Congressional Record, Volume 145 Issue 100 (Thursday, July 15, 1999)

[Congressional Record Volume 145, Number 100 (Thursday, July 15, 1999)]
[House]
[Pages H5580-H5608]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

RELIGIOUS LIBERTY PROTECTION ACT OF 1999

Mrs. MYRICK. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 245 and ask for its immediate consideration.
The Clerk read the resolution, as follows:

H. Res. 245

Resolved, That upon the adoption of this resolution it
shall be in order without intervention of any point of order
to consider in the House the bill (H.R. 1691) to protect
religious liberty. The bill shall be considered as read for
amendment. The amendment recommended by the Committee on the
Judiciary now printed in the bill shall be considered as
adopted. The previous question shall be considered as ordered
on the bill, as amended, and on any further amendment thereto
to final passage without intervening motion except: (1) one
hour of debate on the bill, as amended, equally divided and
controlled by the chairman and ranking minority member of the
Committee on the Judiciary; (2) a further amendment printed
in the Congressional Record pursuant to clause 8 of rule
XVIII, if offered by Representative Conyers of Michigan or
his designee, which shall be considered as read and shall be
separately debatable for one hour equally divided and
controlled by the proponent and an opponent; and (3) one
motion to recommit with or without instructions.

The SPEAKER pro tempore (Mr. Hefley). The gentlewoman from North
Carolina (Mrs. Myrick) is recognized for 1 hour.
Mrs. MYRICK. Mr. Speaker, for purposes of debate only, I yield the
customary 30 minutes to the gentleman

[[Page H5581]]

from Ohio (Mr. Hall), pending which I yield myself such time as I may
consume. During consideration of this resolution, all time yielded is
for the purpose of debate only.
Yesterday, the Committee on Rules met and granted the structured rule
for H.R. 1691, the Religious Liberty Protection Act.
The rule provides for 1 hour of debate to be equally divided between
the chairman and ranking minority member of the Committee on the
Judiciary.
The rule waives all points of order against consideration of the
bill.
The rule makes in order an amendment in the nature of a substitute if
printed in the Congressional Record and if offered by the gentleman
from Michigan (Mr. Conyers) or his designee, debatable for 1 hour,
equally divided between the proponent and an opponent.
Finally, the rule provides for one motion to recommit with or without
instructions.
Mr. Speaker, this is a fair rule which will permit a thorough
discussion of all the relevant issues. In fact, the Committee on the
Judiciary considered one amendment during its markup of H.R. 1691, and
that amendment is made in order under this rule.
Prior to 1990, Mr. Speaker, the Supreme Court vigorously protected
our first amendment freedoms. A State or local government could not
impede religious expression unless its laws were narrowly tailored to
protect a compelling government interest. In 1990, this all changed. In
the case of Employment Division v. Smith, the Supreme Court ruled that
churches are subject to all generally applicable and civil laws as long
as the laws were not enacted in a blatant attempt to suppress religious
expression.
The potential impact of the Smith case is frightening. Now police can
arrest a Catholic priest for serving communion to minors in violation
of a State's drinking laws. Local officials can force an elderly lady
to rent her apartment to an unwed or homosexual couple in violation of
her Christian beliefs. Our law enforcement officials can conduct an
autopsy on an Orthodox Jewish victim in violation of the family's
religious beliefs.
Mr. Speaker, this is wrong, and it has to be changed. The Religious
Liberty Protection Act would essentially overturn the Smith decision
and return religious expression to its rightful place.
Under H.R. 1691, State and local officials must narrowly draft their
commerce regulations so they do not penalize religion. In addition,
under the bill anyone who receives Federal grant moneys cannot then
turn around and discriminate against religion, and State and local
governments cannot adopt land use laws that treat religious
organizations differently than secular organizations. There are
legitimate health and safety reasons for local governments to make
zoning decisions, but religious discrimination is not one of them.
I urge my colleagues to support this rule and to support the
underlying legislation.
Again I repeat:
The Committee on the Judiciary considered only one amendment during
its markup of H.R. 1691, and that amendment is made in order under this
rule.
Mr. Speaker, I reserve the balance of my time.
Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may
consume, and I want to thank my colleague, the gentlewoman from North
Carolina (Mrs. Myrick), for yielding me the time.
Mr. Speaker, this is a structured rule. It will allow for
consideration of H.R. 1691, which is called the Religious Liberty
Protection Act. As my colleague from North Carolina has explained, this
rule provides 1 hour of general debate to be equally divided and
controlled by the chairman and ranking minority member of the Committee
on the Judiciary. The rule permits only one amendment which may be
offered by the ranking minority member of the Committee on the
Judiciary or his designee.
The bill restricts States or local governments from passing laws that
impose a substantial burden on an individual's rights to practice his
or her religion. The bill attempts to reverse the effects of a Supreme
Court decision which made it easier for States to interfere with
religious freedom. This bill balances the right of individuals to
practice their religion against the need of the States to regulate the
conduct of their citizens. The bill attempts to give the right to
practice religion the same kind of protected status as the right of
free speech.
I want to call attention to the enormous support this bill has
received from the religious community. It is supported by more than 70
religious and civil liberty groups including Protestant, Catholic,
Jewish and Muslim groups. I do not think I have ever seen one piece of
legislation unite so many different religious organizations as this
bill has done.
America was founded by people who wanted to practice their religion
free from government interference, and I am pleased to be a cosponsor
of this bill because I think it will protect the basic American right,
freedom of religion.
Mr. Speaker, the bill has broad bipartisan support and was adopted in
an open committee process. I urge adoption of the rule and the bill.
Mrs. MYRICK. Mr. Speaker, I yield 3\1/2\ minutes to the gentleman
from Texas (Mr. Paul).
(Mr. PAUL asked and was given permission to revise and extend his
remarks.)
Mr. PAUL. Mr. Speaker, I rise in support of this rule but in
opposition to the bill.
Mr. Speaker, as a legislature of enumerated powers, Congress may
enact laws only for constitutionally authorized purposes. Despite
citing the general welfare and commerce clause, the purpose of H.R.
1691 is obviously to ``protect religious liberty.'' However, Congress
has been granted no power to protect religious liberty. Rather, the
first amendment is a limitation on congressional power. The first
amendment of the United States Constitution provides that Congress
shall make no law prohibiting the free exercise of religion, yet H.R.
1691 specifically prohibits the free exercise of religion because it
authorizes a government to substantially burden a person's free
exercise if the government demonstrates some nondescript, compelling
interest to do so.
The U.S. Constitution vests all legislative powers in Congress and
requires Congress to define government policy and select the means by
which that policy is to be implemented. Congress, in allowing religious
free exercise to be infringed using the least restrictive means
whenever government pleads a compelling interest without defining
either what constitutes least restrictive or compelling interest
delegates, to the courts legislative powers to make these policy
choices constitutionally reserved to the elected body.
Nowhere does H.R. 1691 purport to enforce the provisions of the
fourteenth amendment as applied to the States. Rather, its design
imposes a national uniform standard of religious liberty protected
beyond that allowed under the United States Constitution, thereby
intruding upon the powers of the State to establish their own policies
governing protection of religious liberty as preserved under the tenth
amendment. The interstate commerce clause was never intended to be used
to set such standards for the entire Nation.
Admittedly, instances of State government infringement of religious
exercise can be found in various forms and in various States, most of
which, however, occur in government-operated schools, prisons and so-
called government enterprises and as a consequence of Federal
Government programs. Nevertheless, it is reasonable to believe that
religious liberty will be somehow better protected by enacting national
terms of infringement, a national infringement standard which is ill-
defined by a Federal legislature and further defined by Federal courts,
both of which are remote from those whose rights are likely to be
infringed.
If one admires the Federal government's handling of the abortion
question, one will have to wait with even greater anticipation to
witness the Federal government's handiwork with respect to religious
liberty.
To the extent governments continue to expand the breadth and depth of
their reach into those functions formally assumed by private entities,
governments will continue to be caught in a hopeless paradox where
intolerance of religious exercise in government facilities is argued to
constitute establishment and, similarly, restrictions of

[[Page H5582]]

religious exercise constitute infringement.
Mr. Speaker, our Nation does not need an unconstitutional Federal
standard of religious freedom. We need instead for government,
including the courts, to respect its existing constitutional
limitations so we can have true religious liberty.
Mr. MOAKLEY. Mr. Speaker, I yield 7 minutes to the gentleman from
Texas (Mr. Edwards).

{time} 1115

Mr. EDWARDS. Mr. Speaker, I rise in support of this rule and this
bill, the Religious Liberty Protection Act. The first 16 words of the
Bill of Rights were carefully chosen by our Founding Fathers to protect
the religious freedom of all Americans. The words are these: ``Congress
shall pass no law respecting an establishment of religion or
prohibiting the free exercise thereof.''
For over 200 years those words and the principles they represent have
given Americans a land of unprecedented religious freedom and
tolerance. The establishment clause was intended to prohibit government
from forcing religion upon citizens. The free exercise clause was
designed to keep government from limiting any citizen's rights to
exercise his or her own religious faith.
In recent weeks, I have been greatly concerned about congressional
efforts that I felt would undermine the establishment clause and
consequently tear down the wall of separation between church and State.
Our Nation's religious community has been seriously divided on these
issues. However, the legislation today does not focus on the
establishment clause. Rather, it focuses on the importance of the free
exercise clause of the First Amendment.
I would suggest that the freedom to exercise one's religious beliefs
is the foundation for all other freedoms we cherish as Americans.
Without freedom of religion, the freedom of speech, press, and
association lose much of their value.
It is a commitment to the free exercise of religion that has united
over 70 religious and civil rights organizations in support of this
bill. It is the free exercise of religion that has united religious
groups in support of this legislation that have been badly divided on
so many other religious measures recently before this House.
I will greatly respect Members of this House who cannot support this
legislation today because I believe religious votes should be a matter
of conscience, not of party. However, I am gratified to see so many
diverse religious organizations coming together on this particular
issue. Organizations from the Anti-Defamation League to the Christian
Coalition, numerous organizations such as the American Jewish
Committee, the American Congress, the Methodist church, the Southern
Baptist Convention, groups that have very seldom come together in
recent days, have come together in the support of the free exercise of
individual American's religious rights.
Mr. Speaker, the point I make in listing some of these organizations
in support of this is not to say any Member must or should support this
bill because of these religious groups' endorsement. My point is that
this legislation was put together on a broad-based nonpartisan basis.
Its intent was to protect religion, not to deal in partisan issues. The
common bond of these diverse religious groups on this issue measure is
that they all believe that government should have to show a compelling
reason to limit any citizen's religious rights. I agree with those
groups.
More importantly, I believe the Founding Fathers intentionally began
the First Amendment with the protection of religious rights because
they recognized the fundamental role of religious freedom in our
society.
Now, I have been interested to see that some local and State
officials have argued recently that this legislation might
inconvenience them. Let me say that I agree. In fact, if they will
reread the Bill of Rights, the Bill of Rights was written precisely to
inconvenience governments. The Bill of Rights was written to make it
inconvenient to step on the religious rights of citizens in this
country.
For that reason, I think this is a measure that should pass for the
very precise reason that it does inconvenience local and State
governments in their efforts as mentioned by the gentlewoman from North
Carolina (Mrs. Myrick) in her speech, their efforts to limit the rights
of Americans in their religious exercise.
Others, Mr. Speaker, might argue in good faith that this bill will be
used by some religious groups to defend discrimination based on sexual
orientation. I can only say that it is neither my intent as a primary
cosponsor of this bill nor the intent of the religious groups with whom
I have met to design a bill for that purpose. Our intent is rather to
build into the statutes a shield against government regulations that
would limit religious freedom. Our intent, in the words of Rabbi David
Sapperstein, is to clarify, quote, ``A universal, uniform standard of
religious freedom.''
This legislation protects the right of government entities to limit
religious actions if there is a compelling interest to do so. Court
cases have clearly established, for example, that protecting against
race and gender discrimination are compelling State interests, as are
safety and health protections in the laws.
In the real world I recognize there are sometimes direct conflicts
between one citizen's right and another citizen's right. That is why we
have the judicial system, a system that can look at those issues on a
case-by-case basis. I believe the judicial system, rather than the
legislative system, is the best way to determine those specific cases.
Consequently, personally I believe it would be a mistake for Congress
in this bill to try to define who does and who does not have protected
religious rights or to exclude certain circumstances from free exercise
protections under this bill. Whether intended or not, and I do not
think it is intended, such an action could in some cases relegate
religious rights to a secondary status, something I do not think our
Founding Fathers intended when they chose the first words of the first
amendment to protect religious liberty.
To my Democratic colleagues who will vote for the Nadler amendment, I
respect your decision. No one in this House has been a stronger
defender of religious liberty and civil rights in Congress than the
gentleman from New York (Mr. Nadler), and I respect his genuine
concerns about possible conflicts between religious rights and other
rights.
However, if the gentleman's amendment fails, I would hope that
Members who supported his amendment would vote for final passage of
this bill. The need to protect religious freedom and to do it today is
real. It is important. This bill can still be modified in the Senate,
in the conference committee, and Members can make their final decision
on passage at that time. But the principle of protecting religious
freedom in my opinion is too important to delay.
Mr. Speaker, no bill is perfect. I do not suggest this bill meets
that impossible standard. But I believe the Religious Liberty
Protection Act deserves our support because it protects the fundamental
principle that government must have compelling reason to limit the
religious rights of individual citizens. I can find few reasons more
compelling to support any legislation before this House.
Mrs. MYRICK. Mr. Speaker, I yield 3 minutes to the gentleman from
Missouri (Mr. Blunt).
Mr. BLUNT. Mr. Speaker, I rise in support of this rule and of the
legislation and certainly in support of the remarks just made by the
gentleman from Texas (Mr. Edwards) that were so well said in this area.
This is clearly an area that needs protection. It is an area where
local governments constantly in recent years have fought in the face of
what we consider to be First Amendment rights. A small church in
Florida was ordered to stop its feeding ministry for feeding the
homeless.
In Greenville, South Carolina, home Bible study was banned in
communities that could still have at the exact same locations
Tupperware parties. When local ordinances ban Bible study but allow
Tupperware parties there is some significant violation of the First
Amendment there.
A family in Michigan was tried under criminal statutes because they
educated their children at home for religious reasons and did not have
certification. In Philadelphia, Pennsylvania,

[[Page H5583]]

Christian day care centers were threatened with closure if they did not
change their hiring practices which barred them from hiring non-
Christians, but these were Christian day care centers.
In Douglas County, Colorado, officials tried to limit the operational
hours of churches. A local community college required a loyalty oath
that made it impossible for Jehovah witnesses whose faith instructs
against taking those oaths to go to work at that facility. Certain fire
and police stations promulgate a blanket of no beards rules which
interferes with, among other groups, Muslim firefighters.

Mr. Speaker, these infringements on religious liberty are
significant. They are not pervasive yet, but they are certainly
prevalent. This bill allows churches in places like Rolling Hills
Estates, California, to build in an area that was zoned commercial
where the churches are told they cannot build if they want to, but
adult businesses and adult massage parlors can be built in this same
area of that community.
The RLPA would allow an orthodox Jewish community to build their
houses of worship within walking distance of their neighborhoods. It
would allow prison ministries, which have had such a great impact all
over the country, to continue to do efforts and prison programming that
are currently threatened. This would also deal with the question of
land-use regulation that so affects religious practice in communities
today.
Mr. Speaker, I would like to enter into the Record, as I conclude my
comments in support of this rule, I would like to enter into the Record
a list that is even more inclusive than the list that was just referred
to by the gentleman from Texas of religious groups that really cover a
broad, broad spectrum of religious activity and association in this
country who are in favor of H.R. 1691, and I am sure would also
encourage the passage of this rule so we can get on to this important
debate.

Organizations and Supporters of R.L.P.A.

Agudath Israel of America
The Alepha Institute
American Baptist Churches USA
American Center for Law and Justice
American Conference on Religious Movements
American Ethical Union, Washington Ethical Action Office
American Humanist Association
American Jewish Committee
American Jewish Congress
American Muslim Council
Americans for Democratic Action
Americans for Religious Liberty
Americans United for Separation of Church & State
Anit-Defamation League
Association of Christian Schools International
Association on American Indian Affairs
Baptist Joint Committee on Public Affairs
B'nai B'rith
Campus Crusade for Christ
Catholic League for Religious and Civil Rights
Central Conference of American Rabbis
Christian Church (Disciples of Christ)
Christian Coalition
Christian Legal Society
Christian Science Committee on Publication
Church of the Brethren
Church of Jesus Christ of Latter-day Saints
Church of Scientology International
Coalition for Christian Colleges and Universities
Council of Jewish Federations
Council on Religious Freedom
Council on Spiritual Practices
Criminal Justice Policy Foundation
Episcopal Church
Ethics & Religious Liberty Commission of the Southern Baptist
Convention
Evangelical Lutheran Church in America
Family Research Council
Focus on the Family
Friends Committee on National Legislation
General Conference of Seven-day Adventists
Guru Gobind Singh Foundation
Hadassah, the Women's Zionist Organization of American, Inc.
Interfaith Religious Liberty Foundation
International Association of Jewish Lawyers and Jurists
International Institute for Religious Freedom
Japanese American Citizens League
Jerry Falwell's Liberty Alliance
Jewish Council for Public Affairs
The Jewish Policy Center
The Jewish Reconstructionist Federation
Justice Fellowship
Kay Coles James
Liberty Counsel
Mennonite Central Committee U.S.
Muslim Prison Foundation
Muslim Public Affairs Council
Mystic Temple of Light, Inc.
NA'AMATUSA
National Association for the Advancement of Colored People
National Association of Evangelicals
National Campaign for a Peace Tax Fund
National Committee for Public Education and Religious Liberty
National Council of Churches of Christ in the USA
National Council of Jewish Women
National Council on Islamic Affairs
National Jewish Coalition
National Jewish Commission on Law and Public Affairs
National Native American Prisoner's Rights Advocacy Coalition
National Sikh Center
Native American Church of North America
Native American Rights Fund
Native American Spirit Correction Project
Navajo Nation Corrections Project
North American Council For Muslim Women
Pacific Justice Institute
People For the American Way Action Fund
Peyote Way Church of God
Presbyterian Church (USA), Washington Office
Prison Fellowship Ministries
Rabbinical Council of America
Religious Liberty Foundation
Rutherford Institute
Sacred Sites Inter-faith Alliance
Soka-Gakkai International--USA
Union of American Hebrew Congregations
Union of Orthodox Jewish Congregations of America
Unitarian Universalist Association of Congregations
United Church of Christ, Office for Church in Society
United Methodist Church, Board of Church & Society
United States Catholic Conference
United Synagogue of Conservative Judaism
Women of Reform Judaism, Federation of Temple Sisterhood

Mrs. MYRICK. Mr. Speaker, I yield 3 minutes to the gentleman from
Georgia (Mr. Kingston).
Mr. KINGSTON. Mr. Speaker, I thank the gentlewoman from North
Carolina (Mrs. Myrick) for yielding me this time.
Mr. Speaker, I rise in support of the rule on H.R. 1691 and also for
the subsequent legislation. What this legislation attempts to do is put
some common sense in the murky waters of the First Amendment regarding
the separation of church and state. And we can say, well it ought to be
crystal clear. But that water is murky, and it will remain murky.
Mr. Speaker, a couple of examples: we all remember the debate several
years ago about nursing homes that receive Medicare not being able to
have in their advertising in the Yellow Pages religious symbols if they
have a religious, faith-based organization that supports the nursing
home. If they want to use a cross in the Yellow Pages, that is a
violation.
The prayer-in-school issue, and this does not really affect these
directly, but I am trying to prove a point about the murky water.
Should kids be allowed to pray in school, nondenomination school
prayer? There have been lots of cases on this, but let us look at the
case of Littleton, Colorado. If a teacher were huddled in the classroom
while gun shots were outside the door and in a room safely with kids
and that teacher said, ``Can we bow our heads and say a prayer,'' as
the shots were fired outside the door, they are not allowed to do that.
Mr. Speaker, the point is there is murky water in the question of
religion, prayer, and the role of the State. And what this does in a
narrowly defined area, and that area which was really opened up by the
Employment Division versus Smith decision in 1990, it simply tries to
put some common sense into it by saying that the local laws, the laws
of the State cannot interfere with religious beliefs.
I think it is a very small step. It is a very carefully balanced
bill. It is crafted. It is not, in terms of public prayer, a
significant public religion-type bill at all. This again is just a very
slight adjustment and it tries to put common sense in it.
Mr. Speaker, I urge my colleagues to support this. It is bipartisan
and I hope that we can move it and get back to some of the other issues
that are before Congress.
Mrs. MYRICK. Mr. Speaker, I yield such time as he may consume to the
distinguished gentleman from Florida (Mr. Canady), the subcommittee
chairman.
Mr. CANADY of Florida. Mr. Speaker, I thank the gentlewoman from
North Carolina (Mrs. Myrick) for yielding me this time. And I thank all
the members of the Committee on Rules for their bipartisan support for
the rule that is before the House now. I would particularly like to
also thank the gentleman from Texas (Mr. Edwards) for

[[Page H5584]]

his leading role in sponsoring this legislation.
Mr. Speaker, I want to respond very briefly to a point that the
gentleman from Texas (Mr. Paul), my good friend, raised concerning our
government being a government of enumerated powers. I certainly agree
with him on that point and this bill is by no means inconsistent with
the principle that we are a government of enumerated powers.
Indeed, this bill is carefully drafted with that principle in mind
and is carefully based on specific enumerated powers of the Congress
which are set forth in the United States Constitution.

{time} 1130

In using the enumerated powers that are in this bill, we are
following well-established tradition with respect to the use of those
same powers to protect civil rights other than the free exercise of
religion.
We use the commerce clause in this bill to protect the free exercise
of religion. That same power is used in the 1964 Civil Rights Act to
protect against discrimination in employment and public accommodations.
We use the spending clause in this bill to protect against the
infringement of religious freedom. That same power is used once again
in the 1964 Civil Rights Act under title VI of that Act to prevent
discrimination in programs at the State and local level, which receive
Federal funds.
We also use section 5 of the 14th amendment, which was used
previously in the civil rights context to protect voting rights. So we
are following in a well-established tradition of protecting civil
rights using enumerated powers of the Congress under our Constitution.
This bill is carefully crafted. I want to thank the Members of the
Committee on Rules for bringing forward a rule which allows for the
consideration of this bill, and I urge all Members to support the rule
and to support the bill on final passage, without amendment.
Mr. MOAKLEY. Mr. Speaker, I yield 5 minutes to the gentleman from
Michigan (Mr. Conyers), the ranking member of the committee.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Speaker, I want to thank the distinguished gentleman
from Massachusetts (Mr. Moakley), the ranking member of Committee on
Rules, for granting me the time.
Religious freedom has been one of the cornerstones of American
democracy, of course, since our founding. Like the Members of this
body, I believe all of them, I am committed to preserving religious
freedom.
So we have before us soon today, first of all, we have a rule which I
am in support of, but the bill, well-intentioned as it is, may cause
far more harm than good. Because, instead of limiting religious
discrimination, it will allow for an increase in other forms of
discrimination. Instead of enhancing constitutional protections, it may
very well run afoul of the Constitution itself.
I would like to take a moment or two to explain this. A letter came
to me from the American Civil Liberties Union that started out working
with a coalition supporting this bill. It was multiracial,
multireligious. But now the Religious Liberty Protection Act is being
opposed by the Civil Liberties organization because it does not include
explicit language ensuring that the language will not undermine the
enforcement of civil rights laws.
The Congress should not break from its long-standing practice, they
say, of refraining from undermining or preempting State civil rights
laws that are more protective of civil rights sometimes than even
Federal law.
So the opposition by the Civil Liberties organization is, unless this
bill is corrected and amended to protect civil rights laws, and I think
the substitute of the gentleman from New York (Mr. Nadler) would
accomplish this, we would have a very serious problem.
The Civil Liberties Union goes on to say that,

We are no longer a part of the coalition supporting the
Religious Liberty Protection Act because we could not ignore
the potentially severe consequences that it may have on State
and local civil rights laws. And although we believe that
courts should find civil rights laws compelling and uniform
enforcement of these 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.
Now, none of these claims involve owner-occupied housing.
All of the landlords owned many investment properties that
were outside of the State laws exemptions for small
landlords. These landlords are companies. And they all sought
to turn the shield of religious exercise protection into a
sword against civil rights prospective tenants.

So, Mr. Speaker, we want to consider an alternative, an improvement,
if possible, to this measure. Without this improvement, I think this is
a serious regression in both religious liberty and in civil rights
protections as well.
Remember, if you will, that a measure that will lead to an increase
in discrimination, because whenever a party is sued for discrimination,
this bill will allow in effect, the religious liberty defense, it will
in effect allow a defendant to say, I have discriminated because my
religion allowed me to do it. My religion made me do it.
This is a right no other citizen or government can assert. So the
bill is so sweeping that this new defense will not only apply to
religious institutions themselves but to companies and corporations as
well.
Mr. MOAKLEY. Mr. Speaker, I yield back the balance of my time.
Mrs. MYRICK. Mr. Speaker, I am very pleased to hear all of the
speakers today say they are in support of the rule. This is a fair
rule, and I urge all of my colleagues to do the same.
Mr. Speaker, I yield back the balance of my time, and I move the
previous question on the resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Mr. CANADY of Florida. Mr. Speaker, pursuant to House Resolution 245,
I call up the bill (H.R. 1691) to protect religious liberty, and ask
for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Barrett of Nebraska). Pursuant to House
Resolution 245, the bill is considered read for amendment.
The text of H.R. 1691 is as follows:

H.R. 1691

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 1999''.

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 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;
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) Remedies of the United States.--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. However, nothing in this subsection
shall be construed to deny, impair, or otherwise affect any
right or authority of the Attorney General or the United
States or any agency, officer, or employee thereof under
other law, including section 4(d) of this Act, to institute
or intervene in any action or proceeding.

SEC. 3. ENFORCEMENT OF CONSTITUTIONAL RIGHTS.

[[Page H5585]]

to which real property would be put, the government may not
impose a substantial burden on a person's religious exercise,
unless 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.
(B) No government shall impose or implement a land use
regulation in a manner that does not treat religious
assemblies or institutions on equal terms with nonreligious
assemblies or institutions.
(C) No government shall impose or implement a land use
regulation that discriminates against any assembly or
institution on the basis of religion or religious
denomination.
(D) No government with zoning authority shall unreasonably
exclude from the jurisdiction over which it has authority, or
unreasonably limit within that jurisdiction, assemblies or
institutions principally devoted to religious exercise.
(2) Full faith and credit.--Adjudication of a claim of a
violation of the Free Exercise Clause or 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.

SEC. 4. JUDICIAL RELIEF.

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 restricting or burdening 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) Governmental Discretion in Alleviating Burdens on
Religious Exercise.--A government may avoid the preemptive
force of any provision of this Act by changing the policy
that results in the substantial burden on religious exercise,
by retaining the policy and exempting the burdened religious
exercise, by providing exemptions from the policy for
applications that substantially burden religious exercise, or
by any other means that eliminates the substantial burden.
(f) Effect on Other Law.--In a claim under section 2(a)(2)
of this Act, 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.
(g) Broad Construction.--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.
(h) 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 ``conduct that constitutes the exercise of religion
under the first amendment to the Constitution; however, such
conduct need not be compelled by, or central to, a system of
religious belief; the use, building, or converting of real
property for religious exercise shall itself be considered
religious exercise of the person or entities that use or
intend to use the property for religious exercise.''.
(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 conduct that
constitutes the exercise of religion under the first
amendment to the Constitution; however, such conduct need not
be compelled by, or central to, a system of religious belief;
the use, building, or converting of real property for
religious exercise shall itself be considered religious
exercise of the person or entities that use or intend to use
the property for religious exercise;
(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;
(3) the term ``land use regulation'' means a law or
decision by a government that limits or restricts a private
person's uses or development of land, or of structures
affixed to land, where the law or decision applies to one or
more particular parcels of land or to land within one or more
designated geographical zones, and where the private person
has an ownership, leasehold, easement, servitude, or other
property interest in the regulated land, or a contract or
option to acquire such an interest;
(4) 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);
(5) the term ``demonstrates'' means meets the burdens of
going forward with the evidence and of persuasion; and
(6) the term ``government''--
(A) means--
(i) a State, county, municipality, or other governmental
entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality,
subdivision, or official of an entity listed in clause (i);
and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 3(a) and 5, includes the
United States, a branch, department, agency, instrumentality
or official of the United States, and any person acting under
color of Federal law.

The SPEAKER pro tempore. The amendment printed in the bill is
adopted.
The text of H.R. 1691, as amended, is as follows:

H.R. 1691

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 1999''.

SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.

[[Page H5586]]

otherwise affect any right or authority of the Attorney
General or the United States or any agency, officer, or
employee thereof under other law, including section 4(d) of
this Act, to institute or intervene in any action or
proceeding.

SEC. 3. ENFORCEMENT OF CONSTITUTIONAL RIGHTS.

(a) Procedure.--If a claimant produces prima facie evidence
to support a claim alleging a violation of the Free Exercise
Clause or a violation of a provision of this Act enforcing
that clause, the government shall bear the burden of
persuasion on any element of the claim; however, the claimant
shall bear the burden of persuasion on whether the challenged
government practice, law, or regulation burdens or
substantially burdens the claimant's exercise of religion.
(b) Land Use Regulation.--
(1) Limitation on land use regulation.--
(A) Where, in applying or implementing any land use
regulation or exemption, or system of land use regulations or
exemptions, a government has the authority to make
individualized assessments of the proposed uses to which real
property would be put, the government may not impose a
substantial burden on a person's religious exercise, unless
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.
(B) No government shall impose or implement a land use
regulation in a manner that does not treat religious
assemblies or institutions on equal terms with nonreligious
assemblies or institutions.
(C) No government shall impose or implement a land use
regulation that discriminates against any assembly or
institution on the basis of religion or religious
denomination.
(D) No government with zoning authority shall unreasonably
exclude from the jurisdiction over which it has authority, or
unreasonably limit within that jurisdiction, assemblies or
institutions principally devoted to religious exercise.
(2) Full faith and credit.--Adjudication of a claim of a
violation of the Free Exercise Clause or 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.

SEC. 4. JUDICIAL RELIEF.

SEC. 5. RULES OF CONSTRUCTION.

SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.

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 ``any exercise of religion, whether or not
compelled by, or central to, a system of religious belief,
and includes (A) the use, building, or conversion of real
property by a person or entity intending that property for
religious exercise; and (B) any conduct protected as
exercise of religion under the first amendment to the
Constitution.''.
(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 any exercise of
religion, whether or not compelled by, or central to, a
system of religious belief, and includes (A) the use,
building, or conversion of real property by a person or
entity intending that property for religious exercise; and
(B) any conduct protected as exercise of religion under the
first amendment to the Constitution;
(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;
(3) the term ``land use regulation'' means a law or
decision by a government that limits or restricts a private
person's uses or development of land, or of structures
affixed to land, where the law or decision applies to one or
more particular parcels of land or to land within one or more
designated geographical zones, and where the private person
has an ownership, leasehold, easement, servitude, or other
property interest in the regulated land, or a contract or
option to acquire such an interest;
(4) 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);
(5) the term ``demonstrates'' means meets the burdens of
going forward with the evidence and of persuasion; and
(6) the term ``government''--
(A) means--
(i) a State, county, municipality, or other governmental
entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality,
subdivision, or official of an entity listed in clause (i);
and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 3(a) and 5, includes the
United States, a branch, department, agency, instrumentality
or official of the United States, and any person acting under
color of Federal law.

The SPEAKER pro tempore. After 1 hour of debate on the bill, as
amended, it shall be in order to consider the further amendment printed
in the Congressional Record if offered by the gentleman from Michigan
(Mr. Conyers) or his designee, which shall be considered read and
debatable for 1 hour, equally divided and controlled by the proponent
and an opponent.
The gentleman from Florida (Mr. Canady) and the gentleman from
Michigan (Mr. Conyers) each will control 30 minutes.
The Chair recognizes the gentleman from Florida (Mr. Canady).
Mr. CANADY of Florida. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, H.R. 1691, the Religious Liberty Protection Act, is
legislation designed to ensure that the free exercise of religion is
not trampled on by the insensitive and heedless actions of government.
It is supported by a broad coalition of more than 70 religious and
civil rights groups, ranging from the Christian Coalition and Campus
Crusade for Christ to the National Council

[[Page H5587]]

of Churches and People for the American Way.
This legislation has been introduced and is now being considered by
the House because the Supreme Court has taken, as Professor Douglas
Laycock has aptly described it, ``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.''
The purpose of this bill is to use the constitutional authority of
the Congress to help ensure that people do have a right, respected by
government at all levels, to practice their religion. The supporters of
the bill recognize that the free exercise of religion has been a
hallmark of the American system of constitutional government and that
Congress has a responsibility to protect the free exercise of religion
to the maximum extent practicable.
In considering the need for this legislation, it is important to
understand that, at least in some respects, protection for religious
liberty in America does remain strong. The Supreme Court has recognized
that governmental actions which target religion for adverse treatment
run afoul of the protections afforded by the first amendment of our
Constitution.
As Justice Kennedy, writing in 1993 for the Court in the City of
Hialeah case, stated: ``Legislators may not devise mechanisms, overt or
disguised, designed to persecute or oppress a religion or its
practices.'' Protection against such religious persecution or
oppression clearly is a core purpose of the first amendment
proscription of laws prohibiting the free exercise of religion.
But we are here today because in another important respect the
religious practice of Americans have been denied protection by the
Supreme Court of the United States. Let it be clearly understood that
we are not here to change the scope of the protections afforded by the
free exercise provision of the first amendment. That is not the purpose
of the Religious Liberty Protection Act.
Instead, the purpose of this legislation is to use the recognized
powers of the Congress under the Constitution to fill a gap in the
protections available to people of faith in America who, in fact, face
substantial burdens imposed by government on their religious practices.
We do not seek to alter the protections the Supreme Court has
determined to be required by the first amendment but to provide
separate and additional protections.
Mr. Speaker, I will not now rehearse the detailed history of the
judicial and legislative actions that have brought us to this day, but
a brief word about that background is necessary to put today's debate
in proper context.
In 1990, the Supreme Court in Employment Division v. Smith held that
governmental actions under neutral laws of general applicability, which
is laws that do not target religion for adverse treatment, are not
ordinarily subject to challenge under the free exercise clause, even if
they result in substantial burdens on religious practice.
Prior to the Smith decision, the Court had for many years recognized,
as the Court said in 1972 in Wisconsin v. Yoder, that a ``regulation
neutral on its face may, in its application, nonetheless offend the
constitutional requirement for government neutrality if it unduly
burdens the free exercise of religion.''
Yoder was a case that dealt with the adverse impact of a compulsory
school attendance law on the religious practices of the Amish. It did
not involve circumstances in which government had targeted religion for
adverse treatment.
In Yoder, the Court explained that ``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 a free exercise of religion.''
The shorthand description of the standard applied in Yoder and
similar cases is the compelling interest/least restrictive means test.
In response to widespread public concern regarding the impact of the
Smith decision, the Congress in 1993 passed the Religious Freedom
Restoration Act, frequently referred to as RFRA. This legislation
sought to require application of the compelling interest/least
restrictive means test to governmental actions that substantially
burden religious exercise.
RFRA was based in part on the power of Congress under section 5 of
the 14th amendment to enforce, by appropriate legislation, the
provisions of the 14th amendment with respect to the States. The
provisions of the first amendment are applied to the States by virtue
of the 14th amendment.

{time} 1145

The Supreme Court in 1997 in the City of Boerne versus Flores case
held that Congress had gone beyond its proper powers under Section 5 of
the 14th Amendment in enacting RFRA.
The Religious Liberty Protection Act, which is before the House
today, approaches the issue of protecting free exercise in a way that
will not be subject to the same challenge that succeeded in the Boerne
case.
The heart of the bill, which is now before the House, is in Section
2, where the general rule is established that government may not
substantially burden a person's religious exercise even if the burden
results from a rule of general applicability, unless the government
demonstrates that application of the burden is in furtherance of a
compelling governmental interest and is the least restrictive means of
furthering that interest. As I have noted, the same test was adopted by
Congress in the Religious Freedom Restoration Act, and a similar
compelling interest test was applied by the Supreme Court for many
years until it was abandoned by the court in 1990.
As set forth in Section 2, this general rule is applicable in two
distinct contexts. First, it applies where a person's religious
exercise is burdened ``in a program or activity operated by the
government that receives Federal financial assistance.'' This provision
closely tracks title VI of the Civil Rights Act of 1964, which
prohibits discrimination on the ground of race, color, or national
origin under ``any program or activity receiving Federal financial
assistance.''
Second, the general rule under Section 2 is applicable where the
burden on a person's religious exercise affects interstate commerce, or
where the removal of the burden would affect interstate commerce. As
with the provision on Federal financial assistance, this provision
follows in the tradition of the civil rights laws. It uses the commerce
power to protect the civil right of religious exercise as the Civil
Rights Act of 1964 uses the commerce power to protect against
discrimination in employment and public accommodations.
The provisions of the bill requiring application of the compelling
interest/least restrictive means test are based on the conviction that
government should accommodate the religious exercise of individuals and
groups unless there are compelling reasons not to do so.
Application of this test will not mean that a religious claimant will
necessarily win against the government. And that is a very important
point to understand. Indeed, in a great many cases the government will
be able to establish that it has acted on the basis of a compelling
interest using the least restrictive means, and thus justify the burden
it has imposed on the free exercise of religion.
Under the test provided for in the bill, however, the religious
claimant will not automatically lose because the burden on the free
exercise of religion is imposed by a neutral law of general
applicability. The mere absence of an intention to persecute the
religious claimant will not be sufficient to justify the governmental
action.
Section 3 of the bill contains additional safeguards for religious
exercise. The provisions in Section 3 are remedial measures designed to
prevent the violation of the Free Exercise Clause of the Constitution
as that provision of the Constitution has been interpreted by the
Supreme Court. In this Section, Congress acts within the scope of the
enforcement power under Section 5 of the 14th Amendment as interpreted
by the Supreme Court.
Subsection (a) of Section 3 provides that once a claimant makes a
prima facie case of a free exercise violation and shows a substantial
burden, the burden of persuasion will shift to the government.
Subsection (b) establishes certain limitations on land-use
regulations. These provisions are necessary to effectively remedy the
pervasive pattern, a

[[Page H5588]]

pattern well documented in the hearings of the Subcommittee on the
Constitution of the Committee on the Judiciary, of discriminatory and
abusive treatment suffered by religious individuals and organizations
in the land-use context.
These limitations include a provision requiring application of the
compelling interest/least restrictive means test ``when the government
has the authority to make individualized assessments of the proposed
uses to which real property will be put.'' This provision follows the
principle articulated by the Supreme Court in the Smith case that
``where the State has in place a system of individualized
determinations or individual exemptions, it may not refuse to extend
that system to cases of `religious hardship' without compelling
reason.''
Under Subsection (b), land-use regulations must treat religious
assemblies or institutions on equal terms with nonreligious assemblies
or institutions and must not ``discriminate against any assembly or
institution on the basis of religion or religious denomination.'' In
addition, a zoning authority may not ``unreasonably limit'' or
``unreasonably exclude'' assemblies or institutions principally devoted
to religious exercise.
I would like to make a comment about the impact of this bill on local
land use. The impact of this bill on local land use, I believe, will be
the same as the impact that was intended by the Religious Freedom
Restoration Act. So there is no real difference between the purpose of
this bill with respect to land use and the Religious Freedom
Restoration Act, which the Congress passed with an overwhelming vote of
support.
It is important to understand that we should not casually interfere
with local land-use decisions, but I believe that where fundamental
rights are at stake, the Federal Government does have an important role
to play. And based on the record of abuse that we have seen in this
particular context, I believe that the actions that we would take under
this bill to protect the free exercise of religion in the local land-
use context are very well justified.
I would point out that those particularly who are committed to using
Federal power to protect property rights against infringement at the
local land-use level should certainly be no less willing to use Federal
power to protect against local actions which infringe on the free
exercise of religion.
Finally, in summarizing the bill, let me point out that the bill
amends the Religious Freedom Restoration Act of 1993 to conform with
the holding of the Supreme Court in the Boerne case. This provision of
the bill recognizes the legal reality that after Boerne the courts will
apply RFRA solely to the Federal Government and not to the States.
Now, I have discussed the legal concepts involved in this
legislation, but I should also mention some examples of the types of
cases where the enforcement of neutral rules of general application may
be challenged under the bill. We have heard some reference to such
examples already, but let me cite to the Members of the House a
catalogue of cases that Professor Michael McConnell has gathered. These
are cases which were decided under RFRA before the Boerne decision.
While RFRA was on the books, successful claimants included a
Washington, D.C. church whose practice of feeding a hot breakfast to
homeless men and women reportedly violated zoning laws; a Jehovah's
Witness who was denied employment for refusing to take a loyalty oath;
the Catholic University of America, which was sued for gender
discrimination by a canon-law professor denied tenure; a religious
school resisting a requirement that it hire a teacher of a different
religion; a Catholic prisoner who was refused permission to wear a
crucifix; and a church that was required to disgorge tithes contributed
by a congregant who later declared bankruptcy.

The same sorts of cases would be affected by this legislation.
Mr. Speaker, the goal of protecting the ability of Americans freely
to practice their religion according to the dictates of conscience is
deeply rooted in our experience as a people. James Madison wrote of his
``particular pleasure'' concerning support for ``the immunity of
religion from civil jurisdiction in every case where it does not
trespass on private rights or the public peace.''
As Professor McConnell has written: ``Accommodations of religion in
the years up to the framing of the First Amendment were frequent and
well-known. For the most part, the largely Protestant population of the
States as of 1789 entertained few religious tenets in conflict with the
civil law; but where there were conflicts, accommodations were a
frequent solution.''
The best known example of accommodation from that period is the
exemption from military conscription granted by the Continental
Congress to members of the peace churches. In the midst of our great
struggle for independence as a Nation, the Continental Congress passed
a resolution to grant the exemption from conscription, observing that
``as there are some people, who, from religious principles, cannot bear
arms in any case, this Congress intends no violence to their
consciences.''
The purpose of avoiding governmental action that does violence to the
consciences of individuals is based on the understanding that there are
claims on the individual which are prior to the claims of government.
This understanding finds expression in Madison's Memorial and
Remonstrance Against Religious Assessments. Madison there wrote: ``It
is the duty of every man to render to the Creator such homage, and such
only, as he believes to be acceptable to him. This duty is precedent in
order of time and degree of obligation, to the claims of civil society.
Every man who becomes a member of any particular Civil Society, must do
it with a saving of his allegiance to the Universal Sovereign.''

In the Christian tradition, the principle of prior allegiance is
eloquently summed up in the words recorded in the Book of Acts of Peter
and the other apostles who, when ordered to cease their preaching,
responded by saying, ``We must obey God rather than men.''
A government based on the idea of liberty must not turn a deaf ear to
such claims of conscience. The government of a people who love freedom
must not heedlessly enforce requirements that do violence to the
consciences of those who seek only to ``render to the Creator such
homage'' as they believe to be acceptable to him. So long as they do
``not trespass on private rights or the public peace,'' Americans
should be free to practice their religion without interference from the
heavy hand of government.
That is the sole purpose of the Religious Liberty Protection Act. Let
this House today show that we respect the rights of conscience and
honor the principles of liberty, just as the Continental Congress did
more than two centuries ago. I urge the Members of the House to support
this bill, to reject the substitute amendment which would weaken the
bill, and move forward with the goal of protecting religious liberty
for all Americans.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the
gentleman from New York (Mr. Nadler), who has worked very diligently on
this measure.
Mr. NADLER. Mr. Speaker, the bill we have before us today is a good
and important bill, and I worked with the gentleman from Florida (Mr.
Canady) and others prior to its original introduction.
I want to associate myself with the remarks of the gentleman from
Florida, and I agree with every word he said about the necessity for
this bill and about its drafting. Unfortunately, this bill needs to be
amended to ensure that while it acts as a shield to protect the
fundamental religious rights of all Americans, as it is intended to do,
it cannot also be used as a sword to do violence to the rights of
others.
I will be offering an amendment in the nature of a substitute later
today which will consist of the exact language of this bill but will
also add a provision that would ensure that the appropriate balance
between competing rights is struck.
With that change, I would hope that every Member of this House would
support this important legislation. And I hope that if my amendment is
adopted, my colleagues will do so. Without the amendment,
unfortunately, the bill carries with it a fatal flaw threatening

[[Page H5589]]

to undermine existing civil rights protections. And I would urge my
colleagues in that case to vote against the bill in order to increase
the odds that the bill will be properly amended either in this House or
in the Senate.
This is a very difficult stand for me to take. As many of my
colleagues know, I worked very hard for passage of the original
Religious Freedom Restoration Act, or RFRA, in 1993. Since the Supreme
Court decision declaring RFRA unconstitutional, I have worked hard to
undo the damage the Supreme Court has repeatedly inflicted on our first
freedom.
Corrective legislation of this sort has been, since the Supreme
Court's infamous decision in Employment Division versus Smith 9 years
ago, one of my top priorities. So I want my colleagues to know it is
with great sorrow I contemplate the possibility that I might have to
vote against the legislation which addresses a problem that is very
dear to my heart.
Religious freedom is in peril because of the rulings set down by the
court in Smith. Under that rule, facially neutral, generally applicable
laws, having the incidental effect of burdening religion, are no longer
deemed violations of the First Amendment.

{time} 1200

This is unacceptable.
The Committee on the Judiciary, in its hearings on this legislation,
received more than ample evidence that religion has suffered under the
court's new rule and that, by following the indication of Justice
Scalia for the political branches to deal with conflicts between law
and faith, religious liberty has not fared very well at all.
This bill attempts to restore the protection of free exercise of
religion which the Supreme Court has deprived us, but it does so at the
cost of creating a real threat to the endorsement of State and local
civil rights laws prohibiting discrimination on the basis of gender,
marital status, disability, sexual orientation, having or not having
children, or any other innate characteristic.
The bill as drafted would enable the CEO of a large corporation to
say, my religion prohibits me from letting my corporation hire a
divorced person or a disabled person or a mother who should be at home
with her children and not at work or a gay or lesbian person and my
religion prohibits me from letting my hotel rent a room to any such
people. And nevermind the States' civil rights laws that prohibit that
kind of discrimination.
If this bill passes in its current form, many courts will say that
the State does not have a compelling interest in enforcing their laws
against these kinds of discrimination and that discrimination will go
on despite the laws because of this bill.
It is not right, Mr. Speaker, to abrogate the civil rights of many
Americans in order to protect the religious liberty of other Americans;
and it is not necessary to do so.
Thankfully, we do not face such a stark choice between religious
liberty and civil rights. We can protect the religious liberty of all
Americans without threatening the civil rights of any Americans. And
that is what my amendment in the nature of a substitute will do.
So I will urge my colleagues to support the Nadler civil rights
substitute, which I will describe later when I introduce it in greater
detail, and, if it is adopted, to support what will then be an
excellent and very important bill.
But if the amendment is not adopted, I will unhappily urge my
colleagues to vote against the bill in its current form in order to
increase the likelihood that the bill will be properly amended either
in the House or in the Senate.
Mr. CONYERS. Mr. Speaker, will the gentleman yield?
Mr. NADLER. I yield to the gentleman from Michigan.
Mr. CONYERS. Mr. Speaker, I merely wanted to commend the gentleman on
his statement. It is a very courageous statement, and it is also a very
well thought out statement from a constitutional point of view. I thank
him very much for his contribution.
Mr. NADLER. Mr. Speaker, reclaiming my time, I appreciate the
comments of the distinguished ranking member of the committee.
Mr. Speaker, I will address this issue further when we get to the
substitute.
At this time, let me simply reiterate, the bill, except for its
effect on civil rights laws, its potential effect, is a necessary and
important bill. I hope we can amend it to get rid of this one but,
unfortunately, fatal flaw so that we can really protect the rights of
the religious liberties of all Americans without threatening the civil
rights of any Americans.
Mr. CANADY of Florida. Mr. Speaker, I yield 3\1/2\ minutes to the
gentleman from Arkansas (Mr. Hutchinson), a member of the Committee on
the Judiciary.
Mr. HUTCHINSON. Mr. Speaker, I thank the gentleman for yielding me
the time.
I want to first respond to the gentleman from New York (Mr. Nadler),
who has done an outstanding job of raising concerns about this bill.
But this bill has been heard in subcommittee and in full committee, and
those concerns have been addressed by the constitutional scholars, and
I believe that it is not going to be the problems that have been
addressed and expressed by the gentleman from New York.
This bill has broad bipartisan support, and I think that that is
important as we move through this process.
I want to congratulate the chairman of the Subcommittee on the
Constitution, the gentleman from Florida (Mr. Canady), who has done
such an outstanding job in studying and providing leadership on this
issue. He certainly has earned the justified expression in this
Congress that he is a constitutional scholar.
If we look at the history as to how we got here today, Congress
enacted the Religious Freedom Restoration Act in 1993 to enforce the
constitutional guarantees of free exercise of religion.
The Act codified a balancing test that had been applied by the court
in 1990. Under this test, the government could restrict a person's free
exercise of religion only if it demonstrated this amount of action is
necessary to further a compelling governmental interest and it is the
least restrictive means of achieving that governmental interest.
Unfortunately, on June 25 of 1997, in the Burn decision, the Supreme
Court struck down the law as it applied to the State but left open the
opportunity for Congress to accomplish the same protections but in a
different way.
For the last 2 years, the Committee on the Judiciary Subcommittee on
the Constitution has been setting legislative record holding hearings,
listening to constitutional scholars, and we learned clearly that the
law is necessary to protect the religious freedoms promised by the
Constitution.
The legislation before us today strikes a good balance between
providing much-needed protection while not exceeding the limitations on
Federal power set forth in the Constitution.
The development of this legislation is an example of how legislation
should be developed in Congress. We pass legislation. The Supreme Court
addresses it. We come back. We try to do it and answer the concerns of
the Supreme Court. We hold the hearings. We listen to the
constitutional scholars. It has been done in the right way under the
Constitution, the right legislative process. And we have learned why it
is necessary.
It is necessary to make sure that a small church is able to continue
its ministry to the homeless. It is necessary to make sure that home
churches may continue to meet. It is necessary to make sure that
prisoners are able to participate in Holy Communion. It is necessary to
make sure that people of faith are not discriminated against in
government employment. It is necessary to make sure that localities do
not limit the number of students who may attend a religious school. It
is necessary to make sure that Jewish boys are not prohibited from
wearing yarmulkes at school. And it is necessary to make sure that
communications between clergy and church members are protected.
My constituents feel strongly about this legislation, and I am
pleased to be able to represent them today in support of the Religious
Liberty Protection Act. I urge my colleagues to support this bill, as
well.
Mr. CONYERS. Mr. Speaker, I yield myself 4 minutes.

[[Page H5590]]

Mr. Speaker, we are confronted with a very unusual situation here
that, unless we put the legislation that we handled in 1993, which was
passed by a voice vote, and of course many Members now present were not
in the Congress nor on the Committee on the Judiciary at that time,
into perspective, we may miss what is attempted to be done here.
The court rendered part of that law invalid. They rendered the part
that deals with State and local civil rights laws invalid, that it did
not apply to them.
What this measure is doing is coming back and getting the other part
of it. And so, this is part of a one-two punch in which we are now
doing something incredible if we look at it in the broader context.
We have already put restrictions on Federal civil rights laws as a
result of the 1993 case, and now we are coming back to get the part
that escaped the court's criticism. That is why the leading civil
rights litigation organization in the United States, the NAACP Legal
Defense and Educational Fund, has, as of yesterday, sent me a strong
letter explaining why they cannot support this measure.
In addition, the American Civil Liberties Union, probably the second-
most active litigating organization, has also indicated their strong
reservations about this measure in its present form.
I would just give my colleagues a part of the reasoning of Director
Counsel General Elaine Jones of LDF's letter to me that indicates why
they urged Members not to succumb to this bill, as enticing as it may
be, without some correction.
Defendants in discrimination cases brought under State or local fair
housing, employment laws may seek to avoid liability by claiming
protection under the Religious Liberty Protection Act. This would
require individuals proceeding under such State and local
antidiscrimination laws to prove that the law they wish to utilize is a
least restrictive means of furthering a compelling governmental
interest. This requirement would significantly increase the litigation
time and expense of pursuing even ordinary antidiscrimination actions
and as a result could even preclude some plaintiffs from pursuing their
claims.
And so, we are now being asked to submit to part two of the original
law that limits the Federal civil rights jurisdiction and now we have
come back in this rather clever and innocent-sounding defense of
religious liberties to now put the hindrance, the binders, on local and
State civil rights laws.
Although I am committed to preserving religious freedom in this
nation, I cannot support the Religious Liberty Protection Act as it is
presently drafted.
My principal concern is that the legislation creates a brand new
right for so-called ``religious practitioners'' and no other group or
government enjoys--the right to discriminate. The right is so sweeping
it will apply not only to religious institutions, but to large
corporations.
I know that the bill's supporters say we should not worry about race
and gender discrimination, because those interests have previously been
found by the courts to be protected under the so-called ``compelling
interest test set forth in the bill. Forgive me for being a little bit
skeptical of this claim, particularly given the current conservative
makeup of so many courts.
Even if the supporters' predictions prove true, civil rights
plaintiffs will be subject to vastly enhanced litigation costs. We have
enough barriers to civil rights suits without adding these new
obstacles. This is why the NAACP Legal Defense and Education Fund is so
strongly opposed to the bill.
Buyt it is beyond race and gender that the most significant civil
rights concerns exist. This is because anti-discrimination laws based
on sexual orientation, marital status, and disability have not been
found by the courts to be based on a ``compelling'' government
interest.
This means that under the bill, businesses will be free to
discriminate against gay and lesbian employees, and large landlords
will be able to justify their refusal to rent to single parents or gays
and lesbians. In my view, we have fought too hard in the civil rights
arena over the years to give back these gains.
I am also concerned that the bill raises serious constitutional
problems. Among the many problems are the bill's tenuous relationship
to Congress' interstate commerce and spending power authority, and its
micro management of the federal judiciary and the state and local
authorities. Given the recent trend of Supreme Court decisions on
commerce, federalism and separation of powers, it is difficult to see
this bill passing constitutional muster. Unfortunately, when the bill
was struck down, it will serve as yet another precedent blocking
Congress' path to protecting other civil rights which have a far
stronger tie to our commerce and spending powers. In other words, we
are sending the Court the weakest possible bill from a constitutional
perspective and are inviting an adverse precedent.
I seriously question whether another federal law which is so
antagonistic towards civil rights holds the key to protecting religious
liberty in this country. This country has more religion and a greater
variety of religious expression than any nation on earth. We have done
so by maintaining the delicate balance between the First Amendment's
religious liberty clause and its establishment clause, as interpreted
by an independent judiciary.
It is doubtful the ``Religious Liberty Protection Act'' can improve
on the scheme for protecting religious liberty designed by our founding
fathers. I urge a ``no'' vote.

NAACP Legal Defense,

and Education Fund, Inc,

Washington, DC, July 14, 1999.
Congressman John Conyers, Jr.,
Rayburn Office Building,
Washington, DC.
Dear Congressman Conyers: The NAACP Legal Defense and
Educational Fund, Inc. (``LDF''), urges you to oppose final
passage of H.R. 1691, The Religious Liberty Protection Act of
1999 (``RLPA''). LDF litigates civil rights cases throughout
the country on behalf of African Americans and other
minorities in an effort to preserve equity, fairness and
justice in educaiton, employment, housing, health care,
environment, criminal justice, and voting rights. RLPA poses
a potential threat to this type of litigation as RLPA may be
used in a manner to limit African Americans and other
minorities' rights to seek protection from discrimination
under state and local antidiscrimination laws.
Defendants in discrimination cases brought under state or
local fair housing, employment, etc., laws may seek to avoid
liability by claiming protection udner RLPA. This would
require individuals and groups proceeding under such state
and local antidiscrimination laws to prove that the law they
wish to utilize is a least restrictive means of furthering a
compelling governmental interest. This requirement would
significantly increase the litigation time and expense of
pursuing even workday antidiscrimination actions and as a
result could hinder or preclude some plaintiffs from pursuing
their claims.
Even if the courts ultimately rule, as they should, that
the various state and local antidiscrimination statutes are
least restrictive means to further compelling governmental
interests, the uncertainty of whether statutes will withstand
a RLPA defense may dissuade plaintiffs from seeking redress
under antidiscrimination statutes. Of course, if any court
were to determine that a particular antidiscrimination
statute were not a least restrictive means of furthering a
compelling governmental interest, a successful RLPA defense
would completely bar a plaintiff from proceeding under that
statute. In either event, RLPA will create an additional
burden for plaintiffs attempting to vindicate their civil
rights.
For these reasons, LDF asks that you oppose RLPA, which may
be used as a mechanism to limit African Americans and other
minorities from proceeding under the state and local laws
that prohibit discrimination in a wide range of areas.
Sincerely,
Elaine R. Jones,
Director-Counsel.
Reed Colfax,
Assistant Counsel.

Examples of Unintended and Adverse Consequences from Enactment of H.R.
1691, the ``Religious Liberty Protection Act''

1. Knives in schools. Pursuant to its policy prohibiting
the possession of knives on school property, the school
district forbade Sikh elementary school children to wear
kirpans--seven-inch, ceremonial knives that are required by
their religion. Relying on the ``Religious Freedom
Restoration Act,'' the Sikhs filed suit and moved for a
preliminary injunction barring the district from applying its
no-knives policy to ban the possession of kirpans at school.
The court required the school district to permit the children
to wear the knives if the knives were basted in their
scabbards. See Cheema v. Thompson, 36F.3d 1102 (9th Cir.
1994).
2. Sexual abuse. In Arizona, a Warlock recently defended
his alleged sexual abuse of a 13-year-old girl as part of the
Wiccan religion. The open question is what is the least
restrictive means of dealing with religious conduct that
results in sexual abuse or statutory rape. Although the state
may have a compelling interest in preventing sexual abuse or
statutory rape, conviction and incarceration may not be the
least restrictive means of dealing with such individuals.
3. Refusal to pay child support. A member of the Northeast
Kingdom Community Church--which requires members to eschew
all their personal possessions and work for the benefit of
the Community and forbids members to support estranged
spouses or children who live outside the community--was found
in contempt of court for failure to comply with an order to
pay child support.

[[Page H5591]]

He alleged that both the finding of contempt and the
underlying support order violated his religious rights. The
court vacated the judgment of contempt and remanded the case
for a hearing as to the least restrictive means to enforce
the defendant's support obligation. See Hunt v. Hunt, 162 Vt.
423 (1994).
4. Faith healing resulting in the death of a child. The son
of a believer in the Christian Science Religion died at age
11 from juvenile-onset diabetes following three days of
Christian Science care. A medical professional could have
easily diagnosed the child's diabetes from the various
symptoms he displayed in the weeks and days leading up to his
death (particularly breath with a fruity aroma). Although
juvenile-onset diabetes is usually responsive to insulin,
even up to within two hours of death, the Christian Science
individuals who cared for the child during his last days
failed to seek medical care for him--pursuant to a central
tenet of the Christian Science religion. The mother argued
that a wrongful death suit brought by the child's father was
not the least restrictive means of serving the state's
interest in the health of the child. Rather, the state could
have required the mother to report the child's illness to the
authorities when death seemed imminent. The court held that
the constitutional right to the free exercise of religion
does not extend to conduct that threatens a child's life. See
Lundman v. McKown, 530 N.W.2d 807 (Minn. App. 1995).
5. Refusal to cooperate with discovery request. A wrongful
death suit alleged that the Church of Scientology is
responsible for the death of an individual who died of a
blood clot in her left lung after spending 17 days in the
care of church staffers. The church is attempting to block
discovery by contending that releasing the decedent's files
would violate the church's ``sacred religious belief'' that
the files remain confidential and that they be retained by
the church for use in a parishioner's future lives. The court
ruled that the decedent's estate had the right to see her
files. Upon the passage of the Florida religious freedom
restoration act, the court is now reconsidering its previous
ruling. See Thomas C. Tobin, Scientologists Fight to Keep
Files Secret, St. Petersburg Times, Aug. 6, 1998, at 4B.
6. Conjugal visits in prison. A Roman Catholic argued that
a prison regulation prohibiting condemned inmates from
receiving conjugal visits violates his first amendment right
to free exercise of religion. The court rejected this
argument because the prisoner failed to show that the prison
regulation prohibiting conjugal visits for condemned inmates
is not rationally related to a valid penological interest.
See Noguera v. Rowland, 940 F.2d 1535 (9th Cir. 1991). Under
RFRA and RLRA, the prison would have to show that its policy
regulating conjugal visits was the least restrictive means of
achieving compelling penological interests.
7. Jewelry in prison. Wisconsin severely restricted the
wearing of jewelry by jail and prison inmates. The prison
regulation forbade the possession of ``items which because of
shape or configuration are apt to cause a laceration if
applied to the skin with force,'' and the state refuses to
make an exception for religious jewelry, such as crucifixes,
which (unless made of cloth) fall within the ban. Inmates
brought a suit against the relevant officials to enjoin, as a
violation of RFRA, the defendant's refusal to make such an
exception. The court held that, because prison security is a
compelling state interest, if particular types of religious
jewelry (or religious jewelry of any type in the hands of
prisoners reasonably believed prone to use it for purposes of
weaponry, barter, or gang insignia), pose a genuine threat to
prison security, the state can ban them. Second-guessing the
prison authorities, the court ruled that the jewelry in that
case could not be banned. See Sasnett v. Sullivan, 91 F.3d
1018 (7th Cir. 1996).
8. Class action against prison's grooming policy. Inmates
confined by the State of South Carolina, including Muslims,
Rastafarians, and Native Americans, filed a class action
challenging a South Carolina grooming policy that required
all male inmates to keep their hair short and their faces
shaven. The inmates claimed that the Grooming Policy forced
them to compromise their religious beliefs and practices, and
therefore violated their rights guaranteed by the Free
Exercise Clause of the First Amendment. Following
invalidation of RFRA, the court held that the Grooming Policy
is an eminently rational means of achieving the compelling
governmental and prenological interests of maintaining order,
discipline, and safety in prison and did not violate the
inmates' free exercise rights. See Hines v. Taylor, 1998 U.S.
App. LEXIS 13362 (4th Cir. 1998).
9. Landmaking. St. Bartholomew's Church owned a Community
House in which the church conducted many of its religious and
community outreach activities. New York's Landmarks
Preservation Commission denied the Church's requested to
level the historic Community House and replace it with an
office tower, which would both house the Church's religious
activities and significantly enhance the Church's revenues
through commercial rents. The Second Circuit found that
whether the Church's religious activity was `'substantially
burdened'' by New York's action turned on whether the Church
``had been denied the ability to practice [its] religion or
coerced in the nature of those practices.'' the court found
that New York's action did not punish any religious activity.
See St. Bartholomew's Church v. City of New York, 914 F.2d
348 (2d Cir. 1990). Interestingly many of the cases file
under RFRA turned on whether there was a ``substantial
burden'' and determined that there was no such burden. In
other words, RFRA (and RLPA) open the doors to the courthouse
in many cases where the religion cannot meet the threshold
inquiry.
10. Polygamy and abuse. A battered and bruised teenager
fled from an isolated ranch that is used by a Utah polygamist
sect as a reeducation camp for recalcitrant women and
children. The husband of the girl was charged with incest and
unlawful sexual conduct stemming from the sexual relations he
allegedly had with her, his fifteenth wife. See Tom
Kenwoorthy, Spotlight on Utah Polygamy; Teenager's Escape
from Sect Revives Scrutiny of Practice. The Washington Post,
Aug. 9, 1998, at A3. RLPA would offer the father a defense
against statutory rape and polygamy.
11. Refusal to provide social security numbers to DMV.
California residents contended that social security numbers
are the ``mark of the beast'' in the biblical Book of
Revelation and refused to give the DMV their numbers for
applications of their driver's licensees. The court held
that, because sincere religious convictions were involved,
the DMV must use an alternate identification for those
individuals. See John Dart, Judge Upholds Objections to
Identifications, L.A. Times. October 25, 1997, at B1. In
1986, the Supreme Court rejected a similar request in Bowen
v. Roy, 476 U.S. 693 (1986). RLPA would require a result much
more in line with the California ruling than the Supreme
Court's ruling.
12. Historic preservation. A Roman Church holds one service
per week asked permission to demolish the entirety of the
church,. which is located in the historic preservation
district, for the purpose of expanding. When the City Council
refused permission to demolish the church in its entirety,
the church filed suit under the Religious Freedom Restoration
Act, claiming that the city's historic preservation law could
not be applied to a church. The Supreme Court held that RFRA
is unconstitutional. Boerne v. Flores, 117 Ct. 2157 (1997).
RLPA invites churches and religious individuals to thwart and
ignore all land use laws, including historic and cultural
preservation laws.

Mr. Speaker, I reserve the balance of my time.
The SPEAKER pro tempore (Mr. Barrett of Nebraska).
The Chair advises that the gentleman from Florida (Mr. Canady) has 10
minutes remaining. The gentleman from Michigan (Mr. Conyers) has 20
minutes remaining.
Mr. CANADY of Florida. Mr. Speaker, I yield 3 minutes to the
gentleman from California (Mr. Doolittle).
(Mr. DOOLITTLE asked and was given permission to revise and extend
his remarks.)
Mr. DOOLITTLE. Mr. Speaker, I believe that the present Smith standard
gravely threatens as a practical matter the mission of churches at
their most fundamental level, whether it is with regard to
proselytizing or to the erection of houses of worship within
communities.
I commend the gentleman from Florida (Mr. Canady) for drafting this
bill, which has not been easy to do. I think he has crafted a piece of
legislation which we should all support.
The Religious Liberty Protection Act addresses the serious situation
caused by that ``Employment Division v. Smith'' decision by restoring
the general rule that State or local officials may not burden a
religious exercise without demonstrating a compelling governmental
interest.
The legislation before us protects religious institutions by giving
them their day in court if they can show that their religious freedom
has suffered at the hands of a State or local government.
There is a long list of cases in which the religion freedom of
Americans has been, in my opinion, unconstitutionally abridged since
the 1990 Smith decision. Many of these infringements touch core
religious teachings and beliefs.
Let me just briefly cite three examples. As a result of these so-
called neutral laws of general applicability, a Catholic hospital has
been denied State accreditation based on its refusal to instruct its
residents on the performance of abortion in accordance with their
strong religious objections.
In New York, a religious mission for the homeless operated by the
late Mother Teresa's order has been shut down because it was located on
the second floor of a building without an elevator, thus violating a
local building code.
In Missouri, for example, a city there passed an ordinance
prohibiting all door-to-door contacting and religious proselytizing on
certain days of the week and indeed severely limiting the

[[Page H5592]]

hours of such contact on the remaining days.
These are just a few of the numerous examples of how religious
freedom has been and continues to be infringed across the country.
Mr. Speaker, religious liberty is a fundamental right of all
Americans and must not be trampled on by insensitive bureaucracy or bad
policy. Having only to show a rational basis for such policy is no
protection at all.
These incidents are increasing, and that is why we need to adopt the
measure before us today, which will stay the hand of government from
heedlessly enacting laws that substantially burden the free exercise of
religion.
I urge my colleagues, Mr. Speaker, to join me in supporting this
much-needed legislation.
Mr. CONYERS. Mr. Speaker, I yield 6 minutes to the gentleman from
North Carolina (Mr. Watt). I believe he is the ranking member on the
subcommittee.
Mr. WATT of North Carolina. Mr. Speaker, I thank my colleague for
yielding me the time.
Mr. Speaker, I want to start by complimenting all the parties to this
debate and on both sides.

{time} 1215

We have been at this for a good while in the subcommittee, in the
full committee and now on the floor. While I rise in opposition to this
bill, I would note that many of my colleagues of all political
persuasions and many of my friends of all political persuasions are
supporting this bill which should give Members and the public some
indication of how difficult an issue this is. My opposition to the bill
is based on several different factors.
First of all, I believe this bill is of uncertain constitutionality.
The earlier religious protection law that the Supreme Court struck down
as having constitutional problems is addressed in this bill by tying
this particular bill to the commerce clause. In effect, it gives us the
jurisdiction to do what we are doing under this bill by virtue of a
connection to the commerce clause. The problem with that is that it
seems to me that that benefits larger, more established religions who
tend to operate in interstate commerce at the expense of more localized
private religious groups who tend to not operate in interstate
commerce. The irony of this is that many of the people who are
advocating that the commerce clause should cover this kind of activity
and action are the very same people that are saying that the Federal
Government should stay out of a number of different things and that the
commerce clause does not cover these things and give the Federal courts
and the Federal Government jurisdiction over these matters. I think on
the commerce clause issue, while it is an ingenious way to bootstrap
our way into hoping that the Supreme Court will not strike this down, I
think it has its limitations and problems.
Second, this bill is of uncertain interaction with other civil rights
bills and civil rights laws. I am sure that people are going to be
advocating on both sides of this, either that it overrules civil rights
laws or that it does not overrule civil rights laws. The truth of the
matter is that we do not know. But I am personally and on behalf of my
constituents not prepared to take a gamble with this. I do not think we
can simply pass a law that could be interpreted to place religion over
race or religion over other civil rights and give religion a more
important place in our jurisprudence than we give to other civil rights
laws. I simply do not believe we can do that. I think the gentleman
from New York's amendment would address that, but I have not seen any
inclination yet on the part of the supporters of this bill to be
supportive of the gentleman from New York's amendment. I want to come
back to that briefly at the end of my discussions.
The third reason that I have concerns about this bill is that it will
give the Federal Government substantially more control and involvement
in local zoning and land use decisions. This is something that we have
historically reserved to local and State governments. Yet many of the
very people who have said that this is something that is sacrosanct,
that should be decided at the local levels, the advocates of States
rights, so to speak, are some of the people who are advocating that we
now put a national standard in this bill having to do with land use
decisions. I think that is a problem.
Finally, I want to address the people who continue to say, especially
like my good friend the gentleman from Texas (Mr. Edwards) who says,
``We're going to fix the concerns that we have about this bill, about
civil rights and other civil rights issues, in conference,'' that this
consideration of this bill has been going on for a long, long time.
There has been no inclination to address that problem. That is why the
gentleman from New York, who was one of the original cosponsors of this
bill, is now on the floor of the United States House offering an
amendment to address the problem. That problem needs to be addressed
now. Otherwise, this bill should not warrant our support.
I encourage my colleagues to oppose this bill in its current form.
Mr. CONYERS. Mr. Speaker, I yield myself 1 minute. I want to
underscore a point made by the gentleman from North Carolina with
reference to the commerce clause, because that has not been brought up
and discussed in the fullness that he has done it. The bill is using
now the commerce clause to seek to have a cover of constitutionality to
protect religious liberty.
In order to invoke that clause, it seems to me that we will now have
to equate religion with interstate commercial activity, something I am
not prepared to do this afternoon. And if we equate religion with
interstate commerce, does it not open the door to further regulation of
religion through the commerce power? And there I think these problems
that the gentleman from North Carolina does not want to take a chance
on finding out what a conservative court is going to do kicks in here
and it makes this reference between a bill that was held partially
unconstitutional and an attempt to remedy the other half of it through
this measure that is before us now.
Mr. Speaker, I am pleased to yield 3\1/2\ minutes to the gentleman
from Massachusetts (Mr. Frank).
Mr. FRANK of Massachusetts. Mr. Speaker, I thank the ranking member
for yielding me this time.
There are a number of concerns that are raised by this bill. I want
to focus on what is central to me, and I am hoping that the House will
take some direction here from Governor Bush of Texas. He appears to be
growing in popularity on the other side, and I am sorry they are
rejecting his wisdom in this one case.
When a bill like this was presented in Texas, an amendment was
offered which exempted all legislation aimed at protecting the civil
rights of individuals. What the law in Texas says is, yes, we will
protect people's rights to exercise their religion, but where we have
as a legislature and a governor decided that certain rights of
individuals and groups are important and that certain classes of people
should be protected against discrimination, we will not allow you to
use religion as a license for this discrimination.
Now, that was signed into law by Governor George Bush, and I thought
it made a lot of sense. We are not trying to go as far as Governor
Bush. The gentleman from New York has a very thoughtful amendment which
allows people to invoke religion as a means of ignoring civil rights
laws. It allows, in fact, people to use their religion as a license to
discriminate in a number of cases that would not be allowed in Texas. I
think that is a very reasonable accommodation the gentleman has
offered. He has said you do not give it to corporations, et cetera. If
the amendment offered by the gentleman from New York does not pass,
what we will have is a law which will say, ``All you need do is invoke
your religion and you can defeat many civil rights laws.''
Now, interestingly it says, ``Unless the courts find that that
particular civil rights law protects a fundamental right.'' I am
interested that people who describe themselves as conservative
opponents of judicial activism want to so empower the judiciary,
because what this bill will do absent the amendment by the gentleman
from New York, is to say to the court, ``You now have the power to
decide.'' There are civil rights laws at the State level. Various
States have passed laws protecting different groups of people, based on
religion, based on marital status, based on whether or not you have
children, based on sexual orientation. We the

[[Page H5593]]

Congress will say to you the Federal courts, ``Pick and choose among
those. You decide which of those will have to give way to this Federal
statute and which do not,'' rather than have the Federal Government
decide, or emulate Texas and say, ``In general the religious right will
win unless it is an antidiscrimination law.''
And remember, under our constitutional system, we do not want to
subject individuals to some kind of inquisition when they invoke
religion. So people who wish to invoke religion, people who want to go
to Federal court and say, ``Hey Federal judge, let me ignore this law
that this State passed,'' under this law the Federal courts will be
empowered to let people pick and choose and they simply will have to
say, ``My religion doesn't allow it.'' We certainly do not want a
situation where that religion is subjected to some kind of examination.
So what you will do is to tell the States that no matter what they
may have decided through their own local democratic processes about
protecting groups, we the Congress will empower Federal courts to pick
and choose among them and say ``no'' to some and ``yes'' to others. I
do not think that is appropriate.
While the amendment from the gentleman from New York, because he has
been very accommodating in this, does not completely rule that
possibility out, it substantially diminishes it and it is the one thing
that will save this bill.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield myself 5 minutes.
Mr. Speaker, let me thank the ranking member and chairman of this
committee. Let me also acknowledge the leadership and work of the
gentleman from New York (Mr. Nadler) of some 10 or 12 years on this
issue. I think that our presence here today should hopefully connote to
those who may be listening, this is an enormously important debate, and
as I was reminded when we debated the flag amendment, let us not have
it break down in partisan discourse but recognize that there is
probably no more important right amongst others, if you will, than the
free exercise of religion. And the first amendment gives us that.
And so this legislation, Mr. Speaker, is in fact needed to provide
protections that have been dangerously eroded by the Supreme Court in
its 1990 Employment Division v. Smith decision. We have heard the Smith
decision being mentioned quite frequently because it has been the one
that has upset the apple cart in terms of recognizing the importance of
individuals having the personal and private right of exercising their
religion. Congress attempted to remedy this by enacting on a bipartisan
basis the Religious Freedom Restoration Act which the court struck down
in part in its 1997 City of Boerne v. Flores decision.
H.R. 1691, the Religious Liberty Protection Act, seeks to restore the
application of strict scrutiny in those cases in which facially
neutral, generally applicable laws have the incidental effect of
substantially burdening the free exercise of religion. I believe that
the government should not have the ability to substantially burden a
right that is enshrined in constitutional premise unless it is able to
demonstrate that it has used the least restrictive means of achieving a
compelling State interest, such as Thomas v. Review Board.
I believe that this legislation is necessary because in the wake of
the aformentioned Supreme Court decisions, religious groups in general
and religious minorities in particular are no longer guaranteed the
religious liberty protections of the Constitution and are more
vulnerable to the danger of governmental restrictions on religious
freedom.

{time} 1230

There are numerous examples that we can find, for example, where it
was partially struck down, of churches being ejected from certain
neighborhoods, church soup kitchens and welfare programs being closed
and prisoners having been denied basic rights to worship.
But, Mr. Speaker, I started out by saying this is an enormously
important constitutional right. Why can we not have the compromise and
collaboration and respect for the various interests that are here today
not denying the right to the free exercise of religion but at the same
time acknowledging that we do not want to deny the civil rights of
those who are under-represented who may be most challenged, and I say
this in the backdrop of the wonderfully positive legislative initiative
of the State of Texas, my State, a legislative initiative proposed and
fostered by State Representative Scott Hochberg of Texas and signed
into law by Governor George Bush. That legislative initiative
recognized generally the importance, the high importance, of the free
exercise of religion, but at the same time it provided, if my
colleagues will, the particular provision that recognized the civil
rights of individuals, that they should not be pounced upon and they
should not be denied because of the constitutional right of the free
exercise of religion.
My question to my colleagues:
Can we do less in the United States Congress? Can we in fostering a
bill that is to enhance rights not ensure that we protect the rights of
others who simply want to ensure that they in a more vulnerable
position not be denied civil rights?
I would hope that my colleagues will support the Nadler amendment
from an individual who has made it very clear that he is one of the
strongest proponents of the free exercise of religion, does not come to
this floor in any way to attempt to undermine this legislative
initiative but in keeping with the spirit of those in Texas and who I
represent. My fear is that passing of this legislation without
respecting the civil rights has some concerns that we should
acknowledge. I hope my colleagues will see in their wisdom the
importance of joining with the leadership of the Governor of the State
of Texas, George Bush, on this issue and to provide for the civil
rights of others as we move toward the complete free exercise of
religion.
Mr. Speaker, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Speaker, I yield 3 minutes to the
gentleman from Utah (Mr. Cannon).
Mr. CANNON. Mr. Speaker, I rise today in support of H.R. 1691, the
Religious Liberties Protection Act of 1999. This legislation was
introduced by my friend, the gentleman from Florida (Mr. Canady), and
it is an important step in preserving the freedom that the Constitution
affords religions in America.
A little over 10 years ago, 200 of our Nation's leaders from all
sectors signed the Williamsburg Charter. It affirmed that, ``Religious
liberty in a democracy is a right that may not be submitted to vote and
depends on the outcome of no election. A society is only as just and as
free as it is respectful of this right, especially toward the beliefs
of the smallest minorities and the least popular religious
communities.''
The provisions included in the Williamsburg Charter reflect our
national commitment to respect and accommodate the philosophies,
practices and needs of the many diverse religions in this Nation, even
when doing so is inconvenient or annoying.
But the realization of these principles is not always simple. The
growth of government on every level, combined with government's
inherent tendency to over-regulate, requires occasional legislative
clarification. Given the complexities, there is no practical way to
measure whether anti-religious motivation plays a factor in such
matters as cities' planning and zoning decisions.
In Senate hearings on this subject there was testimony that, ``Since
the Smith decision, governments throughout the U.S. have run roughshod
over religious conviction. In time, every religion in America will
suffer. Must a Catholic church get permission from a landmarks
commission before it can relocate its altar? Can Orthodox Jewish
basketball players be excluded from inter-scholastic competition
because their religious beliefs require them to wear yarmulkes? Are
certain evangelical denominations going to be forced to ordain female
ministers?''
I believe that a balance can be struck, but we do not have that
balance today.
It is somewhat ironic that under current first amendment principles a
city can totally zone out a church that desires to construct an edifice
for its members and the surrounding community, but it cannot zone out
of its community a sexually oriented adult bookstore.

[[Page H5594]]

Religious freedom should never depend upon the amount of religious
sensitivity in a particular community or on the willingness of local
governments to craft appropriate exemptions for religious practices. I
urge my colleagues to support the Religious Liberties Protection Act
with a yes vote.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 2 minutes to the
distinguished gentleman from Illinois (Mr. Manzullo).
Mr. MANZULLO. Mr. Speaker, I reluctantly rise in opposition to this
bill drafted by my good friend and colleague and classmate, the
gentleman from Florida (Mr. Canady).
The first amendment is quite clear. It says, Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof. And yet, if we look at the words of the statute, it
says, a government may substantially burden a person's religious
exercise if the government demonstrates that application of the burden
of the person is in furtherance of a compelling interest or is the
least restrictive means of doing so.
So, the first thing we have here is Congress making a statement that
is in direct contradiction to the firm mandatory words of the United
States Constitution. That bothers me for several reasons. One of those
is that the attempt to protect religious liberties under the Religious
Liberty Protection Act hinges on the spending clause of the
Constitution and also upon the commerce clause of the Constitution, and
we thus ask ourselves this question:
If a religious liberty case comes up that is not hinged to the
commerce clause or the spending clause, what protection do the people
have? Is it pregnant with omissions, that the courts may end up saying
the liberties set forth in the statutes simply do not supply to the
people?
The third problem I have with it is the fact that Justice Thomas back
in 1994 after the Smith decision wrote a dissent in a case coming out
of Alaska where the Supreme Court denied certiorari, and he said this.
He said:

What bothers me about the Alaska case or the Alaskan
statute, which is the equivalent of the statute we are trying
to pass today, is that the asserted government interests, the
asserted government compelling interests, are effusive. In
other words, the decision of the Alaskan Supreme Court drains
the word ``compelling'' of any meaning and seriously
undermines the protection of the exercise of religion that
Congress so emphatically mandated in RIFRA. In other words,
the very liberties we are trying to ensure we can end up
taking away.

Mr. CANADY of Florida. Mr. Speaker, I yield 2 minutes to the
gentleman from Texas (Mr. Edwards).
Mr. EDWARDS. Mr. Speaker, I would like to address several questions:
First, the question of is this bill constitutional. Obviously, legal
scholars on this floor and elsewhere throughout the country may
disagree, but for the Record I would like to read and then insert the
full letter, a letter of July 14 to the Speaker of the House, the
Honorable J. Dennis Hastert from Jon P. Jennings, Acting Assistant
Attorney General. He says that, quote,

The Department of Justice has concluded that the Religious Liberty
Protection Act, as currently drafted, is constitutional under governing
Supreme Court precedence.

The letter in its entirety is as follows:

U.S. Department of Justice,

Office of Legislative Affairs,

Washington, DC, July 14, 1999.
Hon. J. Dennis Hastert,
Speaker, U.S. House of Representatives,
Washington, DC.
Dear Mr. Speaker: I am writing with respect to H.R. 1691,
the Religious Liberty Protection Act of 1999 (``RLPA''), as
reported by the House of Representatives Committee on the
Judiciary. We understand that RLPA may be considered shortly
by the House of Representatives. We also understand that some
Members may be concerned about the constitutionality of the
legislation. This letter is addressed solely to the question
of RLPA's constitutionality. We understand that the
Administration is planning to convey further views on the
legislation, apart from the constitutional questions.
Over the past two years, the Department of Justice has
worked diligently with supporters of RLPA to amend prior
versions of the bill so as to address serious constitutional
concerns. Moreover, we have reviewed carefully the testimony
of several legal scholars who have questioned the
constitutionality of the bill. We agree that RLPA raises
important and difficult constitutional questions--
particularly with respect to recent and evolving federalism
doctrines--and that there may be ways to amend the bill
further to make it even less susceptible to constitutional
challenge. Nevertheless, the Department of Justice has
concluded that RLPA as currently drafted is constitutional
under governing Supreme Court precedents.
Thank you for the opportunity to present our views. The
Office of Management and Budget has advised us that from the
perspective of the Administration's program, there is no
objection to submission of this report.
Sincerely,
Jon P. Jennings,
Acting Assistant Attorney General.

The second question I would like to address, Mr. Speaker, is: Who are
some of the people that support this bill, recognizing that good people
of good-faith will be on both sides of this issue. Let me first read in
a statement from the administration dated July 14, as well.
``The administration strongly supports H.R. 1691, the Religious
Liberty Protection Act, which would protect the religious liberty of
all Americans. RLPA would, in many cases, forbid State and local
governments from imposing a substantial burden on the exercise of
religion, unless they could demonstrate that imposition of such a
burden is the least restrictive means of advancing a compelling
governmental interest.''
For the Record let me mention some other religious groups, diverse
religious groups, supporting this legislation:
The American Jewish Committee,
The American Jewish Congress,
The Anti Defamation League,
The Association of American Indian Affairs,
The Baptist Joint Committee on Public Affairs,
B'nai Brith,
The Christian Coalition,
The Christian Science Committee on Publication,
The Church of Jesus Christ of Latter Day Saints,
The Episcopal Church,
The Ethics and Religious Liberty Commission of the Southern
Baptist Convention,
The Family Research Council,
The General Conference of Seventh Day Adventists,
Hadassah,
NAACP,
National Council of Churches of Christ,
Presbyterian Church U.S.A,
Religious Action Center of Reform Judaism,
United Church of Christ,
United Methodist Church,
The U.S. Catholic Conference,

as well as many other organizations.
I ask no one to vote for this because of anyone's endorsement. I just
point out that this is a bill supported on a broad-based basis.

Executive Office of the President, Office of Management
and Budget,
Washington, DC, July 14, 1999.

Statement of Administration Policy

(This statement has been coordinated by OMB with the concerned
agencies)

[H.R. 1691--Religious Liberty Protection Act of 1999 (Canady (R)
Florida and 39 cosponsors)]

The Administration strongly supports H.R. 1691, the
Religious Liberty Protection Act (RLPA), which would protect
the religious liberty of all Americans. RLPA would, in many
cases, forbid state and local governments from imposing a
substantial burden on the exercise of religion, unless they
could demonstrate that imposition of such a burden is the
least restrictive means of advancing a compelling
governmental interest. This statutory prohibition would, in
the cases in which it applies, embody the test that was
applied by the Supreme Court as a matter of Constitutional
law prior to 1990 and that is applied now to the Federal
Government under the Religious Freedom Restoration Act
(RFRA). RLPA will, in large measure, restore the principles
of RFRA, which was enacted with broad Congressional support
in 1993. It is necessary for Congress to enact RLPA since the
Supreme Court invalidated the application of RFRA to state
and local governments RLPA is carefully crafted to address
the Court's constitutional rulings. The Department of Justice
has reviewed H.R. 1691 and has concluded that, while RLPA
raises important and difficult Constitutional questions,
nevertheless it is constitutional under governing Supreme
Court precedents. The Administration looks forward to working
with Congress to ensure that any remaining concerns about the
bill, including clarification of civil rights protections,
are addressed and that it can be enacted into law as quickly
as possible.

Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 2 minutes to the
distinguished gentleman from Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Speaker, I am very concerned that this
legislation has the potential of establishing a dual track. Certainly
none of us want to be in a position where government is discriminating
against the free exercise of

[[Page H5595]]

religion, but, by the same token, as we have community after community
across the country struggling to be able to maintain their liveability,
to try and deal with issues of quality of life, to provide a broad
exemption to a religious institution, to be able to violate the rules
of the game that other people play by in terms of environmental
protection, in terms of land use and transportation is ill advised.
This is why we have a broad coalition of groups that deal with land
use, with transportation, with the environment who are rising their
voices in opposition led by the National Trust for Historic
Preservation.
We have heard here that there are areas where somehow there is
discrimination against churches and their exercise of building and
development activities, but this legislation would provide a
requirement that in all instances government that has the authority to
make individualized assessment, the action requires the State or local
government to demonstrate the reasons for the land use are compelling
and that the regulation is the least restrictive means supplied to each
affected individual furthering that interest.
This is something as a local official I can tell my colleagues the
requirements economically, legally and practically to establish that
burden unlike we would do for anybody else is unjustified and
unnecessary. I find it frustrating that the Federal Government runs
roughshod over local neighborhoods and communities where we have things
like the local post office that does not obey local land use laws and
zoning codes. To carve out another broad exemption under this act, that
would have, I think, serious unintended consequences.
Regardless of the outcome of today's vote in this legislation, I hope
there is a careful look at section 3(b)1(a) and people make sure that
they assure that we are protecting the rights of our neighborhoods for
liveability and environmental protection.
Mr. CANADY of Florida. Mr. Speaker, I yield 2 minutes to the
gentleman from Nebraska (Mr. Bereuter) for the purpose of a colloquy.
(Mr. BEREUTER asked and was given permission to revise and extend his
remarks.)
Mr. BEREUTER. Mr. Speaker, I thank the gentleman for yielding me this
time.
I am an urban planner by training. I have prepared lots of zoning
ordinances for municipalities and counties, a certified planner by the
American Planning Association, and on my own initiative I wanted a
clarification from the gentleman. I thank him for yielding for a
colloquy, and I have two questions.
Will anything in the bill prevent local government from precluding
religious uses in a particular category of zoning such as an industrial
zone?
Mr. CANADY of Florida. Mr. Speaker, will the gentleman yield?
Mr. BEREUTER. I yield to the gentleman from Florida.
Mr. CANADY of Florida. Not ordinarily. But it would under certain
circumstances, such as if the exclusion from the zone does not leave
reasonable opportunity to locate within the jurisdiction or if like
uses are not precluded from the particular category of zoning or if the
preclusion is based on the religious nature of the use. This question
is governed by section 3(b)1(b), (c) and (d).
I would also say the communities that provide reasonable locations
for churches have nothing to fear from this legislation, but sometimes
exclusion from particular zones is in fact a device for excluding from
the whole community. We have heard about cases where property was spot
zoned industrial after the church bought it.

{time} 1245

Some cities exclude churches from commercial zones, knowing that it
is impractical to locate a church in a built-up residential zone. The
intention and effect is to exclude all new churches. We believe that is
not appropriate.
Mr. BEREUTER. I agree with the gentleman that the examples given are
abuses of the local zoning law.
My second question will be this: Will anything in the bill prevent
local government from requiring compliance with conditions authorized
by statute for a conditional or special use permit for religious
facilities or other traffic-generating uses in certain zoning
categories?
Mr. CANADY of Florida. If the compliance requirement substantially
burdens religious exercise and is not the least restrictive means of
furthering the local government's compelling interest, then a religious
facility would have a claim that could be successful.
This is governed by section 3(B)1)A). An example would be an orthodox
Jewish temple forced to comply with parking space requirements. With
the orthodox temple, no one drives a car in any case.
Another example is if the condition for a special use permit is that
the use ``serve the general welfare,'' or such other vague standards
that can be used to exclude whomever the board chooses to exclude.
Mr. BEREUTER. Mr. Speaker, I thank the gentleman for his colloquy. I
think that is reassuring, particularly in light of the comments of the
gentleman from Oregon.
Ms. JACKSON-LEE of Texas. Mr. Speaker, it is my pleasure to yield 1
minute to the distinguished gentleman from Rhode Island (Mr. Kennedy).
Mr. KENNEDY of Rhode Island. Mr. Speaker, I thank the gentlewoman for
yielding time to me.
Mr. Speaker, I just have a few questions. I am very worried about
this bill. Just 2 weeks ago when we had the gun debate on violence,
this Congress passed, if Members can believe it, posting Ten
Commandments, and this was our response to Columbine, post the Ten
Commandments. It did not say which version of the Ten Commandments, the
Catholic, Protestant, or Jewish version, it just said Ten Commandments.
This is really getting me nervous, this notion that we are going to
give religions preference in their religious tenets over our own civil
rights.
Let us make no mistake about it, the right wing of the Republican
party is against gays and lesbians. They want to discriminate against
people who are homosexuals. Let us just be right in front on what this
debate is about.
So they feel that if one has in their religion a belief that gays and
lesbians would be damned by God, then you should be able to
discriminate against them. But what this also does is it discriminates
against all kinds of other people.
Just imagine that fellow who killed all those people out in Chicago
last week. He was part of this Church of the Creator. Is that kind of
religion protected under this religious freedom? Is that going to take
precedence over our civil rights in this country?
I think we are all children in the eyes of God, and no religion
should practice hate or intolerance of any kind. That is why I am going
to vote against this bill when it comes up for a vote.
Mr. CANADY of Florida. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, I want to respond briefly to the comments the gentleman
just made. It is unfortunate that the gentleman has misconstrued the
purpose of this bill.
This bill does not touch on the establishment clause issues that have
from time to time divided the Members of this House. This is a bill
that has broad bipartisan support. It has broad support in the
religious community.
When we can bring a bill forward that has the support of both the
Christian Coalition and People for the American Way, major Jewish
organizations and the National Council of Churches, I think this is an
opportunity for the House to stand up for principles that we can all
agree to to protect religious liberty.
I would urge the Members of the House to do just that by adopting
this bill.
Mr. UDALL of New Mexico. Mr. Speaker, today I rise in support of the
Religious Liberty Protection Act.
Religious freedom is the foundation on which our nation was built.
Every American, be they Catholic or Protestant, Jewish or Muslim,
Buddhist, Sikh or of any other faith community, has the Constitutional
right to practice their religious tradition without fear of government
intervention or retribution.
Unfortunately, Mr. Speaker, as we've heard throughout this debate,
too many people of faith in this country, particularly those in
religious minorities, often find themselves facing rigid government
policies that burden their religious practices.
This bill, Mr. Speaker, would prevent government restrictions against
religious practices, unless there is a compelling government

[[Page H5596]]

interest, and that policy is the least restrictive method of achieving
that interest.
It is an important step, Mr. Speaker, to protect and strengthen those
religious liberties for which our forefathers sacrificed so much to
give us.
Now I understand, Mr. Speaker, that there are those who are concerned
that this legislation would allow for some to hide behind the cloak of
religious freedom in order to legally discriminate against others.
Mr. Speaker, I too share this concern. There is the danger that this
legislation might be construed by some courts to elevate religious
claims above other civil rights.
While we can be reassured by some recent court rulings that show
government has a compelling interest in preventing racial or gender
discrimination, there are other groups that do not have this same type
of Constitutional protection.
It is incumbent upon us, Mr. Speaker, to take all steps necessary to
make sure that we do not permit religiously motivated conduct to
``trump'' other civil rights claims. We should take steps to strengthen
the civil rights of all individuals, with special attention to those
populations that are at particular risk of discrimination.
I am disappointed, Mr. Speaker, that the House failed to pass the
amendment introduced by Mr. Nadler of New York. I believe that this
amendment would have addressed the concerns that many have voiced.
I urge my colleagues, therefore, to support future measures in this
body to protect the civil rights of those minority segments of our
population that do not enjoy Constitutional protection.
And I urge our colleagues in the other body to further clarify and
resolve these issues as the legislation moves through the Senate.
Mr. PACKARD. Mr. Speaker, I would like to express my support for H.R.
1691, the Religious Liberty Protection Act. The intent of this bill is
to protect practices from unnecessary government interference.
Religious freedom is one of the most important freedoms in our
Constitution. The framers placed the right to free worship as our first
Constitutional right. As stated by the father of our Constitution,
Thomas Jefferson, ``The constitutional freedom of religion is the most
inalienable and sacred of all human rights.'' Despite this fact, over
the past few decades, the Supreme Court has continued to weaken our
right to practice faith freely.
The Religious Liberty Protection Act will reinforce our
Constitutional right to practice individual faith by requiring judges
to use strict scrutiny when reviewing a government burden on religious
practices, unless it is to protect the health or safety of the public.
This bill is simply common sense legislation. Protecting the freedom of
religion should be one of the highest priorities for our nation and
this Congress.
Mr. Speaker, I encourage my colleagues to support the Religious
Liberty Protection Act.
Mr. HOSTETTLER. Mr. Speaker, I rise to oppose H.R. 1691.
I would like to say that I am pleased to be submitting these remarks,
but I am not.
I know that the drafters and supporters of the Religious Liberty
Protection Act (RLPA) share many of my beliefs about faith, government,
and the Constitution, and it is not often that I find myself in
disagreement with their views.
But on one major RLPA issue, my conscience convicts me that in trying
to right what many perceive to be wrong, Congress today is taking a
major constitutional step in a dangerous direction--a constitutional
step that I cannot in good faith support.
It is a constitutional step that I believe may well undermine the
protections for religious freedom under which Americans have prospered
for over two hundred years.
Today, because of a disagreement with the Supreme Court of the United
States, and in keeping in line with the myth of the Court's supremacy
over the other branches of government, we are seeking to change the
nature of our right to the free exercise of religion.
We are seeking to re-write our liberty.
Because the Supreme Court has boxed Congress in, Congress is choosing
to fight for the moment, Congress is trying to find any basis,
whatsoever, to strike a blow for religious liberty.
But we must not move in haste.
Such haste may lead to unintended consequences.
For as this legislation is drafted, one issue we are going to
address, what is really being raised as an issue, is whether the
constitutional right to the free exercise of religion will be a
fundamental right protected by the First and Fourteenth Amendments, or
merely an element of interstate commerce, which is not a right at all.
This is not insignificant.
By relegating religious liberty to Congress' power to regulate
commerce, as the RLPA does, Congress may be opening the future to the
end of liberty as we have been privileged to know it.
Yes, some are burdened by the Supreme Court's treatment of the free
exercise clause and the Fourteenth Amendment.
I am not unsympathetic to believers who are suffering for their
faith.
But we must also consider the future ramifications of our actions.
This future may well entail debates focused not on the fundamental
right to the free exercise of religion, but on something that is not a
right at all.
That something is Congress' simple power to, and I quote from the
Constitution: ``regulate commerce with foreign nations, and among the
several states, and with the Indian tribes.''
In form, the argument today is not new.
It is a form of the age-old question of whether the end justifies the
means.
While one might struggle with whether the end justifies the means, we
must not ignore that the end will always, in some manner, reflect the
means.
This is especially true when we are determining the constitutional
basis for our actions.
We must today pause and ask ourselves, will our children and
grandchildren, even to the fourth generation, look back at this day and
say: There was the beginning of the end. There was the day when
Congress--though well intentioned--cheapened our liberties. There was
the day when Congress ceded the moral and intellectual argument that
there is a fundamental right, independent of incidental affects on
commerce, independent of what a particular congress might define as
commerce, a right which our founders' cherished so much that they set
it forth separately in our Bill of Rights.
No, I do not relish being here today opposing my friends.
But what we are doing today is wrong and I cannot simply turn my
head.
It does not matter that Congress has used the commerce clause in
unprincipled ways in the past.
It does not matter that we have been unable to come to an agreement
as to how to proceed in light of the Court's rulings.
Truth is truth.
The free exercise of religion is a right, not because of any possible
connection to commerce, but because it is a right given by our Creator.
Our founders wisely sought to give special protection to these
rights.
Today, I fear that we are ignoring this wisdom for merely short term,
but by no means permanent, gratification.
I hope that my fears will not be realized.
The SPEAKER pro tempore (Mr. Barrett of Nebraska). All time for
general debate has expired.

Amendment in the Nature of a Substitute Offered by Mr. Nadler

Mr. NADLER. Mr. Speaker, I offer an amendment in the nature of a
substitute.
The SPEAKER pro tempore. The Clerk will designate the amendment in
the nature of a substitute.
The text of the amendment in the nature of a substitute is as
follows:

Amendment in the nature of a substitute offered by Mr.
Nadler:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Religious Liberty Protection
Act of 1999''.

SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.

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) Remedies of the United States.--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. However, nothing in this subsection
shall be construed to deny, impair, or otherwise affect any
right or authority of the Attorney General or the United
States or any agency, officer, or employee thereof under
other law, including section 4(d) of this Act, to institute
or intervene in any action or proceeding.

SEC. 3. ENFORCEMENT OF CONSTITUTIONAL RIGHTS.

(a) Procedure.--If a claimant produces prima facie evidence
to support a claim alleging a violation of the Free Exercise
Clause or a violation of a provision of this

[[Page H5597]]

Act enforcing that clause, the government shall bear the
burden of persuasion on any element of the claim; however,
the claimant shall bear the burden of persuasion on whether
the challenged government practice, law, or regulation
burdens or substantially burdens the claimant's exercise of
religion.
(b) Land Use Regulation.--
(1) Limitation on land use regulation.--
(A) Where, in applying or implementing any land use
regulation or exemption, or system of land use regulations or
exemptions, a government has the authority to make
individualized assessments of the proposed uses to which real
property would be put, the government may not impose a
substantial burden on a person's religious exercise, unless
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.
(B) No government shall impose or implement a land use
regulation in a manner that does not treat religious
assemblies or institutions on equal terms with nonreligious
assemblies or institutions.
(C) No government shall impose or implement a land use
regulation that discriminates against any assembly or
institution on the basis of religion or religious
denomination.
(D) No government with zoning authority shall unreasonably
exclude from the jurisdiction over which it has authority, or
unreasonably limit within that jurisdiction, assemblies or
institutions principally devoted to religious exercise.
(2) Full faith and credit.--Adjudication of a claim of a
violation of the Free Exercise Clause or 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.

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) Authority of United States to Enforce This Act.--The
United States may sue for injunctive or declaratory relief to
enforce compliance with this Act.
(e) Persons Who May Raise a Claim or Defense.--A person who
may raise a claim or defense under subsection (a) is--
(1) an owner of a dwelling described in section 803(b) of
the Fair Housing Act (42 U.S.C. 3603(b)), with respect to a
prohibition relating to discrimination in housing;
(2) with respect to a prohibition against discrimination in
employment--
(A) a religious corporation, association, educational
institution (as described in 42 U.S.C. 2000e-2(e)), or
society, with respect to the employment of individuals who
perform duties such as spreading or teaching faith, other
instructional functions, performing or assisting in
devotional services, or activities relating to the internal
governance of such corporation, association, educational
institution, or society in the carrying on of its activities;
or
(B) an entity employing 5 or fewer individuals; or
(3) any other person, with respect to an assertion of any
other claim or defense relating to a law other than a law--
(A) prohibiting discrimination in housing and employment,
except as described in paragraphs (1) and (2); or
(B) prohibiting discrimination in a public accommodation.

SEC. 5. RULES OF CONSTRUCTION.

SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.

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 ``any exercise of religion, whether or not
compelled by, or central to, a system of religious belief,
and includes (A) the use, building, or conversion of real
property by a person or entity intending that property for
religious exercise; and (B) any conduct protected as exercise
of religion under the first amendment to the Constitution.''.
(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.

[[Page H5598]]

the United States, and any person acting under color of
Federal law.
The SPEAKER pro tempore. Pursuant to House Resolution 245, the
gentleman from New York (Mr. Nadler) and a Member opposed each will
control 30 minutes.
The Chair recognizes the gentleman from New York (Mr. Nadler).
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of the amendment in the nature of a
substitute. I will not repeat the arguments I made during the general
debate as to why the underlying legislation is very necessary. I think
the vast majority of the Members of this House agree with that
proposition.
The real question is whether it is appropriate to ensure that this
legislation, once enacted, while providing an effective shield for the
religious rights of all Americans, will not be used as a sword against
the civil rights of other Americans. I believe the amendment in the
nature of a substitute strikes that balance, and does so without doing
violence to the underlying purpose of the bill.
Members who support this legislation need not be concerned that the
substitute will nullify its protections in any way. It is no secret
there is substantial concern that establishing a standard that says a
State and local law cannot be enforced in any case where someone raises
a religious claim, unless the State can show a compelling interest in
enforcing its law in the specific case, causes concerns about whether
religious claims will prevail against State and local civil rights
laws.
The Committee on the Judiciary has received testimony from some
supporters of this bill who have testified very forthrightly that they
have and will continue to bring free exercise litigation in an effort
to undermine some civil rights protections.
While those religious beliefs may be sincere and entitled to a fair
hearing, I think it is necessary to strike an appropriate balance
without broad carve-outs and without politicizing the process, if that
is possible.
The amendment recognizes that religious rights are rights that belong
to individuals and to religious assemblies and institutions. General
Motors does not have sincerely held religious beliefs, by its nature.
My amendment protects individual and religious institutions.
In order to protect civil rights laws against the person who would
say, ``My religion prohibits me from letting my corporation hire a
divorced person or a disabled person, or a mother who should be at home
with her children, or a gay or a lesbian person, and it prohibits me
from letting my hotel rent a room to such people,'' never mind the
State civil rights laws that prohibit this kind of discrimination, in
order to protect civil rights laws against that sort of religious
claim, the amendment places some limits on who may raise a claim under
this bill against the application of a State or local law.
Any person would have standing, any person would have standing under
this amendment to raise any claim with respect to any issue, with the
following narrow exceptions: Except a claim against the housing
discrimination law could be raised only by a small landlord who was
exempted by the terms of the Fair Housing Act; a claim against an
employment discrimination law could be raised only by a small business
with five or fewer employees, in accord with the general practice of
exempting very small businesses from employment discrimination laws; or
by a church or other religious institution or religious school
exercising its right to decide whom to employ based on its religious
beliefs.
With these exceptions, businesses of any size could bring any free
exercise claims. This is important for the mom and pop store that has
difficulties with Sunday closing laws, or with laws allowing malls
requiring stores to remain open 7 days a week, as well as for large
firms that, for example, produce kosher meat or other products.
The amendment recognizes that in protecting any rights, we are always
balancing other peoples' rights. The courts do it, we do it, and there
is no way around it. I think this amendment accomplishes that end.
I can tell the Members that a great deal of work and consultation,
both with Members of the religious coalition which is supporting this
bill and with other civil rights groups, has gone into developing this
language. It provides a basis to enact a bill that will pass and that
will protect people who are in need of protection.
I know there are those who will object that this amendment is a
carve-out, a set of exceptions to a general religious protection
principle that will set a precedent for many more exceptions and could
lead to gutting of the bill, to rendering our first freedom a hollow
shell. I disagree.
In the first instance, this bill already has a carve-out that breaks
the absolute, the principle of indivisibility that we must never have
carve-outs. This bill limits the right of prison inmates to raise
otherwise valid claims under the bill by specifically referencing the
Prison Litigation Reform Act.
So we already have a carve-out in the bill. This is simply a second
carve-out. The question is not should we have a carve-out, but is it
important, worthwhile, and valid. I submit that to protect civil rights
laws from possible claims under this bill, it is a valid protection.
Secondly, it is not a carve-out in the sense that, for instance, the
prison carve-out is, where it simply says, this shall not apply by
reference, or this shall not apply to this or that law. It is a
limitation, a narrow limitation on standing which would be very
difficult to extend further and which should not be extended any
further.
I believe that without good faith compromise by people with vastly
different beliefs, it would be difficult to get this bill through the
Senate, through the House, and through the President. That was our
experience with RFRA, and nothing has changed.
This amendment provides an opportunity to find the consensus we need
to protect the rights of all Americans. If we could not draft this
amendment, Mr. Speaker, if we had a stark choice in which we said we
can either protect the free exercise of religious rights of people from
the damage the Supreme Court has done to it at the expense of the civil
rights of other Americans, or we can protect the civil rights of
Americans but not their religious rights, that would be a terrible
choice, indeed.
This amendment offers us a way to do both, protect the religious
liberties we need to protect, as the gentleman from Florida (Mr.
Canady) and others have so eloquently expressed, but do so without
violating or posing a threat to civil rights of Americans.
We ought to do it in the proper way without posing a threat to the
civil rights of Americans. I therefore urge my colleagues to adopt this
substitute amendment and, reluctantly, if the substitute is not
adopted, I will urge my colleagues to vote against the bill so that we
can have, further in the process, better odds of getting this amendment
or something like this into the bill.
Mr. Speaker, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I do rise in opposition to the amendment in the nature
of a substitute offered by my colleague, the gentleman from New York
(Mr. Nadler). I at the outset would like to say that I know that the
gentleman from New York (Mr. Nadler) is passionately committed to the
protection of religious liberty in this country, and I believe that he
has a sincere desire to deal with this issue in a responsible manner.
But I am concerned that in his efforts to develop language that will
be acceptable to groups such as the ACLU, who have asserted concerns
about this bill, concerns that I might add are based not on any current
problems with the bill but on sheer speculation, he has varied from the
principle that truly animates this bill.
In his efforts to address the concerns that a few groups have raised
on the far left, he has denigrated, unintentionally, I will concede,
unintentionally denigrated protection for religious liberty. Therefore,
I would urge all Members to vote against the substitute that the
gentleman has offered.
Again, Mr. Speaker, I want to express my utmost respect for the
gentleman from New York. I know that he is passionately committed on
this issue. I simply think that he has made a particular compromise
here with the principle underlying this bill that we

[[Page H5599]]

should not make, and that the House should reject this amendment for
that reason.
Mr. Speaker, H.R. 1691 is designed to provide the fundamental civil
right of all Americans to practice their religion with a high level of
protection, consistent with other fundamental rights. The Nadler
amendment would subordinate religious liberty to all other civil
rights, perpetuating the second class status for religious liberty that
the court in effect created in the Smith case.
I do not think that is the gentleman's intent, but that is the actual
effect of what his amendment does. We cannot get away from it. That is
what it will do. That is not something that this Congress should
countenance.

{time} 1300

Like the Religious Freedom Restoration Act, the Religious Liberty
Protection Act is intended to provide a uniform standard of review for
religious liberty claims. H.R. 1961 employs the ``compelling interest/
least restrictive means'' test for all Americans who seek relief from
substantial burdens on their religious exercise.
Under the amendment offered by the gentleman from New York, only a
preferred category of plaintiffs are granted this protection. The
gentleman can describe it as a ``carve in'' or a ``carve out,'' but the
fact is some people are not going to get the protection that the bill
would otherwise afford them.
While H.R. 1691 would restore the strong legal protection for
religious freedom that was taken away by the Supreme Court in the Smith
case, the Nadler amendment in effect perpetuates the weaker standard by
intentionally excluding certain types of religious liberty claims from
strict scrutiny review.
One reason the gentleman has expressed for the limitation on claims
to businesses of five or fewer employees is to preclude General Motors
from filing a religious liberty claim as a ruse to discriminate against
people. With all due respect to the gentleman from New York, I think
that no one who has seriously looked at this law could conclude that
General Motors would have any claim under the Religious Liberty
Protection Act. The argument that General Motors would have such a
claim ignores the requirement of the bill that a claimant prove that
his religious liberty has been substantially burdened by the
government.
I do not think that General Motors or Exxon Corporation or any other
such large corporation that the gentleman wants to bring forward as an
example could come within a mile of showing that anything that was done
would substantially infringe on their religious beliefs. They do not
have a religious belief. They do not have a religious practice. It is
not in the nature of such large corporations to have such religious
beliefs or practices. So I think that that argument about Exxon and
General Motors is, quite frankly, a bit of a red herring.
The gentleman from New York admits that his amendment does not track
Title VII's exemptions from civil rights laws for religious
institutions. He does not explain why he thinks that Congress ought to,
in this bill, provide less protection for religious institutions than
it has provided for so many years under Title VII. The Nadler amendment
would restrict claims to the employment of people ``spreading or
teaching the faith . . . performing . . . in devotional services or''
involved ``in the internal governance'' of the institution.
Title VII on the other hand states its provisions barring
discrimination in employment ``shall not apply . . . to a religious
corporation, association, educational institution or society with
respect to the employment of individuals of a particular religion . . .
to perform work connected with the carrying on by [a religious
institution] of its activities.
Federal courts have recognized that this special provision for
religious institutions is a broad one and permits those entities,
churches, synagogues, schools, which are covered by it to discriminate
on the basis of religion ``in the hiring of all of their employees.''
Mr. Speaker, if the Nadler amendment passes, Congress will have
departed from the long-standing protection that it has afforded
churches, synagogues, parochial schools and all other religious
institutions for decades by embodying in Federal law for the first time
a narrower protection for the religious liberty of religious
institutions. There is no good reason to depart from the policy of
protection for religious organizations established in Title VII.
I think it is worth noting that the groups that urge adoption of this
amendment did not find similar fault with the Religious Freedom
Restoration Act. And I know that is not something that the proponents
of this amendment want to hear about. That was then and this is now.
But all the arguments related to civil rights that have been advanced
today were equally applicable to the Religious Freedom Restoration Act.
On a general point about civil rights, the President and the
administration have expressed their strong support for this
legislation. I cannot speak for the President, but I have read the
letter that was sent. Strong support is expressed.
The President was a strong proponent of the Religious Freedom
Restoration Act, and I know he views that legislative accomplishment as
something that was very significant. I think it is strange a bit to
claim that this bill, which is strongly supported by the
administration, poses such a great threat to civil rights. It just does
not stand up to serious consideration. That sort of argument just does
not.
With all due respect to the gentleman from New York, I must suggest
that I do not believe the President would express his strong support
for a bill that would have the impact that some others have suggested
it would have.
Mr. Speaker, we go back to RFRA, the ACLU-supported RFRA. Now they
have changed their minds. What triggered this objection? I think what
all of this is about, if we get right down to the facts of what is
motivating this, was a 9th Circuit case in which a small religious
landlord challenging a housing law was granted an exemption from
compliance. This should not be a cause for alarm. It is clear from the
case law that under strict scrutiny sometimes religious landlords win
their claims for exemption, sometimes they do not depending upon the
facts of the case.
H.R. 1691 will continue in this tradition weighing and balancing
competing interests based on real facts before the Court. Religious
interests will not always prevail, nor will those of the government.
But the Nadler amendment would determine in advance that the interest
of the Government will always prevail in certain cases. This is not
what this Congress intended when it passed RFRA unanimously here in the
House and is not the type of law I believe the American citizens want
their Congress to enact.
Let me finally say that H.R. 1691 remedies the Smith case's tragic
outcome which resulted in only politically influential people being
able to obtain meaningful protection of their religious freedom against
a neutral law of general applicability.
The Nadler amendment, on the other hand, exemplifies the problem
created in the Smith case by legislatively doling out protection only
to politically influential classes of claimants, or perhaps more
accurately denying protection to politically not influential classes of
claimants. Now, that is not the way we should be operating when we are
dealing with religious liberty. Religious liberty should not be put in
a second-class status to other civil rights. That is just not right.
Now, we are not saying in this bill that religious freedom always
takes precedent over everything else. That is not what the bill does,
and the gentleman knows that, and anyone who has read the bill knows
that. But those of us who oppose this amendment are simply saying that
it is not right to establish as a matter of Federal policy in this bill
that protection for the free exercise of religion, protection for the
civil right of the exercise of religion is in second-class status
behind other civil rights.
So on that basis I would urge the Members of the House to reject the
amendment offered by the gentleman from New York (Mr. Nadler) and move
forward to the passage of this bill which has such broad support from
the religious community. As we have noted earlier, it is truly
remarkable that such a diverse group of religious organizations have
joined together in support of any legislation. It is an unusual

[[Page H5600]]

circumstance when we can come to the floor with such broad support. We
have that broad support in the religious community. We have the support
of the administration.

Mr. Speaker, I would like to thank the Department of Justice for the
work that they have done in helping us craft this legislation and
addressing various concerns that had existed. They were very helpful in
making suggestions which I think have strengthened the bill; and I, as
the chief sponsor of this legislation, want to express my gratitude to
the Attorney General for the assistance that was provided.
We need to get on with this job. This is a problem that we have been
struggling with since 1990, nearly a decade. Congress tried to address
the problem back in 1993 during my first term as a Member of Congress.
The effort we have made then has proved to not be successful in the way
that we intended it. We have come back to the drawing board, and we
have an approach here which we think will do the job within the
constraints that the Supreme Court has imposed on us.
Mr. Speaker, the House should listen to the voice of the religious
community. The House should reject this weakening amendment and pass
this important legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. NADLER. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from
New York (Mr. Weiner), a member of the committee.
Mr. WEINER. Mr. Speaker, as a member of the Committee on the
Judiciary I have found a comfortable place standing somewhere between
the gentleman from Florida (Mr. Canady) and the gentleman from New York
(Mr. Nadler), and on this issue I believe I am there again. I want to
commend the gentleman from Florida for drafting an excellent bill, one
that I am proud to cosponsor. And I also am proud to support the
amendment offered by the gentleman from New York, which I believe makes
a good bill a little bit better.
In 1963, the Supreme Court issued an important decision in Sherbert
vs. Verner. In that case a South Carolina woman was denied unemployment
compensation. Her denial was not based on any lack of interest in
working but because she refused to work on Saturdays. South Carolina
tried to argue that this woman had refused an employment opportunity.
This, however, was not the case. Ms. Sherbert observed the Sabbath and
she did no work from sundown Friday to sundown Saturday. The same is
true for so many of my constituents.
Her religious beliefs demanded that she decline employment
opportunities that involved Saturday work, but her State saw fit to
deny her unemployment compensation. Her case was litigated all the way
to the Supreme Court, and there the Court held that the State's refusal
violated the free exercise clause because its denial of unemployment
compensation forced Mrs. Sherbert to choose between religious adherence
and unemployment compensation benefits.
The Court rightly ruled that South Carolina's interest in denying
benefits was neither compelling nor was it narrowly tailored.
Unfortunately, since that time the Supreme Court has retreated from
that position and there have been several other examples that have
emerged.
The bill that the gentleman from Florida (Mr. Canady) and I and
others have sponsored seeks to reverse that. And I believe that the
gentleman from New York (Mr. Nadler) has said in his arguments on the
floor that he supports that concept. It is something that all of us
agree on. The gentleman from Florida has argued, and I agree, that this
is not a bill that is intended to be an attack on civil liberties. What
the Nadler amendment seeks to do is make that clear. Make it clear that
in our efforts to restore religious liberties we are not taking a
hatchet to civil liberties. I would not have sponsored the bill if I
thought that that was the case.
Mr. Speaker, I think that what the Nadler language does is make it
very clear that while we are going to have conflicts between religious
rights and between civil liberties with or without H.R. 1691, what this
amendment makes clear is where we stand, and that is we are not trying
to take from one group of rights to serve another group. The Nadler
amendment strengthens what is already a very good and a strong bill. It
allows us to all vote for strong civil liberties and strong religious
liberties.
Mr. Speaker, I urge my colleagues to support H.R. 1691, and I urge
support for the amendment offered by the gentleman from New York.
Mr. CANADY of Florida. Mr. Speaker, I yield 3 minutes to the
gentleman from Illinois (Mr. Hyde), chairman of the House Committee on
the Judiciary.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Speaker, I would like to ask the gentleman from New
York (Mr. Nadler) to listen to what I say and tell me if I am wrong. I
want to make sure I understand the impact of his amendment.
It seems to me that what the gentleman is seeking to do is to carve
out, lift from under the umbrella of this bill civil rights. And among
the civil rights that he interprets are what are sometimes known as gay
rights, that is the right of homosexuals to practice their
homosexuality. And, therefore, that becomes a preferred right and the
free exercise of religion becomes subordinate to that. Mr. Speaker, I
would ask the gentleman if I am correct.
Mr. NADLER. Mr. Speaker, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from New York.
Mr. NADLER. Mr. Speaker, no, the gentleman from Illinois is not
correct. The amendment makes no mention of gay rights or any other
particular right, establishes no preferred status for anything.
The amendment limits standing as to who may bring a claim under this
bill. And it says anybody may bring a claim, except with respect to
housing discrimination small landlords only may bring a claim. With
respect to hiring discrimination, small businesspeople or churches and
religious institutions only may bring a claim. Who benefits from that
depends on State and local law. That could be anybody. In other words,
who can bring a claim against a State or local law.
Mr. HYDE. Mr. Speaker, reclaiming my time, it seems to me that absent
the gentleman's amendment, the bill itself restores the compelling-
interest standard which obtained before the Smith case and that the
question of which civil right trumps the free exercise of religion can
be left to the States on a case-by-case basis.

{time} 1315

Therefore, the amendment of the gentleman from New York (Mr. Nadler)
is really not needed.
Mr. NADLER. Mr. Speaker, will the gentleman yield?
Mr. HYDE. Surely. I yield to the gentleman from New York.
Mr. NADLER. Mr. Speaker, I think the gentleman from Illinois has got
it backwards. The bill without the amendment does not lead to the
decision of the States, what trumps what. Any State law would be
trumped if the court finds that the State does not have a compelling
State interest. If the court finds it has a compelling State interest,
it is not trumped.
This amendment in effect takes out from that question and gives more
effect to the State law in the limited cases of housing and employment
discrimination with a carve-out from that provision for churches, small
landlords, and small businesspeople.
Mr. HYDE. Mr. Speaker, it just seems to me the gentleman from New
York is unduly complicating what is essentially not a complicated
proposition. The civil rights that may or may not be jeopardized and
any conflict with the free exercise of religion can be protected and
will be protected on a case-by-case basis without the complexity of the
gentleman's amendment.
So I just take this time to congratulate the gentleman from Florida
(Mr. Canady) for a very important bill and his persistence in getting
it to this point. I support it without the Nadler amendment.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished
gentlewoman from California (Ms. Pelosi).
Ms. PELOSI. Mr. Speaker, I thank the gentleman from New York (Mr.
Nadler) for yielding me this time and for his leadership on this very,
very important issue.
Certainly we all support the spirit of the Religious Liberty
Protection Act,

[[Page H5601]]

and I also commend the maker of H.R. 1691 for bringing it to the floor.
In its current form, however, the bill could undermine existing civil
rights laws. We do need the Religious Liberty Protection Act. But, as I
say, it could also, in its present form, undermine ongoing efforts to
extend much-needed legal protections to currently unprotected and
deserving individuals who suffer discrimination.
While the Religious Liberty Protection Act was designed to protect an
individual's exercise of religion from the overreach of government,
law, and regulation, I believe this act would itself overreach and
could undermine laws that prohibit discrimination on the basis of
disability, marital status, and parental status.
If this law passes without the Nadler amendment, individuals with
disabilities, unmarried cohabitating couples, and single mothers could
face more legal discrimination.
We would all, I think, oppose a measure that would allow an
individual to use his or her religious exercise rights as a basis for
legal claim to circumvent civil rights laws. I do not think there is
any argument about that.
We would, none of us, ever permit this rationale to be used to permit
discrimination on any basis of race against African Americans or Asian
Americans. Yet, discrimination clearly and harshly continues against
other individuals and groups. If the issue were race, we would not be
having this debate. We would all stipulate that that discrimination
should not take place.
This same principle should apply to these populations that could be
adversely affected. That is why the Consortium for Citizens with
Disabilities, the National Organization for Women, the Human Rights
Campaign, and I might add, Mr. Speaker, the American Association of
Pediatricians seek a civil rights solution to this bill. The amendment
of the gentleman from New York (Mr. Nadler) offers that.
I think that we must support the underlying bill, if and only if the
Nadler amendment passes. I thank the gentleman for his leadership on
this legislation.
The SPEAKER pro tempore (Mr. Barrett of Nebraska). The gentleman from
Florida (Mr. Canady) has 15 minutes remaining. The gentleman from New
York (Mr. Nadler) has 18 minutes remaining.
Mr. CANADY of Florida. Mr. Speaker, I yield 5 minutes to the
gentleman from Missouri (Mr. Blunt).
Mr. BLUNT. Mr. Speaker, I thank the gentleman from Florida (Mr.
Canady) for yielding me this time. I also appreciate the comments that
have been made by the gentleman from New York (Mr. Nadler) and by the
gentlewoman from California (Ms. Pelosi) about the importance of this
legislation, the reasons we need to move forward with it. Their
commitments in the past in this area have been significant.
I would just like to say today that I think really what we are
talking about here is the status of this right of religious liberty.
When the gentleman from New York (Mr. Nadler) mentioned earlier his
amendment would allow us to show what trumps what, I think that is
exactly why I wanted to speak on this topic today, because I think we
need to be careful that we do not create a second-class status for
religious rights where those rights are automatically secondary to
other rights. We should not be deciding that those rights are trumped
by other rights. That is not what we are about here.
This legislation, as it is written, gives the fundamental civil right
of all Americans to practice their religion a high level of protection.
It is consistent with the other fundamental rights that we give in the
Constitution and in our laws.
This legislation is consistent with title VII's long-standing
exemptions for employees of religious institutions. There is nothing in
this legislation that continues that.
This legislation establishes a process where we weigh and balance
competing interests based on the real facts before the court. Religious
interests, as defined here, would not always prevail, but they would
not automatically be secondary. The facts that support those rights
have equal standing in court with other rights equally protected by the
Constitution.
I believe, and those of us in this body universally believe, that
this is a government based on enumerated powers. Those powers are
enumerated in the Constitution. Those enumerated powers are evidenced
in this legislation.
This Act relies on three congressional powers: the power to spend,
the power to regulate interstate commerce, the power to reach certain
conduct under section 5 of the 14th amendment.
First of all, the Religious Liberty Protection Act protects
individuals participating in federally assisted programs from burdens
imposed by a government as a condition of participating, that those
people could not be exempted from these programs because of their
religious beliefs.
For example, an individual cannot be excluded from or discriminated
against in a federally assisted program because of his or her religious
dress or the holidays that they observe unless one can prove there is a
compelling interest that that particular religious activity somehow
makes it impossible to do that job.
Secondly, this Act protects religious exercise in the affecting of
commerce. Some of our friends say we should not use the commerce clause
here to determine whether or not a church can be built. Well, clearly,
if one builds a church, if one adds on it a facility, one affects tens
of thousands, sometimes hundreds of thousands, occasionally millions of
dollars of commerce.
Using the commerce clause to protect religious liberty is appropriate
and obvious. Because the commerce clause has sometimes been used in
onerous ways does not mean we should shy away from using it for good or
that we should shy away from using it to protect this freedom, to
protect religious freedom.
Third, this legislation makes the use of the power of Congress to
enforce the rights under section 5 of the 14th amendment consistent
with recent court decisions, particularly the Supreme Court's decision
in Boerne v. Flores.
What this does, it attempts to simplify litigation of free exercise
violations as defined by the Supreme Court. These litigations do not
need to be cumbersome. They do not need to be needlessly burdensome.
Certainly no right in these litigations needs to be secondary to other
rights in these litigations.
Evidence shows that individuals who have determinations in land use
regulation that work against them, frequently we see that as a burden
for religious activities. We see that particularly as it relates to
minority faiths, and this bill reaches out and protects those minority
faiths. We know that from the evidence of the very broad base of groups
that are supporting this legislation today.
Again, I would like to close by simply saying that this legislation
levels the playing field for a critical first amendment right. It does
not allow the creation of a secondary right.
I think the Nadler substitute, while well intentioned, and I really
admire what the gentleman from New York (Mr. Nadler) has done in these
areas in the past, while this amendment is well intentioned, I think it
does have the potential and the likelihood, and, in fact, what I think
it does is relegate religious freedom and religious liberty and
religious practice and religious rights to a secondary position. I
think we need to have those rights as protected as any other right.
Those decisions can be made by the court.
I support the bill and oppose the amendment, but I do so with
deference to the sponsor of the amendment.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished
gentlewoman from New York (Mrs. Maloney).
(Mrs. MALONEY of New York asked and was given permission to revise
and extend her remarks.)
Mrs. MALONEY of New York. Mr. Speaker, I thank the gentleman for
yielding me this time, and I thank him for his strong leadership on so
many issues. I rise in support of the Nadler amendment.
The Religious Liberty Protection Act is a well-intentioned bill with
a noble purpose. No State or local government should be able to
restrict legitimate religious practices such as the wearing of a
yarmulke or a crucifix or the celebration of certain religious
holidays. But if we are not careful, then this well-intentioned bill
may be used to weaken our Nation's civil rights laws.

[[Page H5602]]

Without the Nadler amendment, this bill could threaten the rights of
single mothers, gays and lesbians, the disabled, and even perhaps
members of certain religious groups.
Unfortunately, the Supreme Court retreated from Sherbert in 1990, and
since then the courts and the Congress have engaged in a decade-long
dialog over how to properly guarantee that all of our citizens are able
to freely exercise their religious beliefs. This is not an academic
debate being conducted in ivory towers and judicial chambers. Rather,
this is a real-world issue of deep concern to my constituents and to
Americans everywhere.
For example:
The Jewish principle of kavod hamet mandates that a dead body is not
left alone from the moment of death until burial. For this reason,
autopsies, in all but the most serious situations, are forbidden.
Following the Supreme Court's ruling in 1990, courts in both Michigan
and Rhode Island forced Jewish families of accident victims to endure
intrusive government autopsies of family members, even though the
autopsies directly violated Jewish law.
In Los Angeles, a court declined to protect the rights of fifty
elderly Jews to meet for prayer in the Hancock Park area, because
Hancock Park had no place of worship and the City did not want to
create precedent for one.
In Tennessee, a Mormon church was denied a permit to use property
which had formerly been used as a church. The city of Forest Hills,
Tennessee decided it would not be in the best interests of the city to
grant the church a construction permit and a local judge upheld the
decision.
This bill could be used to deny housing or employment or otherwise
discriminate against individuals based on their race, sexual
orientation, disability, or marital status.
Mr. Speaker, there is no justification for discrimination. Our Nation
has made enormous strides in the past 30 years toward offering equal
opportunities for all, regardless of race, gender, religion, or sexual
orientation.
We must not undo that progress under the guise of protecting
religious freedom. But we also need to protect religious freedom. I
urge my colleagues to support the Nadler amendment.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the gentleman from
Florida (Mr. Deutsch).
Mr. DEUTSCH. Mr. Speaker, I rise today in support of the Nadler
substitute. In the 103rd Congress, I was an original cosponsor of the
Religious Freedom Restoration Act. I would take second place to no one
in this Chamber in terms of a concern about religious liberty
protection. I take that very, very seriously. I understand the intent
of this legislation as well.
But I think all of us who have looked at this legislation realize
that the legislation will have an incredibly unfortunate consequence
and that would be to allow the overturning of anti-discrimination
statutes in the United States of America, statutes which are really at
a fundamental core of the American experience.
There are well-intentioned, good arguments on both sides of this
legislation. I think we come to this in one of our really better
moments as an institution. But I really ask and I really plead with my
colleagues who are contemplating not supporting the Nadler amendment to
really spend the time to understand specifically what the effect of
this legislation would do.
It will in fact, and I do not think there is an argument about this
at all, it would in fact change protection that exists under present
law against discrimination, whether Federal, whether State, whether
county or local discrimination statute.

{time} 1330

It would force them into courts. And I think all of us understand
that there will be many cases, and we do not know the exact percentage
of those cases, that the standards of compelling State interest will
not be met.
And that really is the issue in front of us, that in terms of actual
discrimination that is protected against today, if this legislation
were to pass those protections would not exist and, in fact, that
discrimination would occur.
And in the balancing that we are trying to do, it would not, under
any circumstance with the Nadler substitute, deal with some of the
parade of horribles that I support the protections of that the
gentleman from Florida (Mr. Canady) mentioned previously in terms of
religious schools, dictating hiring practices of churches.
I urge my colleagues, I implore my colleagues to support the Nadler
substitute.
Mr. CANADY of Florida. Mr. Speaker, I yield 3 minutes to the
gentleman from California (Mr. Rohrabacher).
Mr. ROHRABACHER. Mr. Speaker, I rise in support of this legislation,
and I think it is really important for us, when we are discussing
discrimination and discussing how to treat each other decently in the
society, to come to an honest analysis about whose ox is being gored in
this society and whose toes are being stepped upon.
I think there is a wide consensus in our society today that people
who live less traditional lives, let us say, or have different types of
values, sexual values, et cetera, have a right to their privacy and a
right to their personal lives and a right to live as they see fit in
their own lives. But, frankly, in the last 10 years, what I have seen,
which is very disturbing to me, is that people with more traditional
views, especially more traditional Christian views, although I think
that this is true of Muslims and Jewish people, who are deeply involved
in their religious traditions as well, that those people are being told
they cannot make determinations for themselves and for their lives and
for their families that are consistent with their religious values.
I see the greatest victim of discrimination in our society today as
being these people, these Christians, these Jews, these Muslims, who
have more traditional religious values. If someone wants to have
certain sexual activities, and this is what they desire and they do so
in their privacy, there are very few people today who want the
government to intrude in that.
But there seem to be a lot of people trying to force their way into
the lives of others. For example, the Catholics cannot have a parade.
They attempted to have a parade in New York, and people whose social
lives and social values are totally in conflict with what Catholics
believe feel that they can force their way into a Catholic parade,
which is, to me, violating those Catholics' right to have their own
beliefs.
We have the Boy Scouts of America, which is a private organization,
and they have certain moral standards that they believe in. Now, who is
under attack? Who is under attack here? The Boy Scouts of America are
spending millions of dollars just to maintain what they consider to be
their moral standards.
No one is out forcing their way into the homes of other people who
want to live in their privacy and want to live decent lives with their
own values in terms of whether or not they are in agreement with some
of these more traditional values, but the ones with the traditional
values are under attack all the time.
I think this piece of legislation is going to try to swing the
pendulum back. Certainly 25 and 30 years ago there was great
discrimination in our country against certain nonconformists, one might
say, of people who had different than the traditional values. Today,
that pendulum has swung so far in the opposite direction that people
with more traditional values are under attack, and we need to protect
their rights as well.
So this, I think, is a balance and I support the legislation.
Mr. NADLER. Mr. Speaker, I yield myself 15 seconds.
The views expressed by my friend from California are very interesting
views. I would simply point out two things.
Number one, this bill does and is intended to protect religious
freedom for traditional Christians and Jews and for untraditional
people, for wiccans, witches, or whatever their religious views. And,
secondly, this has nothing whatsoever to do with this amendment. It
does with the bill, but not with this amendment.
Mr. Speaker, I yield 2 minutes to the gentleman from Florida (Mr.
Wexler).
Mr. WEXLER. Mr. Speaker, I rise in support of the Nadler amendment,
strong support, and in doing so acknowledge and recognize that H.R.
1691 and the sponsor, the gentleman from Florida (Mr. Canady), seek to
address very important wrongs that are occurring in the United States
today. There are, in fact, numerous examples of planning and zoning
decisions that are being made for the either inherent or obvious
purpose of denying individuals or groups their religious freedom.
In my own community in South Florida, oftentimes there are autopsies

[[Page H5603]]

that are conducted in violation or contrary to people's religious
beliefs, when there is little or no State purpose for doing so. And the
State acts either out of insensitivity or just out of lack of knowledge
for people's religious beliefs. And I believe the purpose of this bill
would be to correct those violations, and that I support and
compliment.
But in doing so, there also is a flip side. The flip side is that in
protecting one group's religious freedom, which is noble and certainly
applaudable, we are, to some degree, and we can argue to what degree
that is, but to some degree jeopardizing the rights of others.
And while the gentleman from California (Mr. Rohrabacher) may suggest
that people are trying to force themselves on maybe more traditional
people in this country, I do not see it that way. What these so-called
less traditional people are trying to do is work. They are trying to
live in an apartment. And if that is forcing themselves on someone,
well then, that is exactly why we need the Nadler amendment. Although,
although, what the Nadler amendment seeks to do is both protect
religious freedom and protect civil rights.
This bill, as it is currently drafted, puts us in an untenable
situation, civil rights versus religious liberty. Support the Nadler
bill.
Mr. NADLER. Mr. Speaker, may I inquire how much time I have
remaining?
The SPEAKER pro tempore (Mr. Barrett of Nebraska). The gentleman from
New York (Mr. Nadler) has 12 minutes remaining, and the gentleman from
Florida (Mr. Canady) has 7 minutes remaining.
Mr. NADLER. Mr. Speaker, I yield 1 minute to the gentleman from
Virginia (Mr. Scott).
Mr. SCOTT. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, the Nadler amendment points out the problem of the
underlying bill, and that is that without this amendment it may
sabotage the enforcement of laws of general application, like civil
rights laws, child protection laws and others. We should not subject
vigorous enforcement of civil rights laws to individual beliefs.
We know that there are some in our society, and we have seen on Web
sites the Church of the Creator, where some have strongly held beliefs
about race, and we should not make civil rights laws optional. Without
this amendment, those people who just do not believe in civil rights
can require a showing of a compelling State interest and least
restrictive means to complicate the enforcement of civil rights laws by
declaring that the compliance with the civil rights laws might violate
their beliefs.
Mr. Speaker, I would hope that we would not subject our civil rights
laws it took us too long to enact and so long to enforce to this kind
of situation. I would hope that we would adopt the Nadler amendment so
these civil rights laws could be enforced.
Mr. CANADY of Florida. Mr. Speaker, I yield such time as he may
consume to the gentleman from Texas (Mr. Edwards) for the purpose of a
colloquy.
Mr. EDWARDS. Mr. Speaker, I would like to engage the chief sponsor of
this legislation in a colloquy in order to address concerns that the
bill advantages or disadvantages any group or ideological perspective.
Could the gentleman from Florida please explain how the compelling-
interest standard works in this legislation?
Mr. CANADY of Florida. Mr. Speaker, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Florida.
Mr. CANADY of Florida. Mr. Speaker, the compelling-interest standard
is fair, but rigorous, not only for the government but also for
religious claimants. The standard neither allows religious interests to
always prevail, nor those of the government, even when its interests
are compelling.
The standard weighs and then balances competing interests, first
considering the burden on the claimant's interest and then evaluating
the government's interest in disallowing an exemption to the law or
regulation and the available alternatives for achieving the
government's goals. The Religious Liberty Protection Act, like the
Religious Freedom Restoration Act, does not define the various elements
of the standard.
The legislation imposes a standard of review, not an outcome, and the
cases are litigated on the real facts before the courts. Thus, it is
difficult in some hypothetical cases to predict with certainty which
interests will prevail.
Mr. EDWARDS. Reclaiming my time, Mr. Speaker, I would further ask if
it is correct that the point of this legislation is that by adopting
the compelling-interest standard Congress is acknowledging that courts
will consider and weigh important interests behind these laws; and that
because each religious claimant's situation is unique, it is
appropriately left to the courts to weigh the competing interests; and
that because the legislation is not designed to resolve any specific
case or set of facts, it is neutral and does not directly address a
specific outcome.
Mr. CANADY of Florida. That is correct.
Mr. EDWARDS. I thank the gentleman for this clarification.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished
gentleman from North Carolina (Mr. Watt).
Mr. WATT of North Carolina. Mr. Speaker, I rise in support of the
Nadler amendment and want to encourage my colleagues to support the
amendment.
The thing that is really interesting about the debate on the Nadler
amendment is how everybody seems to be claiming to be on the same side.
The proponents of the underlying bill say, ``Oh, no, we are not trying
to trump civil rights laws.'' The gentleman from New York (Mr. Nadler)
says, ``Oh, no, we are not trying to trump religious use protection.''
And then we have people really claiming to be achieving the same
objective, protecting religious freedom and protecting civil rights
laws.
The problem is those same people started out together, and they have
been together all along during this process. The gentleman from New
York has been trying to get the proponents of the bill to accept his
amendment from the very beginning. He has gone through different
iterations of it, revisions of it, and here we are on the floor of the
House with everybody still saying they support the same objective: ``We
do not want to undo civil right laws,'' they say, ``but we are not
going to support the Nadler amendment to make that clear.''
Well, there is a third version. There is the NAACP Legal Defense Fund
saying that the amendment of the gentleman from New York does not go
far enough. I happen to agree with the Legal Defense Fund in its
assessment, but I will tell my colleagues what I am prepared to do.
Since everybody says they would like to work this out in the conference
committee, and everybody is trying to achieve the same objective, I
have decided that I will support the Nadler amendment and I will vote
for the bill if the Nadler amendment is adopted and we can continue to
work on this in conference.
The problem that I have is the people who keep telling me this is
going to work itself out in conference are the people who have not
given one inch, one word throughout the whole discussion of this
process. We need to adopt this amendment and pass the bill; or, if we
reject the amendment, we need to vote against the bill.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the gentleman from
Massachusetts (Mr. Frank).
Mr. FRANK of Massachusetts. Mr. Speaker, I was interested to hear the
colloquy between the gentleman from Texas (Mr. Edwards) and the
gentleman from Florida (Mr. Canady). It reinforces the central point.
This bill is a Federal act that says to Federal judges, ``Go forth and
pick and choose amongst State laws.''
This empowers Federal judges to decide what is the compelling
interest according to the State and what is not.

{time} 1345

And if a State has said they are going to protect them if they are
unmarried and seek with their child to get housing, it will be up to
the Federal judge to decide whether that State law beats a religious
objection; if they are gay or lesbian, it will be up to the Federal
judge to decide whether the State law in Connecticut or Wisconsin or
Minnesota or California is overridden; if they are an unmarried couple
seeking

[[Page H5604]]

to live together, it will be up to the Federal Government to judge
whether or not they can rent an apartment from a corporation, the
stockholders of which said it is their religious objection.
The gentleman from California (Mr. Rohrabacher) cited the Boy Scouts
and the March. Let us be very clear. Neither one of those has the
remotest thing to do with this bill. Both of those entities, the people
having the parade and the Boy Scouts, are already protected under the
law. Nothing in the law would add to that protection. But, on the other
hand, nothing in the Nadler amendment would detract one iota.
The gentleman from New York (Mr. Nadler) says this: If they seek to
live somewhere in a non-owner-occupied building or a very large
apartment building, or if you seek a job with an employer with more
than five people, if they can do the job, if they can pay the rent,
their personal habits, whether they are married or not, whether they
are gay or not, whether they have some particular affliction or not
that might offend someone's religion will not keep them off of the work
rolls, it will not keep them out of that house.
We do not impinge on anybody's individual religious practice. Nobody
goes into anybody's home. No one is involved here, under the Nadler
amendment, with the ability to interfere.
We are saying that they should not say where a State has said they
wish to protect them based on their sexual orientation or their marital
status or the fact that they have children. They should not allow
Federal judges selectively to overrule those because those Federal
judges do not find the State's policy a compelling interest.
The SPEAKER pro tempore (Mr. Barrett of Nebraska). The gentleman from
Florida (Mr. Canady) has 5\1/2\ minutes remaining. The gentleman from
New York (Mr. Nadler) has 7 minutes remaining.
Mr. CANADY of Florida. Mr. Speaker, I yield 2\1/2\ minutes to the
gentleman from Alabama (Mr. Bachus).
Mr. BACHUS. Mr. Speaker, first of all, I would like to commend the
gentleman from Florida (Mr. Canady) for his excellent work in defending
our Constitution and the first freedom enumerated there.
In fact, we all know from our history that our forefathers came to
this country for religious liberty. And it was not a coincidence that
when they drafted our Constitution the very first right that they
enumerated was the right to religious liberty. And this right has been
unquestioned in our country until 1990.
Of all things, in 1990, the Supreme Court of the United States, in a
5-4 decision, questioned the right of every citizen to our right to
full expression of our religious freedoms and beliefs. There was a
long-standing principle that the State had to have a compelling reason
to interfere with that right, and they did away with that.
I am happy to say that this Congress, in 1993, with only three
dissenting votes, passed legislation again saying that the Government
has to have a compelling reason to interfere with our religious
liberties. President Clinton signed that legislation.
Unfortunately, the Supreme Court came back and basically said, we
cannot do that; it is unconstitutional for the Congress to try to
protect our freedom of religion. Thank goodness they had not done that
with some of our other freedoms.
So we are here today again. And I will say to my colleagues that, as
a Congress, all three branches of government have an obligation and a
duty to protect our constitutional rights and our freedom. It is not
the sole responsibility of the Supreme Court, particularly in this case
where the Supreme Court has shirked that responsibility and has
actually taken away a freedom guaranteed in our Constitution.
I would hope that every Member of this body, with not three
dissenting votes but unanimously, would say to this country and the
people we represent, their religious freedoms will not be violated. If
they are a prisoner and they want to confess to their priest, we will
not monitor that confessional; we will not prohibit them from talking
to their priest; we will not prohibit a church here in Washington,
D.C., to feed the homeless; we will not prohibit Jewish prisoners from
wearing a yarmulke.
It is time to end this abuse. It is time to pass this bill.
Mr. NADLER. Mr. Speaker, it is now my privilege to yield 1\1/2\
minutes to the gentleman from Michigan (Mr. Conyers), the distinguished
ranking member of the Committee on the Judiciary.
Mr. CONYERS. Mr. Speaker, I thank the gentleman for yielding me the
time.
My colleagues, as the bill presently stands, whenever a parties
brings suit claiming discrimination, the defendant will be able to
claim that this is inconsistent with their religious beliefs.
We are creating a huge disparity here. The Nadler amendment responds
to the problem, thank goodness, by specifying that the bill's
protections only apply to individuals, religious institutions, and
small businesses.
So the amendment will be particularly helpful with regard to laws
prohibiting discrimination based on marital status, disability, sexual
orientation, where there has not been found by the court a compelling
interest test.
That is why the NAACP Legal Defense Fund and the American Civil
Liberties Union have recently broken from this loose coalition because
they realize what we would be doing if we allowed this bill to go
through without this very important amendment.
We do not want to turn a shield into a sword. At our hearings, the
Christian Legal Society acknowledged that they planned a widespread
campaign to use the Religion Freedom Protection Act to undermine State
laws protecting people with different orientations.
Please support the Nadler substitute.
Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished
gentlewoman from Texas (Ms. Jackson-Lee).
Ms. JACKSON LEE of Texas. Mr. Speaker, I thank the gentleman from New
York for yielding me the time.
Mr. Speaker, I started out this debate earlier today acknowledging
that we have more in common than we have in disagreement.
Today I rise and stand on behalf of the Sabbath keepers, on behalf of
those who wear yarmulkes, on behalf of churches who feed the homeless,
because I am standing in support of the Nadler amendment, particularly
emphasizing the fact that the free exercise of religion is a prominent
and important right and why can we not do it together, raising the
concern that we should not discriminate against those in businesses and
governments with respect to their employment, participation in the
rental market, their right to observe the Sabbath, to wear religion
articles, and to follow the other teachings of their faith, including
those relating to family life, the education of children, and the
conduct of their religious institutions. The Nadler amendment stands
for this.
But at the same time, as we did in my State of Texas, the Nadler
amendment respects unmarried couples and single parents, lesbians and
gays, maybe even racial and ethnic groups who differ in their
acceptance in this community.
Mr. Speaker, I am a believer in the free exercise of religion. But my
ancestors, unfortunately, came as slaves. We had to be educated about
the democracy, if you will, late in life and the free exercise of
religion. I would hope we would not go along the lines of the free
exercise of religion and civil rights.
I offer in testimony, Mr. Speaker, the words of Scott Hochberg, the
proponent of the legislation in Texas, where, in a bipartisan manner,
this same legislation was passed and George Bush signed it. And what it
offered to say is that he supports a strong religion liberty but he
wanted to ensure that the Texas civil rights were not violated. They
worked together in Texas.
I will close by simply saying, let us work together and vote for the
amendment.
Mr. Speaker, today, we discuss what I believe is sorely needed
legislation to restore the legal protections for the free exercise of
religion. These legal protections have been dangerously eroded by the
Supreme Court in its 1990 Employment Division v. Smith decision.
Congress attempted to remedy this by enacting on a bipartisan basis,
the Religious Freedom Restoration Act, which the Court struck down in
part in its 1997 City of Boerne v. Flores decision.
H.R. 1691, the Religious Liberty Protection Act (``RLPA'') seeks to
restore the application of strict scrutiny in those cases in which
facially neutral, generally applicable laws have

[[Page H5605]]

the incidental effect of substantially burdening the free exercise of
religion. I believe that the government should not have the ability to
substantially burden a right that is enshrined in Constitution unless
it is able to demonstrate that it has used ``the least restrictive
means of achieving a compelling state interest.'' (Thomas v. Review
Board, Indiana Employment Security Commission, 450 U.S. 707, 718
(1981)).
I am concerned that this legislation if left unamended could have
deleterious affects on the enforcement of State and local civil rights
laws. Many Americans, including unmarried couples, single parents,
persons with different lifestyles, maybe even racial and ethnic
minorities with different religious beliefs.
The amendment offered in the nature of a substitute by Mr. Nadler of
New York would address these concerns. This amendment would
appropriately strike a balance between the free exercise sincerely held
religious beliefs and the enforcement of hard-won civil rights.
The amendment, crafted in consultation with both religious and civil
rights groups clarifies the fact that religious liberty is an
individual right expressed by individuals and through religious
associations, educational institutions and house of worship. It also
makes clear that the right to raise a claim under RLPA applies to that
individual. A non-religious corporate entities could not use a RLPA for
a claim or defense to attack civil rights laws.
Individuals, under this amendment, could still raise a claim based on
their sincerely held religious beliefs which are substantially burdened
by the government, whether in the conduct of their businesses, their
employment by governments, their participation in the rental market,
their right to observe the sabbath or to wear religious articles and to
follow the other teachings of their faith, including those relating to
family life, the education of children and the conduct of their
religious institutions.
I urge my colleagues to join with me in supporting the Nadler
amendment as it is a positive step forward in protecting the rights of
all Americans and finally restores the legal protections for religious
freedom for the average American citizens that have been threatened for
nearly a decade.

Testimony of Texas State Representative Scott Hochberg, Senate
Judiciary Committee--June 23, 1999

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 as
privileged to work the Gov. Bush as the House author of this
important bill. And I'm proud of this 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 practices,
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 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.

Mr. NADLER. Mr. Speaker, how much time do I have remaining?
The SPEAKER pro tempore. The gentleman from New York (Mr. Nadler) has
4 minutes remaining. The gentleman from Florida (Mr. Canady) has 3
minutes remaining.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, everything that has been said in support of the bill, as
my colleagues know, I agree with. I support this bill. I think it is an
important bill. I helped draft it. But it has a terrible flaw, and we
must pass this amendment. The bill should be used as a shield for
religious liberty but not as a sword against civil rights laws. And
that is the problem and the need for this amendment. This amendment
will prevent it from being used as such a sword against civil rights
laws.
My distinguished colleague, the gentleman from Florida (Mr. Canady),
who has done yeoman's work on behalf of religious liberties and who I
really respect on this, he says that the amendment would subordinate
religious liberty. It does not subordinate religious liberty in any
way.
In fact, the bill, by establishing the compelling interest standard,
establishes religious freedom as preeminent over other rights. Rarely
can a State show a compelling as opposed to a legitimate interest. We
could, if we wanted to, adopt the Supreme Court test of balancing the
competing interests by the legitimate interest tests, and that would be
an even playing field. But we are not doing that.
We are, and I agree with this, establishing a compelling State
interest test which establishes religious liberty as compelling over
other interests. And I think that is proper to do so. We should afford
religion a preferred status, but we are also entitled to fine-tune that
balance if we think the courts, pursuant to that mandate of
establishing religious freedom as a preferred status, will not do it
quite right.
What this amendment does is to create a somewhat different balance in
the area of civil rights. Because recent court decisions that found
that States had no compelling State interest in a case involving, for
example, a State law against housing discrimination in a multiple
dwelling, the State did not have compelling interest to enforce its
antidiscrimination law in a multiple dwelling.
The courts sometimes make mistakes. We want to exercise our rights in
this amendment to tell the courts a little more finely how to balance
it in the civil rights area. We are telling them to use the compelling
State interest test to establish religion as preeminent in every other
case. In civil rights, we are saying, be a little different than that.
Finally, let me say that the religious groups that are supporting
this bill, I have spoken with most of them, not all

[[Page H5606]]

of them, and most of them told me that they agree, they can live with
the amendment, it gives them no practical problems, it protects all
their legitimate interests. They only disagree with it because of what
the gentleman from Florida (Mr. Canady) said before, the principle of
indivisibility, that there should be one standard.
Mr. Speaker, let me simply say, sometimes we have to balance
competing rights. We should adopt this amendment so that we do not have
to say we will protect religious liberty at the expense of civil rights
or civil rights at the expense of civil liberty. We can and should do
both. With this amendment, we can and should pass the bill. And without
the amendment, I would hope that we would not pass the bill today so
that we can get a little more leverage to fine-tune the bill with
something like this amendment before we finally pass it, as indeed we
must eventually.
So I urge my colleagues to support this amendment.

{time} 1400

Mr. CANADY of Florida. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, I want to encourage the Members to focus on what is
actually taking place and the actual consequence of the amendment that
the gentleman has offered. It would establish as a matter of
congressional policy that religious liberty would have a second-class
status. I do not think that is really what the gentleman wants to do, I
acknowledge that, but that is the effect of the language of his
amendment.
Let me point out that there are folks who have some of the same views
on a whole range of civil rights issues, including issues related to
homosexual rights, that the gentleman from New York has who have
expressed their support for this bill without the gentleman's
amendment. Members of Congress have received a letter just this week
from groups such as the Friends Committee on National Legislation, the
American Humanist Association, the Evangelical Lutheran Church in
America, the Board of Church & Society of the United Methodist Church,
People for the American Way, the Presbyterian Church (USA), Washington
Office, where they say and they recognize some of the concerns that the
gentleman has expressed but where they conclude, and I quote them, ``We
believe that in every situation in which free exercise conflicts with
government interest, application of the Religious Liberty Protection
Act standard is appropriate.'' They go on to say, ``A no-exemptions,
no-amendment Religious Liberty Protection Act provides the strongest
possible protection of free exercise for all persons.''
I would suggest that some who have listened to the concerns expressed
by the gentleman from New York and others pay attention to the view of
these religious and civil rights groups. I would suggest that Members
consider the broad coalition of groups that are supportive of this
legislation. I do not have time to list them all. I will try to list a
few in the few seconds that I have remaining:
The American Jewish Committee, Americans United for Separation of
Church & State, the Anti-Defamation League, the Baptist Joint Committee
on Public Affairs, Campus Crusade for Christ, the Catholic League for
Religious and Civil Rights, the Christian Coalition, the Christian
Legal Society, Christian Science Committee on Publication, the Church
of the Brethren, the Church of Jesus Christ of Latter-Day Saints.
I will skip toward the end of the alphabet here. The Union of
American Hebrew Congregations, the Union of Orthodox Jewish
Congregations of America, the United Methodist Church, Board of Church
& Society; the United States Catholic Conference, the United Synagogue
of Conservative Judaism; Women of Reform Judaism, Federation of Temple
Sisterhoods. Those are just a few of the more than 70 religious and
civil rights organizations that support the Religious Liberty
Protection Act.
I would urge all Members of this House to join together in a
bipartisan effort to protect America's first freedom by passing this
bill, this important bill, without the weakening amendment offered by
the gentleman from New York. His amendment would do harm to this bill
and needs to be rejected. We need to move forward with the passage of
this legislation.

Organization Supporting H.R. 1691, ``Religious Liberty Protection Act
of 1999''

Agudath Israel of America
The Aleph Institute
American Baptist Churches, USA
American Center for Law and Justice
American Conference on Religious Movements
American Ethical Union, Washington
American Humanist Association
American Jewish Committee
American Jewish Congress
American Muslim Council
Americans for Democratic Action
Americans for Religious Liberty
Americans United for Separation of Church & State
Anti-Defamation League
Association on American Indian Affairs
Association of Christian Schools International

Baptist Joint Committee on Public Affairs
B'nai B'rith

Campus Crusade for Christ
Catholic League for Religious and Civil Rights
Central Conference of American Rabbis
Christian Church (Disciples of Christ)
Christian Coalition
Christian Legal Society
Christian Science Committee on Publication
Church of the Brethren
Church of Jesus Christ of Latter-Day Saints
Church of Scientology International
Coalition for Christian Colleges and Universities
Council of Jewish Federations
Council on Religious Freedom
Council on Spiritual Practices
Criminal Justice Policy Foundation

Episcopal Church
Ethics, and Religious Liberty Commission of the Southern
Baptist Convention
Evangelical Lutheran Church in America

Jerry Fawell's Liberty Alliance
Family Research Council
Focus on the Family
Friends Committee on National Legislation

General Conference of Seventh-Day Adventists
Guru Gobind Singh Foundation

Hadassah, the Women's Zionist Organization of American,
Inc.

Interfaith Religious Liberty Foundation
International Association of Jewish Lawyers and Jurists
International Institute for Religious Freedom

Kay Coles James
Japanese American Citizens League
Jewish Council for Public Affairs
The Jewish Policy Center
The Jewish Reconstructionist Federation
Justice Fellowship

Liberty Counsel

Mennonite Central Committee U.S.
Muslim Prison Foundation
Muslim Public Affairs Council
Mystic Temple of Light, Inc.

NA' AMAT USA
National Association for the Advancement of Colored People
National Association of Evangelicals
National Campaign for a Peace Tax Fund
National Committee for Public Education and Religious
Liberty
National Council of Churches of Christ in the USA
National Council of Jewish Women
National Council on Islamic Affairs
National Jewish Coalition
National Jewish Commission on Law and Public Affairs
National Native American Prisoner's Rights Advocacy
Coalition
National Sikh Center
Native American Church of North America
Native American Rights Fund
Native American Spirit Correction Project
Navajo Nation Corrections Project
North American Council for Muslim Women

Pacific Justice Institute
People for the American Way Action Fund
Peyote Way Church of God
Presbyterian Church (USA), Washington Office
Prison Fellowship Ministries

Rabbinical Council of America
Religious Liberty Foundation
Rutherford Institute

Sacred Sites Inter-faith Alliance
Soka-Gakkai International-USA

Union of American Hebrew Congregations

[[Page H5607]]

Union of Orthodox Jewish Congregations of America
Unitarian Universalist Association of Congregations
United Church of Christ, Office for Church in Society
United Methodist Church, Board of Church & Society
United States Catholic Conference
United Synagogue of Conservative Judaism

Women of Reform Judaism, Federation of Temple Sisterhoods
Mr. POMEROY. Mr. Speaker, I rise in support of the Nadler amendment
to H.R. 1691. This amendment will safeguard religious liberty, while
also protecting other critical civil rights.
This Nation was founded on the conviction that all individuals have
the right to the free and full expression of religion. The First
Amendment to the Constitution has protected that right for over 200
years. Unfortunately, no court can be completely free of human error
when interpreting the Constitution. Beginning with the 1990 Supreme
Court decision in Oregon Dept. Of Human Resources v. Smith, religious
expression has been subject to substantial and unnecessary restriction
by governmental policies. Therefore, it is both necessary and
appropriate for Congress to pass this legislation.
As drafted, however, H.R. 1691 could have the unintended consequence
of eroding critical civil rights and undermining state and local
statutes. Several states and municipalities have passed laws
prohibiting discrimination in housing and employment due to marital
status, pregnancy status, or disability. Unless amended, H.R. 1691
could undermine state laws and allow discrimination. A widowed mother
or disabled individual should not be deprived equal access to housing
or employment under the guide of ensuring religious liberty.
Mr. Speaker, I believe that the Nadler amendment prevents the
preemption of state and local statutes, while affording religious
expression the highest level of constitutional protection. I urge my
colleagues to vote in favor of this crucial provision.
Mrs. MORELLA. Mr. Speaker, I rise in support of the Nadler amendment
to the Religious Liberty Protection Act.
This amendment is exactly the same as the bill itself, except for
some additional language which will clarify that the bill is not to be
used as a blank check to override state and local civil rights laws.
The amendment tracks language in the Civil Rights Act and the Fair
Housing Act. Small businesses and small landlords are exempted from
compliance. At the same time, the amendment will prevent large
commercial enterprises from avoiding compliance with laws affecting
housing, employment, and public accommodation.
Basically, the amendment will assure that a landlord renting an
apartment in his home may do so according to religious belief, while
preventing the same landlord from discriminating on the basis of his or
her religious beliefs in the rental of units in a large apartment
building.
The Nadler amendment makes clear our intent to strengthen individual
religious liberty without overriding state and local anti-
discrimination laws. Support the Nadler amendment.
The SPEAKER pro tempore (Mr. Barrett of Nebraska). Pursuant to House
Resolution 245, the previous question is ordered on the bill, as
amended, and on the further amendment by the gentleman from New York
(Mr. Nadler).
The question is on the amendment in the nature of a substitute
offered by the gentleman from New York (Mr. Nadler).
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. NADLER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 190,
nays 234, not voting 10, as follows:

[Roll No. 298]

YEAS--190

Abercrombie
Ackerman
Allen
Andrews
Baird
Baldacci
Barrett (WI)
Becerra
Bentsen
Berkley
Berman
Bilbray
Bishop
Blagojevich
Blumenauer
Boehlert
Bonior
Borski
Boswell
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson
Castle
Clay
Clayton
Clyburn
Condit
Conyers
Coyne
Crowley
Cummings
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Dixon
Doggett
Dooley
Doyle
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Foley
Forbes
Ford
Frank (MA)
Gejdenson
Gephardt
Gilman
Gonzalez
Greenwood
Gutierrez
Hastings (FL)
Hill (IN)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Hooley
Horn
Houghton
Hoyer
Inslee
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (CT)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy
Kildee
Kilpatrick
Kind (WI)
Kleczka
Klink
Kolbe
Kucinich
LaFalce
Lampson
Lantos
Larson
Leach
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Markey
Martinez
Mascara
Matsui
McCarthy (MO)
McCarthy (NY)
McGovern
McKinney
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Moran (VA)
Morella
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Roemer
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Scott
Serrano
Shays
Sherman
Sisisky
Slaughter
Smith (WA)
Snyder
Stabenow
Stark
Strickland
Stupak
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Vento
Visclosky
Waters
Watt (NC)
Waxman
Weiner
Wexler
Weygand
Wise
Woolsey
Wu
Wynn

NAYS--234

Aderholt
Archer
Armey
Bachus
Baker
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Berry
Biggert
Bilirakis
Bliley
Blunt
Boehner
Bonilla
Bono
Boyd
Brady (TX)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Chabot
Chambliss
Clement
Coble
Coburn
Collins
Combest
Cook
Cooksey
Costello
Cox
Cramer
Crane
Cubin
Cunningham
Danner
Davis (FL)
Davis (VA)
Deal
DeLay
DeMint
Diaz-Balart
Dickey
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Everett
Ewing
Fletcher
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gillmor
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (MT)
Hilleary
Hobson
Hoekstra
Hostettler
Hulshof
Hunter
Hutchinson
Hyde
Isakson
Istook
Jenkins
John
Johnson, Sam
Jones (NC)
Kasich
King (NY)
Kingston
Knollenberg
Kuykendall
LaHood
Largent
LaTourette
Lazio
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
McCollum
McCrery
McHugh
McInnis
McIntosh
McIntyre
McKeon
Metcalf
Mica
Miller (FL)
Miller, Gary
Moran (KS)
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Ortiz
Ose
Oxley
Packard
Paul
Pease
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pitts
Pombo
Porter
Portman
Pryce (OH)
Quinn
Radanovich
Ramstad
Regula
Reynolds
Riley
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Salmon
Sanford
Saxton
Scarborough
Schaffer
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shows
Shuster
Simpson
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Spence
Spratt
Stearns
Stenholm
Stump
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Toomey
Traficant
Turner
Upton
Vitter
Walden
Walsh
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson
Wolf
Young (AK)
Young (FL)

NOT VOTING--10

Baldwin
Brown (CA)
Chenoweth
Frost
Gilchrest
Latham
McDermott
McNulty
Rivers
Thurman

{time} 1425

Mr. COSTELLO and Mr. SWEENEY changed their vote from ``yea'' to
``nay.''
Mrs. JONES of Ohio changed her vote from ``nay'' to ``yea.''
So the amendment in the nature of a substitute was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. Barrett of Nebraska). The question is on
the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.

[[Page H5608]]

The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.

Recorded Vote

Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 306,
noes 118, not voting 10, as follows:

[Roll No 299]

AYES--306

Aderholt
Allen
Andrews
Archer
Armey
Bachus
Baker
Baldacci
Ballenger
Barcia
Barrett (NE)
Barton
Bateman
Bentsen
Bereuter
Berkley
Berry
Biggert
Bilbray
Bilirakis
Bishop
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bonior
Bono
Borski
Boswell
Boyd
Brady (TX)
Brown (FL)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cannon
Capps
Cardin
Castle
Chabot
Chambliss
Clayton
Clement
Coble
Coburn
Combest
Condit
Cook
Cooksey
Costello
Cox
Cramer
Crowley
Cubin
Cunningham
Danner
Davis (FL)
Davis (VA)
DeLay
DeMint
Diaz-Balart
Dickey
Dicks
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Etheridge
Everett
Ewing
Fletcher
Foley
Ford
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gephardt
Gibbons
Gillmor
Gilman
Gonzalez
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hooley
Horn
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inslee
Isakson
Istook
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones (NC)
Kanjorski
Kaptur
Kasich
Kelly
Kildee
Kind (WI)
King (NY)
Kingston
Kleczka
Klink
Knollenberg
LaFalce
LaHood
Lampson
Largent
Larson
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lowey
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Martinez
Mascara
McCarthy (MO)
McCarthy (NY)
McCollum
McCrery
McHugh
McInnis
McIntosh
McIntyre
McKeon
Meek (FL)
Menendez
Mica
Miller (FL)
Miller, Gary
Mollohan
Moore
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Napolitano
Nethercutt
Ney
Northup
Norwood
Nussle
Obey
Ortiz
Ose
Oxley
Packard
Pallone
Pascrell
Pease
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pitts
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Regula
Reyes
Reynolds
Riley
Rodriguez
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Royce
Ryan (WI)
Ryun (KS)
Salmon
Sanchez
Sandlin
Sawyer
Saxton
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Skelton
Slaughter
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Spence
Spratt
Stabenow
Stearns
Stenholm
Strickland
Stump
Stupak
Sweeney
Talent
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Toomey
Traficant
Turner
Udall (NM)
Upton
Visclosky
Vitter
Walden
Walsh
Wamp
Watkins
Watts (OK)
Weiner
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson
Wise
Wolf
Wynn
Young (AK)
Young (FL)

NOES--118

Abercrombie
Ackerman
Baird
Barr
Barrett (WI)
Bartlett
Bass
Becerra
Berman
Blagojevich
Blumenauer
Boucher
Brady (PA)
Brown (OH)
Campbell
Capuano
Carson
Clay
Clyburn
Collins
Conyers
Coyne
Crane
Cummings
Davis (IL)
Deal
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Dixon
Doggett
Engel
Eshoo
Evans
Farr
Fattah
Filner
Forbes
Frank (MA)
Gejdenson
Gutierrez
Hastings (FL)
Hilliard
Hinchey
Hostettler
Jackson (IL)
Johnson, E. B.
Jones (OH)
Kennedy
Kilpatrick
Kolbe
Kucinich
Kuykendall
Lantos
Lee
Levin
Lewis (GA)
Lofgren
Maloney (NY)
Manzullo
Markey
Matsui
McGovern
McKinney
Meehan
Meeks (NY)
Metcalf
Millender-McDonald
Miller, George
Minge
Mink
Moakley
Nadler
Neal
Oberstar
Olver
Owens
Pastor
Paul
Payne
Pelosi
Pickett
Pombo
Rangel
Roybal-Allard
Rush
Sabo
Sanders
Sanford
Scarborough
Schaffer
Schakowsky
Scott
Serrano
Sherman
Smith (WA)
Snyder
Stark
Sununu
Tancredo
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Velazquez
Vento
Waters
Watt (NC)
Waxman
Wexler
Weygand
Woolsey
Wu

NOT VOTING--10

Baldwin
Brown (CA)
Chenoweth
Frost
Gilchrest
Latham
McDermott
McNulty
Rivers
Thurman

{time} 1442

So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

____________________