Gene C. Schaerr is a litigation partner in the Washington office of Sidley & Austin, and serves as co-chair of the firm’s Religious Institutions Practice Group. He

specializes in civil appellate and writ practice. In that capacity he has briefed and

argued numerous appeals in both state and federal systems in such diverse areas

as civil rights, constitutional law, antitrust, tax, torts, civil procedure, administrative law, product liability, breach of warranty, breach of contract, and civil rights.

He has also had extensive experience in helping clients in high-risk or high-profile

cases to prepare, at the trial level, to prevail on appeal. Mr. Schaerr has particular

expertise and experience in the representation of religious institutions.

Mr. Schaerr joined Sidley & Austin following clerkships on the U.S. Supreme

Court (for Chief Justice Warren Burger and Justice Antonin Scalia) and on the U.S.

Court of Appeals for the D.C. Circuit (for then-Judge Kenneth Starr). He also served

for two years in the White House as Associate Counsel to the President. In 1985,

he received his law degree from Yale University, where he was Editor-in-Chief of

the Yale Journal on Regulation and Senior Editor of the Yale Law Journal. Mr.

Schaerr also received his M.Phil., and M.A from Yale in 1986 and 1985, respectively,

as well as his B.A with highest honors from Brigham Young University in 1981.

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The CHAIRMAN. Well, I thank all four of you. We have got another vote and I am afraid I am going to get stuck over there. I

had a number of questions to ask all of you, and I think what I

will do is keep the record open and allow every member of the committee to submit questions. This is a very important subject to me

and I would like to have specific answers, if the four of you will

do that for us as quickly as possible because we want to move

ahead with this bill.

Let me just ask one question of all of you, and there are so many

I have, but just one in particular at this time. The House-passed

RLPA bill would establish that land use regulations that substantially burden religious exercise are legal only if they use the least

restrictive means of furthering a compelling governmental interest.

Now, I noted with interest that the bill uses this least restrictive

means test instead of the narrowly tailored test which is less stringent. Yet, the Court’s decision in City of Boerne would seem to refute this position for cases that fall within only the bill’s land use

section and not the Commerce or Spending Clause provisions of the

bill.

Now, consider the following sentence from the majority opinion

in City of Boerne, ‘‘In addition, the Act imposes in every case a

least restrictive means requirement, a requirement that was not

used in the pre-Smith jurisprudence RFRA purported to codify,

which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.’’

So let me ask you in light of that, shouldn’t the bill be modified

to establish that in those cases falling within only the bill’s land

use provisions, regulations affecting zoning will be upheld if they

constitute a narrowly tailored means of furthering a compelling

governmental interest?

Let me start with you, Gene.

Mr. SCHAERR. Mr. Chairman, I don’t think that needs to be done

because I believe the way the House bill is now written, that particular provision of the land use section in section 3 would probably

never be used because virtually every land use decision that would

fall within RLPA would also affect commerce and would therefore

be within section 2. So I would be surprised if anybody ever invoked that particular section by itself.

The CHAIRMAN. Jay.

Mr. BYBEE. Mr. Chairman, as you correctly pointed out, not only

did the majority use that same phrase, but Justice O’Connor used

the same phrase, ‘‘narrowly tailored,’’ in her dissent in Boerne. It

seems to me that this may be a point of friction between the Court

and Congress. And given the history here, it seems to me that the

prudent thing to do would be for Congress to use the same language that the Court has used here to simply avoid friction.

Whether it makes any practical difference or not which language

we use, I think, is irrelevant. We simply can avoid contention here.

The CHAIRMAN. I see.

Ms. FELDBLUM. I agree that there probably is not much practical

difference, and the bigger challenge for you in this section—and I

would endorse Mr. Bybee’s comment—is to make it clear to the

Court that you have the evidence of the likely unconstitutional conVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00145 Fmt 6601 Sfmt 6601 JUNE23.TXT SJUD2 PsN: SJUD2
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duct, and that the rule that you are passing is proportional to that.

And staying with the least restrictive means and ‘‘narrowly tailored,’’ I don’t think there is going to be that much of a difference.

You have established the record and that is proportional.

Again, this is quite different from a lot of the other sections

where you are not going to a targeted area; you are just sort of

throwing it out. And there is where you are going to invite the

Court coming back and sort of potentially restricting your power.

The CHAIRMAN. Professor Laycock.

Mr. LAYCOCK. I think the only cost of that change is you have

to go back to the House. But, in practice, I don’t think it makes

much difference to real-world litigation whether it is ‘‘least restrictive means’’ or ‘‘narrowly tailored.’’ I will say that that sentence in

the Court’s opinion is simply a mistake, although prior least restricted means cases from the Supreme Court are collected in footnote 40 of my written testimony. But they have said it and whether

they are willing to be educated on it remains to be seen. I don’t

think it is a matter of great substantive difference one way or the

other.

The CHAIRMAN. Well, that is the way I feel. But on the other

hand, it seems like anything we want to pass in this area seems

to have the strictest scrutiny by the Court. And like Mr. Bybee, I

kind of think we ought to avoid whatever we can to make sure that

we don’t get into another word game, because I felt the Religious

Freedom Restoration Act was constitutional, naturally. I wouldn’t

have supported it as strongly as I did if I didn’t think that, but we

will just have to see what we do here.

But, look, I have got 2 minutes to get over and vote. What we

will do is keep the record open. We will submit written questions

for you. I would like detailed answers, if you can. This is very important because we would like to move ahead as soon as we can

here. I think this has been a particularly enlightening panel and

I appreciate all of you being here.

So with that, we will recess until further notice.

[Whereupon, at 11:47 a.m., the committee was adjourned.]

(143)

A P P E N D I X

QUESTIONS AND ANSWERS

SEPTEMBER 9, 1999

RESPONSES OF DOUGLAS LAYCOCK TO QUESTIONS FROM SENATOR HATCH

A. 14TH AMENDMENT

Question 1. Let’s first focus on the land use provision of the bill—which relies

largely on section 5 of the 14th Amendment. Under the Supreme Court’s decision

this June in Florida Prepaid, the Court struck as invalid the Patent and Plant Variety Protection Remedy Clarification Act, holding that Congress must justify any invocation of the 14th Amendment by identifying specific conduct transgressing the

Amendment’s substantive provisions, and tailoring its legislative scheme to remedying or preventing such conduct.

With that preface, do you think the land use provision is adequately tailored to

remedy violations by governmental entities of religious persons’ constitutional

rights? Specifically, I would like your opinion on whether a court might find the bill

indiscriminate insofar as it allows any ‘‘person’’ to bring suit under this provision,

rather than limiting its reach only to individual domiciles, religious assemblies and

institutions.

Answer 1. I think the protection of persons is constitutional and narrowly tailored, and that a change to individual domiciles, religious assemblies, and institutions would make only a very subtle difference. It is true that any person may file

a claim under § 3(b)(1) of the House bill, but he must show that a land use regulation of the kind described in § 3(b)(1) substantially burdens his ‘‘religious exercise.’’

A building not used for religious exercise is not protected. Secular buildings are excluded, even though they are undoubtedly owned by a person, because regulation

of such a building does not burden any personis religious exercise.

The proposed limitation to ‘‘religious assemblies and institutions’’ and ‘‘individual

domiciles’’ would in effect state the requirement of religious use a second time. A

religious assembly would include any gathering of more than one person for religious purposes, and a religious institution would include any organized religious

body. A person in his own home would be protected, as under the House bill, only

if he were using the home for religious exercise.

The only case I can imagine that would be excluded by this change is a lone individual engaged in religious exercise in a building other than his own home. Maybe

it is safer to exclude that case, but I do not think much turns on it, because I am

not aware of any land use case involving that fact pattern. If this change is made,

care should be taken to avoid ambiguity in the way this requirement relates to the

use of ‘‘person’’ in the statement of the compelling interest test and in the definition

of religious exercise.

Question 2. The Florida Prepaid decision also draws the distinction between intentional and negligent conduct by a governmental actor, suggesting that the latter

type of conduct may not justify Congress’s invocation of the 14th Amendment. Do

you believe this analysis is limited to the due process analysis undertaken in Florida Prepaid, or is it possible that a court might similarly ask whether the zoning

abuses reflect a careless—but not intentionally discriminatory—application of zoning laws to religious persons, and therefore do not provide a basis for Congressional

action under the 14th Amendment.

Answer 2. The distinction between intentional and negligent conduct in Florida

Prepaid is a due process holding, based on a settled doctrine that was necessary to

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prevent the broad language of the Due Process Clause from being misinterpreted

to constitutionalize any tort by a state official. The problem first came to widespread

attention in Parratt v. Taylor, 451 U.S. 527 (1981), in which a prison mail system

negligently lost a prisoner’s hobby kit, said to be worth $23. The prisoner argued,

with impeccable textual logic, that the hobby kit was property, that the state had

deprived him of this property, that he had been given no hearing on whether he

should be deprived of this property, and thus, that the state had deprived him of

property without due process of law. The Court held that a hearing after the fact,

on the prisoner’s claim for compensation, would satisfy due process, because it was

impossible to schedule a hearing in advance of an unforeseen act of negligence. Hudson v. Palmer, 468 U.S. 517 (1984), extended this rule to deprivations that were intentional from the perspective of a wrongdoing state employee, but that were ‘‘random’’ and ‘‘unauthorized’’ from the perspective of the state.

The Court returned to the issue in Daniels v. Williams, 474 U.S. 327 (1986) a routine slip-and-fall case that happened to arise in a city jail. The prisoner claimed that

a jailer’s negligence had caused his fall, that this deprived him of his liberty interest

in bodily integrity, and that the jailer would plead sovereign immunity to prevent

any post-deprivation remedy as required by Parratt. The Court added a second

ground to the decision in Parratt, holding that negligent deprivations are not the

concern of the Due Process Clause.

In Florida Prepaid, the Court squarely relied on these earlier due process cases.

The Court cited Parratt and Hudson for the rule that a post-deprivation remedy

would satisfy due process, 119 S.Ct. at 2208, and it cited Daniels for the rule that

negligent deprivations do not require due process, id. at 2209. This was entirely a

due process holding, and all these cases were far removed from the core concerns

of the Due Process Clause.

Of course the Free Exercise Clause potentially presents similar questions about

the state of mind with which it is violated. The answers are not in Florida Prepaid,

but in Employment Division v. Smith, 494 U.S. 872 (1990), and Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). The legislative argument for § 3(b) has been developed entirely on the basis of those decisions. When

a land use authority substantially burdens a person’s religious exercise, the Constitution requires compelling justification of that burden unless the burden results

from a neutral and generally applicable law. Intentional discrimination against

churches does not exhaust the set of laws that are less than generally applicable.

If the land use authority in fact treats religious and secular uses differently, regardless of its motive, the Constitution requires compelling justification. And if the law

permits individualized assessments of competing land uses, and the result of such

individualized assessment is to substantially burden religious exercise, the Constitution requires compelling justification without regard to motive or intent.

More generally, the Court has never held that governments may defend considered decisions against constitutional attack on the ground that the decision was negligently made. The Court considered and rejected this possibility in Daniels v. Williams, the due process case relied on in Florida Prepaid. The Court said that in a

formal state hearing, the constitutionally relevant action would be the ‘‘deliberate

decision’’ on the merits of the matter heard, not the state’s ‘‘hypothetical negligent

failure’’ in the conduct of the hearing. Similarly here: it is the deliberate decision

at the end of the state’s land use process that potentially violates the Free Exercise

Clause, and if the state is in fact treating religious uses worse than secular uses,

or if the state is in fact assessing individual land uses and burdening religious uses,

it does not matter whether the state was aware of its free exercise violations as it

committed them.

B. COMMERCE CLAUSE

Question. The House-passed bill purports to encompass all matters in which a

governmental actor’s substantial burden on a religious claimant ‘‘affects’’ commerce.

Yet the Supreme Court’s decision in Lopez strenuously holds that a constitutional

exercise of the commerce clause must ‘‘substantially affect’’ commerce. Now I suppose the argument could be made to a court that it should read this requirement

loosely, and find it satisfied if the type of conduct at issue would in the aggregate

substantially affect commerce. But wouldn’t it be safer, and eliminate the basis for

a constitutional challenge, to reword the standard to require something like the following—that the Act extends only to conduct which, viewed in the aggregate, would

substantially affect commerce?

Answer. Lopez requires a substantial affect on commerce, but Lopez also reaffirms

the aggregation rules. ‘‘[W]here a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under

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that statute is of no consequence.’’ United States v. Lopez, 514 U.S. 549, 558 (1995)

(quoting Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968) (first emphasis added in

Lopez). The Court’s cases uphold ‘‘regulations of activities that arise out of or are

connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.’’ Lopez, 514 U.S. at 561 (emphasis added). The

Court immediately went on to note that the statute in Lopez ‘‘contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce.’’ Id.

Lower courts have understood this to mean that commerce clause statutes are

valid if they require a jurisdictional element that requires proof of some effect on

commerce in each case, even if that effect is de minimis. United States v. Rea, 169

F.3d 1111, 1113 (8th Cir. 1999). The Fourth Circuit emphasized the absence of such

a jurisdictional element in its decision striking down the Violence Against Women

Act. Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 833 (4th Cir. 1999),

cert. granted (Sept. 28, 1999). The Supreme Court has provided Commerce Clause

protection to a church summer camp with ‘‘a relatively insignificant impact on the

commerce of the entire Nation,’’ on the ground that ‘‘the interstate commercial activities of non-profit entities as a class are unquestionably significant.’’ Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 586 (1997), citing Lopez and

Wickard v. Filburn, 317 U.S. 111, 127–28 (1942), for the aggregation rule.

The cases do not treat the substantial aggregate effect on commerce as a factual

issue requiring proof in each individual case. Rather, the claimant proves the effect

on commerce in the particular case, and the court infers (or perhaps presumes or

takes judicial notice) that all similar cases will have, in the aggregate, a substantial

effect on commerce.

The House bill is based on this doctrinal structure. The claimant must prove an

effect on commerce in its individual case; unless the religious activity is highly unusual, the court can then readily infer that the aggregate effect on commerce would

be substantial. It would be prudent to indicate that the Senate understands this and

intends to reach no further. It would be a mistake to amend RLPA in such a way

that each plaintiff might be required to offer evidence of the aggregate effect on

commerce. Such a requirement would add to every trial an unworkable national survey of similar activity.

C. FEDERALISM

Question. After reading the Supreme Court’s recent decision in Alden v. Maine,

it is clear that suits for damages against states and state agencies are viewed as

incompatible with state sovereignty. Accordingly, shouldn’t a RLPA bill clarify on

its fact that it does not purport to authorize such suits?

Answer. RLPA does not authorize such suits, even in those sections where Congress would have the power to do so. There is no ambiguity about this. The Court

does not interpret statutes to abrogate state sovereign immunity unless Congress

makes an excruciatingly clear statement in statutory text; general language is not

enough. Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 101

(1989); Dellmuth v. Muth, 491 U.S. 223, 227–28 (1989); Welch v. Texas Dept. of

Highways, 483 U.S. 468, 474 (1987); Atascadero State Hospital v. Scanlon, 473 U.S.

234, 242 (1985). RLPA’s general language authorizing appropriate relief against a

government does not come close to satisfying this standard, as the cases under

RFRA repeatedly held. Mack v. O’Leary, 80 F.3d 1175, 1177 (7th Cir. 1996);

Commack Self-Service Kosher Meats Inc. v. New York, 954 F.Supp. 65, 66–70

(E.D.N.Y. 1997); Gilmore-Bey v. Coughlin, 929 F.Supp. 146, 149–50 (S.D.N.Y. 1996);

Weir v. Nix, 890 F.Supp. 769, 785 (S.D. Iowa 1995); Woods v. Evatt, 876 F.Supp.

756, 770 n.16 (D.S.C. 1994); Rust v. Clarke, 851 F.Supp. 377, 381 (D. Neb. 1994).

There is no harm in saying explicitly that nothing in this Act abrogates the sovereign immunity of states. But any such disclaimer must be carefully drafted to say

exactly that and nothing more. Such a disclaimer will be surplusage, and non-immune defendants will argue that Congress surely must have meant the language

to do something. They will attempt to read into it some limitation on relief greater

than deference to sovereign immunity. There is some value in explicitly telling uninformed plaintiffs that Congress did not abrogate immunity, but non-essential advice

in a federal statute must be drafted very carefully to avoid misinterpretation.

D. RULES OF CONSTRUCTION

Question. What is your view of the rules of construction section of the Housepassed RLPA bill? Are these rules clear to you, and do they appear constitutional

in their application? Or would you suggest some modification to this section?

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Answer. The rules of construction in the House bill resulted from negotiations

among lawyers for a very wide range of groups, liberal and conservative, religious

and secular. They did not entirely trust each other, they did not entirely trust the

courts not to engage in hostile interpretation, and they probably overlawyered the

bill. But each rule of construction is designed to avoid some possible misinterpretation that seemed to be a realistic threat to some part of the coalition supporting the

bill. I have no doubt that they are constitutional, and they are reasonably clear, especially with the aid of the explanations in the House committee report.

Each provision in the rules of construction represents the strongly felt demand

of one or more groups that once supported the bill, and any attempt to modify one

of those provisions at this point is likely to be viewed with deep suspicion by the

groups that demanded the provision in the first place. At this point, I would leave

them alone.

RESPONSES OF DOUGLAS LAYCOCK TO QUESTIONS FROM SENATOR LEAHY

Question 1. According to your testimony, RLPA’s spending authority provision is

modeled directly on similar provisions in other civil rights laws, including Title VI

of the Civil Rights Act of 1964, which forbids race discrimination in federally assisted programs and Title IX of the Education Amendments of 1972, which forbids

sex discrimination in federally assisted educational programs. But there is one distinction at least: unlike Title VI and Title IX, RLPA does not permit the Federal

Government to deny or withhold Federal financial assistance as a remedy for a statutory violation.

As explained in South Dakota v. Dole, the Spending Clause empowers Congress

to attach conditions on the receipt of federal funds; if the recipient does not meet

the conditions, it does not get (or cannot keep) the funds. Does the fact that RLPA

permits States and localities to continue to receive funds even if they violate RLPA

take this legislation outside the usual concept of Spending Clause power?

Answer 1. No. Most Spending Clause statutes are enforceable in theory either by

withholding of federal funds, or by suits by the United States to demand compliance, or by private rights of action. Withholding funds has been extraordinarily

rare; the actual method of enforcement overwhelmingly has been suits by the

United States when there is a broad pattern of violations, and suits by individual

victims when there are individual violations. A recent example is Davis v. Monroe

County Board of Education, 119 S.Ct. 1661 (1999), a suit for damages under Title

IX.

The federal interest under the Spending Clause is to ensure that all intended

beneficiaries of federal funds actually benefit. A funds cutoff means that no intended

beneficiaries benefit, so that has rarely been an attractive means of enforcement.

Some Spending Clause statutes provide that the commonly used means of enforcement shall be the only means of enforcement. RLPA provides that funds shall not

be withheld, as you note. The Equal Access Act has a similar provision, 20 U.S.C.

§ 4071(e) (1994), which has not occasioned any litigation. I was not involved in the

discussions that led to these provisions, but my understanding is that they were requested by representatives of the states and that supporters of the bills acquiesced.

With or without such a provision, a funds cutoff is unlikely and litigation to achieve

compliance will be the real means of enforcement.

It is always open to the states to decline the funds and escape any associated obligation to comply with the Act. The only difference is that that choice is now left

wholly to the states; the United States does not have the option of abandoning efforts to obtain compliance and simply cutting off the funds.

Question 2. In Hunt v. Hunt, 162 Vt. 423 (1994), a parent used RFRA to avoid

having to pay child support. In your view, was Hunt v. Hunt correctly decided?

Answer 2. With respect, someone has misinformed the Senator about what the

case holds. The court held that the parent does have to pay child support, because

the support of children is a compelling interest and actually making him pay is the

least restrictive means of achieving that interest. The court went on to hold that

the state had not yet shown that jailing the parent for contempt of court was the

least restrictive means of enforcing the order to pay.

We do not know what happened on remand. Two judges thought that the money

should be collected by garnishment or wage withholding from the defendant’s

church, which held all his earnings in a communal fund out of which he and other

members were supported. One of these two judges feared that state law did not authorize this method of collection; he predicted that the contempt sanction would

soon be reimposed because the less restrictive means would be unavailable. The

other judges refrained from giving advisory opinions about the remand.

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We do not know how the case turned out, but nothing in the court’s opinion suggests that it would accept failure to collect the child support as the ultimate result.

If the garnishment worked, the child support would be collected by garnishment. If

the garnishment failed, contempt would be the least restrictive means and the child

support would be collected by contempt. The case actually turns on the state’s failure to explore other means before it resorted to the most drastic remedy.

The state is entitled to a means that actually achieves its interest, and least restrictive means analysis should not be applied to incremental reductions in remedies

or penalties for noncompliance. But imprisonment differs from garnishment qualitatively and not just in degree, and a direct order against the church (which controlled the money) was more likely to actually collect the child support the coercing

the father (who did not control the money). I thought Hunt was wrong when I first

heard about it, but now that I have read it carefully, I believe it is a plausible result. As so often happens, the soundbite description of a case is misleading, and our

judges who carefully studied a whole case did a pretty good job.

Question 3. In Cheema v. Thompson, 36 F.3d 1102 (9th Cir. 1994), RFRA was

used to force a public school district to permit Sikh elementary school children to

carry sharp ceremonial knives to school with them each day. In your view, was

Cheema correctly decided?

Answer 3. Once again, someone has misinformed the Senator. The case involved

the ancient requirement that Sikh males carry kirpans, or ceremonial knives. The

memorandum identified at 36 F.3d 1102 is unreported; the text is available at 1994

WL 477725 (9th Cir. 1994). A subsequent opinion is reported at 67 F.3d 883 (9th

Cir. 1995), and that opinion sets out the preliminary injunction actually issued in

the case.

The children were not permitted to carry ‘‘sharp’’ knives. The preliminary injunction explicitly required ‘‘a dull blade.’’ 67 F.3d at 886. This dull kirpan was to ‘‘be

sewn tightly to its sheath.’’ Id. It was to be worn ‘‘under the children’s clothing,’’

subject to ‘‘reasonable inspections to confirm that the conditions specified above are

being adhered to,’’ and if ‘‘any of the conditions’’ were violated, the school was authorized to suspend the right to wear the kirpan. Id. These were the terms of the

order, and there is no dispute about what it said. ‘‘Sharp’’ knives were forbidden.

There was evidence that when the knives were sewn into their sheath, ‘‘even an

adult school board member could not remove them.’’ 1994 WL 477725 n.4. There

was evidence that ‘‘numerous other school districts allow children to wear kirpans,’’

and no evidence ‘‘of any incident where kirpans have been involved in school-related

violence.’’ Id. at *3.

Cheema was a preliminary injunction on a limited hearing; it was not a final resolution of the dispute. Everyone agreed that the school board had a compelling interest in protecting the safety of the children. The only substantial issue in the case

was what restrictions on kirpans were necessary to achieve that interest.

The most important and astonishing fact about the case is that the school board

refused to offer evidence on this issue! Despite the clear language of RFRA, the

school board took the position that it did not have to demonstrate that exclusion

of kirpans was the least restrictive means of furthering its compelling governmental

interest. Id. Consequently, it ‘‘put in the record no evidence whatsoever of any attempt to accommodate the Cheemas’ religious practices,’’ and it did ‘‘nothing to compile a factual record in support of its case.’’ Id. There is no indication in the second

opinion that the school board had altered its stance. Either the school board knew

the restrictions offered by the parents were sufficient and it could find no evidence

to offer, or it was so contemptuous of the statute and of religious liberty that it refused to gather or offer any evidence. If the school board’s refusal to offer evidence

led the court into a factual error, the school board has only itself to blame.

I have no personal knowledge about a safe way to handle kirpans. But on this

record, I think the case was rightly decided. I should also say that I have had a

Sikh child in my younger son’s school, and I have never had the slightest reason

to be concerned about his kirpan.

Question 4. In Lundman v. McKown, 530 N.W.2d 807 (Minn. Ct. App. 1995), the

Christian Scientist used RFRA as a defense to a wrongful death suit arising from

her failure to get medical care for her 11-year old son. In your view, was Lundman

correctly decided?

Answer 4. Again someone has misinformed the Senator. There was no RFRA issue

in the case, and RFRA is not mentioned in the opinion. RFRA could have been plead

as an additional defense, but it is clear that RFRA would not have changed the result. The court applied the compelling interest and least restrictive means test

under the Minnesota Constitution, 530 N.W.2d at 818, and applying that standard,

it held the mother liable for $1.5 million in compensatory damages. I do not agree

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with everything that is said in the opinion, and I claim no expertise on the various

tort issues in the case, but on the religious liberty issues, I believe the result is correct.

The court properly refused to hold the church liable for merely teaching its beliefs.

It did hold those who cared for the child liable for failing to summon conventional

medical assistance when the seriousness of his illness became apparent. Preserving

the lives of children is clearly a compelling interest, and on these facts, summoning

conventional medical assistance is the only means the court can evaluate and that

would have worked.

Question 5. In Thomas v. Municipality of Anchorage, 165 F.3d 692 (9th Cir. 1999),

the court held that the Alaska housing laws prohibiting apartment owners from refusing to rent to unmarried couples could not be enforced against landlords who

refuse to rent to unmarried couples for religious reasons. Do you think that Thomas

was correctly decided, both with regard to its hybrid rights theory, as well as with

regard to its conclusion about the government’s lack of a compelling interest?

Answer 5. To know whether Thomas was rightly decided, I would need to know

facts that are not revealed in the opinion. If plaintiffs were small landlords, personally involved in the management of a few units of housing, then I think the case

was rightly decided. The more units they own, the less plausible it is to find that

regulation of this large commercial enterprise burdens their personal exercise of religion, and the greater the state’s interest in regulation. I assume that the plaintiffs’

real estate operations were small enough to make their claim of religious exercise

plausible, because no one raised the issue or suggested otherwise.

Keep in mind that this was a free exercise case and not a RFRA case. The court

held that the Alaska law was neutral and generally applicable. 165 F.3d at 701. I

think this was error. The Alaska law contained an exception for singles-only projects

and for married-couples-only projects, but no exception for claims of religious conscience. The state thus placed a lower value on religious exercise than on what is

at best a mere preference for social segregation on the basis of marital status. The

Anchorage ordinance had an exception for units in which the tenant would ‘‘share

common living areas’’ with the landlord or his representative. This is a sensible exception, but again it places less value on religious exercise than on a secular claim

to autonomy. It is precisely such devaluing of religious exercise as compared to secular interests that remains unconstitutional after Employment Division v. Smith, 494

U.S. 872 (1990), and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520 (1993). The legislature and city council responded to secular claims of

hardship but failed to provide similar exemptions for religious hardship.

Because neither law was neutral and generally applicable, the compelling interest

test should have been applied without regard to the court’s hybrid-rights theories,

which present more difficult questions. The opinion struggles valiantly to make

sense of hybrid rights, but I do not believe it succeeds. The court’s standard of a

colorable claim or a likelihood of success on the non-free-exercise-right seems to me

unstable. Such a hybrid right will cease to exist if the colorable claim is ever decided

on the merits in a case with no free exercise component. That implies that hybrid

rights in the Ninth Circuit are only temporary rights.

The Supreme Court has not said what it means by hybrid rights. But if the theory

is to make any sense, I think it must be enough that interests protected by the

other constitutional rights were infringed, even if those infringements could have

been justified under the rules applicable to the other constitutional rights. In Thomas, there plainly was a physical intrusion into the landlord’s property and a restriction on his right to speak about his religious views. If there is going to be a category

of hybrid rights, then it ought to cover this case.

I think the court’s holding on the compelling interest issue was correct. It is dispositive that the state does not pursue the asserted interest generally. Sometimes

it protects unmarried couples against discrimination; sometimes it does not; often,

it affirmatively discriminates against married couples on the face of the law. Indeed,

Alaska law creates the categories of marital status and distinguishes among those

categories for many purposes. To claim a compelling interest in Thomas makes a

mockery of the concept. No civil rights or civil liberties lawyer would ever accept

such a Swiss-cheese compelling interest as sufficient to override a right he took seriously. Many citizens care deeply about the interest in ending discrimination on the

basis of marital status, but the state of Alaska does not. For Alaska, marital status

is only a sometime thing.

Finally, if there were evidence that unmarried couples were actually unable to

find housing, that would be a compelling interest. The state has a compelling interest in seeing that all its citizens are housed; it does not have a compelling interest

in seeing that tenants have a legally protected right to flout their landlords’ most

deeply held beliefs.

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1 7 out of 429 would be 1.6 percent, which would round to 2 percent. 10 out of 429 would be

2.3 percent, which would also round to 2 percent. 6 or fewer would round to something less than

2 percent; 11 or more would round to something more than 2 percent.

Question 6. Can you think of any pre-Smith case in which the Supreme Court affirmed the use of the compelling interest test, where accommodation of the religious

beliefs of one person would have infringed other legally cognizable rights of another

person?

Answer 6. Yes. Bob Jones University v. United States, 461 U.S. 574, 602–04

(1983), held that Bob Jones University had no free exercise right to discriminate on

the basis of race, because the prohibition on racial discrimination served a compelling interest by the least restrictive means. Protecting the legal rights of another

generally satisfies the compelling interest test, but is not a reason to dispense with

its application.

There are similar cases involving other constitutional rights. Preventing sex discrimination in places of public accommodation has been held to serve a compelling

interest by the least restrictive means. New York State Club Ass’n, Inc. v. City of

New York, 487 U.S. 1 (1988); Board of Directors v. Rotary Club, 481 U.S. 537, 549

(1987); Roberts v. United States Jaycees, 468 U.S. 609, 623–29 (1984). Eliminating

effects of racial discrimination has been held to be a compelling interest. United

States v. Paradise, 480 U.S. 149 (1987); Local 28, Sheet Metal Workers’ Int’l Ass’n

v. EEOC, 478 U.S. 421 (1976). In each of these cases, the legally cognizable right

of another was held to satisfy the compelling interest test, not to dispense with its

application.

However, it cannot be that the mere existence of a ‘‘legally cognizable right’’ automatically satisfies the compelling interest test. That would leave all constitutional

rights at the mercy of legislative discretion, because the legislature can create new

‘‘legally cognizable rights’’ any time it chooses. Title VII appears to give a Catholic

woman who wants to be a priest a legally cognizable right to be employed in that

position, but it does not follow from the creation of such a right that the government

has a compelling interest in enforcing it. Some state civil rights laws have no exception for religious employment; in those states it would seem that an atheist has a

legally cognizable right to be employed as a priest or minister. A Colorado statute

provides that no employer may discriminate on the basis of any ‘‘lawful activity off

the premises of the employer during nonworking hours.’’ Colo. Rev. Stat. § 24–34–

402.5(1) (Supp. 1998). This gives legally cognizable rights to habitual drunks, pornographic film collectors, adulterers, professional gamblers, racists, fascists, communists, sexual harassers who do it only off the job, exploiters of the poor, and all

those who indulge in any other immoral or disreputable but not illegal activity. All

these people would seem to have a legally cognizable right to be employed in any

open position in any church or synagogue in Colorado, but creating the right does

not create a compelling interest.

Question 7. Empirical results from the 1998 National Congregations Study show

that 17 percent of U.S. religious congregations tried to obtain a permit or license

from a governmental authority in the past year, and only 1 percent of those applications were denied.

(A). Do you have any reason to doubt the accuracy of these results?

Answer 7A. I have no reason to doubt the accuracy of what is reported in the

study. The study was led by Professor Mark Chaves of the University of Arizona;

he and his co-authors are serious and reputable scholars. For reasons explained in

part B, many of the percentages in the study, including the 1 percent figure that

you quote, cannot be understood as representative of all U.S. congregations.

(B). Assuming the essential accuracy of these results, what are their implications

for the debate about RLPA’s proportionality?

Answer 7B. Very little. RLPA and the National Congregations Study are focused

on different questions. Proportionality is an issue in § 3 of RLPA, the section enacted under the Enforcement Clause of the Fourteenth Amendment.

Section 3 is concerned with land use regulation, and principally with zoning, but

the NCS asked about permits and licenses of all kinds. Only 2 percent of the permits in the sample were described as zoning permits. Mark Chaves and William

Tsitsos, Are Congregations Constrained by Government? Empirical Results from the

National Congregations Study, Table 1. There were 429 permit applications in the

study, which means that they had only 7 to 10 zoning permit applications.1 One of

those was denied. Id., manuscript at 12. A sample of 7 to 10 is far too small to support any generalization, but the one fact we have is that at least 10 percent (1 out

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2 36 percent of the permit applications were described as ‘‘Building/Remodeling,’’ but we have

no idea how many of these involved new buildings, expansions, or conversions of the sort that

produce land use controversies, or even if any of them did. Few cities would try to drive out

a long-settled church by denying permits for interior modifications or repairs with no effect on

the scale of operations. All we know for sure about these cases is that none of these were described as zoning cases.

of 10), and perhaps as many as 14 percent (1 out of 7), of the zoning permit applications in the study were denied.2

Second, there has been substantial testimony that the zoning problem is most severe for small and new churches, and that older, more established churches tend

to be grandfathered in at their current location. But the NCS could not easily measure this problem, because it greatly undersampled small congregations. This is not

so much a defect in the study as it is an unavoidable consequence of the difficulty

of sampling those small churches at all.

The problem is that there is no comprehensive list of religious congregations from

which one might draw a sample. The NCS attacked this problem with a very clever

solution. It began with a representative sample of English-speaking adults. If a respondent said he ever attended religious services, he was asked where. This produced a list of all the congregations attended by a random sample of adults, which

is probably as close as scholars have ever gotten to a random sample of congregations.

But the method has a problem with special relevance to RLPA. Because the sample starts with individuals, the likelihood that a congregation will be mentioned is

directly proportional to its size. A congregation with 1,000 members is 10 times

more likely to be in the sample than a congregation with 100 members, and 50

times more likely to be in the sample than a house church with 20 members. So

the congregations most likely to have serious zoning troubles are least likely to be

in the NCS sample. In the extreme case, the sample will never find a congregation

that was driven out of existence for lack of a place to worship.

Professor Chaves was well aware of this feature of his sample. He is able to estimate the severity of the problem, and for some purposes, he could offset it with statistical manipulations. Only 10 percent of the congregations in his sample had fewer

than 75 regular participants. Mark Chaves, Mary Ellen Konieczny, Kraig Beyerlein,

& Emily Barman, The National Congregations Study: Background, Methods, and Selected Results, Table 4. Yet the authors estimate that 50 percent of the congregations in the country have fewer than 75 regular participants, and 10 percent have

fewer than 20 regular participants. Id. Fewer than 10 percent of the congregations

in the country have 400 or more regular participants, but half the congregations in

the sample had 400 or more regular participants. Id.

Professor Chaves reports that 35 percent of the congregations in the sample applied for a permit; his estimate of 17 percent of congregations in the nation reflects

a statistical adjustment for the underrepresentation of small congregations. Are

Congregations Constrained, manuscript n. 16. But when he says that only 1 percent

of permit applications were denied, he has made no adjustment; that is a raw comparison of the number of permits to the number of denials, with no attempt to correct for the size of congregations. Id. It is probably impossible to adjust this figure;

he has too few denials and possibly too few small congregations, and he certainly

has too few zoning cases. This is an enormously valuable study, but the data most

relevant to RLPA simply isn’t there.

It is perhaps revealing, or perhaps just coincidence, that the NCS reports a 1 percent denial rate for all permits, and the survey of Presbyterian congregations reported a 1 percent denial rate in land use cases. See my testimony of Sept. 9. It

might be revealing because the Presbyterians are a denomination of mostly older

and well-established churches, probably more similar to the NCS sample than to

struggling new congregations. It might be just coincidence because the two studies

mostly involve very different kinds of permits.

Third, a government with discretionary power over a permit can impose a substantial burden on a church even if the permit is eventually granted. In the Presbyterian study, 15 percent to 18 percent of congregations reported significant conflicts or cost increases before a permit was eventually granted; the NCS study appears not to have asked about this kind of burden. If St. Peter’s Catholic Church

in Boerne, Texas were in the sample for this study, it would count as a permit

granted, but getting that permit took three years of litigation and the church’s

agreement to spend well over half a million dollars on structures of little benefit

to the church. The diversion of all those religious funds to secular purposes substantially burdens the free exercise of religion.

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3See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (‘‘If the permit

scheme ‘involves appraisal of facts, the exercise of judgment, and the formation of an opinion,’

by the licensing authority, ‘the danger of censorship and of abridgment of our precious First

Amendment freedoms is too great’ to be permitted.’’ (citations omitted)); City of Lakewood v.

Plain Dealer Pub’g Co., 486 U.S. 750, 770 (1988) (refusing to presume good faith in administration of vague standards for permits affecting First Amendment rights); Griffin v. City of Lovell,

303 U.S. 444, 452 (1938) (stating that completely discretionary permit requirement ‘‘would restore the system of license and censorship in its baldest form’’).

Finally, even if the 1 percent number were a plausible rate of permit denials for

small churches and for zoning cases, that would still be a lot of cases. Using its

summary numbers—that 17 percent of congregations applied and 1 percent of those

were denied—the NCS estimates that 500 congregations per year are denied permits. Manuscript at 15. In zoning, probably a lot fewer than 17 percent apply each

year, and a lot more than 1 percent are denied or substantially burdened. Whatever

the number of land use permits denied, those are the cases that matter. In the cases

where the permit authority would grant the permit anyway, RLPA will be irrelevant. There will never be a claim, and neither the church nor the permit authority

will be affected. The real proportionality question is within the 500 cases (or however many it really is) where a land use permit is denied. How many of those involve a likely constitutional violation? That is the point of Question 8.

Question 8. What evidence do you have, not of conflicts between religious building

owners and land use authorities, but rather of unconstitutional actions by land use

authorities against religious entities? Please provide a list of all cases in which it

has been proven that a local land use authority violated the First Amendment in

its dealings with a religious organization.

Answer 8. I’m not sure such a list is possible. Part of the reason the statute is

needed, as I explained in my testimony on September 9, is that discrimination is

difficult to prove one case at a time. Decisions that are merely suspicious when they

happen once fit into a pattern of discrimination when many decisions are examined.

I believe that in all the cases described to the Committee or to the House Subcommittee on the Constitution, there is a substantial likelihood that the zoning

authority’s action was unconstitutional.

The Brigham Young study, described in testimony in before this Committee last

year and before the House Subcommittee on the Constitution, lists 119 reported

cases in which churches successfully challenged zoning decisions. Many of those

cases were decided on nonconstitutional grounds. But all are cases where a land use

decision unlawfully burdened religious exercise, and in nearly every case, that burden was imposed after an individualized assessment of the proposed land use. Individualized assessments lend themselves to hidden discrimination, which is why constitutional doctrine requires compelling justification for burdens imposed in such

cases. Employment Division v. Smith, 494 U.S. 872, 884 (1990).

In testimony in the House, summarized in my September 9 testimony to this

Committee, John Mauck described a survey of twenty-nine zoning codes from suburban Chicago. In twelve of these codes, there was no place where a church could locate as of right without a special use permit. In ten more, churches could locate as

of right only in residential neighborhoods, which is generally impractical. Thus,

twenty-two of these twenty-nine suburbs effectively excluded churches except on

special use permit, which means that zoning authorities hold a discretionary power

to say yes or no. A discretionary power to say yes or no to the exercise of a constitutional right is unconstitutional.3

Moreover, the survey of zoning codes showed that places of secular assembly are

often not subject to the same rules as churches. The details vary, but uses such as

banquet halls, clubs, community centers, funeral parlors, fraternal organizations,

health clubs, gyms, places of amusement, recreation centers, lodges, libraries, museums, municipal buildings, meeting halls, and theaters are often permitted as of

right in zones where churches require a special use permit, or permitted on special

use permit where churches are wholly excluded. Every one of the twenty-nine zoning codes surveyed treated at least one of these uses more favorably than churches;

one treated twelve of these uses more favorably; the average was better treatment

for about 5.5 such uses. Such facial discrimination between secular and religious

places of public assembly is prima facie unconstitutional. It requires compelling justification.

The record contains much anecdotal evidence of zoning decisions that appear on

their face to involve discrimination between religious and secular assemblies at the

same property, or discrimination between churches of different denominations, or

between congregations of different races. John Mauck described twenty-one such

cases in his House testimony. Marc Stern described five more examples in his House

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testimony in March 1998. Von Keetch described such discrimination against a proposed Mormon Temple in Forest Hills, Tennessee. Rabbi Chaim Rubin described

such a case involving his shul in Los Angeles. Attorney Bruce Shoulson testified in

the House to more than thirty cases involving efforts to exclude Orthodox Jews in

northern New Jersey. I summarized all this testimony and described four additional

cases involving Morning Star Christian Church in Rolling Hills Estates, California,

Fountain Church of God in Charter Township, Michigan, and Orthodox Jews in

Airmont, New York and Cheltenham, Pennsylvania. Each of these more than sixty

cases presents prima facie evidence of overt and unconstitutional discrimination.

Maybe in some of them there was a compelling government interest or some other

explanatory circumstance, but in all of them, a constitutional violation is at least

likely.

Question 9. In California, a minister attempted to run a homeless shelter out of

a structurally unsafe building, and accumulated numerous citations for code violations. He claimed that he ‘‘answered to a higher law.’’ Under RFRA, the court ruled

that the church did not need to meet the safety code, and could house the homeless

men in an unsafe building. Following RFRA’s invalidation, the court held that the

safety regulations had to be met.

(A). Do you think that the minister should have been required to abide by safety

regulations? If some and not others, why, or why not?

Answer 9A. The question does not identify this case, I am not aware of such a

case, and I cannot find on Westlaw a case fitting this description. It may be a real

case that is entirely unreported, or the persons who tell the Senator about cases

may have erred again. Without knowing the facts, I cannot tell you whether it was

rightly decided.

I can say that physical safety of human beings is plainly a compelling interest,

and there should have been no RFRA right to house men in a structurally unsafe

building. If the court exempted the minister from regulations that genuinely

furthered safety, the court erred.

On the other hand, not every rule in a building code is connected to safety, and

I can readily imagine a city using or creating technical rules to close the minister’s

shelter even if it were perfectly safe. If those were the facts, the initial decision you

describe becomes more plausible.

(B). More generally, is the RLPA intended to cover all religious-owned buildings,

including hospitals, day care centers, movie theaters, fitness centers, nursing homes,

and soup kitchens, and, if so, why?

Answer 9B. No. RLPA is intended to cover buildings that will be used for religious

exercise, and the owner has a substantive claim only if that religious exercise will

be substantially burdened. A church-owned commercial enterprise is unlikely to

qualify as religious exercise. See Tony & Susan Alamo Foundation v. Secretary of

Labor, 471 U.S. 290 (1985). A religious charity staffed in substantial part by volunteers should qualify in my judgment. Between these fairly clear cases, the precise

line will be determined case by case.

Question 10. The United States Court of Appeals for the Eighth Circuit recently

held that the Eleventh Amendment prevents States from being forced to litigate in

Federal court claims arising under section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability in ‘‘any program or activity receiving

Federal financial assistance.’’ Bradley v. Arkansas Dept. of Education, 1999 WL

673228 (8th Cir. Aug. 31, 1999). The court reasoned that § 504 was not a valid exercise of Congress’s spending power ‘‘because it amounts to impermissible coercion’’:

‘‘[A State] is forced to renounce all federal funding, including funding wholly unrelated to the [Rehabilitation Act], if it does not want to comply with

§ 504. Congressional imposition of such a condition does not give [a State]

* * * a meaningful choice regarding whether to receive federal funding and

waive its Eleventh Amendment immunity to suits arising under § 504 or reject funding and retain its Eleventh Amendment immunity to such suits.’’

Please comment on the possible import of Bradley on section 2(a)(1) of the RLPA,

which prohibits States from substantially burdening a person’s religious exercise in

‘‘any program or activity * * * that receives Federal financial assistance.’’

Answer 10. Bradley decided an issue that had not been briefed, on the basis of

a clear misunderstanding of the statute. Its constitutional holding would make

sense if the statute did what the court thought it did, but no statute has ever done

that. A petition for rehearing is inevitable, and a corrected result is highly likely.

The Fourth Circuit recently reached the opposite result in a Title IX case that was

indistinguishable. Litman v. George Mason University, 1999 WL 547910 (4th Cir.,

July 28, 1999). Bradley is simply wrong.

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If the result in Bradley does not change, it may be confined to waivers of sovereign immunity, in which case it would have no application to RLPA. If the erroneous holding is sustained and generalized, it would wipe out all civil rights legislation under the Spending Clause, including Title VI on race discrimination and Title

IX on sex discrimination in education.

The essential error in Bradley was the assumption that the state ‘‘is forced to renounce all federal funding’’ to avoid liability under the Rehabilitation Act. This is

plainly incorrect. The relevant unit under the Rehabilitation Act, under RLPA,

under Title VI, and under Title IX, is ‘‘the program or activity’’ receiving federal

funds, defined as ‘‘all the operations of a department, agency, special purpose district, or other instrumentality.’’ 29 U.S.C. § δ794(b)(1)(A) (1994); RLPA § 8(4); 42

U.S.C. § 2000d(4)(A) (1994); 20 U.S.C. § 1687(a)(A) (1994). The Eighth Circuit inaccurately paraphrased this definition, omitting the article and converting all the singular nouns to plural, and consequently concluded that the whole state is one collective program or activity. This has never been the law.

If a department accepts federal funds, that department must ensure that no person is denied benefits or a chance to participate because of his disability. That department can choose to accept or reject federal funds, and different departments can

make different decisions. Similarly under RLPA: departments that accept federal

funds must refrain from unnecessarily burdening the religious exercise of beneficiaries or participants in the aided program or activity; each department can decide separately whether to accept or reject federal funds. The Eighth Circuit invalidated a statute that does not exist.

RESPONSES OF DOUGLAS LAYCOCK TO QUESTIONS FROM SENATOR KENNEDY

Question 1. After last year’s June 23, 1998, hearing on protecting religious liberties, Senator Hatch asked you whether ‘‘religious accommodation is a zero-sum

game.’’ See Written Question 15. In response, you stated, among other things, that

‘‘[t]he cost of a burden on the right to exercise one’s religion is usually concentrated,

personal, and intense; the cost of permitting someone else’s religious exercise is usually diffuse, general, and mild. * * * Where this is not true—where a proposed exercise of religion imposes concentrated costs on others—the compelling governmental

interest test will usually be met.’’

(A). How do you reconcile this theory with the non-diffuse, specific, and potentially

severe impact that accommodating a free exercise claim could have on a single

mother or gay person who has been refused a job or apartment because of their marital status or sexual orientation—assuming, of course, that the RLPA claim is raised

by a non-religious employer or a property owner who does not occupy the dwelling

at issue?

Answer 1A. I think the heart of this question is embedded in its assumptions. I

am guessing that by ‘‘non-religious employer’’, you mean any employer other than

a religious institution. I would mean any employer who could not make a plausible

claim under RLPA. So where do we disagree? Who are the employers who might

be able to make a plausible claim without being a religious institution?

For such a RLPA claim to be plausible, the employer would have to have only a

small number of employees, he would have to be personally involved in running the

business, and the business would have to be infused or integrated with a religious

mission. Otherwise, the claim that his choice of employees is an exercise of religion

will not be plausible. A mere desire to exclude employees of other faiths or

worldviews is not enough to turn a substantial commercial enterprise into an exercise of religion.

For the small, personally involved employers in enterprises infused with religious

mission, the harm of being forced to hire an employee who rejects the moral and

religious values of the enterprise would be ‘‘concentrated, personal, and intense.’’

The effort to integrate faith and work would be seriously disrupted. If you doubt

this, think about the converse case. A small, close-knit gay rights group or lesbian

bookstore would not hire an evangelical Christian who condemns gay and lesbian

behavior as immoral, and if it were forced to do so, it would experience the harm

to its operations and sense of community as ‘‘concentrated, personal, and intense.’’

Neither the gay group nor the religious group should be forced to hire employees

opposed to their deepest commitments.

On the other side of the balance, the unavailability of these jobs to potential applicants would be, in all but the most unusual cases, ‘‘diffuse, general, and mild.’’ All

the other jobs in the economy would remain open; those applicants would lose one

possible job out of many. But the employer would lose the unified commitment in

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the only such enterprise he has. The harm to the employer is concentrated, and the

harm to applicants is usually diffuse.

The harm to applicants is also usually mild, because few persons want to work

in a job whose purpose and mission they reject. Indeed, this issue of commitment

to a religiously infused enterprise nearly always arises in the abstract, when a small

employer with a religious mission refuses on principal to sign a nondiscrimination

pledge. There are hardly any real cases in which a person with radically different

values applies, is rejected, and sues.

As the employer becomes larger, or the nature of the work becomes less integrated with religious mission, this balance of interests changes. Soon it becomes impossible for the employer to show a substantial burden on religious exercise, and

the state’s interest in regulation grows in direct proportion to the number of jobs

at issue.

The analysis of apartments is similar but not identical. As I said in response to

Senator Leahy’s Question 5, the only landlords who can make a plausible claim of

burden on religious exercise are those who are personally involved in managing a

small number of units. It should not matter whether the unit is owner occupied;

that is a feature of concessions made in the fair housing laws to racists acting out

of simple bigotry or revulsion at physical proximity; that exemption requires no

claim of religious conscience.

If these small landlords are forced to put their property to uses they consider immoral, their sense of sin is personal, and the proportion of their property affected

is substantial. If they let their property be used for prostitution, or drug dealing,

or pollution, courts and legislatures would agree that they are legally and morally

responsible for what their tenants do on their property. It should not be so surprising that they also feel morally responsible for other tenant activities that they believe to be immoral. So the harm to the small landlord is concentrated, personal,

and intense. But again, all the other apartments in the economy remain open to the

potential tenant. In all but unusual cases, the loss to the tenant is diffuse, general,

and mild. If the landlord were permitted to openly advertise his policy, no one ever

need be embarrassed or inconvenienced by inspecting an apartment that would not

be available to them.

The country is deeply divided over the morality of various kinds of sexual behavior. On both sides of this debate, the people most affected are minorities—sexual minorities on one side, and religious minorities deeply committed to traditional sexual

morality on the other. People in each of these minority groups are entitled to live

their lives according to their own values, without having the other side’s values imposed on them. For that to happen, both sides need some space in which they get

to run their own lives. This dispute over small landlords and small religious employers is really a debate over how to divide personal space. Neither side should be entitled to invade and control the personally managed property and workplaces of the

other. I have repeatedly said that the way to achieve justice for both sides is to

enact strong gay rights laws with strong protections for religious liberty.

If there were ever a showing in any of these cases that gays or unmarried couples

were having actual difficulty finding employment or housing, that would change the

balance and greatly strengthen the claim of compelling interest. But there have

been no such cases. This has been largely a symbolic turf fight, about whether one

side of a deeply felt moral divide can force its views and conduct inside the other’s

personal space. With respect to the sorts of employers and landlords who could

make a plausible claim under RLPA, I stand by my answer of a year ago: the violation of religious liberty is concentrated, personal, and intense; the harm to those

who have access to all the rest of the jobs and apartments in the economy is diffuse,

general, and mild.

Finally, I should note one other thing. You ask about single mothers, but none

of these cases has involved a single mother, and a single mother would not trigger

the same objection from the religious landlords who are making these objections.

Whatever her past behavior might have been, they certainly have no moral objection

to her caring for her child.

(B). Your theory seems to assume that in religious accommodation cases the extent to which the accommodation places ‘‘concentrated costs on others’’ will influence

the outcome of a court’s compelling governmental interest analysis. Beyond the race

context, what case law can you cite to support this proposition?

Answer 1B. There have not been many such cases, probably because the point is

so obvious that the cases do not arise. Everyone agrees that I cannot impose the

costs of my religious observance on you, or vice versa.

A clear and controlling example is Estate of Thornton v. Caldor, 472 U.S. 703

(1985), in which the Court struck down a law giving employees an absolute right

to be absent from work on their Sabbath. The law violated the Establishment

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Clause, because the absolute right took no account of the cost to the employer or

other employees. The Court said this violated ‘‘a fundamental principle of the Religion Clauses, so well articulated by Judge Learned Hand: ‘The First Amendment

* * * gives no one the right to insist that in pursuit of their own interests others

must conform their conduct to his own religious necessities.’ ’’ Id. at 710. In Thornton itself, there were only four people who did Thornton’s job, and one of them had

to be in the store at all times. If Thornton had an absolute right not to work on

Sunday, the others had to work every third Sunday instead of every fourth Sunday.

That is not a large cost, but it is not trivial, and it was highly concentrated. If such

a concentrated cost makes an accommodation violate the Establishment Clause,

then avoidance of such a concentrated cost would have to be a compelling governmental interest under RLPA. Any other interpretation would mean that RLPA

would violate the Establishment Clause as applied to such cases.

Question 2. If an individual raises a RLPA defense to the application of an antidiscrimination statute (e.g., one prohibiting sexual orientation or marital status discrimination in housing and employment) and demonstrates that the law is a burden

or substantial burden on his free exercise of religion, will the plaintiff who is seeking to vindicate her rights under that anti-discrimination law individually bear the

responsibility—assuming the state does not intervene in the case—of proving that

the law is the least restrictive means of furthering a compelling governmental interest?

Answer 2. Yes.

(A). If yes, on what policy grounds can Congress justify placing this costly and

potentially onerous burden on an individual who is simply attempting to vindicate

his or her statutorily protected right under state law to be free from discrimination?

Answer 2A. On multiple grounds. First, there is no reason to assume that the

state agency will not intervene to defend the statute it is charged with enforcing.

Such agencies have appeared in many of the cases that gave rise to this controversy.

If the agency does not appear (or even if it does), civil liberties, gay rights, and other

public interest groups committed to that side of the controversy can appear as intervenors or amici.

Second, there is no reason to assume that the burden will always, or even usually,

be costly and onerous to fulfill. It is far more likely that within a few years there

will be settled rules that each type of civil rights law either does or does not serve

a compelling interest by the least restrictive means, and this litigation will be reduced to routine enforcement actions. We are in a period of test cases right now because marital status and gay rights laws are new, but that is a temporary situation.

Third, even in the test cases, these issues have not required complex trials. No

agency has undertaken to prove that widespread discrimination has made it difficult

for gays or unmarried couples to find housing or jobs, partly because they think they

can win without that, but also because it almost certainly isn’t true. A trial on that

kind of issue would be expensive, but no such trials have been held. The compelling

interest argument in these cases has been principally a legal argument, settled by

filing briefs. That form of litigation is no more expensive for the side with the burden of proof than for the side without it.

Fourth, the compelling interest test makes no sense if the burden of persuasion

is not on the party asserting the compelling interest. If Congress shifted the burden

of proof in cases where an individual plaintiff appeared without government support, it would destroy the integrity of the test, risking inconsistent results on the

same issue depending on who the parties were. And it would perversely discourage

state agencies from intervening to support plaintiffs suing under the agency’s statute. The private plaintiffs would not be better off in such a scheme.

(B). If no, why not?

Answer 2B. This question is not applicable. I said yes to the underlying question.

Question 3. If a pervasively-sectarian religious organization receives federal funding through a state for purposes of administering a social service program and that

organization begins requiring beneficiaries to undergo proselytization in exchange

for participating in the program, would the RLPA or the RFRA prevent the state

or federal government from cutting the funding of that organization?

Answer 3. No.

(A). If yes, please cite to the applicable RLPA provision.

Answer 3A. This question is not applicable. I said no to the underlying question.

(B). If no, why not?

Answer 3B. Because the use of federal funds to coerce citizens to undergo proselytization would be a core violation of the Establishment Clause, and, redundantly,

because the government’s desire to avoid coercing or infringing the religious liberty

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of the program beneficiaries would be a compelling governmental interest. The rules

of construction in §§ 5(c) and (d), declaring neutrality on funding issues, would reinforce this result. And the program beneficiaries would themselves have a claim

under RLPA, not against the religious agency, but against the government for failing to provide an alternative that delivered the social services without burdening

their own religious exercise.

Question 4. To what extent, if any, does the provision in Section 5 of the RLPA

stating ‘‘this Act may require government to incur expenses in its own operations

to avoid imposing a burden or a substantial burden on religious activity’’ run afoul

of the principle that the Eleventh Amendment protects state treasuries?

Answer 4. It does not run afoul of that principle. The Eleventh Amendment protects state treasuries from having to pay the state’s debts or any form of compensation for past wrongdoing. The Eleventh Amendment does not protect state treasuries from the cost of compliance with federal law. The distinction is between retrospective monetary relief, however described, and the consequences of future compliance with judicial decrees interpreting and enforcing federal law. The leading case

is Edelman v. Jordan, 415 U.S. 651 (1974), written by then Justice Rehnquist and

reaffirmed in Alden v. Maine, 119 S.Ct. 2240, 2267 (1999).

RESPONSES OF DOUGLAS LAYCOCK TO QUESTIONS FROM SENATOR FEINGOLD

Question 1. If the Senate passes an amended version of the House bill (H.R. 1691)

that includes exemptions for civil rights, domestic violence and child health and

safety, what would be the effect, if any, on the free exercise of religion? What would

be the worst case scenario, in terms of potentially hampering the free exercise of

religion? Do you have any concerns about the constitutionality of including these exemptions (civil rights, domestic violence and child safety and health)?

Answer 1. The immediate effect would be to authorize substantial burdens on religious liberty even in the few cases in these categories in which there is no compelling reason to do so. In the domestic violence and child health and safety cases,

there is essentially unanimous agreement that the state has a compelling interest

in responding to real threats to health and safety. An exemption would matter only

in cases of overreaching by enforcement authorities or by relatives in conflict with

the custodial parent. By definition, they would be cases in which there was no real

violence or harm to the child.

There are deadly serious people who believe that most religious instruction, including core Christian doctrine, is harmful to children and a form of child abuse.

James G. Dwyer, Religious Schools and Childrens’ Rights (Cornell University Press

1998). Such activists are unlikely to get a state to act directly on that view, but they

will seek targets of opportunity, find noncustodial parents or relatives to file complaints, and challenge unusual religious practices where they think a social worker

might be persuaded. There are people who believe that a single day of fasting is

a form of abuse, or that a single swat on the bottom is a form of abuse, despite the

absence of any continuing physical effects. An exemption from RLPA would be irrelevant to cases of real abuse; its only direct effect would be to encourage marginal

cases such as these. Among its indirect effects would be to encourage the long-term

dream of those people who want to prevent disapproved religions from transmitting

their faith to the next generation. The implicit message would be that where children are at issue, Congress believes that religious parents have no rights.

A civil rights exemption is more complicated; it would address a wider range of

cases. I discussed some of these cases in my written testimony on September 9, and

I cannot do better than to repeat those examples here. Most obviously, there are

claims of religious discrimination against religious organizations. The clearest example is the line of cases typified by Hsu v. Roslyn Union Free School District No. 3,

85 F.3d 839 (2d Cir. 1996). Similar cases have arisen on college campuses around

the country. Each such case involves a student religion club of a particular faith,

which requires a statement of faith for membership, for voting, and/or for holding

office. In the name of civil rights, the school argues that the statement of faith is

a form of religious discrimination, and demands that the club abandon the statement of faith or be dissolved as a campus organization. In Hsu, the court reached

the remarkable conclusion that a Christian club could require that its President,

Vice-President, and Music Coordinator be Christians, but that it could not require

that its Secretary, its Activities Coordinator, or its members be Christian. On the

same theory pursued in Hsu, a church may be a place of public accommodation that

discriminates on the basis of religion. These cases mistake the existence of religious

organizations for religious discrimination. In Hsu, the club relied on the Equal AcVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00160 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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cess Act, but that Act does not apply to the college cases. RLPA should be available;

a civil rights amendment would make it unavailable.

RLPA is needed in other cases where civil rights laws are overextended or simple

religious speech is mischaracterized as religious harassment vulnerable to a civil

rights claim. A Pennsylvania court has held that an employer engaged in illegal religious discrimination when he printed religious articles in the company newsletter

and printed Bible verses on company checks. Brown Transport Corp. v. Commonwealth, 578 A.2d 555, 562 (Pa. Commw. Ct. 1990). In Colorado, the civil rights law

protects smoking, gambling, collecting pornography, and any other ‘‘lawful activity

off the premises of the employer during nonworking hours.’’ Colo. Rev. Stat. § 24–

34–402.5 (1) (Supp. 1998). I discussed other potential applications of this remarkable civil rights law in response to Question 6 from Senator Leahy. It is simply not

possible to say, across the board, that any religious liberty claim is subordinate to

any other claim that can be brought under a civil rights statute.

A civil rights exception would also invite challenges to familiar religious practices,

presenting difficult issues that should be left unresolved until and unless they arise.

Catholics and Orthodox Jews restrict the priesthood and rabbinate to males, in violation of the literal language of the employment discrimination laws. Convents and

monasteries rent dwellings, within the definitions in some fair housing acts, to only

one sex and to adherents of only one religion. Religious organizations operate retirement residences and nursing homes, and some may give priority to their own members. Some churches and other religious organizations require church employees to

adhere to the religion’s moral code; as applied to unwed mothers, this is easily converted to a claim of pregnancy discrimination.

Current law in many states permits religious organizations to prefer employees

of their own faith to do the organization’s work, but not all states have such exemptions, and there are many ambiguous limits to its reach in states that have it. A

Jewish organization’s preference for Jews might be attacked as racial rather than

religious. Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). The Texas Attorney General has attacked a Christian organization’s preference for Christians, insisting that only a preference for particular denominations is within the statutory

exception. Speer v. Presbyterian Children’s Home, 847 S.W.2d 227 (Tex. 1993). That

issue remains unresolved. A preference for persons of any faith so long as they are

not overtly hostile to the religious mission is probably unprotected by these exemptions. It is not settled that these exemptions allow churches to avoid employees who

behave in ways inconsistent with a nominal or stated religious affiliation. And in

states without such exemptions, an across-the-board civil rights exception to RLPA

might force churches to hire employees, even in sensitive positions, who flouted

their most fundamental moral and theological commitments.

Finally, there are the difficult cases I discussed in response to Question 1 from

Senator Kennedy. I believe that certain small and intensely religious enterprises

should be protected, even if they are engaged in secular activities as well. The

courts are deeply divided on that question, and these claims might lose even under

a RLPA with no exceptions. I am confident that larger commercial enterprises would

lose on any RLPA claim to exemption from a civil rights law. Without repeating everything I said in response to Senator Kennedy, let me add here that a civil rights

exception designed to cut off these few cases would be gross overkill, and that its

principal effects would be on the cases discussed in the four paragraphs preceding

this one.

Any exception also has the indirect effect of inviting requests for more exceptions,

in this Congress or subsequent Congresses. Exceptions abandon the principle that

all attempts to regulate religious practices are adjudicated under a uniform standard that is equal for all; it puts Congress in the position of voting on which religious

practices it approves and which it disapproves. That is precisely the evil of Employment Division v. Smith that this bill is intended to fix. Three exceptions would carry

us much further in that direction than one exception—probably past the point of no

return.

I do not believe that the exceptions you ask about would be unconstitutional.

Some of them would be superseded by surviving constitutional protections. If the

Supreme Court is serious about hybrid rights, then parent-child cases are the clearest example of a hybrid right. Lower courts have continued to protect the right of

religious organizations to select their own clergy, even after Smith. Recent landlordtenant cases have been litigated under state and federal constitutions, not under

RFRA. Exceptions to RLPA would not end this constitutional litigation.

Question 2. What are your views of the merits of addressing religious freedom concerns by drafting a statute that is ‘‘issue-specific’’ (i.e., statute would address specific

areas like land use regulation that might conflict with the free exercise of religion)

rather than adopting the House bill? If the Senate drafted an issue-specific bill,

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what issues do you believe have a sufficient congressional record to be included in

such a bill and could withstand Supreme Court scrutiny?

Answer 2. Well-drafted issue-specific bills are desirable, but they are no substitute

for RLPA. Issue-specific bills have the advantage that they can deal specifically with

a particular burden on a religious practice, pre-empting arguments that it is not

really a burden or that it is justified by a compelling interest. A clear example is

the Religious Liberty and Charitable Donations Protection Act (principally codified

at 11 U.S.C. § 548), which clearly resolved a problem that had given rise to much

litigation under RFRA and the Free Exercise Clause.

Issue-specific bills have the disadvantage that if they end in legislative compromise, they may legislate restrictions on religious liberty instead of protections.

And they have the separate disadvantage that they solve a problem only after it has

done so much damage that it comes to widespread public attention. These two disadvantages are mutually reinforcing; legislative efforts after a problem is repeatedly

litigated and comes to widespread public attention tend to turn into an interest

group battle in which Congress is lobbied to suppress rather than protect the religious practice at issue. This country needs, and historically has had, a general principle of religious liberty, always available for application to new problems as they

arise. In a nation with enormous religious diversity and pervasive regulation, it is

impossible to anticipate all the religious liberty problems that will arise and to draft

issue-specific legislation to deal with those problems. Many of the worst cases arise

only once, or a handful of times.

If the Senate were to turn to issue-specific bills, a land use bill is drafted and

ready, principally in § 3(b) of RLPA. Only in land use has Congress assembled a

record that would support legislation under the Enforcement Clause of the Fourteenth Amendment. Other issue-specific bills, at least in this Congress, would have

to be under Article I powers that do not require the same sort of record. These bills

would also have to be drafted from scratch. They would need to address a diverse

set of problems, each issue-specific bill covering a few cases. RLPA is a far more

workable approach.

Question 3. Please describe your version of the ideal legislation to address concerns with constraints on the free exercise of religion.

Answer 3. My ideal legislation would be RFRA without the needlessly

confrontational statement of Congressional findings. Given the decision in City of

Boerne v. Flores, 521 U.S. 507 (1997), RLPA may be the best we can do.

Question 4. In your written statement submitted to the Committee, you state that

‘‘a civil rights exception would be a blunderbuss.’’ Can you think of any other way

to prevent the House bill from being used to infringe upon the rights of racial and

ethnic minorities, gays and women?

Answer 4. Even in its present form, the bill cannot be used to infringe upon the

rights of racial and ethnic minorities or women, even in the broadest conception of

those rights. The Supreme Court has held, in a free exercise case, that eradicating

racial discrimination in education serves a compelling interest by the least restrictive means. Bob Jones University v. United States, 461 U.S. 574, 604 (1983). The

Court has held, in free speech cases, that eliminating sex discrimination in places

of public accommodation serves a compelling interest by the least restrictive means.

Board of Directors v. Rotary Club, 481 U.S. 537, 549 (1987); Roberts v. United States

Jaycees, 468 U.S. 609, 623–29 (1984). Dictum in Rotary Club said generally (without

regard to the basis of discrimination) that ‘‘public accommodations laws ‘plainly

serv[e] compelling state interests of the highest order.’ ’’ 481 U.S. at 549. Race discrimination is even more suspect than sex discrimination, and employment is at

least as important as public accommodations. Those who resist civil rights laws in

the name of religion will, in nearly every case, lose. With or without RLPA, the only

religious liberty claim that can prevail against a claim of race or sex discrimination

is the right of religious organizations to choose their own employees for clergy and

similar positions.

The political issue is about gays, and even that grossly overstates it; few claims

of gay rights would be affected. RFRA passed this body 97–3, and the only thing

that has changed in the interim is a handful of cases about small religious landlords

refusing to rent to unmarried couples. Not one of these cases has involved gays.

There is only the fear that some religious landlord might someday discover a gay

tenant or prospective tenant and make the same objection. Respected Senators are

prepared to filibuster against the whole idea of religious liberty just to protect the

right of gays to impose themselves on a handful of deeply religious landlords owning

a handful of apartments.

If the fear is that larger landlords could successfully invoke RLPA, I think that

fear is without foundation. Courts are intensely skeptical of claims that large imperVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00162 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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sonal operations are really religious, and if the number of RLPA claims ever began

to affect the supply of housing, the government’s claim of compelling interest would

become much stronger. The Senate could conceivably draft an exclusion of large

landlords to give reassurance on that point, although that has the great danger of

departing from RLPA’s uniform standard and inviting demands for further exclusions. If the Senate were to draft such an exclusion, it could not be confined to

owner-occupied units, for the reasons I explained in response to Question 1 from

Senator Kennedy.

Question 5. What assurances can you give those who are concerned about child

abuse that a child’s parent will not be able to rely on RLPA as a defense to avoid

charges of child abuse and argue that his or her religious beliefs sanction such

abuse? Please describe how the assertion of such a defense ought to be handled by

a court under RLPA.

Answer 5. As I indicated in response to your Question 1 to all witnesses, everyone

agrees that protecting the health and safety of children is a compelling governmental interest. This is so well settled that there are hardly any cases challenging

it. In Lundman v. McKown, 530 N.W.2d 807 (Minn. Ct. App. 1995), the Christian

Science case that Senator Leahy asked about, both sides agreed that protecting the

child was a compelling interest. The religious claimants made least-restrictivemeans arguments that the court quickly rejected. Another example, involving a

much lower threshold of possible harm to a child, is State v. Corpus Christi People’s

Baptist Church, 683 S.W.2d 692 (Tex. 1984), holding that state licensing and enforcement of state standards in a religious childrens’ homes is the least restrictive

means to serve the compelling interest in protecting the children. It appears to have

been undisputed that the actual quality of care in the homes was high.

I have not done a thorough search, but I am not aware of any reported case involving a religious defense of child abuse. If such a case ever arose, the court should

reject the RLPA defense. The only significant issue would be the same as in any

other case of alleged child abuse—was there really abuse? If so, the state has a compelling interest in preventing that abuse, and the least restrictive means of preventing it is a means that really works without further risk to the child. If there was

not really abuse, the parent-child relationship is protected by constitutional law and

state policy with or without a religious liberty claim; states do not knowingly remove children from parents who have not actually endangered the child. As I said

before, the principle significance of RLPA in child rearing cases is as an additional

defense to overreaching by state officials or activist litigants.

Question 6. Some people are concerned that under this language, a husband will

be able to rely on RLPA and cite his religious beliefs as a defense for beating his

wife. Is that a reasonable concern? Please describe how the assertion of such a defense ought to be handled by a court under RLPA.

Answer 6. That is not a reasonable concern. This is like the child-beating case,

only simpler. In the case of children, it is necessary to draw the line between reasonable discipline and abuse. That introduces a threshold issue. There is no such

line to be drawn in the case of beating an adult. The strongest conception of religious liberty has never included the right of one person to impose his religious practices on another. See my answer to Question 1(B) from Senator Kennedy. In terms

of the language of RLPA, government has a compelling interest in protecting the

wife.

This case has none of the ambiguities that make the landlord-tenant cases difficult. Those cases turn on the allocation of personal space: the would-be tenants

claim a right to occupy the landlord’s property, and the landlord claims that his own

property is his moral responsibility. There is no such disagreement about the physical person of another: the wife’s body is part of her space and not her husband’s.

She may consent to many intimate touchings, but that does not imply consent to

a beating, and anyway, she can withdraw any consent at will. This is simply not

a hard case.

RESPONSES OF CHAI R. FELDBLUM TO QUESTIONS FROM SENATOR HATCH

A. 14TH AMENDMENT

Question 1. Your first question was whether the ‘‘land use provision is adequately

tailored to remedy violations by governmental entities of religious persons’ constitutional rights.’’ In particular you were concerned ‘‘whether a court might find the bill

indiscriminate insofar as it allows any ‘person’ to bring suit under this provision,

rather than limiting its reach only to individual domiciles, religious assemblies, and

institutions.’’

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Answer 1. I do not think there is a significant problem with the bill allowing any

‘‘person’’ to bring a claim of religious discrimination under the land use provision.

As my testimony indicates, I have serious concerns with the breadth of the Religious

Liberty Protection Act (RLPA), as passed by the House of Representatives. However,

within the areas where Congress has a substantial record of governmental entities

failing to accommodate the needs of religious organizations and individuals (and

land use may well fall into this category), there is no need to limit the claims solely

to religious organizations.

Question 2. Your second question related to the Florida Prepaid decision. You

asked whether the Supreme Court’s ‘‘distinction between intentional and negligent

conduct by a governmental actor,’’ which the Court made in the Florida Prepaid decision, was ‘‘limited to the due process analysis undertaken in Florida Prepaid,’’ or

whether ‘‘a court might similarly ask whether the zoning abuses reflect a careless—

but not intentionally discriminatory—application of zoning laws to religious persons,

and therefore do not provide a basis for Congressional action under the 14th

Amendment.’’

Answer 2. It is always hard to know what the Supreme Court will do in the future. However, I think it is unlikely that the Court will directly import the intentional v. negligent standard, which applies in the due process arena, to the area of

religious discrimination. In any event, however, it seems to me that the core of your

legislative findings in the land use area is that zoning decisions appear to be ‘‘careless’’ rulings against religious assemblies actually mask some discomfort or bias

against such assemblies. Given the difficulty in unmasking such motives, it might

be difficult for such religious assemblies to prevail in a 14th Amendment challenge.

But the essence of Congress’ power to legislate in a prophylactic and remedial manner under the 14th Amendment, see City of Boerne v. Flores, 521 U.S. 507 (1997),

should be sufficient to allow Congress to provide a statutory remedy in precisely

these types of situations.

B. COMMERCE CLAUSE

Question. You note that the Supreme Court’s decision in Lopez requires that the

regulated activities must ‘‘substantially affect’’ commerce in order to come within

Congress’ Commerce Clause power. Hence you ask: ‘‘wouldn’t it be safer, and eliminate the basis for a constitutional challenge to reword the standard to require something like the following—that the Act extends only to conduct which, when viewed

in the aggregate, would substantially affect interstate commerce?’’

Answer. You could rework the statutory language to explicitly require that the

governed activities ‘‘substantially affect’’ commerce. However, I do not think such a

change is necessary, and I doubt it would make any significant difference to the Supreme Court. As my testimony indicated, I think the Supreme Court (at least with

its current composition) is going to be quite strict in its view of Congress’ Commerce

Clause power. Hence, regardless of what Congress sets forth in a statute (either in

the findings or in the statute’s jurisdictional requirements), the Court will apply its

own view as to whether the regulated activities—in the aggregate—substantially affect commerce. You could change the language in the bill to signal to the Court that

you understand the limitations or your Commerce Clause power at this time. On

the other hand, since it is impossible to know whether a future Supreme Court

might expand the scope of Congress’ Commerce Clause power, I am not sure you

would want to codify the current limitations on your power into statutory language.

C. FEDERALISM

Question. You ask whether, in light of Alden v. Maine (in which the Supreme

Court made ‘‘clear that suits for damages against states and state agencies are

viewed as incompatible with state sovereignty’’), shouldn’t RLPA ‘‘clarify on its face

that it does not purport to authorize such suits?’’

Answer. There is no need for such a clarification. Unless Congress expressly states

that the legislation it passes abrogates state sovereign immunity, such abrogation

will not occur. See Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). Given

the Supreme Court’s clarity and consistency on this point, I have no doubt that suits

for damages against the states are not authorized under RLPA as currently drafted.

(Of course, even when Congress does include an express statement of the type required, the legislation must have been passed pursuant to Congress’ 14th Amendment power or Spending Clause power for that abrogation to be effective.)

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D. RULES OF CONSTRUCTION

Question. You ask whether the rules of construction in the House-passed RLPA

are clear, appear constitutional, and could benefit from modification.

Answer. Most of the rules of construction seem clear to me; a few seem a bit obtuse. This is not surprising. Most construction provisions are drafted to respond to

particular concerns and fears on the part of those negotiating a bill. Thus, while

these provisions are very clear to the parties who have developed them, those provisions are often less than clear to a reader not involved in the negotiations.

It does not seem to me that any of the rules of construction raise constitutional

problems.

I do not have a strong opinion as to whether the rules could benefit from modification. As I noted, most construction provisions are negotiated to respond to a particular fear or concern. Often these provisions are completely unnecessary and redundant, and so the best modification is simply to delete them. (Certainly, a number

of the rules of construction in the House-passed RLPA seem completely unnecessary—as a legal matter.) However, if one is interested in having the underlying bill

pass, any such deletions or modifications can be problematic—as a political matter.

If RLPA were redrafted to respond to more targeted areas of concern, as I suggest

in my testimony, some of these rules of construction may not be as necessary.

RESPONSES OF CHAI R. FELDBLUM TO QUESTIONS FROM SENATOR LEAHY

Question 1. You note that ‘‘unlike Title VI and Title IX, RLPA does not permit

the Federal Government to deny or withhold Federal financial assistance as a remedy for a statutory violation,’’ and thus you ask whether this takes RLPA ‘‘outside

the usual concept of Spending Clause power.’’

Answer 1. You raise a very interesting question, and one on which the Supreme

Court has not yet directly ruled. It is true that Title VI of the Civil Rights Act of

1964 and Title IX of the Education on Amendments of 1972 permit the federal government to withhold funds as a remedy for a violation of the law. As a practical

matter, however, the federal government rarely takes such a step, and instead uses

litigation to enforce compliance with these laws.

It is an intriguing question, however, whether the absence of statutory authority

to withhold federal funds as a remedy for a violation of the law might be viewed

by the Supreme Court as undermining Congress’ claim that the law was passed pursuant to Spending Clause power. I would certainly hope not, but as I have noted

before, one can not be certain about what the Supreme Court will do in these areas.

I believe such a conclusion, if reached by the Supreme Court, would be wrong.

The conceptual underpinning of Spending Clause power is that States are free to

accept federal funds with conditions attached, or to decline such funds. Whether

Congress also decides that withdrawal of Federal funds will or will not be a possible

remedy for a violation of such conditions should not be a determining factor in

whether the Spending Clause power has been legitimately exercised. Presumably,

however, we will hear from the Supreme Court in the future if it disagrees with

this reasoning.

Question 2. You ask whether Thomas v. Municipality of Anchorage, 165 F.3d 692

(9th Cir. 1999) was correctly decided, ‘‘both with regard to its hybrid rights theory,

as well as with regard to its conclusion about the government’s lack of a compelling

interest.’’

Answer 2. I believe Thomas v. Municipality of Anchorage is a poorly reasoned,

and incorrectly decided, case with regard to both its hybrid rights theory and its

conclusion regarding government’s lack of a compelling, interest. The case, however,

is a stark example of the type of challenges to civil rights laws that will arise if

RLPA is passed in its current form.

The Ninth Circuit concluded that an apartment owner’s speech rights were implicated by an Alaska housing law that prohibited landlords from renting to unmarried

couples. The court reasoned that since the owner could not ask tenants about their

marital status, or run advertisements stating that apartments would be available

only to married couples, the owner’s freedom of speech was burdened. Once a claim

other than religious liberty was presented in the case, the claim was transformed

into one of ‘‘hybrid rights,’’ and the lenient standard of Employment Division v.

Smith no longer applied. Having reached that conclusion, the court proceeded to

subject the Alaska housing law to strict scrutiny.

The issue of ‘‘hybrid rights’’ is complicated, primarily because the Supreme

Court’s opinion in Smith does not clearly explain how the hybrid rights theory is

to operate or the conceptual underpinnings of such a theory. While the Ninth CirVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00165 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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cuit panel makes a valiant effort to develop a coherent theory, it ultimately fails

to be particularly satisfying. Any neutral law that burdens a religious practice will

presumably also burden, in some way, that person’s religiously motivated speech

about the practice. If that fact on its own creates a colorable First Amendment

speech claim, and thereby transforms the case into one of hybrid rights, it is difficult to see what remains of the reasoning and holding of Smith. (One might like

this as a policy matter, but it does not make for particularly coherent constitutional

law. If a landlord has a valid First Amendment speech claim against the government, that is the claim that should be brought directly.)

Once it applied a strict scrutiny test, I think the court wrongly concluded that

the State of Alaska did not have a compelling interest in eradicating marital status

discrimination. The fact that there is no ‘‘firm national policy’’ against marital status discrimination, and the fact that the Supreme Court has never accorded classifications based on marital status strict scrutiny—two principal facts relied on by the

Ninth Circuit—does not seem sufficient to answer the question whether the State

of Alaska appropriately considered the eradication of marital status discrimination

to be of compelling interest. Clearly, the legislature felt a need to establish civil

rights protections on the basis of marital status, and it seems a bit presumptuous

on the part of the court to decide that meeting such a need was not really a ‘‘compelling government interest.’’

Question 3. You ask whether there is ‘‘any pre-Smith in which the Supreme Court

affirmed the use of the compelling interest test, where accommodation of the religious beliefs of one person would have infringed other legally cognizable rights of

another person.’’

Answer 3. In all of the pre-Smith religious accommodation cases that I have read

(in which the Supreme Court ostensibly applied the ‘‘strict scrutiny’’ standard). I

have not seen a case in which accommodating the religious beliefs of the person

pressing the claim would have resulted in actual harm to another individual. Rather, in these cases, the religious individual is usually seeking some exemption or

modification from a governmental policy—for example, not having to receive a Social

Security number to receive benefits—where the granting of the exemption or modification would not be detrimental to anyone else.

The only closely analogous situation would be that of Bob Jones University v. United States, 461 U.S. 574 (1983). In that case, the two universities (Bob Jones

and Goldsboro) argued that the government’s decision to deny them tax-exempt status because certain of their policies took race into account (e.g., a policy prohibiting

interracial dating) was a violation of their Free Exercise rights. The Supreme Court

accepted that the race-conscious policies of the schools were based on sincere religious beliefs, but concluded that the government’s interest in eradicating even any

vestiges of racial discrimination was compelling and that denial of tax-exempt status was a narrowly tailored means to achieving that objective.

Question 4. You asked for a comment on ‘‘the possible import of Bradley [v. Arkansas Dept. of Education], on section 2(a)(1) of the RLPA, which prohibits States from

burdening a person’s religious exercise in ‘any program of activity that receives federal financial assistance.’ ’’ In Bradley, as you note, ‘‘the court reasoned that § 504

was not a valid exercise of Congress’ spending power ‘because it amounts to impermissible coercion.’ ’’

Answer 4. I believe the Bradley decision was wrongly decided, but the key issue

will be what guidance the Supreme Court gives us in the future regarding possible

limitations on Congress’ Spending Clause power. The Bradley court assumed that

so much money was at stake for any State that violates the requirements of § 504

of the Rehabilitation Act of 1973 that it is impossible to say that a State had voluntarily ‘‘consented’’ to such conditions. But it is far from clear what funds are actually

at stake in any particular § 504 case. I think it is prudent to wait for additional case

law in this area to develop before reaching conclusions regarding the scope of Congress’ Spending Clause power.

RESPONSES OF CHAI R. FELDBLUM TO QUESTIONS FROM SENATOR KENNEDY

Question 1. You ask for a comment on the proposition, articulated by Professor

Laycock, that ‘ ‘‘[t]he cost of a burden on the right to exercise one’s religion is usually concentrated, personal, and intense; the cost of permitting someone else’s religious exercise is usually diffuse, general, and mild * * * Where this is not true—

where a proposed exercise of religion imposes concentrated costs on others—the

compelling governmental interest test will usually be met.’ ’’

You particularly ask how this theory can be reconciled with the impact that ‘‘accommodating a free exercise claim could have on a single mother or gay person who

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1 It is certainly true that some religious individuals will not experience the burden on their

religious beliefs as intensely as others. One would hope, however, that such individuals would

have the integrity not to bring a RLPA claim in the first place. Of course, some such individuals

might bring such a claim simply to avoid compliance with a civil rights law—in which case, the

religious burden on them would not be sincerely experienced as personal and intense. however,

I like to believe there are people who sincerely experience the burden as personal and intense,

and that is why they seek RLPA-like protection.

has been refused a job or an apartment because of their marital status or sexual

orientation.’’

Answer 1. In many cases, the burden on a religious individual of a neutral law

of general applicability will, in fact, be intense and concentrated for the individual,

while the cost of granting that individual an accommodation from the burden will

be diffuse and mild for society at large. For example, as I noted in one of my responses to Senator Leahy’s questions, in most published cases that I have reviewed,

a religious individual is usually seeking some exemption or modification from a governmental policy—for example, not having to receive a Social Security number to

receive benefits—and receiving the exemption or modification would not particularly

harm society in any way.

In certain limited cases, however, this proposition will not hold true. As your

question recognizes, some individuals hold certain religious beliefs (e.g., homosexuality is sinful; extra-marital sex is sinful) that will impact more directly on the

life and dignity of other individuals—for example, gay people or women who have

had children out of wedlock. In such cases, the clash between the religious beliefs

of one individual, and the sense of self, personhood and dignity of another individual, necessary will result in the religious burden being experienced as intense and

personal—and the impact of accommodating that religious belief concomitantly

being experienced as intense and personal.1 Thus, for example, if a gay person, or

an unwed mother, is denied a job or an apartment by people who believe that such

denial is mandated by their religious beliefs, the individuals denied such opportunities will not experience the impact of accommodating the religious beliefs of others

as ‘‘diffuse, general, and mild.’’

Nor will it be much solace to individuals who are denied job or housing opportunities to be told that they can conceivably find another job or seek out another apartment. The blow to the dignity and self-respect to that individual of being denied an

opportunity granted to all others, solely because of an essential aspect of their

personhood, is not alleviated simply because of the fact that they can ‘‘go elsewhere.’’ The bottom line is that, in circumstances such as these, the experience is

intense and personal for everyone.

Question 2. You ask whether a plaintiff who is seeking to vindicate her rights

under an anti-discrimination law, and faces a defendant who raises a RLPA defense,

would be required to ‘‘individually bear the responsibility—assuming the state does

not intervene in the case—of proving that the law is the least restrictive means of

furthering a compelling government interest.’’ If the answer is ‘‘yes,’’ you ask ‘‘on

what policy grounds can Congress justify placing this costly and potentially onerous

burden on an individual who is simply attempting to vindicate his or her statutorily

protected right under state law to be free from discrimination.’’

Answer 2. There is no doubt that a plaintiff faced with a defendant who raises

a RLPA defense will have to prove that the state civil rights law at issue is the least

restrictive means of furthering a compelling government interest. This will be a difficult and costly proposition for the plaintiff. Thus, in response to your second question. I do not believe it is appropriate for Congress to place this type of burden on

individual plaintiffs. Congress is creating a new statutory right through passage of

RLPA. It has an obligation to carefully analyze the type of litigation that will arise

under the law, and to reduce any unnecessary or unwarranted effects of the law.

It is clear that RLPA defenses will be raised in civil rights cases, and thus as a policy matter, Congress must consider what hurdles and costs are appropriate (and inappropriate) to erect in such cases.

Question 3. You pose the following hypothetical: ‘‘If a pervasively sectarian religious organization receives federal funding through a state for purposes of administering a social service program, and that organization begins requiring beneficiaries to undergo proselytization in exchange for participating in the program,

would the RLPA or the RFRA prevent the state or federal government from cutting

the funding of that organization?

Answer 3. I should hope not. Such actions on the part of the religious organization

would run afoul of the Establishment Clause, and the governments providing the

funding would—as a constitutional matter—be required to withdraw such funding.

A statutory defense could not overcome such a constitutional defect.

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Question 4. You ask whether the provision in section 5 of RLPA, that provides

that government may be required to incur expenses in order to avoid imposing a

burden on religious activity, ‘‘runs afoul of the principle that the Eleventh Amendment protects state treasuries.’’

Answer 4. I do not believe this provision violates the Eleventh Amendment—at

least insofar as the Supreme Court has interpreted the Eleventh Amendment up

until this point. Over the years, the Court has consistently held that the Eleventh

Amendment bars retrospective monetary relief, and does not bar the expenditure of

funds for future compliance with federal law. See, e.g., Edelman v. Jordan, 415 U.S.

651 1974). Assuming that Section 5 of RLPA falls into the latter category of prospective costs which, to me, appears to be the correct category), there should not be an

Eleventh Amendment problem with this provision.

RESPONSES OF CHAI R. FELDBLUM TO QUESTIONS FROM SENATOR FEINGOLD

Question 1. You ask what would be the effect on the free exercise of religion if

the Senate included exemptions for civil rights, domestic violence, and child health

and safely, in RLPA. You also ask whether such exemptions would be constitutional.

Answer 1. I believe such exemptions, if included by the Senate, would clearly be

constitutional. Congress is creating a new statutory right through passage of RLPA.

If Congress added such exemptions, it would simply be saying—in these particular

areas—that the state has a compelling government interest in providing for the civil

rights of individuals, for the protection of victims of domestic violence, and for children’s health and safety.

Including exemptions for civil rights, domestic violence, and child health and safety in RLPA would have an effect on the free exercise rights of certain individuals.

That is, if such individuals had religious beliefs which mandated them to discriminate against certain individuals, to discipline their spouses through physical force,

or to make decisions that placed their children’s health in danger—such individuals

would not be able to bring a RLPA claim in court to argue for the right to engage

in such activities. Conversely, the individuals who are the objects of such actions

would not be forced to contend with such RLPA defenses in situations where they

are seeking to vindicate their rights.

Question 2. You ask about the ‘‘merits of addressing religious freedom concerns

by drafting a statute that is ‘issue-specific’ ’’ (for example, just land use), and you

ask what issues ‘‘have a sufficient congressional record to be included in such a bill

and could withstand Supreme Court scrutiny.’’

Answer 2. As I discuss in my testimony, I believe the most prudent course of action is for Congress to enact an issue-specific bill. Moreover, as I make clear in my

testimony, I believe Congress has gathered at least an adequate record in the land

use area to justify invoking its 14th Amendment power. I also believe the record

demonstrates significant disregard on the part of governmental officials to the religious beliefs of prisoners, and I believe Congress’ Spending Clause power provides

sufficient authority to address that area.

Question 3. ‘‘Please describe your version of the ideal legislation to address concerns with constraints on the free exercise of religion.’’

Answer 3. As I note above, I believe an issue-specific bill represents the most prudent and appropriate course for Congress to take. The areas of land use and prisons

seem to be the areas that require Congressional intervention.

RESPONSES OF JAY S. BYBEE TO QUESTIONS FROM SENATOR HATCH

Question 1. Is the Religious Liberty Protection Act, H.R. 1691, narrowly tailored

to remedy violations of free exercise rights when Section 3(b)(1) forbids government

from imposing a substantial burden on the free exercise rights of ‘‘a person[]’’ in any

land use regulation or exemption, rather than referring to individual domiciles, religious assemblies and institutions?

Answer 1. Although the incidence of land use regulation that burdens religious

exercise typically falls on individual domiciles, religious assemblies and institutions,

I do not think the legislation would be improved by limiting the language to those

entities. Section 3(b)(1) does not grant rights under RLPA to any ‘‘person’’ but only

to any person whose religious rights have been burdened by land use regulation.

Not all persons whose rights might be burdened by a land use regulation will also

be the property owner. For example, a member of a congregation whose house of

worship was denied a building permit or a zoning variance is a ‘‘person’’ whose religious rights have been burdened, but may not be the owner of record of the church

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property. To The extent that the congregation member has standing to bring a

claim, the broader term ‘‘person’’ would include the member, while the narrower

phrase ‘‘domicile owner, religious assemblies and institutions’’ would not.

Section 4(a), states that ‘‘standing to assert a claim or defense under this section

shall be governed by the general rules of standing under Article III of the Constitution.’’ I would read Section 4(a) as a limitation on who may bring suit; otherwise,

Section 4(a) is surplusage. When Section 3(b) is read in light of Section 4(a), the

use of the term ‘‘person’’ includes only those persons who have Article III standing

to bring the claim, thus giving RLPA it broadest coverage.

Question 2. May Congress, in the exercise of its authority under Section 5 of the

Fourteenth Amendment, address careless, but not intentionally discriminatory, government actions that substantially burden religious exercise?

Answer 2. In Florida Prepaid Postsecondary Education Expense Board v. College

Savings Bank, 119 S.Ct. 2199 (1999), the Court held the Patent Remedy Act exceeded Congress’ power under Section 5 of the Fourteenth Amendment. The Court repeated what it had previously stated in Boerne v. Flores, 521 U.S. 507 (1997), that

legislation enacted under Section 5 must have a ‘‘remedial or preventive object,’’ one

that is ‘‘responsive to, or designed to prevent, unconstitutional behavior.’’ Florida

Prepaid, 119 S.Ct. at 2207 (quoting Boerne, 521 U.S. at 532). The Court found the

Patent Remedy Act was not based on a ‘‘pattern of patent infringement by the

States’’ and could not be said to be remedial. Id.

In Florida Prepaid, the Court pointed out that under the patent laws, a party infringes a patent even if it has acted negligently. Thus, states that have infringed

patents may have done so by their negligent actions. The Court has recognized that

government violates the guarantee of due process by its deliberate actions, not by

its merely negligent acts. See Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986). Merely negligent state actions may infringe a patent (and violate the patent laws) but would not violate the Due Process Clause (because the action was not intentional). Florida Prepaid, 119 S.Ct. at 2209–10. The

Patent Remedy Act was not ‘‘proper prophylactic § 5 legislation’’ because there was

no evidence that the states had infringed patents through ‘‘intentional or reckless’’

acts. Id. at 2210.

The Religious Liberty Protection Act differs from the act at issue in Florida Prepaid in several regards. The exercise of Congress’ Section 5 authority in RLPA rests

only nominally on the Due Process Clause. The Due Process Clause is, of course,

the basis by which the First Amendment has been made applicable to the states,

but the Due Process Clause itself is not involved in religion cases in the same way

that it was involved in the Patent Remedy Act. Although the Court routinely acknowledges that claims that the states have violated the Free Exercise Clause are

based on the First and Fourteenth Amendments, the Court has long ceased citing

the text of the Due Process Clause and relies, jot-for-jot, on the text of the First

Amendment. See, e.g., Lee v. Weisman, 505 U.S. 577, 580 (1992); Everson v. Board

of Education, 330 U.S. 1, 8 (1947). See also West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943). The Court considers claims of religious discrimination against the states on precisely the same terms as similar claims against

the federal government; the Due Process Clause neither adds to nor subtracts from

the analysis used to consider the two claims. See Marsh v. Chambers, 463 U.S. 783,

790–91 (1983).

Until Employment Division v. Smith, 494 U.S. 872 (1990), intentional discrimination was not a necessary element of a free exercise claim. So far as I am aware,

the Court had never held that without an assertion of intentional discrimination,

a free exercise claim was, for that reason alone, flawed. Smith may have changed

this. It may be read to impose an the free exercise of religion what Washington v. Davis, 426 U.S. 229 (1976), demands of race discrimination claims under the Fifth

and Fourteenth Amendments: proof of intent. See Smith, 494 U.S. at 886 n.3. See

also Bowen v. Roy, 521 U.S. 693, 517 (1986). Even if Smith now requires some kind

of proof of intent, that requirement exists by virtue of the First Amendment and

not the Due Process Clause. The Court may prove more sympathetic to careless or

negligent infringement of religious liberty than it would be to negligent infringement of procedural due process rights.

Even assuming that Smith means that any free exercise claimant must assert intentional government discrimination, I do not believe that Congress must assemble

a record in which each and every instance demonstrates irrefutably that a government deliberately discriminated against religion. Indeed, I think it is a premise of

Congress’ use of Section 5 in the land use regulation area, that religious animus

is easily disguised in matters such as zoning cases. As I pointed out in my original

statement to the Committee, zoning cases involve individual assessments, thus making it very difficult for any particular person or institution to prove that he has been

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discriminated against. Even the Court in Smith recognized that ‘‘individualized governmental assessment of the reasons for the relevant conduct’’ may justify a different approach. Smith, 494 U.S. 884. I think what Congress must show to satisfy

Boerne is some kind of pattern of religious animus in land use matters. The pattern

need not be so systematic that Congress must conclude that religious parties always, or even usually, lose in land use proceedings. I believe that a record that

showed that in a number of cases governments intentionally discriminated against

religion, and that Congress found additional evidence that governments had proceeded with reckless indifference or even careless indifference to religious sensibilities should raise a defensible inference that the record demands appropriate remedial and prophylactic measures. Although the Court has never definitively told Congress what kind of factual basis it must have, it at least advised that Congress must

have more than ‘‘anecdotal’’ evidence. Boerne, 521 U.S. at 531.

One of the reasons the Court may give Congress greater leeway in his context

than in Florida Prepaid is that intentional discrimination on the basis of religion

or race is much more subtle, complex, and culturally-bound than intentional violation of patents. Within the academic literature there is much discussion of the contours of subconscious discrimination. See, e.g., Charles R. Lawrence III, The Id, the

Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. Rev.

317 (1987); Charles R. Lawrence III, Book Review, 35 Stan. L. Rev. 831 (1983).

What Professor Lawrence wrote with respect to race, may be equally true with respect to religion: ‘‘Traditional notions of intent do not reflect the fact that decisions

about racial matters are influenced in large part by factors that can be characterized as neither intentional—in the sense that certain outcomes are self-consciously

sought—not unintentional—in the sense that the outcomes are random, fortuitous,

and uninfluenced by the decisionmaker’s beliefs, desires, and wishes.’’ Lawrence, 39

Stan. L. Rev. at 332. The RLPA is prophylactic; it seeks to prevent religious discrimination. If Congress enacts RLPA, it should do so because Congress has determined that land use decisions in the past have been fraught with actual discrimination, and because it is so difficult for religious parties to prove the religious animus.

Question 3. Section 2(a) prohibits government from burdening a ‘‘persons’ religious

exercise * * * in any case in which the substantial burden on the person’s religious

exercise affects, or in which a removal of that substantial burden would affect commerce with foreign nations, among the several states, or with Indian tribes.’’ Should

this language state ‘‘substantially affect’’ or ‘‘substantially affect conduct, which in

the aggregate * * *’’ to conform to the Court’s decision in Lopez?

Answer 3. Given the skepticism with which the Court approached the Religious

Freedom Restoration Act in Boerne, I think that it is important that Congress reduce any potential points of friction between this legislation and the Court’s decisions. Professor Laycock has supplied evidence that in post-Lopez (United States v.

Lopez, 514 U.S. 549 (1995)) decisions, both the Court and lower federal courts have

considered the regulated activity in the aggregate. See Testimony of Douglas

Laycock (Sept. 9, 1999), at 10–11. It might still be prudent for Congress to make

clear that RLPA reaches activities that, considered in the aggregate, substantially

affect commerce. This modest change would (1) make it clear to lower courts that

Congress intended to reach activities that, in the aggregate, substantially affect

commerce, and (2) demonstrate to the Supreme Court that Congress understood the

limitations on its authority outlined in Lopez.

Question 4. In light of Alden v. Maine, should RLPA clarify on its face that it does

not purport to authorize suits for damages against the states?

Answer 4. In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Court

held that Congress may not abrogate state sovereign immunity in federal courts

under its Article I powers. Alden v. Maine, 119 S.Ct. 2240 (1999), made clear that

state courts do not have an obligation to hear such suits. Seminole means that federal courts may not award damages for those actions brought under Sections 2(a)(1)

and (2) of RLPA, because those sections rely on Congress’ spending and commerce

authority, respectively. Alden means that states are immune in any such actions

brought in state court, unless the state consents.

Suits for damages brought under the authority of Section 5 of the Fourteenth

Amendment stand on a different ground. In such actions, Congress may abrogate

state sovereign immunity and impose damages on the states when ‘‘Congress has

‘unequivocally expresse[d] its intent to abrogate the immunity,’; * * * and * * *

acted ‘pursuant to a valid exercise of power.’ ’’ Florida Prepaid, 119 S.Ct. at 2205

(quoting Seminole Tribe, 517 U.S. at 55). Since nowhere in RLPA does Congress unequivocally announce that it is abrogating state sovereign immunity, there is no

need for Congress to announce that it is not doing so. So stating, however, would

not affect the legislation and would remove any lingering doubts.

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Question 5. Are the rules of construction constitutional?

I have just a couple of observations on the rules of construction. In general, I believe that they are unobjectionable. Section 5(f) provides that ‘‘proof that a substantial burden on a person’s religious exercise, or removal of that burden, affects or

would affect commerce, shall not establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any other law.’’ I

understand this provision to mean that finding that a burden on religious exercise

falls within Section 2(a)(2) would not have collateral effect as a matter of law. I do

not think that Congress can forestall the use of such a finding as a matter of fact.

In other words, the facts that bring a state action within Section 2(a)(2) (because

the state-imposed burden affects commerce) will have undoubtedly have some probative value in a subsequent case involving that burden. Section 2(a)(2) merely provides that such effect does not occur automatically.

Question 6. If Congress adopted H.R. 1691 with an exemption for civil rights, domestic violence, and child health and safety, would it affect the free exercise of religion and would such exemptions be constitutional?

Answer 6. I believe that such exemptions would be constitutional, because the exemptions do not exempt civil rights, domestic violence and child health and safety

from any requirement of the First Amendment. RLPA becomes a statutory requirement, and Congress may generally set whatever rules and conditions it wishes. In

some cases, litigants may couple a claim under RLPA with a First Amendment

claim. In that case, the exemptions would not apply to the First Amendment claim,

only to the claim under RLPA.

As for the effect such exemptions would have on religious liberty, these are clashes of titans. The evangelical landlady who refuses to follow the fair housing laws

because her putative tenants are violating what she regards as the commands of

her religion puts the landlady’s rights under RLPA squarely in opposition to her

would-be tenants’ civil rights. This presents a conflict of statutory rights, not constitutional rights.

In the main, I suspect that there will be relatively few issues involving domestic

violence and child health and safety that have not already been confronted by the

courts in the context of the First Amendment.

Question 7. Should religious freedom be addressed by Congress on an issue-specific basis?

As I stated in my written remarks to the Committee on September 7, this legislation is not free from constitutional doubt. I opposed RFRA as beyond the power of

Congress under Section 5. My review of RLPA leads me to conclude that Congress

has solved many of the problems that lead the Court in Boerne to hold RFRA unconstitutional. As my earlier remarks show, I believe that RLPA is most defensible as

an exercise of Congress’ authority under Section 5 which, after Boerne, is most likely to be successful when Congress addresses state violations of religious liberty on

an issue-specific basis.

I thank the Committee for inviting me to testify and to supplement my remarks

through this letter.

RESPONSES OF GENE C. SCHAERR TO QUESTIONS FROM SENATOR HATCH

A. 14TH AMENDMENT

Question 1. Let’s first focus on the land use provision of the bill—which relies

largely on section 5 of the 14th Amendment. Under the Supreme Court’s decision

this June in Florida Prepaid, the Court struck as invalid the Patent and Plant Variety Protection Remedy Clarification Act, holding that Congress must justify an invocation of the 14th Amendment by identifying specific conduct transgressing the

Amendment’s substantive provisions, and tailoring its legislative scheme to remedying or preventing such conduct.

With that preface, do you think the land use provision is adequately tailored to

remedy violations by governmental entities of religious persons’ constitutional

rights? Specifically, I would like your opinion on whether a court might find the bill

indiscriminate insofar as it allows any ‘‘person’’ to bring suit under this provision,

rather than limiting its reach only to individual domiciles, religious assemblies and

institutions.

Answer 1. I believe the land use provision of RLPA is, in fact, adequately tailored

to justify the invocation of Section 5. Florida Prepaid explicitly recognized that Congress has the power under Section 5 to enforce the protections of the Fourteenth

Amendment through substantive or even preventive legislation under two conditions: (1) ‘‘there is reason to believe that many of the laws affected by the congresVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00171 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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sional enactment have a significant likelihood of being unconstitutional,’’ and (2)

there is ‘‘a congruence and proportionality between the injury to be prevented or

remedied and the means adopted to that end.’’ 119 S.Ct. 2206, 2210 (1999).

Section 3(b) is a response to well documented, widespread abuse of land-use regulation to the detriment of religion. The record is replete with statistical and anecdotal evidence of this abuse. Much testimony has already been presented, including,

in particular, that of Von Keetch and Professor Durham before the House Judiciary

Committee. I would also refer to the testimony of Douglas Laycock on July 14, 1998

and May 12, 1999 before the House Subcommittee on the Constitution, and in particular the examples of the Morning Star Christian Church and the Metropolitan

Church in Corinth, Texas. Examples of this abuse are also recited in my previous

testimony before this Committee, including those involving the Society of Jesus, the

Korean United Methodist Church, and the Sacred Heart Catholic Church of San

Francisco. Clearly, creating a cause of action for a ‘‘person’’ whose religious exercise

is substantially burdened by land use regulation is not so incongruous or disproportionate to these recorded problems that reliance on Section 5 of the Fourteenth

Amendment is infirm.

It may be, as the question supposes, that someone other than an owner of a home

or a religious building would bring a claim under this provision of RLPA. That, however, would not be a problem in my view. In the examples cited above, the property

owner was not the only person hurt by the unfair government action. Those who

used the property (or would like to have used it) were hurt as well, even if they

were not owners. Accordingly, I do not believe that a decision to allow non-property

owners to bring claims under this provision would be beyond the scope of the evidence before Congress.

Nevertheless, it also true that, all else being equal, the narrower the sweep of any

law enacted under Section 5, the less likely it is to be invalidated by the courts.

For that reason, the narrowing of this provision that is suggested in the question

may reduce the likelihood of a successful court challenge. But that narrowing, in

my view, is not required by applicable precedent.

Question 2. The Florida Prepaid decision also draws the distinction between intentional and negligent conduct by a governmental actor, suggesting that the latter

type of conduct may not justify Congress’s invocation of the 14th Amendment. Do

you believe this analysis is limited to the due process analysis undertaken in Florida Prepaid, or is it possible that a court might similarly ask whether the zoning

abuses reflect a careless—but not intentionally discriminatory—application of zoning laws to religious persons, and therefore do not provide a basis for Congressional

action under the 14th Amendment.

Answer 2. As I read the Florida Prepaid decision, the Court’s analysis of the distinction between intentional and negligent conduct is expressly limited to alleged

deprivations of due process, and would not apply to deprivations of other constitutional rights. It is important to remember that the Court did not rule that Section

5 cannot be invoked as against unintentional violations of the Due Process Clause.

Instead, the Court echoed an earlier line of cases holding that ‘‘an unintended injury

to a person’s property’’ cannot violate due process at all, because it ‘‘does not ‘deprive’ that person of property within the meaning of the Due Process Clause.’’ 119

S.Ct. at 2209 (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)).

In other words, the Court’s distinction between intentional and negligent conduct

was not designed to draw a line between acceptable and unacceptable uses of Section 5, but between actions that may violate due process and those that do not. By

its terms, that kind of analysis would not apply to government actions that ‘‘abridge

the free exercise’’ of religion within the meaning of the First Amendment, and I am

aware of no case law that so holds.

But even if the distinction made in Florida Prepaid between intentional and negligent action applied, the record before Congress sufficiently indicates the existence

of a problem with intentional discrimination. I again would refer to the testimony

of Von Keetch and Professor Durham before. the House Judiciary Committee, and

of Douglas Laycock before the House Subcommittee on the Constitution, and the examples of abuse involving the Society of Jesus, the Korean United Methodist

Church, and the Sacred Heart Catholic Church of San Francisco cited in my prepared testimony.

B. COMMERCE CLAUSE

Question. The House-passed bill purports to encompass all matters in which a

governmental actor’s substantial burden on a religious claimant ‘‘affects’’ commerce.

Yet the Supreme Court’s decision in Lopez strenuously holds that a constitutional

exercise of the commerce clause must ‘‘substantially affect’’ commerce. Now I supVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00172 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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1See United States v. Melina, 101 F.3d 567, 573 (8th Cir. 1996); United States v. Tocco, 135

F.3d 116, 123–24 (2d Cir. 1998); United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998);

United States v. Cunningham, 161 F.3d 1343, 1345–46 (11th Cir. 1998); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.), cert. denied, 117 S.Ct. 262 (1996); United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); United States v. Gateward, 84 F.3d 670, 671–72 (3d

Cir.), cert. denied, 117 S.Ct. 268 (1996); United States v. Abernathy, 83 F.3d 17, 20 (1st Cir.

1996); United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996); United States v. Bell, 70 F.3d

495, 497–98 (7th Cir. 1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995), cert. denied, 116 S.Ct. 996 (1996); United States v. Hanna, 55 F.3d 1456, 1461–62 & n.2 (9th Cir.

1995).

pose the argument could be made to a court that it should read this requirement

loosely, and find it satisfied if the type of conduct at issue would in the aggregate

substantially affect commerce. But wouldn’t it be safer, and eliminate the basis for

a constitutional challenge, to reword the standard to require something like the following—that the Act extends only to conduct which, viewed in the aggregate, would

substantially affect commerce?

Answer. Even in the wake of Lopez, I believe that Section 2(a)(2) of RLPA, as

written, would be a constitutional exercise of Congress’s Commerce Power under

settled Supreme Court jurisprudence. To be sure, the change suggested in the question would somewhat reduce the chance that RLPA’s application to a particular case

would be found unconstitutional. But for reasons explained below, I do not believe

it is necessary. And the concern underlying this suggestion can largely be addressed

through a congressional finding, either in the legislative history or in a separate

provision of RLPA.

It is of course true that, under Lopez, activity that is constitutionally regulable

under the Commerce Power must ‘‘substantially affect’’ interstate commerce. Lopez,

514 U.S. at 1630. However, the Supreme Court has often upheld regulation of activity that, in isolation, has less than a substantial effect on interstate commerce so

long as similar activity by others, when aggregated, substantially affects interstate

commerce. Lopez expressly recognized this settled principle, and did not purport to

overrule it. Id. (discussing Wickard v. Filburn, 317 U.S. 111, 128 (1942)). There can

be no serious doubt that, in the aggregate, the activity protected by RLPA substantially affects interstate commerce.

Moreover, the rationale for the Court’s invalidation of the Gun-Free School Zones

Act in Lopez is inapplicable to RLPA. The Court there expressly distinguished that

statute from which that contain a ‘‘jurisdictional element which would ensure,

through case-by-case inquiry, that the [activity] in question affects interstate commerce.’’ 514 U.S. at 1631. The lower courts accordingly have interpreted Lopez not

to apply in such cases.1 RLPA, of course, has such a jurisdictional element, to wit:

the requirement that the burden on the claimant’s religious exercise ‘‘affect * * *

commerce with foreign nations, among the several States, or with Indian tribes.’’ By

itself, this jurisdictional element will necessarily limit the reach of RLPA to ‘‘a discrete set’’ of religious burdens ‘‘that additionally have an explicit connection with

or effect on interstate commerce.’’ Id. For that reason, RLPA would be easy to distinguish from the statute at issue in Lopez.

Furthermore, as Professor Laycock has pointed out in his written testimony,

RLPA’s ‘‘affecting commerce’’ element is similar to jurisdictional elements in a wide

range of federal statutes, and is the accepted way of indicating a congressional intent to exercise the commerce power to the maximum extent possible, but no further. Indeed, the Fifth Circuit has expressly recognized, in a similar context, that

‘‘the words ‘affecting commerce’ are jurisdictional words of art, typically signaling

a congressional intent to exercise its Commerce Clause power broadly, perhaps as

far as the Constitution permits.’’ United States v. Wallace, 89 F.2d 580, 583 (5th

Cir. 1989).

It is also not clear that the amendment contemplated in the question would eliminate the constitutional issue. For example, Justice Thomas’ concurrence suggests

that, as originally understood, the commerce power extended only to activities—such

as trade itself—that are actually in commerce, not to all activities that substantially

affect commerce. See 514 U.S. at 584–602 (Thomas, J., concurring). If a majority of

the Court were to accept that view, it probably would not matter whether RLPA

used the ‘‘affects’’ standard or the ‘‘substantially affects’’ standard. But even Justice

Thomas indicated a great reluctance to adopt the position set out in his concurrence,

for he recognized that such a step would require overruling a great deal of Supreme

Court precedent, and would invalidate a host of federal statutes.

That said, I believe it would be useful for Congress to demonstrate expressly an

awareness of Lopez’s ‘‘substantial affects’’ requirement. At this point, this can best

be done in a finding, contained in the legislative history, that the activity regulated

by RLPA substantially affects interstate commerce. Lopez itself suggested that such

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2The Supreme Court has repeatedly upheld religious exemptions to otherwise generally applicable laws. E.g., Walz v. Tax Comm’n, 397 U.S. 664 (1990); Zorach v. Clauson, 343 U.S. 306

(1952); Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987); Employment Division v. Smith, 494 U.S. 872 (1990) (dictum); Gillette v. United States, 401 U.S. 437 (1971); Arlan’s

Dep’t Store v. Kentucky, 371 U.S. 218 (1962); Wisconsin v. Yoder, 406 U.S. 205 (1972). The only

religious exemption that the Court has invalidated was an exemption that the Court apparently

believed had the effect of subsidizing religious speech. Texas Monthly, Inc. v. Bullock, 489 U.S.

1 (1989).

a finding could be a factor for the Court to consider in determining whether Congress has acted within its commerce power authority. See, 514 U.S. at 562–64. If

changes were to be made to the House version of RLPA for other reasons, this finding could perhaps be included in a separate section of the statute itself.

C. FEDERALISM

Question. After reading the Supreme Court’s recent decision in Alden v. Maine,

it is clear that suits for damages against states and state agencies are viewed as

incompatible with state sovereignty. Accordingly, shouldn’t a RLPA bill clarify on

its face that it does not purport to authorize such suits?

Answer. I do not believe such a disclaimer is necessary. Courts already presume,

in the absence of a ‘‘ ‘clear legislative statement’ ’’ to the contrary, that a statute does

not abrogate a state’s constitutional sovereign immunity. Seminole Tribe v. Florida,

517 U.S. 44, 55–56 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S.

775, 786 (1991)). RLPA does not contain a clear legislative statement of intent to

subject unconsenting states to damage suits, and will therefore be presumed not to

authorize such suits.

To be sure, such a disclaimer could be useful in reducing litigation risk because

it would demonstrate a congressional sensitivity to state prerogatives. But I would

not consider the absence of such a disclaimer as a barrier to passage of the House

version of RLPA.

D. RULES OF CONSTRUCTION

Question. What is your view of the rules of construction section of the Housepassed RLPA bill? Are these rules clear to you, and do they appear constitutional

in their application? Or would you suggest some modification to this section?

Answer. The rules of construction provided in this section, though perhaps not

strictly necessary, prevent potential misuses of RLPA. These provisions also help to

ensure that RLPA will be constitutional in all of its applications. I do not believe

any of these rules of construction would be unconstitutional in application.

Most of the rules provided in Section 5 are limiting provisions. Subsections (a)

and (b) clarify that RLPA, although it permits some burdens on religion (i.e., those

that pass the ‘‘strict scrutiny’’ test), does not provide additional authority for a government to burden religious belief or practice in any way. Such authority, if it exists, must come from some other source. Similarly, Subsections (c) and (d) ensure

that RLPA will not enlarge or diminish any person’s (or institution’s) right to receive government funding. And Subsection (f) clarifies that a finding for purposes

of RLPA that a particular activity affects interstate commerce raises no such presumption for purposes of other statutory schemes. These provisions all merely limit

the potential effect of RLPA, and do so in a way that is constitutional.

Subsection (e) serves an important constitutional purpose by clarifying that RLPA

does not commandeer state action, and therefore does not run afoul of the Supreme

Court’s decisions in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). RLPA effectively preempts the application of

state laws and judicial decisions which would substantially burden religious exercise, but would not pass strict scrutiny. Subsection (e) provides that a government

may avoid such preemption through any constitutional means that would otherwise

eliminate the substantial burden on religion—for example by creating a religious exemption in a statutory scheme 2—but does not require governments to take any action.

As the Supreme Court explained in New York, Congress has the power ‘‘to offer

states the choice of regulating [private] activity according to federal standards or

having state law preempted by federal regulation.’’ 505 U.S. at 167. Subsection (e)

simply attempts to ensure that states have this choice under RLPA, and that RLPA

therefore will not be used to force the states to pass any new laws, create any new

regulatory regimes, or otherwise take any affirmative action to implement RLPA.

To be sure, the provision could be augmented somewhat to reduce the risk that

RLPA will be applied by the courts in an unconstitutional manner. For example, a

sentence could be added stating directly that RLPA does not impose any affirmative

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obligations on state and local governments. And a sentence could be added at the

beginning of the provision to the effect that the only legal effect of RLPA in any

particular case is to preempt government action that violates the statute’s terms.

However, such amendments are not necessary to save the statute from unconstitutionality, inasmuch as these points are already fairly implicit in the statute.

Subsection (g) is the only rule of construction in Section 5 of the House Bill that

potentially broadens the scope of RLPA. It provides: ‘‘This Act should be construed

in favor of a broad protection of religious exercise, to the maximum extent permitted

by its terms and the Constitution.’’ By its terms, this provision does not permit

RLPA to be interpreted in a way that would be unconstitutional. To be sure, it may

sometimes require courts to resolve whether the Constitution would allow a particular application of RLPA, rather than allowing them to adopt a narrow interpretation

of RLPA simply to avoid a constitutional issue. But this effect certainly does not violate the Constitution.

Finally, Subsection (h) is a standard severability clause. In the unlikely event that

a particular provision of RLPA is held unconstitutional, this clause ensures that the

remaining portions of RLPA should not be held invalid as a result. Like the other

rules of construction in Section 5, this clause ensures that RLPA will have its intended effect of protecting religious exercise to the maximum extent permitted

under the Constitution.

RESPONSES OF GENE C. SCHAERR TO QUESTIONS FROM SENATOR FEINGOLD

Question 1. If the Senate passes an amended version of the House bill (H.R. 1691)

that includes exemptions for civil rights, domestic violence and child health and

safety, what would be the effect, if any, on the free exercise of religion? What would

be the worst case scenario, in terms of potentially hampering the free exercise of

religion? Do you have any concerns about the constitutionality of including these exemptions (civil rights, domestic violence and child safety and health)?

Answer 1. I do not support the inclusion of issue-specific exemptions in RLPA.

Such exemptions are not necessary in my opinion to protect society’s most important

interests. The substantial burden/compelling governmental standard ensures that

the government will be able to protect its most important interests regardless of

conflicting religious claims. It merely provides that, even where the government has

a compelling interest, it does, not have an automatic right to intrude upon religious

freedom, but may only override religious freedom claims where truly necessary to

furthering that compelling governmental interest.

An exemption for civil rights laws would have particularly unfortunate effects,

both symbolic and practical. Most fundamentally, a ‘‘civil rights’’ exemption would

send the message that the constitutionally protected freedom of religion—what

President Clinton has called our ‘‘first freedom’’—is subordinate to other types of

civil rights. It would be ironic and a setback for religious freedom if Congress

amended RLPA to suggest that any claim under the general heading ‘‘civil rights’’

(other than those under RLPA) must necessarily trump any RLPA claim. As passed

by the House, RLPA instead puts religious freedom on par with other types of civil

rights claims, and allows the appropriate balance to be reached through case-by-case

accommodation and decision-making.

A civil rights exemption would also leave a significant gap in RLPA’s protection

of religious freedom. For example, in recent years, churches have been sued under

Title VII and state employment laws for alleged gender discrimination in the selection of their clergy. Although these claims have generally been rejected under the

Free Exercise Clause, not all religious hiring decisions will come within the scope

of the ministerial privilege created by that Clause, and yet may be central to an

organization’s religious freedom. Consider for example a convent of nuns that restricts its membership to single women for religious reasons. Absent RLPA, a married woman desiring to become a nun could potentially sue the convent under local

ordinances prohibiting marital status discrimination. Or a man wishing to become

a nun could sue the convent charging gender discrimination. A ‘‘civil rights’’ exemption would preclude the convent from even raising a defense under RLPA. While

this may not be the worst scenario that could arise, it is not far-fetched.

Moreover, if domestic violence and civil rights laws (other than RLPA) are exempted from RLPA, one must ask why laws prohibiting murder, theft, fraud, child

labor, bribery and many other things are not similarly exempted. Once the list of

specific exemptions is begun, however, it becomes impossible to complete on any

principled basis. One could never identify all of the types of government laws that

would outweigh a person’s claim to religious freedom. For this reason, RLPA provides a single flexible standard for balancing governmental interests against claims

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of religious freedom on a case by case basis. I believe this standard strikes the appropriate balance for all types of RLPA claims, not just those involving government

action in areas other than civil rights.

Question 2. What are your views on the merits of addressing religious freedom

concerns by drafting a statute that is ‘‘issue-specific’’ (i.e., statute would address

specific areas like land use regulation that might conflict with the free exercise of

religion) rather than adopting the House bill? If the Senate drafted an issue-specific

bill, what issues do you believe have a sufficient congressional record to be included

in such a bill and could withstand Supreme Court scrutiny?

Answer 2. An issue-specific approach to the protection of religious liberty would

not adequately substitute, in my view, for provisions in the House Bill that would

protect religious freedom within the general scope of Congress’ commerce and spending powers. An approach that would protect religious exercise only in certain areas

of law would necessarily leave large gaps in the protection of religious liberty. Moreover, under the Supreme Court’s decision in Boerne v. Flores, Congress’s authority

under the Fourteenth Amendment to impose the substantial burden test is limited

to discrete areas in which a pattern of constitutional violations has been identified.

The record in this case supports such action in the area of land use regulation (covered in Section 3(b) of House bill), but probably not in other areas of law.

In my opinion, the House version of RLPA, which (among other things) restores

the substantial burden test within the scope of Congress’ Article I powers, is the

most effective and appropriate way of protecting religious freedom. In exercising its

Article I powers, Congress is not limited by the Supreme Court’s interpretation of

the Free Exercise Clause; it may protect religious freedom even where not constitutionally required. Moreover, the substantial burden/compelling governmental interest framework provided in RLPA is inherently sensitive to the various governmental

and private interests that may arise in any context. For example, RLPA might prevent a federally funded high school from enforcing a policy forbidding the wearing

of hats against students who cover their heads for religious reasons. But it would

not prevent a prison from enforcing a uniform dress code on prisoners, even against

religious claimants, if such a policy were necessary to prevent the concealment of

weapons or drugs. Similarly, RLPA might permit a nonprofit religious radio station

to hire employees on the basis of religion, despite governmental regulations to the

contrary. But I cannot imagine a situation in which it could be invoked to allow a

person to discriminate on the basis of race in employment or housing in violation

of Title VII.

In short, the substantial burden/compelling interest standard is flexible enough to

encompass all areas of law. I do not see any benefit to limiting the application of

this test to only discrete issues.

Question 3. Please describe your version of the ideal legislation to address concerns with constraints on the free exercise of religion.

Answer 3. For reasons explained above, I believe that a statute such as the version of RLPA passed by the House is the fairest and most effective means of protecting religious liberty, without undue interference with legitimate governmental prerogatives and interests.

Please feel free to contact me if you have further questions.

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ADDITIONAL SUBMISSIONS FOR THE RECORD

JUNE 23, 1999

PREPARED STATEMENT OF HON. IRENE B. FRENCH

Good morning, my name is Irene B. French and I am the Mayor of Merriam Kansas and the Vice Chair of the Finance, Administration, and Intergovernmental Relations Steering Committee with the National League of Cities (NLC). I am submitting this testimony in opposition to ‘‘The Religious Liberty Protection Act of 1999’’

(H.R. 1691) which is currently pending in the House of Representatives, on behalf

of NLC. H.R. 1691 effectively preempts traditional local authority over zoning and

land use issues any time a claim of religious connection is asserted.

The National League of Cities represents 135,000 mayors and city council members from cities and towns across the country that range in population from the nation’s largest cities of Los Angeles and New York to the smallest towns. NLC appreciates the opportunity to submit this written statement on this very important

issue. NLC, as a representative of local elected officials, support the free exercise

of religion as guaranteed by the United States Constitution. It is however vitally

important that the Committee hear from state and local government elected officials

on this bill which affects the historic authority and daily operations of local authorities in such a broad-sweeping and dramatic way.

Currently a bill, H.R. 1691, is moving through the House under the misleading

title of ‘‘The Religious Liberties Protection Act of 1999’’ (RLPA). This bill would supposedly codify our nation’s reverence for religious liberty, yet a close examination

of this legislation indicates that it would do nothing to advance individuals’ ability

to practice religion. Instead, RLPA attacks another American founding principle, the

principle of federalism.

Protection of religious liberty is a laudable goal, indeed one of the founding precepts of our nation. From the time the first courageous Pilgrims landed on our

shores, religious freedom has helped make America the great nation that it is, a nation of spirited citizens with their eyes on higher good, as well as the common good.

The American people valued religious liberty enough to enshrine it in the First

Amendment and forever bind government to respect an individual’s fundamental

right to practice his or her faith. Enacting a bill such as RLPA, however, undermines our sacred principles of federalism and guts local governments’ authority to

apply neutral laws to all members of a community.

Under a law such as RLPA, local governments are prohibited from making land

use decisions that would ‘‘impose a substantial burden on a person’s religious exercise.’’ Yet there is no evidence to support the premise upon which RLPA is founded,

namely that local governments, through their zoning powers, have targeted religious

entities’ freedom to practice religion. Examples cited by proponents of the bill instead refer to cases in which church-operated facilities or religiously motivated opinions have been affected, not the actual practice of religion. Furthermore, the Supreme Court ruled that RLPA’s predecessor, the Religious Freedom Restoration Act,

was unconstitutional, in the case of City of Boerne v. Flores. In the Boerne case, the

Court held that no intent to discriminate is found in local ordinances that are generally applicable to the population at large. In explaining its ruling, the Supreme

Court said, ‘‘when the exercise of religion has been burdened in an incidental way

by a law of general application, it does not follow that the persons affected have

been burdened any more than other citizens, let alone burdened because of their religious belief.’’

RLPA goes far beyond what is needed to protect religious freedom; instead, it

would saddle municipal governments with federal restraints on their ability to foster

physical and social harmony. RLPA takes away municipal governments’ historic authority to decide land use issues such as parking, building height, size and setbacks,

landscaping, historic preservation, and traffic within their own communities. Under

RLPA, religious facilities would be effectively immune from local zoning restrictions,

an exemption that, for example, a secular soup kitchen or meeting hall would not

enjoy. RLPA would also force cities to permit religious facilities to disregard local

open space regardless of that city’s zoning requirements, thereby flying in the face

of aesthetics and enjoyment of the community at large, as well as environmental

laws. Legislatures in some states have shown a sensitivity to the need for local land

use regulation and may offer a viable alternative to RLPA as currently drafted.

The ‘‘Religious Liberty Protection Act’’ seeks to replace the Religious Freedom

Restoration Act of 1993 (RFRA), declared unconstitutional in Boerne. If passed,

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RLPA would pose problems similar to those created by RFRA in the current and

relevant areas of school safety and child support. Under RFRA, for example, a court

permitted schoolchildren to wear the seven-inch knives their religion required to

school, despite the school district’s ban on knives. Also under RFRA, another court

declined to hold a religious believer in contempt of court for his continued refusal

to pay child support because he claimed that all of his money belonged to his

church.

This opportunity for individuals and institutions to claim that local laws and state

statutes place a ‘‘substantial burden’’ upon their religious exercise invites frivolous

litigation. City or county governments would have to prove in court that a wide variety of state and local laws regarding child abuse, alcohol and drug abuse enforcement, jail inmate restrictions, and employee safety requirements further a ‘‘compelling government interest’’ and are the ‘‘least restrictive means’’ of serving that interest. Such language blunts the ability of local governments to require that churches,

religious facilities, and individuals comply with the health and safety laws that have

been adopted to protect the entire community.

In addition, H.R. 1691 permits claimants to bypass local appeals processes and

state courts, allowing them to file cases directly in federal court. The resulting increase in federal court suits means that state and local taxpayers will face an increased financial burden each time a religious claimant is unhappy with some state

or local law. Local elected officials should be allowed to fulfill their responsibilities

to act in the best interest of the entire community.

We ask that the Committee consider carefully the far-reaching ramifications of

legislation such as RLPA, which will do nothing to further the cause of public safety

and may even hinder local governments in their efforts to provide safe, peaceful

communities. We respectfully ask the Senate Judiciary Committee not to act on a

bill like H.R. 1691. This bill erodes federalism, and does nothing to bolster religious

freedom. It is not Congress’s place to achieve the religious liberty already guaranteed by the United States Constitution by usurping traditional functions of local

government like zoning. In our view, issues affecting land use and public safety are

best decided not in Washington, but in our local communities.

DEPARTMENT OF CORRECTIONAL SERVICES,

THE HARRIMAN STATE CAMPUS,

Albany, NY, June 22, 1999.

Mr. ERIC GEORGE, Counsel,

Senate Judiciary Committee,

Dirksen Senate Office Building,

Washington, DC.

DEAR MR. GEORGE: In accordance with our recent conversation, enclosed are the

written comments I have prepared relative to the Religious Liberty Protection Act

of 1999. I appreciate having been afforded this opportunity to present these comments and I regret that I am not able to attend the hearing on June 23, 1999.

Sincerely,

GLENN S. GOORD,

Commissioner.

PREPARED STATEMENT OF GLENN S. GOORD

I am the Commissioner of the New York State Department of Correctional Services and have served in such capacity since 1996. I have nearly twenty-six years of

experience working in the field of corrections. Before setting forth my substantive

comments, I would like to express my appreciation to the members of the Senate

Judiciary Committee for this opportunity to present for the record my position with

regard to the Religious Liberty Protection Act of 1999—a position which I know is

shared by numerous other correctional administrators throughout the nation.

The New York State Department of Correctional Services is the third largest state

prison system in the country with an under-custody inmate population in excess of

71,000, a work force of over 31,000, and a combined operating and capital budget

in excess of $2 billion a year. As I am sure all of you can appreciate, the safe and

secure operation and management of a prison system is an extremely complex undertaking. Twenty-four hours a day, seven days a week, a prison system must provide for the health, safety and well-being of each individual committed to its custody

regardless of the individual’s physical, mental or emotional state or background.

Prisons are also responsible for ensuring that all of the men and women who are

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employed within the system are provided with the safest work environment possible.

Prisons must not only be equipped to deal with inmates who may be violent or

notorious, but also inmates who may be victim prone, or diabetic, or confined to a

wheelchair, or have HIV disease, or be psychotic or mentally retarded, or have histories of alcohol and substance abuse, or be compulsive sex offenders, or be old and

infirm, etc. The list of problems presented by inmates is practically endless. Correctional administrators are challenged as they have never before been challenged, not

only to safely incarcerate such individuals for the duration of their sentences, but

also to provide meaningful programmatic opportunities for such individuals to use

their time in prison productively in an effort to turn their lives around. The simple

reality is that the overwhelming majority of inmates will some day be released back

into the communities from which they came. It is the responsibility of prison administrators to provide inmates with ample opportunities to better themselves while incarcerated.

With this as background, let me assure the members of this committee that every

correctional administrator in the country recognizes the vital role played by most

religious practices and beliefs in furthering inmate rehabilitation, in maintaining a

sense of hope and purpose among individual inmates and in enhancing overall institutional safety and well-being. Most inmates who sincerely practice their religious

beliefs do not pose institutional problems. Rather, as a rule of thumb, they promote

institutional stability.

Therefore, for a variety of reasons, correctional administrators will attempt whenever possible to provide meaningful opportunities for all inmates to practice their

religion. In fact, many laymen who are all too familiar with the concept of separation of state and church, are surprised to learn, for example, that prison systems

have established numerous paid chaplain positions to minister to the religious needs

of their inmate populations. For the New York prison system, a total of 171 full time

chaplain positions have been established.

In addition to paid chaplain positions, scores of outside volunteers also come in

on a regular basis to help provide for the religious needs of the different inmates.

In fact, New York’s Correction Law specifically provides that religious ministers

may visit at their pleasure the correctional facilities located within their congregations.

Along these same lines, New York’s Religious Programs and Practices Directive

contains the following statement of policy:

In recognition of the First Amendment right of ‘‘religious liberty’’ and in

pursuit of the objective of assisting inmates to live as law abiding citizens,

it is the intent of the Department to extend to inmates as much spiritual

assistance as possible as well as to provide as many opportunities as feasible for the practice of their chosen faiths consistent with the safe and secure operations of the Department’s correctional facilities.

Furthermore, in New York, inmate facilitated religious education meetings as well

as congregate worship are permitted with appropriate oversight by security staff.

By the same token, although religion is something to be promoted in an institutional setting, it is inevitable that conflicts will arise between specific security protocols and an individual’s claimed religious tenet. When such conflicts’ arise and result in litigation, it is important that the appropriate test be utilized which provides

a careful balancing between overall systemic safety and security from the perspective of corrections and an individual’s claimed religious tenet. The present test that

is applied in a prison setting, which was enunciated in the United States Supreme

Court decision in Turner v. Safley, 482 U.S. 78 (1987), achieves the appropriate balance when such conflicts arise.

Under the Turner standard, when a prison regulation impinges upon an inmate’s

constitutional rights, the regulation is valid if it is reasonably related to legitimate

penalogical interests. While at first blush this seemingly straightforward standard

may not seem overly problematic to satisfy, the reality is that correctional officials

must meet a concrete burden before a regulation will pass muster under a Turner

analysis. In applying the ‘‘reasonably related’’ test, it has been determined that

courts should consider whether there is a valid connection between the prison regulation and the legitimate governmental interest put forward to justify it; whether

there are alternative means of exercising rights that remain open to inmates;

whether accommodation of the asserted rights will have a significant ripple effect

on fellow inmates or prison staff; and whether there is a ready alternative to the

regulation that fully accommodates the prisoners’ rights at de minimis cost to a

valid penalogical interest. In no uncertain terms, this standard requires prison administrators to accommodate the religious practices of inmates in their custody;

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however, it also permits individual rights to be balanced against the needs of the

prison community as a whole and the overriding need for security and order.

By contrast, the Religious Liberty Protection Act of 1999 (RLPA) would re-establish a standard that had been in effect under the Religious Freedom Restoration Act

until this latter act was declared unconstitutional by the United States Supreme

Court. In a nutshell, the RLPA would provide that a government may substantially

burden a person’s religious exercise only if the government demonstrates that application of the burden to the person is in furtherance of a compelling governmental

interest and is the least restrictive means of furthering that compelling governmental interest.

In comparison to the Turner standard, this act would raise the bar to a level that

severely disadvantages corrections. The resurrection of the ‘‘least restrictive means’’

prong of the test will again subject the day-to-day judgment of prison officials to an

inflexible strict scrutiny analysis by federal courts which are ill-equipped to administer the security of the nation’s prisons and jails. Such an outcome would fly in the

face of the recently enacted Prison Litigation Reform Act (PLRA), which at its core

recognized that the inmate litigation juggernaut had to be seriously restrained. The

taxpayers and law abiding citizens had questioned how the federal dockets were allowed to swell with inmate lawsuits to such extreme levels and how certain federal

judges could inject themselves into the micro-management of corrections.

The ‘‘least restrictive means’’ test does not allow for a proper balancing of individual rights and institutional needs. Rather, it elevates asserted individual inmate

rights over the operational needs of prisons and the rights of the inmate population

as a whole.

It must be understood that within the prison environment, a relatively small

number of inmates will attempt to use their constitutional right of access to the

courts as a vehicle to wage all out war on the system and wreck as much havoc

as is humanly possible. Armed with the new RLPA ‘‘compelling interest/least restrictive standard’’, extremist inmates will seek to bring correctional administrators

to their knees. Congress must be cognizant of the fact that this act will go far beyond covering inmate adherents of familiar religions such as Christians, Muslims,

Jews and Rastafarians; it will also bring within its ambit individuals who practice

such things as devil worship and black magic, or whose religious beliefs are premised upon hatred and bigotry.

The reality also is that leaders of illicit prison organizations are sophisticated individuals who no doubt will attempt to manipulate the RLPA standards to perpetuate illegal and dangerous activities under the guise of ‘‘religion.’’ Even in the absence of this standard, illicit organizations have sought to come under the protection

of the ‘‘religion’’ umbrella knowing that the federal courts accord greater latitude

to individuals who cite religious convictions in litigation as opposed to simply citing

freedom of speech implications. It is for this very reason recently that the Latin

Kings, a notorious prison gang devoted to violence and extortion that has tentacles

in a host of different prison systems throughout the country, attempted to claim

that they were in fact a religious organization. Fortunately, the court did not validate this claim. Nevertheless, this does dramatize that illegal prison gangs and

other extremist entities will attempt to use the protection of religion to further their

nefarious purposes. Clearly, the new RLPA standard, albeit unintentionally, will go

a long way toward bolstering the efforts of dangerous inmates to undermine the

safety and security of the prison system.

Correctional facilities are operating with limited economic resources and the inmate population is expanding. Prison litigation continues to place a monumental

drain on these limited resources, despite the recent enactment of the PLRA. While

inmates litigate at little cost to themselves, taxpayers are required to pay for paper,

law books, legal assistance, postage, Xeroxing and witness production. In addition,

even the most straightforward pro se inmate lawsuit may require that thousands

of pages of documents be produced in federal discovery. Out of already strained prison budgets, correctional administrators must pay for additional security and transportation of inmates for court appearances, legal assistance for correctional employees who are the subjects of inmate lawsuits, and lost staff time involved in the active defense of such lawsuits.

While similar predictions such as those outlined above were made prior to the enactment of RFRA, Congress did not heed the request to exempt all of corrections

from its scope. However, unlike the period preceding the enacting of RFRA, the current predictions are based upon the actual experience of having lived through the

RFRA ‘‘compelling interest/least restrictive means’’ test as applied to prison operations. For New York in particular, this has meant the following:

(1) the one inch beard rule grooming standard was struck down insofar

as it was applied to inmates who claimed the trimming of their beards vioVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00180 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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lated religious beliefs. This particular standard, which limits beard length

of an inmate to one inch, was designed to foster institutional safety since

inmates are readily capable of hiding weapons such as razor blades, and

other contraband, within beards that exceed one inch in length.

(2) an inmate sued under RFRA claiming that he was a member of the

‘‘Church of Satan’’ and that, by not being provided with the ‘‘Satanic Bible’’

and that by not being permitted to wear his satanic medallion and chain,

the Department violated his civil liberties and religious freedoms under

RFRA. The case is still active since the federal court, based upon the then

applicable RFRA standard, refused to grant a defense motion to dismiss by

way of summary judgment.

(3) The Department’s TB control program which required all staff and inmates to submit to an annual PPD screening test for tuberculosis, had to

be revamped to accommodate those inmates who refused to test based upon

claimed religious beliefs. These inmates had been placed in medical

keeplock status until they agreed to submit to the test. The PPD test is the

only test known to science that tests for the presence of latent TB in the

human body. Under the RFRA standard, the concerned inmates were allowed to refuse to take a PPD test even though no actual religious tenets,

beyond personal statements of belief, were cited in support of their positions.

As previously stated, these concerns are shared by numerous other correctional

administrators. The recent experience of the Washington D.C. Department of Correction is a case in point. Individual inmates who posed as members of the Moorish

Science Temple religion, smuggled cocaine and prostitutes into the Lorton Correctional Complex, and even filmed a pornographic video in the prison chapel. They

were able to evade detection by security personnel precisely because of the higher

RFRA standard then in effect. In a nutshell, owing to RFRA, guards were intimidated from conducting other than minimal searches. The event received considerable

publicity and was the subject of a September 27, 1996, Washington Post news article

which was entitled, ‘‘Ring Used Religion as Cover to Sneak Drugs Into Lorton.’’ A

copy of this article is attached hereto.

In conclusion, while religious practices must be accorded due deference and significance within the prison setting, nevertheless, in the absence of an appropriate

balancing test which the Turner standard provides, religion can and will become a

vehicle for extremist elements to further their illicit purposes, thereby undermining

prison safety and security for all other inmates and staff. Therefore, I respectfully

urge that this committee consider an amendment to the RLPA which would exempt

all of corrections from its scope.

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PREPARED STATEMENT OF LARRY E. NAAKE ON BEHALF OF THE NATIONAL

ASSOCIATION OF COUNTIES

The National Association of Counties (NACo) is pleased to present our views on

legislation regarding preemption of local authority under proposed ‘‘religious liberty

protection’’ legislation.

NACo is the only national association representing county government in the

United States. Through our membership—containing over 3000 counties and 90 percent of the U.S. population—urban, suburban, and rural counties join together to

build effective and responsive county government. The goals of NACo are to improve

county government, serve as the national spokesperson for county government, act

as a liaison between the nation’s counties and other levels of government, and

achieve public understanding of the roles of counties in the federal system to limit

our local governments’ opportunity to work on the most significant problems in our

jurisdictions.

NACo strongly supports the fundamental right to the free exercise of religion, as

guaranteed by the First Amendment to the U.S. Constitution. We fear, however,

that bills such as the ‘‘Religious Liberty Protection Act of 1999’’ (RLPA) do not advance individuals’ ability to practice their religion and instead are attacks against

local government. Such bills are inconsistent with established principles of federalism and dramatically sweep away local government authority to apply laws equally

to all members of our communities.

Under bills like RLPA, a county would effectively be prohibited from restricting

a religiously-affiliated building to an area with adequate parking, with buffers from

residential neighbors and away from environmentally-sensitive wetlands. Such bills

would call into question the practices of county child abuse protection offices in removing children from homes where religious practices are used as a reason for excessive ‘‘discipline’’. Similarly, a county’s ability to license and regulate childcare facilities, including those affiliated with a religious institution, could be challenged in

court.

We challenge the premise stated by proponents of RLPA-type bills, namely, that

local governments have targeted individuals or religious institutions in the application of our local ordinances and regulations. County land use decisions are neutral

in their applicability to property owners, and any incidental burden on a land owned

by a church, synagogue, mosque or other house of worship in no way involves discrimination on the basis of religious belief. Similarly, counties are charged with protecting the health and safety of all their residents—responsibilities that may involve

balancing a parent’s desires to physically abuse his or her children in the name of

religiously-sanctioned ‘‘discipline’’; to refuse to pay child support; to reject adequate

and appropriate health care, or to neglect their children’s education because of purported ‘‘religious beliefs’’, against the county’s legal and moral obligation in loco

parentis.

Under laws such as RLPA, many religiously-affiliated institutions would assert a

federal cause of action whenever they were subjected to same laws and regulations

that apply to secular institutions. We foresee a plethora of frivolous lawsuits claiming that a county zoning ordinance imposes a ‘‘substantial burden’’ on the religious

exercise of congregants, merely because the church or institution is required to acquire adequate acreage to accommodate the large parking areas and buffer zones

necessary to protect neighbors and the surrounding environment.

Counties can envision having to prove in federal court that our employee uniform,

worker safety and protective headgear requirements further a ‘‘compelling government interest’’ and are the least restrictive means of furthering that interest. We

expect to have to endure legal challenges to our child support programs whenever

a parent needs an excuse to disregard his obligations. We fear that we will be unable to prosecute parents who withhold lifesaving medical care from children on religious grounds. Refusal of a welfare recipient to seek employment on the basis of religious practices might become a means to refuse to comply with federally-mandated

rules under which county welfare offices operate. Our immunization programs, responsible for protecting our communities from infectious disease, could be undermined by federal challenges from individuals who object on religious grounds to vaccinations. Even county animal cruelty laws could be challenged by members of religions that believe in animal sacrifice.

Equally of concern to counties is that RLPA-type bills would allow claimants to

circumvent state courts and local appeal processes, taking grievances directly to federal court. Such an ‘‘end run’’ around the processes established by our state laws

runs counter to the foundations of federalism that this Congress purports to endorse. Such bills preempt the traditional system for resolving local disputes and

puts federal judges in the position of micromanaging purely local affairs. The framVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00184 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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ers of the Constitution never intended federal courts to be the first resort in resolving community disputes between local governments and private parties. These

issues should be settled locally, as close to the affected community as possible.

We urge the Committee to carefully consider the implications of any RLPA-type

bills that come before you and refuse to act on bills that so dramatically alter the

relationships between local governments and their citizens. Congress should not

promote legislation that usurps traditional county functions and upsets the principles of federalism upon which our great country was founded.

We appreciate the opportunity to express our views, and hope that we will be allowed to relate them in person to the Committee at a future hearing.

PREPARED STATEMENT OF OLIVER S. THOMAS ON BEHALF OF THE NATIONAL COUNCIL

OF CHURCHES OF CHRIST IN THE USA

I am Reverend Oliver Thomas, Special Counsel for Religious and Civil Liberties

of the National Council of Churches of Christ in the USA (NCC).

The NCC is the nation’s oldest and largest ecumenical body with 35 Anglican, Orthodox and Protestant member communions that have an aggregate membership in

excess of 53 million. Obviously, we do not speak for all of those Christians. We do

speak for our General Assembly which numbers in the hundreds and includes key

representatives of each member communion.

Since its inception 50 years ago, the NCC has been an advocate of religious liberty

for all persons. Not just for Christians. Not just for Judeo-Christians. For all.

For that reason, we have opposed efforts by government to promote as well as to

inhibit religion. At the same time, the NCC has vigorously maintained the right of

citizens to exercise their religion free from undue interference by the government.

It is the diminishment of that right that brings me here today.

Since the Supreme Court’s infamous 1990 decision, Employment Division v.

Smith, the hallowed right to exercise one’s faith—the nation’s first freedom—has

been moved to the back of the constitutional bus. Maybe off the bus altogether.

What once was a fundamental right equal to freedom of speech and the press, is

now largely a matter of legislative grace.

Other institutions of government have responded admirably to the Supreme

Court’s pinched understanding of the rights of conscience. Lower courts have found

exceptions to the Smith rule using so-called hybrid claims and other constitutional

provisions such as the speech clause. State courts—such as those in Massachusetts,

Michigan, Maine and Wisconsin—have used their own constitutions to protect religious exercise. State legislatures in Connecticut, Rhode Island, Florida and Illinois

have passed statutes, and one state—Alabama—used a ballot initiative to amend its

own constitution.

As encouraging as these developments are, they leave our nation with a patch

work of protection. A constitutional safety net shot full of holes. You may not fall

through, but again you might.

Such an arrangement cannot stand. This body—the Congress of the United

States—must come to the people’s aid. God bless you, you did it once. You passed

a broad-based, universally applied statute that brought America together. It was a

statute that both Chairman Hatch and Senator Kennedy could support enthusiastically—a statute that only three members of Congress voted against!

The coalition that assisted you in the drafting and grass-roots support of the bill

included Beverly LaHaye’s Concerned Women for America and Norman Lear’s People for the American Way. Lou Sheldon’s Traditional Values Coalition and Barry

Lynn’s Americans United. Chairing that coalition was one of the greatest experiences of my life.

But, the Supreme Court struck it down. Such a broad-based regulation of state

and local government exceeds Congress’ authority under the 14th Amendment, said

the Court.

For almost two years, the Coalition for the Free Exercise of Religion has been

working with committee staff, consulting with leading scholars and working with

the Justice Department until at long last, we have a statute we believe can pass

constitutional muster.

And, then, the politics changed.

On the right, my friend Mike Farris and a small but energetic group of followers

have decided that the commerce clause should not be used to protect religious liberty. Never mind that it’s been used to protect everything else. And so, they will

lobby you aggressively to strip out those provisions that would protect missionary

agencies, church publishing houses, theological seminaries and most likely the parent denominations of thousands of local congregations spread across America.

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On the left, my colleagues at the American Civil Liberties Union have decided

that the Religious Liberty Protection Act (RLPA) poses a threat to gay rights. Let

me make clear that the NCC is a strong supporter of civil rights for all persons including gays and lesbians. We are unapologetic about our support of the Employment Non-Discrimination Act. There is nothing Christian about discrimination.

But RLPA does not threaten civil rights. The compelling interest test contained

in RLPA is the same test we all supported in the Religious Freedom Restoration

Act. There is nothing new here. What’s more, not a single reported case has held

that landlords or employers can avoid a gay rights law by protesting on the grounds

of religion.

Here are the facts. The only time a religious objection has been used successfully

to challenge a civil rights law pertains to marital status. That’s because states have

undermined their claim of a compelling interest by doing precisely what they tell

religious people they can’t do—discriminate against the unmarried. As long as

states deny dormitory space, death benefits and the like to the unmarried for ‘‘secular’’ reasons, they can expect to lose cases against those who wish to engage in the

same type of discrimination for religious reasons.

Religious liberty is a civil right. Shame on us if we refuse to protect it because

some people exercise their religion in a way that we don’t happen to agree with.

Like you, I am an elected official. I chair my local board of education. My experience confirms what opinion polls have taught us. People are sick and tired of public

officials who care more about politics than principle. The principle is clear. The free

exercise of religion has been and continues to be a corner stone of American democracy. A free pulpit is at least as important as a free press. If the Supreme Court

won’t provide that protection, the Congress must.

The politics are also clear. While the vast majority of your constituents will approve of what you are doing, you will face noisy opposition from both the right and

the left.

The choice is yours. I urge you to put politics aside and pass this bill.

VITA

The Reverend Oliver Thomas, Esq., is Special Counsel for Religious and Civil Liberties to the National Council of Churches, the nation’s largest ecumenical body.

Previously, Mr. Thomas served as General Counsel to the Baptist Joint Committee

which during his tenure was the religious liberty office for ten Baptist bodies including the Southern Baptist Convention (the nation’s largest Evangelical body).

As a minister, Mr. Thomas has served on the pastoral staff of churches in Tennessee and Louisiana. He is a frequent guest preacher for churches of various denominations.

As a scholar, Mr. Thomas taught church-state law at Georgetown University Law

Center. His articles have been widely published in such scholarly journals as the

University of Texas Law Review and the Journal of the National Association of Administrative Law Judges. He has lectured at such law schools as Harvard, Notre

Dame and Pat Robertson’s Regent University.

As an attorney, Mr. Thomas has practiced exclusively in the field of religion since

1985. He has been involved in church-state litigation in state and federal courts as

well as at the United States Supreme Court.

In addition to representing numerous Evangelical groups, Mr. Thomas co-authored The Right To Religious Liberty, the American Civil Liberties Union’s handbook on church-state law. More recently, he co-authored Finding Common Ground,

the First Amendment guide for public schools endorsed by Secretary of Education

Richard Riley and The Joint Statement of Current Law which served as the basis

for the Presidential Directive on religion and public education.

Mr. Thomas frequently has consulted with and drafted legislation for members of

Congress. He is best known for his work as Chair of the Coalition for the Free Exercise of Religion. This coalition consists of the 68 religious and civil liberties organizations that assisted Congress in the drafting and passage of the Religious Freedom

Restoration Act.

Mr. Thomas graduated first in his class at the University of Tennessee and at the

New Orleans Baptist Theological Seminary where he was chosen as the most outstanding student in his graduating class. He has earned law degrees from both the

University of Virginia and the University of Tennessee.

Mr. Thomas is president of his local school board and has worked with hundreds

of school districts on issues pertaining to religion. His wife is a teacher, and his

daughters attend public schools.

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AMERICAN ACADEMY OF PEDIATRICS,

Washington, DC, June 22, 1999.

The Hon. HENRY J. HYDE,

Chairman, House Judiciary Committee,

Rayburn House Office Building,

Washington, DC.

DEAR MR. CHAIRMAN: I am writing on behalf of the 55,000 members of the American Academy of Pediatrics to urge that you take great care in considering the ‘‘Religious Liberty Protection Act of 1998’’ (H.R. 1691). We are concerned that this legislation as presently written may make it more difficult for state and local governments to protect children from abuse and neglect, particularly medical neglect motivated by parents’ religious beliefs.

Action by child protective services agencies to safeguard children in dangerous situations may be delayed or enjoyed as a result of litigation enabled by this legislation. Moreover, the fear of costly litigation may deter child protective services agencies from intervening on behalf of children in cases where the parents are likely to

assert a religious belief as the basis for their abusive actions or negligent failure

to act.

While we hope and expect that most courts would find that protecting a child’s

health or safety is a ‘‘compelling government interest,’’ it is much less clear how

courts would decide what is the ‘‘least restrictive means’’ of furthering that interest.

It is easy to imagine, for example, that a court would fail to appreciate the gravity

of a medical condition (e.g., diabetes) and thus fail to order adequate treatment in

face of a parent’s religious objections. This is a significant concern. There have been

a number of documented cases where children have died needlessly because of religion-motivated medical neglect.

If further action is taken on this bill, we urge that you add an exemption for government actions intended to protect the health or safety of children.

The American Academy of Pediatrics (AAP) is an organization of primary care pediatricians, pediatric medical subspecialists and pediatric surgical specialists dedicated to the health, safety and wellbeing of infants, children, adolescents and young

adults. Thank you for your attention to the Academy’s concerns.

Sincerely,

JOEL J. ALPERT, MD, FAAP,

President.

AMERICAN ACADEMY OF PEDIATRICS,

Washington, DC, June 25, 1999.

The Hon. ORRIN G. HATCH,

Chairman, Senate Judiciary Committee,

Russell Building,

Washington, DC.

DEAR MR. CHAIRMAN: The American Academy of Pediatrics requests that the enclosed letter be included in the record of the hearing on protecting religious liberty,

held by the Judiciary Committee on June 23, 1999. The letter was sent to the House

Judiciary Committee to express our concern that the ‘‘Religious Liberty Protection

Act of 1999’’ (H.R. 1691) will jeopardize the health and safety of abused and neglected children.

Thank you for the opportunity to make the views of our organization known on

this important issue.

Sincerely,

JANIS GUERNEY,

Assistant Director.

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SEPTEMBER 9, 1999

PREPARED TESTIMONY OF ROBERT J. BRUNO

Thank you, Mr. Chairman and members of the Committee, for the opportunity to

present my testimony on this very important legislation, known as The Religious

Liberty Protection Act. I am an attorney in private practice for the past 22 years

in Minnesota with substantial experience in litigating cases involving the religious

clauses of the First Amendment. I appeared in City of Boerne v. Flores, 117 S.Ct.

2157 (1997), as attorney for amici curiae Children’s Healthcare Is a Legal Duty, Inc.

and the American Professional Society on the Abuse of Children, pointing out the

deleterious effects of the Religious Freedom Restoration Act on children and others

who were adversely affected by the actions of a religion.

Mr. Chairman, and members of the Committee, RLPA’s unlimited application to

government action of all types, administrative, legislative, and judicial, at all levels,

federal, state, and local, is breathtaking in scope. Because government frequently

acts in a capacity of protecting the rights of citizens from overreaching by others,

RLPA would adversely affect the remedies available to the most vulnerable in our

society, especially children. When government is confined to employing only the

least restrictive means of protecting children from abuse and nonsupport against

those who are religiously motivated to do so, such children are deprived of the full

range of their legal remedies on the basis of someone else’s religion, and therefore

denied equal protection of the laws.

Furthermore, and perhaps more importantly, RLPA’s scope encompasses all judicial government action, even when the judicial role is to apply neutral rules of law

to evenhandedly adjudicate controversies between private individuals and churches

or religiously motivated individuals. When the judicial application of a neutral rule

of law in such private litigation would result in a substantial burden on religion,

such as a money judgment or an injunction restricting behavior, RLPA would require the modification of the rule of law to the extent necessary to avoid the substantial burden on the religious party. Such RLPA-required judicial preference for

the outcome in favor of the religious party deprives the nonreligious party of the

equal protection of the laws and it constitutes an establishment of religion under

the First Amendment.

The correction of these little-recognized but substantial defects in RLPA would require substantial amendments to this legislation. The problems that will be created

by RLPA’s sweeping scope may exceed even what I am suggesting here. Others, including the ACLU, have provided testimony that supports my thesis about RLPA’s

hampering of government’s protective function. I support their view that civil rights

laws should not be trumped by religious preferences, but their analysis does not go

far enough to consider other classes, such as children, which are properly protected

by government from religious overreaching. Others have provided testimony that

Congress lacks authority under the Commerce Clause, the Spending Clause, and the

Necessary and Proper Clause, which I also support because the enormous sweep of

RLPA renders it neither congruous nor proportional as a remedy for specific problems which Congress may legitimately attempt to correct by legislation. Still others

have presented testimony that RLPA is unconstitutional as an establishment of religion. To the extent that RLPA deprives children and other protected classes the

equal protection of the laws on the basis of religion, or deprives private litigants of

the protection of neutral laws, those deprivations and preferences in favor of religion

would violate the Establishment Clause, in my opinion.

It is my hope that consideration of these effects will give you pause to reconsider

the enormity of the problems created by RLPA, and that you will avoid taking more

than measured steps addressing specific burdens on religion. I urge you to vote

against RLPA, or at the very least to engraft amendments dealing with the issues

I am presenting.

I. BACKGROUND

The enactment of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb– et

seq., (‘‘RFRA’’) was hailed by civil liberties and religious interest groups as the appropriate response to the perceived threat to the free exercise of religion posed by

the Supreme Court’s decision in Employment Div. v. Smith, 494 U.S. 872. RFRA

proponents perceived the rule of law announced in Smith as a perverse renunciation

of free exercise of religion rights guaranteed by the First Amendment, and they

rushed to Congress to correct the Court’s interpretation. The proposed solution was

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den religion or religious activity, and regardless of whether the burden on religion

was any greater for religious believers than for anyone else.

RFRA was not necessary to impose strict scrutiny on laws which target religion

for special burdens, because such laws are facially invalid and unaffected by the

rule in Smith. Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)

(ordinances targeting Santeria must pass strict scrutiny); Larson v. Valente, 456

U.S. 228 (1982) (laws targeting churches of a particular character must pass strict

scrutiny). Likewise, Smith did not affect the imposition of strict scrutiny on the

right of free exercise of religion that is coupled with another important constitutional right, the so-called hybrid cases. The only infirmity in the Supreme Court’s

jurisprudence which RFRA sought to correct was the Court’s refusal to apply an

across-the-board compelling government interest by least restrictive means test to

every conceivable government action which only incidentally burdens a particular

religious belief or activity.

After the Supreme Court’s decision in City of Boerne v. Flores, 117. S.Ct. 2157

(1997), striking down RFRA because it was neither congruent nor proportional as

a remedy under Section 5, and a usurpation of the Court’s function to interpret the

Constitution, Congress is now again asked to enact strict scrutiny across-the-board

to all government action to relieve incidental substantial burdens on religion, only

this time based upon provisions other than Article 5, including the Commerce

Clause, the Spending Clause, and the Necessary and Proper Clause.

The infirmities perceived by the Supreme Court in Flores, namely that the remedy

was not congruent and was out of proportion to the perceived problem, and was an

attempt to change Constitutional interpretation by legislation, loom as large as ever

under the proposed RLPA. The Court pointed out in Flores the lack of historical

basis for Congress’ understanding of the Free Exercise Clause, namely that strict

scrutiny has never been understood to apply to all government action that imposes

only an incidental burden on religion. The lack of historical basis for the rule is for

good reason. Upon close examination, such use of strict scrutiny to prevent incidental burdens affects far more than the relationship between government and the religious believer. RLPA would require strict scrutiny not only of statutes that are enacted by government for the protection of children, vulnerable adults, and other protected groups, but also the common law that is the foundation for order in a diverse

society.

Legislation which requires strict scrutiny to all incidental burdens on religion,

runs headlong into the Equal Protection and Due Process Clauses, the Establishment Clause, and the State’s authority under the Tenth Amendment to adopt cumulative remedies when it acts as parens patriae.

II. RLPA’S SINGLE LEAST RESTRICTIVE MEANS TEST SUBJUGATES THE RIGHTS OF

PROTECTED CLASSES

Congress is limited to its enumerated powers and the states retain their integrity

of self-governance under the Tenth Amendment and the federalism principle inherent in the constitution. New York v. United States, 505 U.S. 144 (1992). Unless a

state intrudes upon an individual right incorporated under the Fourteenth Amendment, or upon pre-emptive Congressional exercise of its powers, a state is free to

accomplish its interests by any means consistent with its laws.

With these principles in mind, the state and local governments have an intense

interest as parens patriae in the protection of their children. The vulnerability and

legal incompetence of children, as well as protection of the local fisc, underscore the

compelling nature of a state’s interest in enacting and enforcing laws which protect

and nourish the lives and health of children.

It has long been held that indeed, a state’s interest in child protection is so compelling that it does not require strict scrutiny even when the parent’s right to free

exercise of religion under the First Amendment is burdened. Prince v. Massachusetts, 321 U.S. 158 (1944). In Prince, the Court did not engage in strict scrutiny

analysis when it upheld the state’s child labor law conviction of a parent who required her child to distribute religious tracts on the street against claims that such

conduct was religiously required, stating:

‘‘The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death

* * * Parents may be free to become martyrs themselves, but it does not follow

they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make

that choice for themselves.’’

Id., at 167 170.

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In furtherance of this unquestioned interest in child protection, states have enacted comprehensive schemes to deal with the problems of child endangerment,

abuse, neglect, and non-support. States have determined that the interest of child

welfare is so compelling that a single least restrictive remedy is insufficient to protect children from the full range of danger to their health and welfare. State governments have enacted a wide variety of statutory remedies to supplement the common

law for the protection of children, including criminal child abuse and neglect penalties, civil tort liability, mandatory abuse and neglect reporting, social service and

judicial protective intervention, mandatory immunization and other prophylactic

measures, child labor laws, prohibitions on the use of alcohol and tobacco, and access to adult materials.

For children who are in the custody of persons whose religious beliefs or practices

are contrary to commonly accepted notions of child welfare, RLPA would require

that the state be confined to a single ‘‘least restrictive’’ remedy to protect the child.

The types of religious practices which adversely affect child welfare include reliance

on spiritual means for treatment of illness which withholds needed medical care,

corporal punishment, abuse through exposure to dangerous animals or poison, child

sexual practices, and polygamy.

RLPA would require the state to prove that its action to protect the religiously

endangered child is the least restrictive means of doing so, a standard that places

the child at a disadvantage, and deprives the child of all other remedies. Such children who do not receive the same protection of laws that other children receive,

based solely upon the religious beliefs of their caretakers or others, are denied the

equal protection of the laws under RLPA’s least restrictive means requirement.

Child support is also a paramount interest of the state and has been addressed

with a wide panoply of remedies designed to provide the fullest protection both for

the individual child as well as the public fisc responsible for supporting the child.

The remedies enacted by the state may include a criminal penalty for non-support,

civil child support orders, support proceedings commenced by local government, private support proceedings including paternity and marriage dissolution, remedies

such as wage withholding and sequestration of property, and the enforcement of

civil support orders by civil contempt of court proceedings.

RLPA would confine the remedy to impose and collect child support to one ‘‘least

restrictive means’’ where the refusal to pay is based upon religious belief. Hunt v.

Hunt, 648 A.2d 843 (Vt. 1994) (contempt of court for refusal to pay child support

could not be imposed because the state had not proven it was the least restrictive

means); Murphy v. Murphy, 574 N.W. 77 (Minn. App. 1998) (a voluntarily underemployed father could not have income imputed to him for child support where his

motives are religious.) In Hunt the court held that where the non-supporting father

was a member of a church which prohibited support of children who lived outside

of the closed religious community, RFRA required that the state show that exercise

of the contempt power was the least restrictive means of enforcing its child support

order, and dismissed the contempt citation leaving the state powerless to enforce its

order for support. In Murphy the Minnesota court held that strict scrutiny prevented a court from ordering child support from a non-custodial father based upon

his earning capacity rather than actual income, where he was a member of a religious group which required that all income be turned over to the group.

The least restrictive means requirement of RLPA, when it is applied to laws enacted for the protection of a segment of society in the furtherance of a compelling

interest, runs headlong into the rights of the beneficiary of those laws to due process

and equal protection. Even RFRA proponents have recognized the danger. Civil liberties groups have refused to support the Religious Liberty Protection Act of 1998

without an exemption for anti-discrimination laws.

The least restrictive means test takes no account of the relative importance of the

state’s articulated compelling interest. Regardless of how important the state’s interest, RFRA requires that only the remedy least restrictive of religion may withstand scrutiny. The resulting lack of proportionality between the compelling state

interest and the religious interest violates the powers retained by the states under

the Tenth Amendment and principles of federalism.

III. RLPA WOULD REQUIRE STRICT SCRUTINY OF ALL JUDICIAL GOVERNMENT ACTION

BURDENING RELIGION

RLPA proponents have made little attempt to examine the scope of their proposed

solution to Smith. One does not have to look far to determine that RLPA’s strict

scrutiny applies not only to the relationship between the religious believer and government, but also to the relationship between the religious believer and individuals

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invoking the power of government for their protection, or for the vindication of their

rights. The Court in Flores recognized the broad sweep of RFRA:

‘‘RFRA is not so confined. Sweeping coverage ensures its intrusion at every level

of government, displacing laws and prohibiting official actions of almost every

description and regardless of subject matter. RFRA’s restrictions apply to every

agency and official of the Federal, State, and local Governments. RFRA applies

to all federal and state law, statutory or otherwise, wither adopted before or

after its enactment.’’ (Citation omitted).

Id., 117 S.Ct. at 2170.

The Court’s reference to ‘‘all federal and state law, statutory or otherwise,’’ intimated the public/private, and the statutory/common law sweep of RFRA. It has long

been settled that the rules of law applied by a court and the rendering and enforcement of a court’s judgments are government action for purposes of the application

of constitutional liberties. In New York Times v. Sullivan, 376 U.S. 255 (1964) the

Court held that a rule of law applied by a court in civil actions between private parties is government action for purposes of constitutional scrutiny:

‘‘Although this is a civil lawsuit between private parties, the Alabama courts

have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not

that that law has been applied in a civil action and that it is common law only,

though supplemented by statute. The test is not the form in which state power

has been applied but, whatever the form, whether such power has in fact been

exercised.’’ (Citation omitted).

Id., at 265. See also, Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991).

Two state’s courts have addressed the issue of RFRA’s application to judicial government action, Minnesota and New York. Lundman v. McKown, 530 N.W.2d 807,

cert. denied 516 U.S. 1099 (1995); Williams v. Bright, 658 N.Y.S.2d 910, 913 (1997).

Both courts held that the constitutional right to free exercise of religion is substantially burdened by judicial government action which applies neutral rules of law,

and that such infringement requires the application of strict scrutiny to the court’s

decisionmaking.

In Lundman, I litigated a wrongful death tort action against a mother and other

caregivers for withholding medical care and allowing her 11-year-old son to die of

untreated diabetes while they prayed. The child’s lethargy, uncontrolled vomiting

and urination were followed by unconsciousness, rigidity, and gritting of teeth until

the child eventually died while the caregiver noted these symptoms in a book, stating that ‘‘passing is possible.’’ The wrongful death verdict in favor of the absent father was appealed to the Minnesota Court of Appeals, which held that the freedom

of religion provisions of the Minnesota Constitution required the application of strict

scrutiny to all incidental burdens on religion, including the incidental burden resulting from a common law tort verdict, citing State by. Cooper v. French, 460 N.W.2d

2 (Minn. 1990) and State v. Hershberger, 462 N.W.2d 393 (Minn. 1990). The Minnesota Court of Appeals held that the neutral application of the reasonable person

tort standard needed to be modified to the extent necessary to avoid the burden on

religion: ‘‘[because] an individual’s right to religious autonomy is a core ideal of both

the state and federal constitutions * * * we apply a standard of care taking account

of ‘good-faith Christian Scientist’ beliefs rather than an unqualified ‘reasonable person standard.’ ’’ Lundman, supra, at 827–28. See DeBose v. Bear Valley Church of

Christ, 890 P.2d 214 (Colo. App. 1995) (suit for molestation of a child by church

counselor should be dismissed if jury finds the conduct was based on sincere religious belief. In concurrence, RFRA modified state tort law and ‘‘there is no compelling state interest here to allow plaintiffs to pursue a tort remedy.’’).

The result under RLPA, which compels the application of strict scrutiny to all judicial government action, is the establishment of separate common law standards

of care for persons who are religiously motivated, and a separate system of laws for

nonreligious persons. It infringes upon and subjugates all other constitutionally protected rights to property, life, neutral adjudication of controversies, equal protection

of the laws, due process and all other rights which are supposed to be protected by

the judicial branch of government.

The analysis under strict scrutiny of judicial action in other private litigation

yields remarkable and startling results. For example, suppose that a boundary line

dispute between a church and an adjoining landowner has resulted in litigation in

which the adjoining landowner claims to own a significant interest in or a substantial part of the church’s property. The adjoining owner seeks the civil court’s determination of his property interest under neutral property law principles. From the

church’s perspective, it faces the prospect that application of neutral principles of

law by the state court would result in the loss of a substantial amount of its propVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00191 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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erty or assets, certainly a substantial burden upon it. Under RLPA, the state court’s

judgment decreeing that the true boundary between the properties impinged significantly on church property, would be a substantial burden on the exercise of religion

by depriving the religion of its place of worship or a significant amount of its worldly assets.

In this hypothetical case, the government, i.e. the court, would be required to articulate its compelling interest in applying that neutral rule of law. Compelling government interests are interests of the highest order, such as ‘‘national security or

public safety.’’ In re Young, 82 F.3d 1407, 1419 (8th Cir. 1996). One can conceive

that there is a government interest of some order in a civil court’s application of

neutral principles of law or in providing a forum for resolutions of disputes between

two private parties. The question under RLPA is whether the government’s interest

is sufficiently compelling to justify proceeding with the adjudication in a manner

which would result in a burden on the church.

The probable result is that the court’s interest in providing the forum, or in applying neutral principles of law is not a governmental interest of the highest order and

therefore not a compelling interest. The result under strict scrutiny is that the court

would be required to modify the rule of law or the enforcement of that rule of law

to avoid the incidental burden on religion. The church would be entitled to take as

much of the disputed property from the adjoining landowner as is sufficient to avoid

a substantial burden on it. RFRA would thus destroy the adjoining landowner’s

state law and Fourteenth Amendment right to his property without compensation,

and his right to have the dispute adjudicated under neutral principles of law in violation of due process and equal protection.

The sovereignty of religion from burdensome incidental judicial outcomes is an establishment of religion, and it explains, at least in part, the lack of historical support for religious immunity from laws of general applicability. In words which the

Supreme Court has said mark the dimensions of the Establishment Clause:

‘‘Because, the bill violates that equality which ought to be the basis of every

law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached * * *. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by

granting to others peculiar exemptions.

James Madison’s Memorial and Remonstrance, at paragraph 4 (reprinted in Appendix, Everson v. Bs. of Ed. of Ewing Twp., 330 U.S.1 (1947).

Because RLPA allows the religious believer to subjugate the interests of all persons seeking protection through judicial government action, it violates the Establishment Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and it is therefore an improper exercise of Congressional power

under any of the clauses of the Constitution.

IV. CONCLUSION

The application of strict scrutiny to all incidental burdens on religion dramatically

alters the landscape of nearly all Church/State and Church/individual litigation. Its

effects would not be confined to government’s impositions on the free exercise of religion, but instead would include all judicial government action, including private litigation. Children, who have no political representation in the branches of government, are particularly vulnerable and would be adversely affected by RLPA. More

consideration needs to be given to the Equal Protection, Due Process and Establishment Clause implications of granting solely to religious believers a right to invalidate all incidental government burdens. For these reasons, Congress should not

pass any religious liberty legislation without ensuring that it does not deprive the

vulnerable of equal government protection, equal application of the laws, and neutral judicial fora.

I thank the Chairman again for this opportunity to make my views known to the

Committee.

PREPARED STATEMENT OF MARCI A. HAMILTON

Mr. Chairman, thank you for permitting me to submit this written testimony for

the record. I am the Distinguished Visiting Professor of Law, Emory University

School of Law, where I specialize in constitutional law, and especially church-state

issues. From 1996 to 1997, I served as lead counsel for the City of Boerne, Texas

in the successful constitutional challenge to the Religious Freedom Restoration Act

(RFRA). See Boerne v. Flores, 117 S.Ct. 2157 (1997). I have devoted the last six

years to writing, testifying, lecturing, and litigating regarding the Religious FreeVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00192 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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dom Restoration Act (‘‘RFRA’’) and similar religious liberty legislation in the states.

For the record, I am a religious believer.

INTRODUCTION

The question the Religious Liberty Protection Act of 1999 ‘‘RLPA’’) addresses is

the following: When is a government prohibited from enforcing neutral, generally

applicable laws that have been violated by religious individuals and institutions?

This bill is an unvarnished request from religious lobbyists to permit religious individuals and institutions to break a wide variety of laws. It forces governments to

permit religious individuals and institutions to break the law unless the government

can prove that it has a compelling interest and employed the least restrictive means

to reach that interest, the highest level of scrutiny known in constitutional law.

Like its predecessor, RFRA, this bill is an attempt by Congress to displace the

Supreme Court’s reading of the Free Exercise Clause in Employment Div. v. Smith,

494 U.S. 872 (1990).

RLPA asks Congress to make simultaneous policy judgments regarding a vast

array of crucial federal and state legal schemes. The following are a few of the laws

with which religious entities and institutions have come into conflict:

1. Child abuse, endangerment, and neglect laws, including laws that require medical treatment to prevent death or permanent disability.

2. Civil rights laws, including fair housing laws.

3. Domestic violence laws.

4. Prison regulations.

5. Land use laws:

a. On- and off-street parking, especially in residential neighborhoods.

b. Lot and building size regulations, especially in circumstances where the religious institution wishes to build a ‘‘megachurch’’ or construct several buildings

in one location, including movie theaters, coffee houses, fitness centers, gymnasiums, schools, and child or senior day care centers.

c. Health and safety code regulations, including fire prevention and occupant

capacity in residential and child care facilities.

d. Zoning regulations.

e. Historical and cultural preservation.

6. Public school order and safety regulations, including weapons bans.

7. Fiduciary duty laws applicable in cases of clergy misconduct (typically for abuse

of children or impaired adults).

8. Child custody and support laws.

9. Anti-polygamy laws.

10. Military regulations.

RLPA is a blank check for religion. It took the ACLU approximately five years

to fathom that RFRA (and now RLPA) is a threat to the civil rights laws. What

other hidden agendas lie in this across-the-board preference for religion? For example, there are religions that hope to run day care centers without having to satisfy

the onerous health and safety regulations under which secular day care centers operate. RLPA will make that easier. Others hope to operate soup kitchens or hold

worship services in residential neighborhoods without having to abide by certain

zoning and land use regulations that make those neighborhoods livable.

The Constitution counsels against handing power blindly to any social entity, even

religion. See generally Marci A. Hamilton, The Constitution’s Pragmatic Balance of

Power Between Church and State, 2 Nexus: A J. of Opinon 33, 34–36 (1997). Instead

of RLPA, Congress would do far better to focus on individual arenas within which

actual and substantial burdens on religious conduct exist and where accommodation

is likely to be consistent with the public good. By concentrating on those specific

instances, Congress could investigate whether such exemptions are consistent with

the public good and therefore fulfill its constitutional duty to serve the entire polity.

This is the constitutional advice rendered by the Court in Smith but ignored by the

Congress when it enacted RFRA.

CONSTITUTIONAL DEFECTS

The Religious Liberty Protection Act of 1999 is ultra vires. It ostensibly rests on

three powers of Congress: the Commerce Clause Power, the Spending Power, and

Section 5 of the Fourteenth Amendment. Instead, it attempts to stretch each of

these powers beyond their proper boundaries.

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1. RLPA is not a valid exercise of Congress’s Commerce Power

The test to be applied in Commerce Clause cases is two-fold. First, the courts

must ask whether the law regulates activities that ‘‘substantially affect’’ interstate

commerce. United States v. Lopez, 514 U.S. 549, 558–59 (1995). Second, the courts

must consider the inherent limits of federalism on the exercise of the Commerce

Clause. The Constitution ‘‘withhold[s] from Congress a plenary police power that

would authorize enactment of every type of legislation.’’ 514 U.S. at 566.

Prong One: Substantially, Affects Commerce. RLPA would subject state and local

government actions to strict scrutiny whenever a ‘‘substantial burden on the person’s religious exercise affects’’ commerce. See Sec. 2(a)(2). There are two problems

with RLPA’s formulation. In Lopez, the Court explicitly rejected the simple ‘‘affects’’

test and embraced the requirement that the subject of the law must ‘‘substantially

affect’’ interstate commerce. 514 U.S. at 559. RLPA is not limited to activities that

substantially affect interstate commerce and therefore exceeds Congress’s power

under the Commerce Clause.

Second, the connection between religious practices and interstate commerce is tenuous at best. It should go without saying that the vast majority of religious conduct

has nothing to do with commerce. Hair length, the decision to wear a particular religious symbol, the wearing of yarmulkes, the laying on of hands, or the construction

of a sweat lodge are actions that do not have substantial impact on interstate commerce.

Prong Two: Federalism. Congress may not employ its Commerce Clause power in

a way that would ‘‘convert congressional authority under the Commerce Clause to

a general police power of the sort retained by the States.’’ 514 U.S. at 567. This bill

would seem to intervene in every situation where a local or state government attempts to enforce its generally applicable, neutral laws that incidentally substantially burden religious conduct. This is a new federalization of local autonomy.

This bill is not about regulating commerce, but rather is a handout for religion.

It is a bald-faced attempt to transform a subject matter of the First Amendment

(the free exercise of religion), which is a limitation on the Congress, into an enumerated power.

2. RLPA is not a valid exercise of Congress’s Spending Power

RLPA applies to every arena that receives any federal financial assistance. The

only way for state and local governments to avoid RLPA’s burdens is for them to

forego all federal financial assistance.

Under South Dakota v. Dole, 483 U.S. 203 (1987), a federal law is a valid exercise

of Congress’s power under the Spending Clause if there is a nexus between the

spending and the condition attached to the spending. See 483 U.S. at 207

(‘‘[C]onditions on federal giants might be illegitimate if they are unrelated to ‘the

federal interest in particular national projects or programs.’’). The condition attached to spending under RLPA is that the government or governmental entity receiving federal financial assistance will subject itself to suits (including the cost of

attorneys’ fees, see Sec. 4(b)) whenever its generally applicable, neutral laws substantially burden any religious claimant’s conduct within the context of any state

or local program that receives any federal funds.

The only way to avoid such liability under RLPA is to refuse the federal financial

assistance. On the current state of the record, Congress has not begun to ask what

the nexus is between its national interest in any spending and burdens on religious

conduct. Neither House of Congress has attempted to even survey the vast sweep

of spending programs implicated by this bill. Where the constitutional basis for congressional action is not ‘‘visible to the naked eye’’ and Congress provides no ‘‘particularized findings’’ to support the law, the courts invalidate the law rather than provide the factual predicate that they are ill-equipped to provide. See, e.g., Lopez, 514

U.S. at 563.

Second, the ‘‘financial inducement offered by Congress might be so coercive as to

pass the point at which ‘pressure turns into compulsion’ ’’ and therefore exceed

Congress’s power under the Spending Clause. 483 U.S. at 211. RLPA is as coercive

as it gets. It is mandatory for all those government entities take any federal financial assistance. The states and local governments must choose between taking the

funds with the liability or taking no funds. RLPA is unlike the highway bill upheld

in South Dakota v. Dole, which penalized states who did not set the state’s drinking

age to a minimum of 21 by taking only a small percentage of the federal highway

funds provided.

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1The reference to ‘‘individualized assessments’’ is an attempt to piggyback on dictum in the

Smith case. The Court in Smith indicated that individual assessments in unemployment compensation cases might justify strict scrutiny. See 494 U.S. 884. The Court clearly did not mean

that all unemployment compensation schemes require strict scrutiny. The Smith case itself involved an unemployment compensation claim and the Court did not apply strict scrutiny. What

the Court meant by ‘‘individualized assessments’’ and whether the idea can be analogized to the

land use arena are open questions.

3. RLPA is not a valid exercise of Congress’s power to enforce constitutional rights

under Section 5 of the Fourteenth Amendment

Section 3(b) of RLPA federalizes local land use in every scenario where the land

use authorities engage in ‘‘individualized assessments’’ 1 and where religious claimants claim burdens on their religion.

Under Boerne v. Flores, the Congress may only enforce constitutional rights pursuant to Sec. 5 of the Fourteenth Amendment if there is congruence between the

means chosen and the end of preventing constitutional violations. ‘‘While preventive

rules are sometimes appropriate remedial measures, there must be a congruence between the means chosen and the ends to be achieved. Strong measures appropriate

to address one harm may be an unwarranted response to another, lesser one.’’ 117

S.Ct. at 2169. RLPA is a very strong measure addressing an unproven set of constitutional violations.

To prove congruence, two facts need to be widely recognized or established

through reliable factfinding; (which can be accomplished through general acknowledgment of a fact). First, the states and local governments must have done something unconstitutional or likely unconstitutional to justify the federal intervention

in their affairs. See The Civil Rights Cases, 109 U.S. 3 (1883), cited in Flores, 117

S.Ct. at 2166.

To my knowledge, there is no evidence that the states and local governments have

engaged in a pattern of free exercise violations through their land use laws. Indeed,

Professor Mark Chaves of the University of Arizona’s Department of Sociology has

completed a land use study that confirms an earlier study done by the Presbyterian

Church that indicates that religious entities, even minority religions, do extraordinarily well in the land use process. The study is available at this time on my

website at www.marcihamilton.com and by contacting Professor Chaves at the University of Arizona.

Religious buildings do tend to conflict with land use regulations, but that does not

mean that religious entities’ rights under the Free Exercise Clause have been violated. If the laws are applied generally and neutrally, the incidental burden imposed

by such laws is not unconstitutional. Smith, 494 U.S. 872, 882 (1990).

If there were ever a time when state and local governments needed to be permitted to enforce general and neutral land use laws, even if they burden religious

institutions, now is the time. Local governments, prompted by their constituents,

are taking steps to preserve open space, historical properties, and cultural artifacts.

The people seem genuinely devoted to these causes, which have been taken up recently by First Lady Hillary Clinton and Vice President Al Gore.

The need for land use planning and enforcement, even against religious entities,

has not been an issue limited to the Democratic Party. Gov. George W. Bush recently signed into law the Texas Religious Freedom Restoration Act, which exempts

land use laws from its reach altogether.

At the same time the suburbs and cities are becoming more committed to their

land use plans, a significant number of religious institutions are turning to everlarger houses of worship and building complexes. There is an unmistakable development toward all-inclusive services on one religious entity’s property. For example,

a single congregation may build a building for worship, a movie theater, a coffee

house or restaurant, a fitness center, and a child and senior care center on the same

property. Religious entities are eager to avoid land use laws with respect to these

other buildings as well as their houses of worship. By its terms, RLPA does not appear to be limited to houses of worship and therefore would appear to undermine

local control over any building that is constructed by a religious entity.

RLPA’s land use provisions take a large leap from existing precedent to micromanage local land use decisions. They exceed the power of Congress under Section

5 and they violate the Constitution’s inherent principles of federalism.

Second, the means chosen must be ‘‘responsive to, or designed to prevent, unconstitutional behavior.’’ Boerne, 117 S.Ct. at 2170. In the absence of proof of unconstitutional behavior, this prong cannot be satisfied.

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4. RLPA violates the Establishment Clause

According to the Court in Employment Div. v. Smith, a ‘‘nondiscriminatory religious-practice exemption is permitted.’’ 494 U.S. 872, 890 (1990). See, e.g., Dep’t of

Air Force, Reg. 35–10, para. 2–28 (b)(2) (Apr. 1989) (permitting wearing of religious

head covering when military headgear is not authorized and when the religious

head covering does not interfere with the function or purpose of required military

headgear); see also American Indian Religious Freedom Act, 42 U.S. C. sec. 1996a

(1994) (permitting Native American use of peyote during religious ceremonies).

RLPA, however, is not a religious-practice exemption. Rather, it is a readjustment

of power between church and state intended to force accommodation even when the

government deems such an exemption opposed to the general welfare.

There is no case support for the proposition that Congress has the power to provide for or force accommodation in a wide variety of fields simultaneously. Justice

Stevens pointed out the Establishment Clause evil in RFRA (and, therefore, RLPA)

in his concurrence in Boerne. 117 S.Ct. at 2172. Some have tried to make a great

deal out of the fact that no other Justice joined Justice Stevens’ concurrence. Equally true is the fact that no other Justice mentioned, let alone rejected, Justice Stevens’ reasoning. The oral argument before the Court in the Boerne case would indicate that a significant number of Justices have sincere concerns regarding the propriety of RFRA (and therefore RLPA) under the Establishment Clause.

RLPA privileges religion over all other interests in the society. While the Supreme

Court indicated in Smith that tailored exemptions from certain laws for particular

religious practices might pass muster, it has never given any indication that legislatures have the power to privilege religion across-the-board in this way.

RFRA’s and RLPA’s defenders have relied on Corporation of the Presiding Bishop

v. Amos, 483 U.S. 327 (1987), for the proposition that govermnent may enact exemptions en masse. This is a careless reading of the case, which stands for the proposition that religion may be exempted from a particular law (affecting employment)

if such an exemption is necessary to avoid excessive entanglement between church

and state. RLPA, like RFRA, creates, rather than solves, entanglement problems.

RLPA, which was drafted by religion for the purpose of benefitting religion and has

the effect of privileging religion in a vast number of scenarios, violates the Establishment Clause.

In sum, Congress lacks the power to institute this broad-ranging attempt to privilege religion in a vast array of arenas. Even if it held such power, this exercise of

congressional power crosses the line from permissible accommodation to the unconstitutional establishment of religion.

Additional information on state and federal religious liberty legislation can be obtained at my website: www.marcihamilton.com.

PREPARED STATEMENT OF BARBARA BENNETT WOODHOUSE ON BEHALF OF THE

CENTER FOR CHILDREN’S POLICY PRACTICE AND RESEARCH

The Center for Children’s Policy Practice and Research at the University of Pennsylvania (hereinafter CCPPR) is a nonprofit academic group composed of experts on

child welfare and children’s issues in the fields of law, medicine and social work.

Established by Dean Ira Schwartz of the School of Social Work, the CCPPR is under

the Co-Directorship of Dr. Richard Gelles of the School of Social Work, a specialist

in domestic violence, Dr. Annie Steinberg of the Medical School Faculty and Children’s Hospital, a pediatrician who is board certified in adult and pediatric psychiatry, and Professor Barbara Bennett Woodhouse of the Law School faculty, who is

a specialist in constitutional law and in the rights of families and children. We work

in collaboration with other experts on children’s issues from all segments of the University of Pennsylvania. Our mission is to integrate policy, research and practice toward the goal of preserving children’s health and developmental potential, and assuring the rights of America’s children to be safe and secure in their own homes

and communities. We believe that an interdisciplinary approach, which combines

the skills of all relevant professionals, is essential to the formation of effective policies and practices, as well as reliable and sound research, in the area of child welfare.

The CCPPR is submitting this testimony to address questions raised about the

potential effects of the Religious Liberty Protection Act (RLPA) on existing state and

federal law schemes for protecting children from abuse and neglect. This legislation

would significantly change the current legal standards embodied in state and federal statutes and applied by juvenile courts and local and state child welfare agencies regarding the balance between religious freedom of parents and protection of

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children from harm. In our opinion, it would place children at greater risk of abuse

and neglect.

RLPA prohibits any local or state government entity or program that receives federal funding from placing a ‘‘substantial burden’’ on a person’s ‘‘religious exercise,’’

even if the burden results from a rule of general applicability. The principle is well

established that parents’ free exercise rights extend to inculcation of children with

their religious beliefs and practices. Many of the most famous free exercise cases

from the Supreme Court of the United States have involved parents claiming an infringement of their First Amendment free exercise rights based on laws that interfered with their religiously based parenting decisions. See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) (Jehovah’s Witness Aunt and guardian seeks an exemption from child labor laws); Wisconsin v. Yoder, 406 U.S. 205 (1972) (Amish parents

seek an exemption from mandatory education laws); Bowen v. Roy, 476 U.S. 693

(1986) (Native American parents seek exemption from policy of assigning children

a social security number). RLPA would shift the burden of proof to the state of demonstrating a ‘‘compelling state interest’’ and showing that the government go funded

program or agency had adopted the ‘‘least restrictive means’’ of furthering that interest. To the extent sects or individual believers treat child rearing practices and

inculcating children in the parent’s faith as a religious obligation, the overlap between ‘‘free exercise’’ claims and conduct harmful to children is substantial.

Limiting the law to programs receiving federal funds does little to mitigate this

harm. Virtually all child welfare activities, from hospitals to foster care programs

to family courts themselves, receive some level of federal funding through programs

designed to assist states in dealing with the problems of children who are abused,

suffering from medical neglect, or lacking ‘‘proper parental care and supervision’’

and thus within the state’s ‘‘parens patriae’’ protective custody. States and localities

currently participate in a host of federally funded programs including adoption assistance for special needs children, foster care and group homes, social work services

to families and children in their own homes, all of which operate under rules of general application which have the potential for creating a ‘‘burden’’ on parents’ religious exercise. States and localities routinely must determine whether to intervene,

based on reports from medical personnel, schools, police and citizens, when parents’

religious beliefs conflict with children’s health and safety.

Rights of free exercise, when asserted by parents in connection with child rearing

and religious practices, raise unique issues. No other situation involves the believer

placing another individual’s life at risk as an aspect of vindicating his or her own

religious beliefs. Child protection and child welfare laws vary from state to state,

but they rarely mandate the strictest level of scrutiny or require that the state’s

intervention be limited to the ‘‘least restrictive alternative’’. There is good reason

not to apply the ‘‘least restrictive alternative’’ standard. In cases involving children,

courts must balance, in addition to the parent’s private interest in religious exercise

and the government interest in protecting children, the child’s independent interest

in bodily integrity and children’s right to life. These interests of children are interests of constitutional magnitude, under the due process clause. For this reason,

courts and legislatures have drawn a more nuanced balance, and one that places

as much or greater emphasis on children’s rights to bodily integrity as on parents’

free exercise rights.

The following are several scenarios that illustrate the obstacles RLPA creates for

agencies, and the danger it poses of costing innocent children’s lives by preventing

government from meeting the needs of at risk children:

Effects on Schemes for Mandatory Reporting of Abuse: In 1993, almost 3,000,000

reports of suspected child abuse were filed in the United States. In 1,000,000 such

cases, further investigation showed the report to have been well founded. In the initial stages of an investigation, it is impossible to determine which reports are unfounded, which involve suspicious circumstances that cannot be proven, and which

will uncover past abuse and grave risks of future harm. In a common scenario, a

teacher or other ‘‘mandatory reporter’’ observes bruises on a child and is told by the

child ‘‘Daddy punished me because I was bad.’’ State laws passed in response to the

Child Abuse Prevention, Adoption and Safe Families Act of 1988 (PL 100–294) make

it mandatory for the teachers, social workers, medical personnel and others to file

a report if they have ‘‘reasonable grounds’’ to suspect child abuse. According to regulations promulgated under PL 100–294 ‘‘child abuse and neglect’’ is defined to include ‘‘physical injury.’’ Often, a school principal or child protective services worker

will seek the opinion of a health professional who on visual inspection may confirm

that the child’s condition warrants reporting and further investigation. The parent

may be asked to explain the bruises and to give permission for a medical examination. Siblings or others may be interviewed. In Foy v. Holston, 94 F.3d 1528, 1536

(11th Cir. 1996), for example, a teenage runaway from a religious commune called

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‘‘Holyland’’ exhibited bruising and reported she and other children were severely

whipped for minor infractions. She was taken into protective custody, her parents

and other children were interviewed, but after further investigation the case was

dropped and she returned home voluntarily. Her parents sued, claiming first

amendment and due process infringements.

Under RLPA if the parent (as in Foy cited above) concedes he caused the braising

but claims that his conduct is an integral part of his religious belief whether based

on scriptural references to corporal punishment or more unusual beliefs such as the

need for force in exorcizing devils, RLPA would be triggered. While some reports

(like those in Foy) may be dropped as lacking adequate evidence, others will lead

to discovery of past abuse and risk of future abuse. Radiological investigation will

often reveal both new and old fractures substantiating a history of severe battering.

Normally, evidence of cuts or bruises resulting from corporal punishment will justify

a court ordered medical exam should the parent refuse to authorize one. The parents protected by RLPA, however, could assert religious objections to any forms of

medical care, including diagnostic X rays.

The teacher, school and police, by interposing their authority between parent and

child, in matters concerning religion arguably have created a ‘‘substantial burden’’—

but they are required to do so, or be guilty of a violation under laws passed in virtually every state as a precondition for receiving federal funding. Currently, doctrines of qualified immunity protect them precisely because this is an area in which

child custody workers must engage, under difficult circumstances and without perfect information, in balancing of the competing interests of children, parents and the

state. As the United States Court of Appeals for the Eleventh Circuit stated in Foy,

supra ‘‘[S]tate officials who act to investigate or to protect children where there are

allegations of abuse almost never act within the contours of ‘clearly established

law.’ ’’ The Circuit Court held that, considering the lack of bright line standards in

the law of abuse and neglect, the officials enjoyed qualified immunity. Similarly,

governments (and the taxpayers) are not liable under current laws every time they

fall short of the ideal in investigating or responding to abuse, as long as they act

reasonably under the circumstances. RLPA would change this balance, increasing

risk for children as well as for government agencies that failed to adopt the least

restrictive of an array of reasonable options.

RLPA is Clearly Less Protective of Children’s Bodily Integrity than Current Standards such as ‘‘Reasonable Grounds’’ or ‘‘Reasonable Efforts:’’ While the state interest

in protection of children will likely pass muster as a ‘‘compelling’’ interest, application of a ‘‘least restrictive means’’ test would place a heavy burden on the state, not

contemplated by current law. Can the court order a medical exam based on ‘‘reasonable grounds’’ for intervening when the suspected abuse is religiously motivated—

or must there instead be clear and convincing evidence? Currently, even where the

law imposes a standard requiring ‘‘clear and convincing evidence’’ of abuse or neglect, once there is a finding that a child is ‘‘in need of services’’ or ‘‘a dependent

child’’, courts are typically instructed by statute to enter such orders as may be in

the child’s ‘‘best interest’’ or be ‘‘necessary’’ to protect the child. Judges are usually

provided with a menu of alternatives, from ordering the parent to participate in

counseling to removal of the child for placement in foster care. Under RLPA, however, if a court finds that a parent’s religion requires application of ‘‘the rod’’ but

that the punishment inflicted has been excessive, can it enter an order prohibiting

the parent from repeating the same type of conduct, i.e., using a switch or belt? Or

can it only restrict the parent from administering whippings that cross the boundary between discipline and abuse? Can the court remove the child into protective

custody, or must it first try in-home services as ‘the least restrictive means’’ of vindicating the state’s interest while protecting the parents’ rights? In each of these

circumstances, if a court concludes that the government entity or agency has failed

to use the least restrictive means, the costs of attorney’s fees and damages awards

will add to the burdens of fiscally strained child welfare agencies.

In Pfoltzer v. County of Fairfax, 775 F. Supp. 874 (E.D. Va. 1991), the parent

claimed that the state burdened their religion by placing their children with foster

parents who did not adhere to their specific faith and by depriving the parents of

their right to conduct religious instruction. Quoting from Wilder v. Bernstein, 848

F.2d, 1338 (2d Cir. 1988) the court held that ‘‘so long as the state makes reasonable

efforts to assure that the religious needs of the children are met during the interval

in which the state assumes parental responsibilities, the free exercise rights of the

parents and children are adequately observed.’’ Id. At 885 (emphasis added). The

court held that the state’s efforts had been reasonable: the children had been taken

to a church of their faith (Roman Catholic) by the foster parents, and given access

to religious instruction classes. The court highlighted the burdens states would face

if they were required to match each foster child to a foster family of the same reliVerDate 11-MAY-2000 11:24 Oct 17, 2000 Jkt 000000 PO 00000 Frm 00198 Fmt 6601 Sfmt 6621 JUNE23.TXT SJUD2 PsN: SJUD2
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gion. ‘‘Thus, for example, a state has no duty to place a Buddhist child with a Buddhist foster family, a Quaker child with a Quaker family, or a Zoroastrian child with

a Zoroastrian family, unless such family is reasonably and immediately available.’’

Pfolzer at 885. This approach, focusing on reasonableness, speed and efficiency,

strikes a proper balance between children’s interests, governments’ resources, and

the rights of parents. It is distinctly at odds with the far more stringent ‘‘least restrictive alternative’’ imposed by RLPA.

Effects on Pediatricians’ Treatment of Their Patients: For each case appearing in

the news media or in printed court opinions, hundreds more are encountered every

day by practicing pediatricians and pediatric psychiatrists. CCPPR Co-Director Dr.

Annie Steinberg in her practice has encountered numerous instances of parents asserting religious beliefs as the basis for treatment decisions that threaten the life

and health of their children. The following are some examples.

Example 1: A father brings a three year old with sickle cell disease and failure

to thrive to a hospital receiving federal funds. The child is in medical crisis, suffering the effects of blood cells aggregating, including painful joint swellings. Under

counseling from his minister, the father has placed the child on a protein free diet

to heal her. While Grandmother, the day to day care giver, is open to a medically

appropriate diet, father is home all day and, under their religion, Grandmother

must obey him. He insists on continuing the dangerous protein free diet.

Example 2: Moslem parents give birth to a baby in a hospital receiving federal

funds. The baby is born with VATER syndrome, which includes the absence of the

radius, a bone in the arm, and other treatable conditions. Baby is premature and

develops NEC, necrotizing enterocolitis, and needs emergency surgery. The parents

refuse to authorize the surgery, claiming their religion gives them the choice to

refuse life sustaining surgical treatment for their disabled child.

Example 3: An adolescent presents at a mental health clinic receiving federal

funds with suicidal ideation and major depression (untreated). Her parents refuse

to allow her to attend outpatient therapy, or receive treatment with

antidepressants, insisting their religion requires that she ‘‘pray to God for forgiveness of her sins’’ instead. The danger of suicide is significant, but difficult to quantify.

In order to properly treat such patients despite the parents’ religiously based objections, pediatricians and other medical professionals rely on the systems in place

for protecting children against ‘‘medical neglect.’’ This legislation creates a double

standard, placing children whose parents adhere to certain religious beliefs at greater risk and forcing doctors to adopt medically risky compromises to accommodate

religious claims of parents.

Failure to Exempt Extreme and Abusive Conduct: Many proponents of RLPA are

concerned with protecting parents who believe in spiritual healing from overly intrusive and unnecessary state intervention. However, RLPA is not narrowly focused on

this set of benign cases. It applies even when spiritual healing appears to threaten

the life of the child, as in the examples cited above. It also applies to the entire

range of potential religious practices, however shocking or dangerous. Presently,

state laws recognize various levels of harm. Abuse laws generally exempt moderate

levels of physical discipline, labor laws distinguish between exploitation and household chores, and states are free, under federal laws such as the Child Abuse Prevention and Treatment Act to craft appropriate exemptions for spiritual healing. All

states laws, however, unequivocally impose absolute prohibitions against, inter alia,

ritual sexual acts committed on children; harmful ritual mutilation of children;

forced marriages of minor children; incestuous or polygamous intermarriages within

a religious community, and other forms of religiously motivated conduct which victimizes children.

RLPA does not distinguish among religious beliefs. Any citizen claiming laws of

general application burdened his or her religion could invoke RLPA, and such

claims would command the same ultra-strict level of scrutiny and narrowly tailored,

individualized consideration as any other religiously based claims, adding to the

burdens on courts and agencies charged with protecting children. Such scenarios are

not far fetched. Recent cases covered in the media include the Branch Davidian sect

in Waco Texas, whose leader allegedly engaged in sex with minor children as part

of the religious practice of the community; a girl from an extremist Mormon sect

whose father was alleged to have forcibly married her to an uncle, imprisoned her

and beat her when she ran away; followers of middle eastern fundamentalist sects

who forced their minor daughters to marry strangers against their will; and ‘‘new

age’’ parents who fed their infant only lettuce and watermelon, believing this was

the will of God. Instead of this blunderbuss approach, statutes creating religious exemptions should be tailored to specific concerns.

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Implications for States Which Require Heightened Protection of Children’s Rights

to Bodily Integrity in Cases Involving Repeat Offenders: Many states’ laws contain

special language requiring courts to make specific findings of fact and narrowly tailor their orders to protect the child, rather than the parents, rights. These laws

often single out cases where there has been prior abuse, or where parents have

caused the death of a child’s sibling. In Maryland, for example, the law in such

cases provides ‘‘unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation

rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well being of the child.’’ Md. Code, Family Law, section 9–101(b) (emphasis

added). In addition, section 101.1(b)(3) states that the court shall consider evidence

of abuse of any child residing within the * * * household’’ and ‘‘shall make arrangements for custody or visitation that best protect the child.’’ (Emphasis added).

RLPA contains no such exceptions and its language is clearly at odds with these

states’ policies of zealous protection of children’s rights to be free from repeated incidents of abuse. Religiously motivated abuse and neglect often involve repeated offenses, since the usual deterrents are at their least effective when pitted against

deeply held religious convictions, however unusual or bizarre. Thus, the very children most likely to be placed at risk repeatedly, would be deprived of protection in

states responding to RLPA’s incentives.

Repeal by Implication of Existing Federal Laws: ‘‘Reasonable Efforts’’ under the

Child Abuse Prevention and Adoption Assistance Act of 1988. Under the 1988 Act,

state agencies throughout the country were required as a condition of receiving federal funding to make ‘‘reasonable efforts’’ to avoid removing at risk children from

their homes and to reunite children in foster care with their families. The ‘‘reasonable efforts’’ formula—which reflected enlightened states’ practices—was designed to

balance the state’s and child’s interests in protection with the parents’ and child’s

interests in reunification. RLPA would, in effect, create a special category of cases

requiring not just ‘‘reasonable’’ but ‘‘least restrictive’’ measures. It would also overrule in part at least one Supreme Court case construing that statute. In Suter v. Artist, 503 U.S. 347 (1992), the Supreme Court refused to find that the Congress

intended to create a private cause of action based on a state’s failure to make ‘‘reasonable efforts’’ to avoid placement. RLPA would do just that. In addition to heightening the standard of review from reasonableness to strictest scrutiny, it provides

for a private cause of action and for an award of attorney’s fees as an incentive to

litigate. The same factors that persuaded the Supreme Court that Congress had no

intention of creating such a scheme in 1988 weigh against Congress’ taking such

a step now without extensive discussion and full investigation of costs and benefits.

The Adoption and Safe Families Act of 1997: In recent legislation, Congress has

acted to strengthen not weaken government’s role in protection of children. Dr.

Richard Gelles, a Co-Director of CCPPR, worked extensively on this Act and is involved in training of social workers for implementation of the Acts provisions. Professor Woodhouse also has written about ASFA and participated in training, for

ASFA compliance. This Act provides that a state or county is not required to make

‘‘reasonable efforts’’ let alone extraordinary efforts to avoid removal or to promote

reunification in cases involving ‘‘aggravated circumstances’’ or abuse of a sibling. It

also requires that a petition to terminate parental fights be filed after a pre-determined period in foster care and places the burden on the state to show a ‘‘compelling

reason’’ why terminating the parents’ rights will not be in the child’s best interest.

Clearly, RLPA is on a collision course with this recent congressional reform. Any

parent who claimed state intervention burdened his religious exercise could demand

not reasonable but extraordinary efforts—even in cases involving acts such as torture, sexual abuse, or aggravated assault otherwise qualifying as aggravating, circumstances.’’ Removal of an abused child’s siblings is surely not the least restrictive

means of responding to an incident of abuse. Congress has struck the balance, in

ASFA, in favor of children’s safety. Under RLPA, children whose removal from home

was based on religiously motivated medical neglect or abuse, would virtually never

qualify for termination and placement in adoptive homes since this is certainly not

the ‘‘least restrictive means’’ by which states can secure the child’s safety. These

children would suffer the foster care drift that the Adoption and Safe Families Act

sought to avoid.

Other Areas Potentially Affected: Immunization, Labor Laws: In an individual

case, forced immunization is rarely the least restrictive alternative. Segregation of

the non-immunized child or quarantine are less restrictive. Yet the health of all children in a community depends on universal immunization. Child labor laws also protect the well being of all children. In Prince v. Massachusetts, 321 U.S. 158 (1944),

the court rejected a challenge to the state’s police powers, noting ‘‘It is too late now

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to doubt that legislation appropriately designed to reach [child health, labor, and

safety] is within the state’s police powers, whether against the parent’s claim to control of the child or one that religious scruple dictates contrary action.’’ For over fifty

years the Supreme Court has distinguished cases involving children’s welfare from

other burdens on free exercise. RLPA would for the first time subject such laws to

the strictest level of scrutiny, forcing states to justify them in each individual case.

Individualized exemptions, while less restrictive of an individual parent’s religious

exercise, would have a cumulative impact on the state’s ability to enforce laws of

general applicability.

Implications for State Decisions on Custody and Adoption: Custody and adoption,

although generally considered ‘‘private’’ matters, might well be affected by RLPA.

The Supreme Court has held that a custody order is a form of state action raising

serious constitutional concerns, see Palmore v. Sidoti, 466 U.S. 429 (1984). As mentioned previously, federal funding of programs for court reform and programs for

children in the courts and in adoption and in foster care touch almost every aspect

of state and local activity, including the courts and services ordered by the courts.

In cases involving disputes between parents of different religions, courts are prohibited from discriminating based on religion but they can and do take into account

risks and dangers posed to the child by a parent’s religious practices. Applying a

‘‘best interest’’ standard, courts generally ‘‘examine the totality of the circumstances

in the alternative environments’’ including the effects of a parent’s religious practice

on the child’s health, emotional and material welfare and relationships with parents, siblings and friends. See Bienenfeld v. Bennett-White, 605 A.2d 172 (Md. Ct.

Spec. App. 1992).

Bienenfeld v. Bennett-White involved a dispute between parents, one of whom converted to the Orthodox Jewish faith and the other of whom was an Episcopalian.

The mother, claimed that visitation, schooling and many other activities interfered

with Orthodox religious practices. If RLPA were applied, it would require that

claims of a parent based on the free exercise clause must trump a host of other factors, including the religious rights of a parent who claimed no religious ‘‘burden’’.

The court in Bienenfeld upheld the constitutionality of the chancellor’s removal of

the children from the mother’s custody to the father’s custody, even though it was

based in part on the disruptive effects of the mother’s new religion on the children’s

day to day life.

Adoption also potentially raises similar scenarios to custody and overlaps with

issues relating to foster care. Federal initiatives provide financial subsidies as well

as other programs to promote adoption. Would an agency be forced to find a religious match for a child with ‘‘special needs’’ receiving federal adoption assistance

as the least restrictive alternative consistent with the parent’s wishes? While time

and space have not permitted us to research and document all potential concerns,

it is imperative that this and other scenarios involving RLPA’s effects on children

be fully explored.

Conclusion: These examples are illustrative of RLPA’s unforeseen consequences

for children. By singling out interventions in religiously based abuse and neglect for

a ‘‘least restrictive means’’ test, RLPA would heighten the scrutiny placed on such

interventions. This would discourage effective and speedy response in cases involving religious sects, depriving such children of the equal protection of the law. The

Center for Children’s Policy Practice and Research at University of Pennsylvania

joins the American Academy of Pediatrics and other organizations in urging that the

Senate reject this Bill. The Senate must, at the very least, hold additional hearings

to explore these complex issues. Any legislation must make absolutely clear that

RLPA does not apply to state laws and actions involving protection of children from

physical and mental abuse and neglect or other laws, both state and federal, whose

primary focus is and must remain the best interests of children.

PREPARED STATEMENT OF MS. ELLEN JOHNSON ON BEHALF OF THE

AMERICAN ATHEISTS, INC.

WHY AMERICAN ATHEISTS OPPOSES THE RELIGIOUS LIBERTY PROTECTION ACT (RLPA)

The Religious Liberty Protection Act (RLPA) is a controversial piece of legislation

based on the older Religious Freedom Restoration Act (RFRA), passed by Congress

in 1993 and struck down by the U.S. Supreme Court four years later in the historic

Boerne v. Flores decision. Despite the ruling in Boerne, though, RFRA supporters

proceeded to introduce ‘‘mini-RFRA’’ proposals in state legislatures throughout the

country; and the federal RFRA has been rejuvenated under the guise of the Religious Liberty Protection Act. RLPA, like its predecessor, requires that governments

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use a ‘‘compelling interest/least restrictive means’’ test when dealing with faithbased organizations and practices.

Most of American’s religious groups support the measure. The Coalition for the

Free Exercise of Religion is the main proponent of RLPA, and includes representatives of Protestant, Catholic, and Jewish organizations, along with new agers, Muslims, Hindus, American Humanist Association, Scientologists and many others.

Even some separationist groups have joined the Coalition, although lately the American Civil Liberties Union has withdrawn its support for the Religious Liberty Protection Act, fearing that its enactment could be used by churches to trump the nation’s civil rights and anti-discrimination laws.

From the beginning, American Atheists has opposed both RFRA and RLPA. Representatives of the organization have spoken out against RFRA proposals in California, Maryland, Texas, New Jersey and elsewhere. At the federal level, we continue

to speak out against the Religious Liberty Protection Act.

The Religious Liberty Protection Act is ‘‘bad law’’ and is constitutionally suspect

The act is based on the Religious Freedom Restoration Act, struck down by the

U.S. Supreme Court in the 6–3 decision Boerne v. Flores. RLPA will likely suffer

a similar fate. Justices criticized the abuse of congressional authority in the passage

of RFRA; in addition, Justice John Paul Stevens found that the act was a clear violation of the Establishment Clause of the First Amendment, and provided religious

groups with a legal instrument which ‘‘no atheist’’ could hope to obtain. RLPA requires that government used a wide sweeping ‘‘compelling interest’’ test in dealing

with religious groups and practices. American Atheists argues that the effect of such

a test is to, essentially, create a dual standard of justice in the application of civil

laws—a lenient one for churches and religious groups, and a separate and more burdensome standard when applied to private individuals, businesses and secular

groups.

RLPA ‘‘establishes’’ and favors religion over nonreligion

The effect of the Religious Liberty Protection Act does not involve legitimate ‘‘neutrality’’ of government toward religion, but rather favors and advances the interests

of faith-based sects and practices. Experts on RLPA, whatever their position, readily

admit that it is one of the most wide sweeping and broad-based pieces of First

Amendment legislation ever proposed. It would affect everything from the enforcement of criminal laws to zoning regulations, land-use codes and much more. The

laws which apply to private citizens, businesses and secular non-profit, charitable

groups would not be enforced with the same rigor and application when churches,

mosques and temples are involved; the latter may always cite RLPA as a basis for

legal immunity. Communities and municipalities will experience a ‘‘chilling effect’’

when attempting to apply zoning, land use laws and other ‘‘rules of general applicability’’ to religious groups.

The act could have unintended and calamitous consequences

As the debate over RLPA has continued, many supporters in both the House and

Senate have admitted that the act could result in a broad range of unintended and

unwanted consequences. Dr. Marci Hamilton, a constitutional scholar and lead attorney for the city of Boerne, Texas in the Boerne v. Flores case, has warned that

RLPA could provide a legal shield for discrimination in housing on the basis of sexual orientation, immunity from court enforcement of child support orders, violations

of the Endangered Species act and other actions, and circumventing of historic and

preservation ordinances. The full ramifications of RLPA have simply not been examined in depth because of the ‘‘rush to judgment’’ to enact this legislation.

RLPA ‘‘federalizes’’ legislation that more appropriately belongs to states and local

communities, and is beyond the legitimate powers of the Congress

As Dr. Hamilton has observed, ‘‘RLPA rests on extremely shaky ground constitutionally. It attempts to expand Congress’s power under the Commerce and Spending

Clauses and attempts to turn Section 5 of the Fourteenth Amendment into a substantive rather than a remedial power and violates the Establishment Clause.’’

The Religious Liberty Protection Act has the effect of interjecting a Congressional

mandate into areas which are otherwise covered by state laws or local regulations.

This is particularly true in respect to laws concerning land use and historical preservation. Congress is thus targeting these areas, decreeing that communities and

states may not enforce these laws (or must meet a discriminatory and burdensome

‘‘compelling interest’’ test) when only religious groups are involved.

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The Religious Liberty Protection Act marginalizes secularism and discriminates in

favor of religion

By establishing a dual-standard in the application of laws, RLPA marginalizes

any non-religious activity, group or individual. Private home owners, business owners and other groups are required to live under the mantle of ‘‘rules of general applicability’’—everyday laws, ordinances and regulations—while faith-based groups are

provided with an exception legal instrument against them. Churches, for instance,

may use RLPA to shield themselves against ordinances or regulations which others

must adhere to, concerning everything from zoning to land use.

RLPA has nothing to do with the legitimate ‘‘free exercise of religion’’

For over two hundred years, our Constitution and Bill of Rights have provided

a balance between the legitimate exercise of religious faith and the separation of

church and state. We have both freedom of religion, and freedom from religious intrusion. But the Religious Liberty Protection Act is not about the right of individuals to voluntarily gather in churches and other houses of worship, and pray. The

legislation was first invoked over a land use dispute, where a church demanded an

exemption from local historic preservation ordinances.

RLPA is an entitlement program that creates ‘‘special rights’’ for churches and other

religious groups.

By providing churches, temples, mosques and other faith-based groups with a discriminatory legal instrument, the government is creating ‘‘special rights’’ for these

sects. This obviates the notion of equal protection under the law. The potential for

abuse is considerable. RLPA will apply not just to ‘‘mainstream’’ religious groups

but fringe sects as well as any group or individual that proclaims that they are a

religion. Abuses then raise the dangerous prospect of government then deciding

what is and is not an ‘‘authentic’’ religion. Do we want that?

America does not need a Religious Liberty Protection Act in order to guarantee

the free exercise of religion. Enacting this legislation discriminates in favor of religion-based groups and practices, and endangers the necessary separation between

church and state. Thank you.

September 9, 1999.

Senator ORRIN G. HATCH, Senator PATRICK J. LEAHY, Chairman, Senate Judiciary Ranking Member, Senate Judiciary

Committee, Committee,

Russell Senate Office Building, Russell Senate Office Building,

Washington, DC. Washington, DC.

DEAR CHAIRMAN HATCH AND SENATOR LEAHY: The undersigned civil rights organizations write to express our concerns about unintended yet potentially harmful effects that the proposed Religious Liberty Protection Act (‘‘RLPA’’) as currently drafted may have on the enforcement of the nation’s civil rights laws.

We understand that a hearing has been scheduled for later this week to address

important constitutional questions raised by RLPA. We commend your efforts to

identify a constitutional basis that will best ensure the long-term viability of a federal statute protecting the important right of free exercise of religion. However, we

also believe that the Judiciary Committee should closely examine the intersection

of RLPA with state and local laws prohibiting discrimination in order to avert potentially significant interference with the continued availability of civil rights statutes to victims of discrimination.

We each recognize the need to ensure appropriate safeguards against governmental burdens on the free exercise of religious beliefs. We support their development and implementation. Further, we are sensitive to the fact that such protections are especially important to preserve the exercise of beliefs by adherents of minority religions who are in a position, like many of the groups we represent, of having limited ability to influence the political process. We therefore support the laudable principles that RLPA seeks to achieve. We believe, however, that RLPA can accomplish its goal of protecting religious free exercise without threatening continued

enforcement of civil rights laws.

we are aware of testimony which the Judiciary Committee has heard previously

from witnesses expressing their general concerns that RLPA may have an adverse

effect on anti-discrimination protections. Since that hearing, however, the broad

range of groups represented here have extensively analyzed the specific effect RLPA

may have on the anti-discrimination statutes protecting our constituents. Accordingly, an additional hearing before the Committee is necessary to permit the entire

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civil rights community to present a clear and complete description of the precise

harms that RLPA may cause to enforcement of civil rights laws.

As currently drafted, RLPA could be used in civil rights cases to attempt to defeat

the right of an individual or group to be free from discrimination on the basis of

gender, disability; ethnicity, race or some other statutorily protected category. For

example, a landlord or an employer could seek to avoid liability for discrimination

by claiming protection under RLPA. In each case in which RLPA is invoked as a

defense, the plaintiff could overcome that defense only by showing that the particular civil rights statute in question furthers a compelling governmental interest, and

is the least restrictive means to achieve that compelling interest. In essence then,

a civil rights case in which RLPA is invoked may necessarily involve not just the

facts about the particular parties’ experiences, but also a defense of the goals and

means of the civil rights statute sought to be enforced. Under this scenario, the

plaintiff who seeks to invoke civil rights protection could suddenly be faced with defending the underlying statute in order to have his or her rights vindicated.

Even where civil rights plaintiffs could successfully prove that the applicable antidiscrimination statute meets RLPA’s strict scrutiny standard, the substantial litigation burdens associated with presenting such proof could likely deter victims of discrimination from pursuing their rights. The necessity of litigating the issues concerning the civil rights statute itself, in addition to proving the underlying discrimination at issue, could increase the time and costs associated with each individual

case, and may have a substantial effect on the ability of victims of discrimination

to obtain counsel in civil rights cases and to prosecute such cases successfully.

The full extent to which legitimate claims of discrimination may be thwarted by

the defense created by RLPA should be evaluated by the Judiciary Committee. We

believe that a hearing before the Judiciary Committee is an important and necessary step in that evaluation.

We appreciate your continued support of the legal protections for the communities

we represent and urge you to give ample consideration to the possibility that RLPA

would frustrate some of the protections that together we have fought to establish

and maintain. We look forward to working with you as RLPA proceeds through the

regular Committee process.

Sincerely,

MARCIA GREENBERGER, ANTONIA HERNANDEZ,

Co-President, National Women’s Law

Center.

Director and General Counsel, Mexican

American Legal Defense and

Educational Fund.

REBECCA ISAACS, ELAINE JONES,

Political Director, National Gay and

Lesbian Task Force.

Director-Counsel, NAACP Legal Defense

and Educational Fund, Inc.

LAURA MURPHY, HILARY SHELTON,

Director, Washington National Office,

American Civil Liberties Union.

Director, Washington Bureau, National

Association for the Advancement of

Colored People.

SHANNA SMITH, PAT WRIGHT,

Executive Director, National Fair

Housing Alliance.

Disability Rights Education and Defense

Fund, Inc., Co-Chair, CURTIS DECKER,

National Association of Protection and

Advocacy Systems, Co-Chair, ROBERT

HERMAN, Paralyzed Veterans of

America, Co-Chair, MARK RICHERT,

American Foundation for the Blind,

Co-Chair, Consortium for Citizens With

Disabilities Rights Task Force.

DANIEL ZINGALE, ELIZABETH BIRCH,

Executive Director, AIDS Action. Executive Director, Human Rights

Campaign.

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NATIONAL CHILD ABUSE COALITION,

Washington, DC, September 8, 1999.

Hon. PATRICK J. LEAHY,

U.S. Senate,

Dirksen Building,

Washington, DC.

DEAR SENATOR LEAHY: We are writing, as members of the National Child Abuse

Coalition, to urge your support of an amendment to the Religious Liberty Protection

Act which would ensure protection for the health, safety, and welfare of children.

Without an exemption for governmental action intended to protect children, the legislation as currently written could lead, in the name of guaranteeing religious freedom, to harmful and unintended consequences for the protection of children from

abuse and neglect.

While we support the right of individuals to practice their religion, we also recognize that all children have a right to live in a safe and nurturing environment and

that governmental entities must have the ability to intervene effectively to protect

children from abuse and neglect, including religiously motivated abuse and neglect.

The U.S. Supreme Court has held that the First Amendment does not allow one’s

religious practice to endanger the life of another. The Court draws a clear distinction between unquestionably protected religious beliefs and individual actions,

which may be limited, as in the case of Prince v. Massachusetts, where the Supreme

Court asserted that parents do not have the right to place their children in danger

in the name of religion,

RLPA would undermine the ability of states and local communities to ensure that

children are protected, creating new limits on government beyond those that currently exist. Because RLPA would prohibit the government from substantially burdening ‘‘a person’s religious exercise’’ in an agency or program receiving federal

funding, unless the government can demonstrate the action is ‘‘in furtherance of a

compelling governmental interest’’ and ‘‘is the least restrictive means’’ of furthering

that governmental interest, it does not simply reaffirm a standard previously used

by courts in child abuse and neglect cases: it creates a new one.

RLPA could cause children to be kept in dangerous, even life-threatening situations, because action by child protective service (CPS) agencies to prevent harm to

children could be enjoined by litigation, especially where state and local governments attempt to protect children from abuse and neglect motivated by a parent’s

religious beliefs.

RLPA represents an intrusion upon the States’ traditional authority to regulate

the health and welfare of their citizens. Notwithstanding the specific threat that

RLPA poses for the safety of children, Congress should further consider that it

would be foisting RLPA on states that have refused to enact such a sweeping law

and would be disregarding the policy judgment the states have made regarding children’s needs. For example, California, Maryland, New Mexico, New York, and Virginia have rejected similar measures.

RLPA would create a chilling effect on efforts of public servants and agencies to

protect children who are subjected to religiously motivated abuse and neglect, because RLPA significantly increases the likelihood that any government employee

who deals with children could be subjected to a costly lawsuit for burdening the religious exercise of parents or others. The threat of litigation expenses for these individuals and agencies would inhibit them from reporting or investigating suspected

cases of child maltreatment.

RLPA would drain resources and staff from already overburdened and underfunded agencies as a result of the added fiscal burden of litigation costs likely to

be born by CPS. It would divert scarce financial resources from community efforts

to protect the safety of children at risk of harm. Time spent unnecessarily in court

has a negative effect on the ability of CPS to handle cases effectively.

In summary, RLPA would seriously undermine the ability of government to protect children from abuse and neglect. It would impose a stringent legal test that

does not exist under present law for evaluating the propriety of a wide range of governmental actions taken to protect the health, welfare, and safety of children. It

would interfere with the ability of State and local governments to provide essential

safety and protection services to children. In cases of child abuse and neglect, it

would result in fiscally expensive litigation by parents and others who claim that

their religious exercise has been substantially burdened. It would encourage adversarial litigation, which drains resources, rather than cooperation on behalf of the

best interests of the child.

The undersigned organizations, therefore, strongly urge the adoption of an amendment that would exempt from the scope of this legislation laws regarding the health,

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safety, and welfare of children. We hope that you will join in support of such an

amendment.

Thank you for you consideration.

Sincerely,

AMERICAN ACADEMY OF PEDIATRICS, AMERICAN HUMANE ASSOCIATION,

AMERICAN PROFESSIONAL SOCIETY ON THE ABUSE OF CHILDREN, CHILD

WELFARE LEAGUE OF AMERICA, CHILDREN’S DEFENSE FUND,

NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN,

NATIONAL NETWORK FOR YOUTH, NATIONAL PTA,

PARENTS ANONYMOUS, PREVENT CHILD ABUSE AMERICA.

HOUSE OF DELEGATES,

Annapolis, MD, September 9, 1999.

Re: The Religious Liberty Protection Act of 1999.

Hon. ORRIN G. HATCH, Hon. PATRICK J. LEAHY,

Chairman, Judiciary Committee, Ranking Member, Judiciary Committee,

U.S. Senate, U.S. Senate,

Russell Senate Office Building, Russell Senate Office Building,

Washington, DC. Washington, DC.

DEAR SENATORS HATCH AND LEAHY: I appreciate the opportunity to express my

deep concerns regarding the Religious Liberty Protection Act of 1999 (RLPA) from

the perspective of a state legislator who sat in consideration of similar bills that

failed In the Maryland General Assembly in both 1998 and 1999.

I would like to preface my remarks by stating that Maryland has a legacy of religious tolerance and that I personally cherish religious liberty and the Constitution

of the United States. Indeed, I was one of the many sponsors In 1998 of the Maryland state version of RLPA, entitled ‘‘Religious Freedom,’’ which purportedly would

have ‘‘restored’’ religious freedom after the Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act (RFRA) in 1997. Maryland’s proposed mini-RLPA/RFRA’s were touted by proponents as a return to the pre-Smith

standard embraced by the Maryland Court of Appeals. This, however, was shown

not to be the case.

As a member of the House of Delegates’ Commerce and Government Matters

Committee to which this legislation was assigned, I and my colleagues were able

to carefully evaluate a considerable amount of testimony and other documents submitted by both proponents and opponents, including case law engendered by RFRA.

Contrary to the claims of proponents, It became clear that state and federal versions

of RLPA/RFRA are designed to go far beyond guarantees of freedom of religion in

the First Amendment and the Maryland Constitution, and that the passage of these

bills would have endangered the public’s health, safety and welfare.

Moreover, it became evident that the state of religious freedom in Maryland did

not warrant, by any means, the passage of such unworkable legislation which would

have significantly changed current legal standards embodied in state and local laws

to the detriment of Maryland’s citizens. Consequently, I believe that RFRA/RLPAtype bills at both the federal and state levels are ill-conceived and unnecessary and,

if enacted, would have serious unintended consequences for many groups, including

victims of domestic violence and child abuse and neglect and other crimes. In addition, these bills would have adverse and costly effects on prison and school administration, the environment, and historic preservation. They would preclude local governments from enforcing legitimate and reasonable land use decisions as well.

The aforementioned concerns were brought to my attention by a wide variety of

organizations, representing pediatricians, PTA’s, teachers, school boards, domestic

violence and child abuse experts, local government and correctional officials, and

those concerned with historic preservation, among many others.

Because religious conduct can conflict with important public interests In an infinite variety of ways, passage of this type of legislation would invite litigation rather

than cooperation among Maryland citizens, encourage the manufacture of ersatz religions, and the filing of frivolous Suits.

I therefore urge the Senate Judiciary Committee to carefully examine the serious

implications of the Religious Liberty Protection Act of 1999 and refuse to act favorably upon it. This Act would deprive the State of Maryland of its capacity to govern

at numerous points. It would preempt the considered judgment of its legislature. As

stated in Boerne v. Flores, ‘‘Requiring a state to demonstrate a compelling interest

and show that it has adopted the least restrictive means of achieving that interest

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is the most demanding test known to constitutional law * * *. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.’’

In 1822, James Madison wrote that ‘‘religion flourishes in greater purity without

than with the aid of government.’’ I hope and trust that the Senate does not ignore

the wisdom of these words.

Thank you for considering my views on this important matter.

Sincerely,

ELIZABETH BOBO,

Delegate, District 12B.

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