[Senate Hearing 106-689]
[From the U.S. Government Publishing Office]




                                                        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

                     U.S. GOVERNMENT PRINTING OFFICE
67-066 CC                    WASHINGTON : 2000



                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)





                            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
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


                           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 exercise 
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 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.

  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 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 case-by-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 3\1/2\ 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.
    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.
    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.
---------------------------------------------------------------------------
    \1\ Disclosure: 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.
---------------------------------------------------------------------------
    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.
    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.''

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\
---------------------------------------------------------------------------
    \2\ 137 Wash. 2d 774.975 P. 2d 1020 (1999).
---------------------------------------------------------------------------
    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 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 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.
---------------------------------------------------------------------------
    \3\ These 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).
---------------------------------------------------------------------------

                     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).

         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.

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 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.
    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 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 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 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:]

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

[GRAPHIC] [TIFF OMITTED] T7066.005

    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.
    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 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.
    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 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 overly-broad 
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 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 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 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.
    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 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 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, 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 systematically 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 RLPA-created 
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 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 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 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 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.
    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 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 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 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 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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 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?
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.''); Brown-El 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 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.
---------------------------------------------------------------------------
    \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 pre-Smith 
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.
---------------------------------------------------------------------------
    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 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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 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.
                             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 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.
    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.
    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.
    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 priest-penitent 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 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.
    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 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.
    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, 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 interests. 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.
    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.
    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.]


                      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 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 
neighborhoods, 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 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 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:]

              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 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.
    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 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 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.
    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. Sec. 2000d (1994), and Title IX 
of the Education Amendments of 1972, which forbids sex discrimination 
in federally assisted educational programs, 20 U.S. C. Sec. 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 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. Sec. 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 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. Sec. 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. Sec. 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 
Sec. 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 burdens 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. Sec. 2000d (1994), and Title IX of the 
Education Amendments of 1972, which forbids sex discrimination in 
federally assisted educational programs, 20 U.S.C. Sec. 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 Sec. 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 case-by-case adjudication.\1\
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    \1\ Cf. Salinas v. United States, 118 S.Ct. 469, 475 (1997). 
Salinas interpreted 18 U.S.C. Sec. 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 Sec. 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.
---------------------------------------------------------------------------
    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. Sec. 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 
Sec. 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 Sec. 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 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.
---------------------------------------------------------------------------
    \2\ See the Clayton Act, 15 U.S. C. Sec. 18 (1994) (``person 
engaged in commerce or in any activity affecting commerce''); the 
Federal Trade Commission Act, 15 U.S.C. Sec. 45 (1994) (``unfair or 
deceptive acts or practices in or affecting commerce''); the Federal 
Fire Prevention and Control Act, 15 U.S.C. Sec. 2224 (1994) (``places 
of public accommodation affecting commerce''); the Petroleum Marketing 
Practices Act, 15 U.S.C. Sec. 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. Sec. 910 (1994) (``conduct in or affecting 
commerce''); the criminal provisions of the Health Insurance 
Portability and Accountability Act, 18 U.S.C. Sec. 24 (Supp. II 1996) 
(``any public or private plan or contract, affecting commerce''); the 
Federally Protected Activities Act, 18 U.S.C. Sec. 245 (1994) 
(``engaged in a business in commerce or affecting commerce''); the 
National Labor Relations Act, 29 U.S.C. Sec. 152 (1994) (``affecting 
commerce''); the Labor-Management Reporting and Disclosure Act, 29 
U.S.C. Sec. 402 (1994) (``industry affecting commerce''); the Age 
Discrimination in Employment Act, 29 U.S.C. Sec. 630 (1994) (``industry 
affecting commerce''); the Occupational Safety and Health Act (OSHA), 
29 U.S.C. Sec. 652 (1994) (``engaged in a business affecting 
commerce''); the Employment and Retirement Income Security Act (ERISA), 
29 U.S.C. Sec. 1003 (1994) (``in commerce or in any industry or 
activity affecting commerce''); the Employee Polygraph Protection Act, 
29 U.S.C. Sec. 2002 (1994) (``any employer engaged in or affecting 
commerce''); the Family and Medical Leave Act, 29 U.S.C. Sec. 2611 
(1994) (``industry or activity affecting commerce''); Title 11 of the 
Civil Rights Act of 1964, 42 U.S.C. Sec. 2000a (1994) (``if its 
operations affect commerce''); Title VII of the Civil Rights Act of 
1964, 42 U.S.C. Sec. 2000e (``engaged in an industry affecting 
commerce''); the Privacy Protection Act, 42 U.S.C. Sec. 2000aa (Supp. 
II 1996) (``public communication, in or affecting interstate or foreign 
commerce''); the Energy Policy and Conservation Act, 42 U.S.C. 
Sec. 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. Sec. 12111 (1994) (``engaged in an industry affecting 
commerce''); the Commercial Motor Vehicle Safety Act, 42 U.S.C. 
Sec. 31101 (1994) (``engaged in a business affecting commerce'').
---------------------------------------------------------------------------
    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. Sec. 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. 
Sec. 2000a (1994), forbidding racial and religious discrimination in 
places of public accommodation 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. Sec. 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. Sec. 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\
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    \3\ The 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.'').
---------------------------------------------------------------------------
    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 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 religious 
exercise. If the claimant shows a burden on religion and prima facie 
evidence 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.
---------------------------------------------------------------------------
    \4\ See, 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).
---------------------------------------------------------------------------
    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.
    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 Sec. 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.
---------------------------------------------------------------------------
    \5\ See 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, ) 
(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., ) 
(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, ) (again reporting the study).
---------------------------------------------------------------------------
    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.
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \7\ June 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, .
---------------------------------------------------------------------------
    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 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.''
---------------------------------------------------------------------------
    \8\ See 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).
    \10\ See 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).
    \11\ See 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).
    \12\ Family 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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \13\ See, 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).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \14\ George Gallup, Jr., The Gallup Poll: Public Opinion 1993 at 
75-76, 78 (1994).
    \15\ George Gallup Jr., The Gallup Poll: Public Opinion 1989 at 63, 
67 (1990).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \16\ See 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \17\See March 1998 House Hearing, supra note 5 (statement of Marc 
D. Stern, American Jewish Congress).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \18\ Keetch Statement, supra note 5.
---------------------------------------------------------------------------
    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 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.
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    \19\ See 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 
Baruch Rubin, Congregation Etz Chaim, Los Angeles, California, ).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \20\ See 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).
    \21\ See 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, ).
    \22\ See id.; Stern Statement, supra note 17.
---------------------------------------------------------------------------
    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'').
---------------------------------------------------------------------------
    \23\ Stern Statement, supra note 17.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \24\ Mauck Statement, supra note 7, at 1.
---------------------------------------------------------------------------
    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 the church members were black. Mauck also had reason to 
suspect racial motivations in several other cases involving black and 
Korean churches.\26\
---------------------------------------------------------------------------
    \25\ June 1998 House Hearing, supra note 7 (oral testimony of John 
Mauck).
    \26\ Mauck 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \27\ Stern Statement, supra note 17. Mr. Stern identified the city 
in each of these cases in a conversation on June 22, 1999.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \28\ See Keetch Statement, supra note 5; Stern Statement, supra 
note 17; Mauck Statement, supra note 7.
    \29\ See 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).
    \30\ See 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).
    \31\ See 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).
    \32\ See 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).
---------------------------------------------------------------------------
    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 differences 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.
---------------------------------------------------------------------------
    \33\ See 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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \34\ See 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).
---------------------------------------------------------------------------
    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 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 
first-year 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\
---------------------------------------------------------------------------
    \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, 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 Sec. 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; Sec. 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 
substantially burden religious exercise without compelling 
justification. These provisions 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\
---------------------------------------------------------------------------
    \36\ Sasnett 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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. 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 Sec. 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).

                 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 applied to the 
States.'' College Savings Bank v. Florida Prepaid Postsecondary 
Education 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.
---------------------------------------------------------------------------
    \38\ 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).
---------------------------------------------------------------------------
    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 open. As already noted, Sec. 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 Sec. 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 Sec. 602 of the Telecommunications Act, 
110 Stat. 144 (printed as note to 47 U.S.C.A. Sec. 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 regulation in its 
place. He cites the Staggers Rail Act of 1980, 40 U.S.C. Sec. 10505 
(1994), and the Airline Deregulation Act of 1978, 49 U.S.C. Sec. 41701 
et seq. (1994).
---------------------------------------------------------------------------
    \39\ Thomas C. Berg, The Constitutional Future of Religious Freedom 
Legislation, 20 UALR L.J. 715, 761-62 (1998).
---------------------------------------------------------------------------
    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. Sec. 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, Sec. 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. Sec. 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 pre-Smith 
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 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.
---------------------------------------------------------------------------
    \40\ See 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 legitimate 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 overbalance 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.
---------------------------------------------------------------------------
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 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. Sec. 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 religious 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.

                 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 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 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\
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    \1\ The 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ Testimony 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''.)
    \3\ Testimony 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''.)
---------------------------------------------------------------------------
    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 
constitutional basis for its enactment, and will still reach the 
greatest extent of the problem Congress is trying to fix?''
    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.
---------------------------------------------------------------------------
    \4\ Some 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).
---------------------------------------------------------------------------
    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 Fourteenth 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 Sec. 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 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 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, Sec. 8 
Commerce Clause power to pass legislation, rather than its Article I, 
Sec. 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.
---------------------------------------------------------------------------
    \5\ Some 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.
---------------------------------------------------------------------------
    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 
broad-based 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 cross-reference 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.
---------------------------------------------------------------------------
    \6\ This 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
---------------------------------------------------------------------------
    (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; * * *
    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 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:
---------------------------------------------------------------------------
    \7\ Cases may be brought against localities and local officials 
without any concern of Eleventh Amendment immunity.

        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 across-
        the-board in this way.

Hamilton testimony at 6.
    The Establishment Clause problem with a law that mandates 
modifications for religion, and for religion only, unless denying those 
modifications are the least restrictive 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 violated 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 across-
the-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 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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
  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. Smith\3\ 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].''
---------------------------------------------------------------------------
    \3\ 494 U.S. 872 (1990).
    \4\ 42 U.S.C. Sec. 2000bb-1(a) (1994).
    \5\ Remarks on Signing the Religious Freedom Restoration Act of 
1993, 29 Weekly Comp. Pres. Doc. 2377 (Nov. 16, 1993).
    \6\ See S. Rep. No. 11, 103d Cong., 1st Sess. 13-14 (1993); H.R. 
Rep. No. 88, 103d Cong., 1st Sess. 9 (1993).
---------------------------------------------------------------------------
    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 violating 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\
---------------------------------------------------------------------------
    \7\ 384 U.S. 641, 649 (1966).
    \8\ See id. at 652-53.
    \9\ See id. at 653-56.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \10\ Boerne, 521 U.S. at 532.
---------------------------------------------------------------------------
    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 designed 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\
---------------------------------------------------------------------------
    \11\ 42 U.S.C. Sec. 2000bb-1(a).
    \12\ Boerne, 521 U.S. at 534.
    \13\ Id.
    \14\ Id. at 532.
    \15\ Bybee, supra note 1, at 1633.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \16\ Boerne, 521 U.S. at 531.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \17\ 374 U.S. 398, 402-03 (1963).
    \18\ 406 U.S. 205, 215 (1972).
    \19\ 42 U.S.C. Sec. Sec. 2000bb(b)(1), 2000bb-1(b).
    \20\ 42 U.S.C. Sec. 1983.
---------------------------------------------------------------------------
    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 Sec. 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 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.
---------------------------------------------------------------------------
    \21\ Boerne, 521 U.S. at 532 (quoting Civil Rights Case, 109 U.S. 
3, 13 (1883)).
    \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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \25\ U.S. Const. art. I, Sec. 8, cl. 1.
    \26\ See 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).
    \28\ Dole, 483 U.S. at 207-08 (quotation marks and citation 
omitted).
    \29\ Id. at 215 (O'Connor, J., dissenting).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \30\ See 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
    \33\ Smith, 494 U.S. at 890.
    \34\ See, 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'').
    \35\ See, 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \36\ See, 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).
    \37\ See Akhil Reed Amar, Anti-Federalists, The Federalist Papers, 
and the Argument for Big Union, 16 Harv. J.L. & Pub. Pol'y 111, 115 
(1993).
    \38\ The Debates in the Several State Conventions on the Adopt of 
the Federal Constitution 330 (Jonathan Elliot, ed. 2d ed. 1888) 
(statement of James Madison).
    \39\ Printz 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'').
    \40\ See, 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).
---------------------------------------------------------------------------
    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. This language 
obviously tracks the language of the Commerce Clause, Article I, 
Sec. 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.)
---------------------------------------------------------------------------
    \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; * * *.''
    \44\ Lopez, 514 U.S. at 559.
    \45\ Id.
    \46\ Id. at 630 (Breyer, J., dissenting).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \48\ Lopez, 524 U.S. at 564.

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 Congress' 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\
---------------------------------------------------------------------------
    \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, Sec. 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 another State 
* * *.''). These instances provide specific circumstances authorizing 
Congress to deal with the states as states in matters regarding 
commerce.
    \50\ See, 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \51\ 456 U.S. 742 (1982).
    \52\ Id. at 765.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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 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.
    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.
    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.
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.
---------------------------------------------------------------------------
    \1\ Florida 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ See, e.g., 42 U.S.C. Sec. 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.'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ 494 U.S. 872 (1990).
    \5\ 508 U.S. 520 (1993).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \6\ See 42 U.S.C. Sec. 2000d et seq. (1994).
---------------------------------------------------------------------------
    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-by-
program basis, and does not require the state to take any external 
action.\8\
---------------------------------------------------------------------------
    \7\ 483 U.S. 203 (1987).
    \8\ Moreover, 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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \9\ 505 U.S. 144 (1992).
    \10\ 521 U.S. 898 (1997).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \11\ Printz 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.
    \12\ Garcia 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \13\ See supra n. 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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \15\ 141 F.3d 854 (8th Cir. 1998), cert. denied, 119 S.Ct. 43 
(1998).
---------------------------------------------------------------------------
    To be sure, Justice Kennedy's majority opinion in Flores discussed 
separation-of-powers 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\
---------------------------------------------------------------------------
    \16\ 521 U.S. at 515-536.
    \17\ The 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 irrelevant. The Act's opponents have not cited a single decision 
suggesting that such a requirement applies.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \18\ 494 U.S. 872 (1990).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \19\ 494 U.S. at 890.
    \20\ 521 U.S. at 544 (Scalia, J., concurring).
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \21\ John T. Noonan, Jr., The Lustre of Our Country: The American 
Experience of Religious Freedom 72-74 (1998) (quoting James Madison).
    \22\ Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \23\ See 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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ See Noonan, supra, at 74.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \25\ E.g., Ark. Code Ann. Sec. 42-815; Idaho Code Sec. 16-1620; La. 
Rev. Stat. Sec. 14403(F); Wash Rev. Code Sec. 2644060(3); W. Va. Code 
Sec. Sec. 49-6A-2 & 49-6A-7.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \27\ Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556 
(1993).
    \28\ This 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \30\ See, 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).
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \31\ Society of Jesus v. Boston Landmark Comm'n, 564 N.E.2d 571 
(Mass 1990).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \32\ E.g., NCAA v. Tarkaman, 488 U.S. 179 (1988).
---------------------------------------------------------------------------
    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.
                             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 conduct, 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.]



                            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 Sec. 3(b)(1) of the 
House bill, but he must show that a land use regulation of the kind 
described in Sec. 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 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 
Sec. 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 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 House-passed 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 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. Sec. 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.
    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 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.

    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. Sec. 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 
Sec. 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 of 10), and perhaps as many as 14 percent (1 
out of 7), of the zoning permit applications in the study were 
denied.\2\
---------------------------------------------------------------------------
    \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.
    \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.
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \3\ See, 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'').
---------------------------------------------------------------------------
    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 
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 Sec. 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 Sec. 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 Sec. 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.
    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. 
Sec. '794(b)(1)(A) (1994); RLPA Sec. 8(4); 42 U.S.C. Sec. 2000d(4)(A) 
(1994); 20 U.S.C. Sec. 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 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 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 anti-discrimination 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 of the program 
beneficiaries would be a compelling governmental interest. The rules of 
construction in Sec. Sec. 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 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. Sec. 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 landlord-tenant 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, 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. Sec. 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 Sec. 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 impersonal 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-
restrictive-means 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.''
    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.)

                        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 Circuit 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 
Sec. 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 Sec. 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 Sec. 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 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.''
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

    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 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 Sec. 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 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.

    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 
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.'' 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 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. 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.
---------------------------------------------------------------------------
    \1\ See 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).
---------------------------------------------------------------------------
    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 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 House-passed 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.
---------------------------------------------------------------------------
    \2\ The 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).
---------------------------------------------------------------------------
    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 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 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.

                 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, 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 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; 
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 violated 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.

[GRAPHIC] [TIFF OMITTED] T7066.015

[GRAPHIC] [TIFF OMITTED] T7066.016

    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 framers 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.
    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.
                    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.

                           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. 
Sec. Sec. 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 to use Section 5 of the Fourteenth Amendment to 
impose strict scrutiny on all governmental burdens on religion, 
regardless of whether government intended to burden 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.
    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 
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 property 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 Freedom 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.
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.
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.
---------------------------------------------------------------------------
    \1\ The 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.
---------------------------------------------------------------------------
    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 ever-larger 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.
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 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 
``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 religion. 
``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.
    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 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 use a ``compelling interest/
least restrictive means'' test when dealing with faith-based 
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.

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 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 anti-discrimination 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.
                            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, 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/RLPA-type 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 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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