[Congressional Record Volume 144, Number 73 (Tuesday, June 9, 1998)]
[Senate]
[Pages S5791-S5793]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself and Mr. Kennedy):
  S. 2148. A bill to protect religious liberty; to the Committee on the 
Judiciary.


              THE RELIGIOUS LIBERTY PROTECTION ACT of 1998

  Mr. HATCH. Mr. President, the first freedom guaranteed in the Bill of 
Rights is the freedom to believe and to put those beliefs into practice 
as we think right, without government interference. This promise of 
freedom of worship is, for many, this country's founding principle--the 
pilgrims' reason for braving thousands of miles of dark and dangerous 
seas, and countless privations once here. The Constitutional guarantee 
of the free exercise of religion for all has been a beacon to the world 
throughout our history.
  In America, priests should not be punished for declining to violate 
the confidence of the confessional to turn state's evidence against 
religious confessors. In America, the ability of citizens to hold 
private Bible studies in their own homes or the freedom of synagogues 
and churches to locate near their members should not be left entirely 
to the whims of local zoning boards. Congregants of any faith should 
not be told by the government who they can and cannot have as religious 
leaders and teachers. No, not in America.
  Last year, when the Supreme Court struck down part of the Religious 
Freedom Restoration Act in the case of City of Boerne versus Flores 
(117 S.Ct. 2157 (1997))--an Act that sought to redress a threat to 
religious liberty of the Court's own making--we who value the free 
exercise of religion vowed we would rebuild our coalition and craft a 
solution which appropriately defers to the Court's decision. Well, we 
have done so, and we are ready to move forward.
  We introduce today legislation that uses the full extent of our 
powers to make government cognizant of and solicitous of the freedom of 
each American to serve his or her concept of God. Where adjustment in 
general rules can possibly be made to accommodate this most basic 
liberty, it ought and must be made. As our government exists to 
guarantee such freedoms, government should only in the rarest instances 
itself infringe on this most basic and foundational freedom.
  We have worked together across party lines and with a coalition of 
truly remarkable breadth to fashion federal legislation to protect 
religious liberty that is consistent with both the vision of the 
Framers of the First Amendment and the ruling of the current Supreme 
Court about Congress' power to legislate in this area.
  The legislation that we introduce today will subject to strict 
scrutiny laws that substantially burden religious exercise in those 
areas within legitimate federal reach through either the commerce or 
spending powers, and provides procedural helps to ensure a full day in 
court for believers who must litigate to vindicate Free Exercise claims 
in areas of predominantly state jurisdiction. The legislation seeks to 
protect religious activity even in the face of general legislative 
rules that make that worship difficult or impossible through 
unawareness, insensitivity, or hidden hostility
  We believe we have constructed legislation that can merit the support 
of all who value the free exercise of religion, our first freedom. We 
commend it to our colleagues in the Congress, and to all those who wish 
to keep the Framers' promise of religious freedom alive for all 
Americans of all faiths.
  Mr. President, I commend this important legislation to my colleagues 
for their support. It is backed by an unprecedented coalition ranging 
from Focus on the Family, Family Research Council, and the Southern 
Baptist Convention to People for the American Way and the ACLU. I also 
ask unanimous consent that a copy of the bill and an explanatory 
section by section analysis be placed in the Record.
  There being no objection, the items were ordered to be printed in the 
Record, as follows:

                                S. 2148

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Religious Liberty Protection 
     Act of 1998''.

[[Page S5792]]

     SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.

       (a) General Rule.--Except as provided in subsection (b), a 
     government 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 or affecting commerce with foreign nations, among 
     the several States, or with the Indian tribes;

     even if the burden results from a rule of general 
     applicability.
       (b) Exception.--A government may substantially burden a 
     person's religious exercise if 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.
       (c) Funding Not Affected.--Nothing in this section shall be 
     construed to authorize the United States to deny or withhold 
     Federal financial assistance as a remedy for a violation of 
     this Act.
       (d) State Policy Not Commandeered.--A government may 
     eliminate the substantial burden on religious exercise by 
     changing the policy that results in the burden, by retaining 
     the policy and exempting the religious exercise from that 
     policy, or by any other means that eliminates the burden.
       (e) Definitions.--As used in this section--
       (1) the term ``government'' means a branch, department, 
     agency, instrumentality, subdivision, or official of a State 
     (or other person acting under color of State law);
       (2) the term ``program or activity'' means a program or 
     activity as defined in paragraph (1) or (2) of section 606 of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a); and
       (3) the term ``demonstrates'' means meets the burdens of 
     going forward with the evidence and of persuasion.

     SEC. 3. ENFORCEMENT OF THE FREE EXERCISE CLAUSE.

       (a) Procedure.--If a claimant produces prima facie evidence 
     to support a claim of a violation of the Free Exercise 
     Clause, the government shall bear the burden of persuasion on 
     all issues relating to the claim, except any issue as to the 
     existence of the burden on religious exercise.
       (b) Land Use Regulation.--
       (1) Limitation on land use regulation.--No government shall 
     impose a land use regulation that--
       (A) substantially burdens religious exercise, unless the 
     burden is the least restrictive means to prevent substantial 
     and tangible harm to neighboring properties or to the public 
     health or safety;
       (B) denies religious assemblies a reasonable location in 
     the jurisdiction; or
       (C) excludes religious assemblies from areas in which 
     nonreligious assemblies are permitted.
       (2) Full faith and credit.--Adjudication of a claim of a 
     violation of this subsection in a non-Federal forum shall be 
     entitled to full faith and credit in a Federal court only if 
     the claimant had a full and fair adjudication of that claim 
     in the non-Federal forum.
       (3) Nonpreemption.--Nothing in this subsection shall 
     preempt State law that is equally or more protective of 
     religious exercise.
       (4) Nonapplication of Other Portions of this Act.--Section 
     2 does not apply to land use regulation.

     SEC. 4. JUDICIAL RELIEF.

       (a) Cause of Action.--A person may assert a violation of 
     this Act as a claim or defense in a judicial proceeding and 
     obtain appropriate relief against a government. 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.
       (b) Attorneys' Fees.--Section 722(b) of the Revised 
     Statutes (42 U.S.C. 1988(b)) is amended--
       (1) by inserting ``the Religious Liberty Protection Act of 
     1998,'' after ``Religious Freedom Restoration Act of 1993,''; 
     and
       (2) by striking the comma that follows a comma.
       (c) Prisoners.--Any litigation under this Act in which the 
     claimant is a prisoner shall be subject to the Prison 
     Litigation Reform Act of 1995 (including provisions of law 
     amended by that Act).
       (d) Liability of Governments.--
       (1) Liability of states.--A State shall not be immune under 
     the 11th amendment to the Constitution from a civil action, 
     for a violation of the Free Exercise Clause under section 3, 
     including a civil action for money damages.
       (2) Liability of the united states.--The United States 
     shall not be immune from any civil action, for a violation of 
     the Free Exercise Clause under section 3, including a civil 
     action for money damages.

     SEC. 5. RULES OF CONSTRUCTION.

       (a) Religious Belief Unaffected.--Nothing in this Act shall 
     be construed to authorize any government to burden any 
     religious belief.
       (b) Religious Exercise Not Regulated.--Nothing in this Act 
     shall create any basis for regulation of religious exercise 
     or for claims against a religious organization, including any 
     religiously affiliated school or university, not acting under 
     color of law.
       (c) Claims to Funding Unaffected.--Nothing in this Act 
     shall create or preclude a right of any religious 
     organization to receive funding or other assistance from a 
     government, or of any person to receive government funding 
     for a religious activity, but this Act may require government 
     to incur expenses in its own operations to avoid imposing a 
     burden or a substantial burden on religious exercise.
       (d) Other Authority To Impose Conditions on Funding 
     Unaffected.--Nothing in this Act shall--
       (1) authorize a government to regulate or affect, directly 
     or indirectly, the activities or policies of a person other 
     than a government as a condition of receiving funding or 
     other assistance; or
       (2) restrict any authority that may exist under other law 
     to so regulate or affect, except as provided in this Act.
       (e) Effect on On Other Law.--Proof that a religious 
     exercise affects commerce for the purposes of this Act does 
     not give rise to any inference or presumption that the 
     religious exercise is subject to any other law regulating 
     commerce.
       (f) Severability.--If any provision of this Act or of an 
     amendment made by this Act, or any application of such 
     provision to any person or circumstance, is held to be 
     unconstitutional, the remainder of this Act, the amendments 
     made by this Act, and the application of the provision to any 
     other person or circumstance shall not be affected.

     SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.

       Nothing in this Act shall be construed to affect, 
     interpret, or in any way address that portion of the first 
     amendment to the Constitution prohibiting laws respecting an 
     establishment of religion (referred to in this section as the 
     ``Establishment Clause''). Granting government funding, 
     benefits, or exemptions, to the extent permissible under the 
     Establishment Clause, shall not constitute a violation of 
     this Act. As used in this section, the term ``granting'', 
     used with respect to government funding, benefits, or 
     exemptions, does not include the denial of government 
     funding, benefits, or exemptions.

     SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.

       (a) Definitions.--Section 5 of the Religious Freedom 
     Restoration Act of 1993 (42 U.S.C. 2000bb-2) is amended--
       (1) in paragraph (1), by striking ``a State, or subdivision 
     of a State'' and inserting ``a covered entity or a 
     subdivision of such an entity'';
       (2) in paragraph (2), by striking ``term'' and all that 
     follows through ``includes'' and inserting ``term `covered 
     entity' means''; and
       (3) in paragraph (4), by striking all after ``means,'' and 
     inserting ``an act or refusal to act that is substantially 
     motivated by a religious belief, whether or not the act or 
     refusal is compulsory or central to a larger system of 
     religious belief.''.
       (b) Conforming Amendment.--Section 6(a) of the Religious 
     Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-3(a)) is 
     amended by striking ``and State''.

     SEC. 8. DEFINITIONS.

       As used in this Act--
       (1) the term ``religious exercise'' means an act or refusal 
     to act that is substantially motivated by a religious belief, 
     whether or not the act or refusal is compulsory or central to 
     a larger system of religious belief;
       (2) the term ``Free Exercise Clause'' means that portion of 
     the first amendment to the Constitution that proscribes laws 
     prohibiting the free exercise of religion and includes the 
     application of that proscription under the 14th amendment to 
     the Constitution; and
       (3) except as otherwise provided in this Act, the term 
     ``government'' means a branch, department, agency, 
     instrumentality, subdivision, or official of a State, or 
     other person acting under color of State law, or a branch, 
     department, agency, instrumentality, subdivision, or official 
     of the United States, or other person acting under color of 
     Federal law.
                                  ____



 Religious Liberty Protection Act of 1998--Section-by-Section Analysis

       Section 1. This section provides that the title of the Act 
     is the Religious Liberty Protection Act of 1998.
       Section 2. Section 2(a) tracks the substantive language of 
     the Religious Freedom Restoration Act, 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. 
     The bill applies to programs or activities operated by a 
     government and receiving federal financial assistance. 
     ``Government'' is defined in Sec. 2(e)(1) 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). Private-
     sector grantees not acting under color of law are excluded 
     from the bill for multiple reasons: because it is difficult 
     to foresee the consequences of applying the bill to such a 
     diverse range of organizations, because applying the bill to 
     religious organizations would create conflicting rights under 
     the same statute and might restrict religious liberty rather 
     than protect it, and because the free exercise of religion 
     has historically been protected primarily against government 
     action and this bill is not designed to change that.

[[Page S5793]]

       Section 2(a)(2) applies the bill to religious exercise in 
     or affecting commerce among the States, with foreign nations, 
     or with the Indian tribes. The language is unqualified and 
     exercises the full constitutional limit of the commerce 
     power, whatever that may be. The provision is tautologically 
     constitutional; to the extent that the commerce power does 
     not reach some religious activities, the bill does not reach 
     them either. To the extent that this leaves some religious 
     exercise outside the protections of the bill, that is an 
     unavoidable consequence of constitutional limitations on 
     Congressional authority.
       Section 2(c) prevents any threat of withholding all federal 
     funds from a program or activity. The exclusive remedies are 
     set out in Sec. 4.
       Section 2(d) emphasizes that this bill does not require 
     states to pursue any particular public policy or to abandon 
     any policy, but that each State is free to choose its own 
     means of eliminating substantial burdens on religious 
     exercise.
       Section 2(e) contains definitions for purposes of Sec. 2.
       The definition of ``government'' in Sec. 2(e)(1) tracks 
     RFRA, except that the United States and its agencies are 
     excluded. The United States remains subject to the 
     substantially identical provisions of RFRA and need not be 
     included here.
       Section 2(e)(2) incorporates part of the definition of 
     ``program or activity'' from Title VI of the Civil Rights Act 
     of 1964--the part that describes programs and activities 
     operated by governments. This definition ensures that federal 
     regulation is confined to the program or activity that 
     receives federal aid, and does not extend to everything a 
     state does. The constitutionality of the Title VI definition 
     has not been seriously questioned.
       The definition of ``demonstrates'' in Sec. 2(e)(3) is taken 
     verbatim from RFRA.
       Section 3. This section enforces the Free Exercise Clause 
     as interpreted by the Supreme Court. Section 3(a) provides 
     generally that if a complaining party produces prima facie 
     evidence of a free exercise violation, the government then 
     bears the burden of persuasion on all issues except burden on 
     religious exercise.
       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. 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. 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. 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.
       Section 3(b) provides prophylactic rules to prevent 
     violations of the Court's constitutional tests as applied to 
     land use regulation. Land use regulation is administered 
     through highly individualized processes, often without 
     generally applicable rules. These individualized processes 
     are conducive to discrimination that is difficult to prove in 
     any individual case, but there appears to be a pattern of 
     religious discrimination when large numbers of cases are 
     examined. Section 3(b)(1) provides that land use regulation 
     may not substantially burden religious exercise, except where 
     necessary to prevent substantial and tangible harm, that 
     jurisdictions may not deny religious assemblies a reasonable 
     location somewhere within each jurisdiction, and that 
     religious assemblies may not be excluded from areas where 
     nonreligious assemblies are permitted.
       Subsection 3(b)(2) guarantees 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.
       Subsection 3(b)(3) provides that equally or more protective 
     state law is not preempted. Subsection 3(b)(4) provides that 
     Sec. 2 shall not apply to land use cases. The more detailed 
     standards of Sec. 3(b) control over the more general language 
     of Sec. 2.
       Section 4. This section provides remedies for violations. 
     Sections 4(a) and (b) track RFRA, creating a cause of action 
     for damages, injunction, and declaratory judgment, creating a 
     defense to liability, and providing for attorneys' fees.
       Section 4(c) subjects prisoner claims to the Prison 
     Litigation Reform Act. This permits meritorious prisoner 
     claims to proceed while effectively discouraging frivolous 
     claims; prisoner claims generally dropped nearly a third in 
     one year after the Prison Litigation Reform Act. Crawford-El 
     v. Britton, 66 U.S.L.W. 4311, 4317 n.18 (May 4, 1998).
       Section 4(d)(1) overrides the states' Eleventh Amendment 
     immunity in cases in which the claimant shows a violation of 
     the Free Exercise Clause, enforced under Sec. 3. Section 
     4(d)(2) waives the sovereign immunity of the United States in 
     the same cases. This override of state immunity and waiver of 
     federal immunity do not apply to statutory claims under 
     Sec. 2.
       Section 5. This section states several rules of 
     construction designed to clarify the meaning of all the other 
     provisions. Section 5(a) tracks RFRA, providing that nothing 
     in the bill authorizes government to burden 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) were carefully designed to keep this 
     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), in an abundance 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.
       Section 5(e) provides that proof that a religious exercise 
     affects commerce for purposes of this 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(f) states that each provision and application of 
     the bill shall be severable from every other provision and 
     application.
       Section 6. This section is taken verbatim from RFRA. It is 
     language designed to state neutrality on all disputed issues 
     under the Establishment Clause.
       Section 7. This section 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 clarify that 
     religious exercise need not be compulsory or central to a 
     larger system of religious belief.
       Section 8. This section defines important terms used 
     throughout the Act.
       Section 8(1) defines ``religious exercise'' to clarify two 
     issues that had divided courts under RFRA: religious exercise 
     need not be compulsory or central to a larger system of 
     religious belief.
       Section 8(2) defines ``Free Exercise Clause'' to include 
     the First Amendment clause, which binds the United States, 
     and also the incorporation of that clause into the Fourteenth 
     Amendment, which binds the States.
       Section 8(3) defines ``government'' to include both state 
     and federal entities and persons acting under color of either 
     state or federal law. This tracks the RFRA definition. The 
     free exercise enforcement provisions of Sec. 3 and the 
     remedies provisions of Sec. 4 supplement RFRA, and these 
     provisions are subject to the rules of construction in 
     Sec. 5; each of these sections applies to both state and 
     federal governments. This definition does not apply in 
     Sec. 2, which has its own definition that reaches only state 
     entities and persons acting under color of state law.
                                 ______