[Congressional Record Volume 146, Number 90 (Thursday, July 13, 2000)]
[Senate]
[Pages S6687-S6690]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Kennedy, Mr. Hutchinson, Mr. 
        Daschle, Mr. Bennett, Mr. Lieberman, and Mr. Schumer):
  S. 2869. A bill to protect religious liberty, and for other purposes; 
read the first time.


      religious land use and institutionalized persons act of 2000

  Mr. HATCH. Mr. President, I rise today to introduce a narrowly 
focused bill that protects religious liberty from unnecessary 
governmental interference. It will provide protection for houses of 
worship and other religious assemblies from restrictive land use 
regulation that often prevents the practice of faith. This legislation 
also allows institutionalized persons to exercise their religion to the 
extent that it does not undermine the security, discipline, and order 
of their institutions.
  Seven years ago, recognizing the need to strengthen the fundamental 
right of religious liberty, Congress overwhelmingly passed the 
Religious Freedom Restoration Act (RFRA). Unfortunately, in 1997, in 
the case of City of Boerne v. Flores, the Supreme Court held that 
Congress lacked the authority to enact RFRA as applied to state and 
local governments. In an attempt to respond to the Boerne decision, I 
introduced S. 2081 earlier this year. Legislation similar to S. 2081 
passed the

[[Page S6688]]

House of Representatives. Yet, concerns were raised by some regarding 
the scope of S. 2081, and I undertook an effort to seek out a consensus 
approach. The legislation I am introducing today, which maintains 
certain provisions of S. 2081, is a tailored version which represents 
the product of our efforts.
  The Religious Land Use and Institutionalized Persons Act of 2000 
provides limited federal remedies for violations of religious liberty 
in: (1) the land use regulation of churches and synagogues; and (2) 
prisons and mental hospitals.


                          land use regulation

  At the core of religious freedom is the ability for assemblies to 
gather and worship together. Finding a location to do so, however, can 
be quite difficult when faced with pervasive land use regulations. As 
was seen during congressional hearings in both the House and Senate, 
land use regulations, either by design or neutral application, often 
prevent religious assemblies and institutions from obtaining access to 
a place of worship. Under current law, an assembly whose religious 
practice is burdened by an otherwise ``generally applicable'' and 
``neutral'' law can obtain relief only by carrying the heavy burden of 
proving that there is an unconstitutional motivation behind a law, and 
thus, that it is not truly neutral or generally applicable. Such a 
standard places a seemingly insurmountable barrier between the 
religious assemblies of our country and their right to worship freely.
  An example of this was seen recently when a city refused to allow the 
LDS Church to construct a temple simply because it was not in the 
``aesthetic'' interests of the community as set forth in a ``generally 
applicable'' statute. Another example includes an effort to suspend the 
operation of a religious mission for the homeless operated by the late 
Mother Teresa's order because it was located on the second floor of a 
building without an elevator.
  The land use section of the bill prohibits discrimination against 
religious assemblies and institutions, and prohibits the total 
exclusion of religious assemblies from a jurisdiction. The section also 
prohibits unreasonable limits on religious assemblies and institutions 
and requires that land use regulations that substantially burden the 
exercise of religion be justified by a compelling governmental 
interest.
  It is important to note that this legislation does not provide a 
religious assembly with immunity from zoning regulation. If the 
religious claimant cannot demonstrate that the regulation places a 
substantial burden on sincere religious exercise, then the claim fails 
without further consideration. If the claimant is successful in 
demonstrating a substantial burden, the government will still prevail 
if it can show that the burden is an unavoidable result of its pursuit 
of a compelling governmental objective.


                       institutionalized persons

  Our bill also provides that substantial burdens on the religious 
exercise of institutionalized persons must be justified by a compelling 
interest. Congressional witnesses have testified that institutionalized 
persons have been prevented from practicing their faith. For example, 
some Jewish prisoners have been denied matzo, the unleavened bread Jews 
are required to consume during Passover, even though Jewish 
organizations have offered to provide it to inmates at no cost to the 
government. While this legislation seeks to improve the ability of 
institutionalized persons to practice their religion, it remains under 
the complete application of the Prison Litigation Reform Act of 1995.
  Both sections are based firmly on constitutional principles that 
grant Congress its authority. Thus, today's legislation should 
withstand the scrutiny that has thwarted our efforts in the past.
  As we begin in this effort, it is worth pondering just why America 
is, worldwide, the most successful multi-faith country in all recorded 
history. The answer is to be found, I submit, in both components of the 
phase ``religious liberty.'' Surely, it is because of our 
Constitution's zealous protection of liberty that so many religions 
have flourished and so many faiths have worshiped on our soil.
  Our country has achieved its greatness because, with its respectful 
distance from our private lives, our government has allowed all its 
citizens their own forms of ``internal governance,'' that is, those 
religious and moral tenets that make a free society possible. Our 
country has allowed people to answer for themselves, and without 
interference, those questions that are most fundamental to humankind. 
And it is in the way that religion informs our answers to these 
questions, that we not only survive, but thrive as human beings.
  While this bill provides much needed preservation of our religious 
liberty, I personally would have preferred a broader approach. I 
recognize, however, in this shortened legislative year, the long list 
of items before the congressional leadership that require their 
attention. In order to ensure enactment of a measure this year, I think 
all advocates of a broader approach took a prudent step in embracing a 
more targeted, consensus bill.
  With the help of Senator Kennedy, Congressman Canady, and others, I 
hope this legislation will move swiftly through the Congress. We look 
forward to welcoming others to our modest, yet important, effort to 
enact this legislation.
  Mr. KENNEDY. Religious freedom is a bedrock principle in our nation. 
The bill we are introducing today reflects our commitment to protect 
religious freedom and our belief that Congress still has the power to 
enact legislation to enhance that freedom, even after the Supreme 
Court's decision in 1997 to strike down the broader Religious Freedom 
Restoration Act that 97 Senators joined in passing in 1993.
  In striking down the Religious Freedom Restoration Act on 
constitutional grounds, the Court clearly made the task of passing 
effective legislation to protect religious liberties more difficult. 
But too often in our society today, thoughtless and insensitive actions 
by governments at every level interferes with individual religious 
freedoms, even though no valid public purpose is served by the 
governmental action.
  Our goal in proposing this legislation is to reach a reasonable and 
constitutionally sound balance between respecting the compelling 
interests of government and protecting the ability of people freely to 
exercise their religion. We believe that the legislation being 
introduced today accomplishes this goal in two areas where infringement 
of this right has frequently occurred--the application of land use 
laws, and treatment of persons who are institutionalized. In both of 
these areas, our bill will protect the Constitutional right to worship, 
free from unnecessary government interference.
  After numerous Congressional hearings on religious liberties, the 
evidence is clear that local land use laws often have the 
discriminatory effect of burdening the free exercise of religion. It is 
also clear that institutionalized persons are often unreasonably denied 
the opportunity to practice their religion, even when their observance 
would not undermine discipline, order, or safety in the facilities.
  Relying upon the findings from Congressional hearings, we have 
developed a bill--based upon well-established constitutional 
authority--that will protect the free exercise of religion in these two 
important areas. Our bill has the support of the Free Exercise 
Coalition, which represents over 50 diverse and respected groups, 
including the Family Research Council, Christian Legal Society, 
American Civil Liberties Union, and People for the American Way. The 
bill also has the endorsement of the Leadership Conference for Civil 
Rights.
  The broad support that this bill enjoys among religious groups and 
the civil rights community is the result of many months of difficult, 
but important negotiations. We carefully considered ways to strengthen 
religious liberties in other ways in the wake of the Supreme Court's 
decision. We were mindful of not undermining existing laws intended to 
protect other important civil rights and civil liberties. It would have 
been counterproductive if this effort to protect religious liberties 
led to confrontation and conflict between the civil rights community 
and the religious community, or to a further court decision striking 
down the new law. We believe that our bill succeeds in avoiding these 
difficulties by addressing the most obvious threats to

[[Page S6689]]

religious liberty and by leaving open the question of what future 
Congressional action, if any, will be needed to protect religious 
freedom in America.
  The land use provision covers regulations defined as ``zoning and 
landmarking'' laws. Under this provision, if a zoning or landmarking 
law substantially burdens a person's free exercise of religion, the 
government involved must demonstrate that the particular law is the 
least restrictive means of furthering a compelling governmental 
interest. This provision is based upon the constitutional authority of 
Congress under Section 5 of the 14th Amendment, as well as the Commerce 
and Spending powers of Congress. The institutionalized persons section 
applies the strict scrutiny standard to cases in which the free 
exercise rights of such persons are substantially burdened. This 
provision is based upon Congress's constitutional authority under the 
Spending and Commerce powers.
  Applying a strict scrutiny standard to prison regulations would not 
lead, as some have suggested, to a flood of frivolous lawsuits by 
prisoners, and it will not undermine safety, order, or discipline in 
correctional facilities. Arguments opposing this provision have been 
made in the past, but they were based on speculation. Now, the 
arguments can be proven demonstrably false by the facts.
  Since the Religious Freedom Restoration Act was enacted in 1993, 
strict scrutiny has been the applicable standard in religious liberties 
case brought by inmates in federal prisons. Yet, according to the 
Department of Justice, among the 96 federally run facilities, housing 
over 140,000 inmates, less than 75 cases have ever been brought under 
the Act--most of which have never gone to trial. On average, over seven 
years, that's less than 1 case in each federal facility. It's hardly a 
flood of litigation or a reason to deny this protection to prisoners.
  Following the enactment of the 1993 Act, Congress also passed the 
Prison Litigation Reform Act, which includes a number of procedural 
rules to limit frivolous prisoner litigation. Those procedural rules 
will apply in cases brought under the bill we are introducing today. 
Based upon these protections and the data on prison litigation, it is 
clear that this provision in our bill will not lead to a flood of 
frivolous lawsuits or threaten the safety, order, or discipline in 
correctional facilities. Sincere faith and worship can be an 
indispensable part of rehabilitation, and these protections should be 
an important part of that process.
  In sum, our bill is an important step forward in protecting religious 
liberty in America. It reflects the Senate's long tradition of 
bipartisan support for the Constitution and the nation's fundamental 
freedoms, and I urge the Senate to approve it.


         examples of land use restrictions on religious liberty

  In February 2000, a city official in Portland, Oregon ordered a local 
United Methodist Church to limit attendance at its services to 70 
worshipers and shut down a meals program for the homeless and the 
working poor that the church had been operating for sixteen years. The 
church can hold up to 500 persons. The land use official announced that 
her job was ``quasi-judicial,'' and that ``she was not required to 
explain decisions.'' After a public outcry, the Portland City Council 
unanimously rejected the attendance cap and voted to allow church 
programs to continue, contingent on an agreement being reached among 
neighbors, neighborhood businesses and the city about the management of 
the church programs. (``Church ordered to limit attendance,'' 
Washington Times, February 18, 2000: ``Church wins on attendance,'' The 
Oregonian, March 2, 2000).
  Officials in Arapahoe County, Colorado imposed numerical limits on 
the number of students who could enroll in religious schools and on the 
size of congregations of various churches, as a way of limiting their 
growth. These limits directly conflicted with the mission of 
evangelical churches, whose fundamental goal is to attract new 
believers.
  In Douglas County, Colorado, administrative officials proposed 
limiting the operational hours of a church in much the same way as they 
limit commercial facilities. As Mark Chopko noted in his Congressional 
testimony, limiting a church's operational hours means that a church 
may not lawfully engage in certain acts of service and devotion or 
overnight spiritual retreats. (Testimony of Mark Chopko before the 
House Subcommittee on the Constitution, March 26, 1998).
  Congregation Etz Chaim, an Orthodox Jewish congregation in Los 
Angeles, was meeting in a rented house, or ``shul'', in Hancock Park, a 
residential zone. The rabbi of the congregation, Chaim Baruch Rubin, 
testified that ten to fifteen men would typically visit the house for 
daily meetings, and forty or fifty people (many elderly and disabled) 
would attend on the Sabbath or holidays to engage in quiet prayer and 
study. Orthodox Jews must walk to services on the Sabbath and on most 
holidays, because their religion does not permit them to use mechanical 
modes of transportation on those days. When neighbors complained about 
the effect on property values, the congregation requested a special use 
permit from the City Council to remain in the residential zone. The 
Council unanimously rejected the request, putting the neighborhood 
effectively off-limits for Orthodox Jews. The same Council, however, 
allowed other places of assembly in Hancock Park, including schools, 
book clubs, recreational uses and embassy parties. Rabbi Rubin 
testified that 84,000 cars traveled through this part of the 
neighborhood daily, and yet somehow the Council deemed a prayer meeting 
of a few who traveled by foot as harmful to the neighborhood. Rabbi 
Rubin concluded his testimony by stating, what do I tell my 
congregants--what do I tell an 84 year old survivor of Auschwitz, a man 
who used to risk his life in the concentration camp whenever possible 
to gather together to pray? (Testimony of Rabbi Chaim Baruch Rubin 
before the House Subcommittee on the Constitution, February 26, 1998).
  In the process of creating a new zoning plan covering development in 
the city, the City of Forest Hills, Tennessee set up an ``educational 
and religious zone'' called an ``ER'' for schools and churches, but 
limited that designation to schools and churches that already existed 
within the city. No other land was zoned ``ER'' under the plan, so no 
other property was available for the construction of a new religious 
building. The City also established strict requirements for changing 
any zone. The Church of Jesus Christ of Latter-day Saints determined a 
need for a temple in Forest Hills, and sought a zone change for 
property that it owned within city limits. Forest Hills rejected the 
church's request. The church then bought another piece of property that 
had previously been home to a church. Churches of other denominations 
were nearby. Forest Hills nevertheless rejected the church's second 
request citing concern about traffic, and a court upheld this 
determination, effectively precluding Mormons from temple worship 
within city limits. (Testimony of Von G. Keetch before the House 
Subcommittee on the Constitution, March 26, 1998; Report of the House 
Judiciary Committee on the Religious Liberty Protection Act of 1999, 
106th Congress).
  In 1997, the City of Richmond passed an ordinance which required 
places of worship wishing to feed more than thirty hungry and homeless 
people to apply for a conditional use permit at a cost of $1,000, plus 
$100 dollars per acre of affected property. The ordinance regulated 
only places of worship, not other institutions, and only eating by 
persons who are hungry and homeless. The ordinance also limited to 
seven days, and to the period between October 1 and April 1, the times 
when places of worship may feed the hungry and homeless. The City had 
complete discretion over the granting of conditional use permits based 
on its assessment of a number of subjective factors. The Rev. Patrick 
Wilson of Richmond, Virginia stated in his testimony: ``A $1,000 fee is 
beyond the means of most churches, which operate with memberships of 
less than 100 persons and is therefore prohibitive. Imagine that--a 
statutorily imposed fee for the exercise of a basic and fundamental 
tenet of the Christian faith! . . . Health and safety issues can be and 
are addressed in less

[[Page S6690]]

odious ways.'' (Testimony of Rev. Patrick J. Wilson III before the 
House Subcommittee on the Constitution, February 26, 1998; Preliminary 
and Jurisdictional Statement in Trinity Baptist Church v. City of 
Richmond, (E.D.Va. filed August 20, 1997.)
  Twenty-two of the twenty-nine zoning codes in the northern suburbs of 
Chicago effectively exclude churches, unless they have a special use 
permit. Zoning authorities hold almost wholly discretionary power over 
whether a house of worship may locate in these areas. John Mauck, a 
Chicago attorney who serves many churches in this area, handled the 
case of a church, His Word Ministries to All Nations, interested in 
buying property after it outgrew its space in the basement of a home. 
When it sought a special use permit in 1992, an alderman delayed the 
request three times, resulting in months of delay in the purchase of 
the building. After the third postponement of the hearing, the alderman 
had the church's property re-zoned as a manufacturing district. Because 
churches cannot locate in a manufacturing district, the church was 
forced to withdraw its application for special use after paying filing, 
attorney and appraiser fees. The church spent approximately $5,000 and 
wasted an entire year seeking the special use permit. (Testimony of 
John Mauck before the House Subcommittee on the Constitution, March 26, 
1998; Affidavit of Virginia Kantor in Civil Liberties for Urban 
Believers v. City of Chicago (N.D. Ill. 1994); Testimony of Douglas 
Laycock before the House Subcommittee on the Constitution, July 14, 
1998).
  In his testimony, Marc Stern stated that orthodox synagogues are 
often required to have a specific number of parking spaces, based on 
the number of seats in the sanctuary--even though the sanctuary will be 
filled with worshipers who do not drive. (Testimony of Marc Stern 
before the House Subcommittee on the Constitution, March 26, 1998).
  Chicago attorney John Mauck testified about several cases of racially 
motivated opposition to black churches, and about a case in which the 
mayor told his city manager that they didn't want Hispanics in the 
town. He also testified about other statements of bigotry. Marc Stern 
testified about a case in which a small congregation sought permission 
to convert a private home into a small synagogue. One council member 
considering the converted use ``warned that if the application was 
granted, this nearly all white suburb would begin to resemble an 
adjoining city which was largely minority and full of storefront 
churches.'' (Testimony of John Mauck before the House Subcommittee on 
the Constitution, March 26, 1998; Testimony of Douglas Laycock before 
the House Subcommittee on the Constitution, July 14, 1998; Testimony of 
Marc Stern before the House Subcommittee on the Constitution, March 26, 
1998).

                          ____________________