II

Calendar No. 684

106TH CONGRESS

2D SESSION S. 2869

To protect religious liberty, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 13, 2000

Mr. HATCH (for himself, Mr. KENNEDY, Mr. HUTCHINSON, Mr. DASCHLE,

Mr. BENNETT, Mr. LIEBERMAN, Mr. SCHUMER, and Mr. SMITH of Oregon) introduced the following bill; which was read the first time

JULY 14, 2000

Read the second time and placed on the calendar

A BILL

To protect religious liberty, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Religious Land Use

5 and Institutionalized Persons Act of 2000’’.

6 SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXER7 CISE.

8 (a) SUBSTANTIAL BURDENS.—
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1 (1) GENERAL RULE.—No government shall im2 pose or implement a land use regulation in a manner

3 that imposes a substantial burden on the religious

4 exercise of a person, including a religious assembly

5 or institution, unless the government demonstrates

6 that imposition of the burden on that person, assem7 bly, or institution—

8 (A) is in furtherance of a compelling gov9 ernmental interest; and

10 (B) is the least restrictive means of fur11 thering that compelling governmental interest.

12 (2) SCOPE OF APPLICATION.—This subsection

13 applies in any case in which—

14 (A) the substantial burden is imposed in a

15 program or activity that receives Federal finan16 cial assistance, even if the burden results from

17 a rule of general applicability;

18 (B) the substantial burden affects, or re19 moval of that substantial burden would affect,

20 commerce with foreign nations, among the sev21 eral States, or with Indian tribes, even if the

22 burden results from a rule of general applica23 bility; or

24 (C) the substantial burden is imposed in

25 the implementation of a land use regulation or
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1 system of land use regulations, under which a

2 government makes, or has in place formal or in3 formal procedures or practices that permit the

4 government to make, individualized assessments

5 of the proposed uses for the property involved.

6 (b) DISCRIMINATION AND EXCLUSION.—

7 (1) EQUAL TERMS.—No government shall im8 pose or implement a land use regulation in a manner

9 that treats a religious assembly or institution on less

10 than equal terms with a nonreligious assembly or in11 stitution.

12 (2) NONDISCRIMINATION.—No government

13 shall impose or implement a land use regulation that

14 discriminates against any assembly or institution on

15 the basis of religion or religious denomination.

16 (3) EXCLUSIONS AND LIMITS.—No government

17 shall impose or implement a land use regulation

18 that—

19 (A) totally excludes religious assemblies

20 from a jurisdiction; or

21 (B) unreasonably limits religious assem22 blies, institutions, or structures within a juris23 diction.
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1 SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF INSTITU2 TIONALIZED PERSONS.

3 (a) GENERAL RULE.—No government shall impose a

4 substantial burden on the religious exercise of a person

5 residing in or confined to an institution, as defined in sec6 tion 2 of the Civil Rights of Institutionalized Persons Act

7 (42 U.S.C. 1997), even if the burden results from a rule

8 of general applicability, unless the government dem9 onstrates that imposition of the burden on that person—

10 (1) is in furtherance of a compelling govern11 mental interest; and

12 (2) is the least restrictive means of furthering

13 that compelling governmental interest.

14 (b) SCOPE OF APPLICATION.—This section applies in

15 any case in which—

16 (1) the substantial burden is imposed in a pro17 gram or activity that receives Federal financial as18 sistance; or

19 (2) the substantial burden affects, or removal of

20 that substantial burden would affect, commerce with

21 foreign nations, among the several States, or with

22 Indian tribes.

23 SEC. 4. JUDICIAL RELIEF.

24 (a) CAUSE OF ACTION.—A person may assert a viola25 tion of this Act as a claim or defense in a judicial pro26 ceeding and obtain appropriate relief against a govern-
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1 ment. Standing to assert a claim or defense under this

2 section shall be governed by the general rules of standing

3 under article III of the Constitution.

4 (b) BURDEN OF PERSUASION.—If a plaintiff pro5 duces prima facie evidence to support a claim alleging a

6 violation of the Free Exercise Clause or a violation of sec7 tion 2, the government shall bear the burden of persuasion

8 on any element of the claim, except that the plaintiff shall

9 bear the burden of persuasion on whether the law (includ10 ing a regulation) or government practice that is challenged

11 by the claim substantially burdens the plaintiff’s exercise

12 of religion.

13 (c) FULL FAITH AND CREDIT.—Adjudication of a

14 claim of a violation of section 2 in a non-Federal forum

15 shall not be entitled to full faith and credit in a Federal

16 court unless the claimant had a full and fair adjudication

17 of that claim in the non-Federal forum.

18 (d) ATTORNEYS’ FEES.—Section 722(b) of the Re19 vised Statutes (42 U.S.C. 1988(b)) is amended—

20 (1) by inserting ‘‘the Religious Land Use and

21 Institutionalized Persons Act of 2000,’’ after ‘‘Reli22 gious Freedom Restoration Act of 1993,’’; and

23 (2) by striking the comma that follows a

24 comma.
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1 (e) PRISONERS.—Nothing in this Act shall be con2 strued to amend or repeal the Prison Litigation Reform

3 Act of 1995 (including provisions of law amended by that

4 Act).

5 (f) AUTHORITY OF UNITED STATES TO ENFORCE

6 THIS ACT.—The United States may bring an action for

7 injunctive or declaratory relief to enforce compliance with

8 this Act. Nothing in this subsection shall be construed to

9 deny, impair, or otherwise affect any right or authority

10 of the Attorney General, the United States, or any agency,

11 officer, or employee of the United States, acting under any

12 law other than this subsection, to institute or intervene

13 in any proceeding.

14 (g) LIMITATION.—If the only jurisdictional basis for

15 applying a provision of this Act is a claim that a substan16 tial burden by a government on religious exercise affects,

17 or that removal of that substantial burden would affect,

18 commerce with foreign nations, among the several States,

19 or with Indian tribes, the provision shall not apply if the

20 government demonstrates that all substantial burdens on,

21 or the removal of all substantial burdens from, similar reli22 gious exercise throughout the Nation would not lead in

23 the aggregate to a substantial effect on commerce with

24 foreign nations, among the several States, or with Indian

25 tribes.
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1 SEC. 5. RULES OF CONSTRUCTION.

2 (a) RELIGIOUS BELIEF UNAFFECTED.—Nothing in

3 this Act shall be construed to authorize any government

4 to burden any religious belief.

5 (b) RELIGIOUS EXERCISE NOT REGULATED.—Noth6 ing in this Act shall create any basis for restricting or

7 burdening religious exercise or for claims against a reli8 gious organization including any religiously affiliated

9 school or university, not acting under color of law.

10 (c) CLAIMS TO FUNDING UNAFFECTED.—Nothing in

11 this Act shall create or preclude a right of any religious

12 organization to receive funding or other assistance from

13 a government, or of any person to receive government

14 funding for a religious activity, but this Act may require

15 a government to incur expenses in its own operations to

16 avoid imposing a substantial burden on religious exercise.

17 (d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON

18 FUNDING UNAFFECTED.—Nothing in this Act shall—

19 (1) authorize a government to regulate or af20 fect, directly or indirectly, the activities or policies of

21 a person other than a government as a condition of

22 receiving funding or other assistance; or

23 (2) restrict any authority that may exist under

24 other law to so regulate or affect, except as provided

25 in this Act.
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1 (e) GOVERNMENTAL DISCRETION IN ALLEVIATING

2 BURDENS ON RELIGIOUS EXERCISE.—A government may

3 avoid the preemptive force of any provision of this Act by

4 changing the policy or practice that results in a substan5 tial burden on religious exercise, by retaining the policy

6 or practice and exempting the substantially burdened reli7 gious exercise, by providing exemptions from the policy or

8 practice for applications that substantially burden reli9 gious exercise, or by any other means that eliminates the

10 substantial burden.

11 (f) EFFECT ON OTHER LAW.—With respect to a

12 claim brought under this Act, proof that a substantial bur13 den on a person’s religious exercise affects, or removal of

14 that burden would affect, commerce with foreign nations,

15 among the several States, or with Indian tribes, shall not

16 establish any inference or presumption that Congress in17 tends that any religious exercise is, or is not, subject to

18 any law other than this Act.

19 (g) BROAD CONSTRUCTION.—This Act shall be con20 strued in favor of a broad protection of religious exercise,

21 to the maximum extent permitted by the terms of this Act

22 and the Constitution.

23 (h) NO PREEMPTION OR REPEAL.—Nothing in this

24 Act shall be construed to preempt State law, or repeal

25 Federal law, that is equally as protective of religious exer-
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1 cise as, or more protective of religious exercise than, this

2 Act.

3 (i) SEVERABILITY.—If any provision of this Act or

4 of an amendment made by this Act, or any application

5 of such provision to any person or circumstance, is held

6 to be unconstitutional, the remainder of this Act, the

7 amendments made by this Act, and the application of the

8 provision to any other person or circumstance shall not

9 be affected.

10 SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.

11 Nothing in this Act shall be construed to affect, inter12 pret, or in any way address that portion of the first

13 amendment to the Constitution prohibiting laws respect14 ing an establishment of religion (referred to in this section

15 as the ‘‘Establishment Clause’’). Granting government

16 funding, benefits, or exemptions, to the extent permissible

17 under the Establishment Clause, shall not constitute a vio18 lation of this Act. In this section, the term ‘‘granting’’,

19 used with respect to government funding, benefits, or ex20 emptions, does not include the denial of government fund21 ing, benefits, or exemptions.
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1 SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORA2 TION ACT.

3 (a) DEFINITIONS.—Section 5 of the Religious Free4 dom Restoration Act of 1993 (42 U.S.C. 2000bb–2) is

5 amended—

6 (1) in paragraph (1), by striking ‘‘a State, or

7 a subdivision of a State’’ and inserting ‘‘or of a cov8 ered entity’’;

9 (2) in paragraph (2), by striking ‘‘term’’ and all

10 that follows through ‘‘includes’’ and inserting ‘‘term

11 ‘covered entity’ means’’; and

12 (3) in paragraph (4), by striking all after

13 ‘‘means’’ and inserting ‘‘religious exercise, as defined

14 in section 8 of the Religious Land Use and Institu15 tionalized Persons Act of 2000.’’.

16 (b) CONFORMING AMENDMENT.—Section 6(a) of the

17 Religious Freedom Restoration Act of 1993 (42 U.S.C.

18 2000bb–3(a)) is amended by striking ‘‘and State’’.

19 SEC. 8. DEFINITIONS.

20 In this Act:

21 (1) CLAIMANT.—The term ‘‘claimant’’ means a

22 person raising a claim or defense under this Act.

23 (2) DEMONSTRATES.—The term ‘‘dem24 onstrates’’ means meets the burdens of going for25 ward with the evidence and of persuasion.
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1 (3) FREE EXERCISE CLAUSE.—The term ‘‘Free

2 Exercise Clause’’ means that portion of the first

3 amendment to the Constitution that proscribes laws

4 prohibiting the free exercise of religion.

5 (4) GOVERNMENT.—The term ‘‘government’’—

6 (A) means—

7 (i) a State, county, municipality, or

8 other governmental entity created under

9 the authority of a State;

10 (ii) any branch, department, agency,

11 instrumentality, or official of an entity list12 ed in clause (i); and

13 (iii) any other person acting under

14 color of State law; and

15 (B) for the purposes of sections 4(b) and

16 5, includes the United States, a branch, depart17 ment, agency, instrumentality, or official of the

18 United States, and any other person acting

19 under color of Federal law.

20 (5) LAND USE REGULATION.—The term ‘‘land

21 use regulation’’ means a zoning or landmarking law,

22 or the application of such a law, that limits or re23 stricts a claimant’s use or development of land (in24 cluding a structure affixed to land), if the claimant

25 has an ownership, leasehold, easement, servitude, or
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1 other property interest in the regulated land or a

2 contract or option to acquire such an interest.

3 (6) PROGRAM OR ACTIVITY.—The term ‘‘pro4 gram or activity’’ means all of the operations of any

5 entity as described in paragraph (1) or (2) of section

6 606 of the Civil Rights Act of 1964 (42 U.S.C.

7 2000d–4a).

8 (7) RELIGIOUS EXERCISE.—

9 (A) IN GENERAL.—The term ‘‘religious ex10 ercise’’ includes any exercise of religion, wheth11 er or not compelled by, or central to, a system

12 of religious belief.

13 (B) RULE.—The use, building, or conver14 sion of real property for the purpose of religious

15 exercise shall be considered to be religious exer16 cise of the person or entity that uses or intends

17 to use the property for that purpose.

Calendar No. 684

106TH CONGRESS

2D SESSION S. 2869

A BILL

To protect religious liberty, and for other purposes.

JULY 14, 2000

Read the second time and placed on the calendar