[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
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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
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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\
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\2\ 137 Wash. 2d 774.975 P. 2d 1020 (1999).
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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.
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\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).
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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.
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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.
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\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.'').
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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.
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\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.
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\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).
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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\
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\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.
---------------------------------------------------------------------------
\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, ).
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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\
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\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.
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\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''.)
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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.
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\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.
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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.
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\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).
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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).
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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
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Questions and Answers
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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.
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\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).
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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.
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[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.