[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Senate]
[Pages S7774-S7781]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000

  Mr. HATCH. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 684, S. 2869.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The assistant legislative clerk read as follows:

       A bill (S. 2869) to protect religious liberty, and for 
     other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. HATCH. Mr. President, I rise today to thank the Senate in 
anticipation of its action in passing the Religious Land Use and 
Institutionalized Persons Act of 2000. I want to express my 
appreciation specifically to the lead cosponsor of this bill, Senator 
Kennedy. He and I worked together almost 10 years ago in enacting the 
Religious Freedom Restoration Act. He has once again demonstrated his 
commitment to religious liberty by his leadership and effort on this 
measure.
  I also express my appreciation to Senators Thurmond and Reid. Both of 
these Senators had strong and serious concerns about portions of this 
bill but were willing to work with us to secure passage of this 
legislation because of their overriding commitment to religious 
freedom.
  Our bill deals with just two areas where religious freedom has been 
threatened--land use regulation and persons in prisons, mental 
hospitals, nursing homes and similar institutions. Our bill will ensure 
that if a government action substantially burdens the exercise of 
religion in these two areas, the government must demonstrate that 
imposing the burden serves a compelling public interest and does so by 
the least restrictive means. In addition, with respect to land use 
regulation, the bill specifically prohibits various forms of religious 
discrimination and exclusion.
  It is no secret that I would have preferred a broader bill than the 
one before us today. Recognizing, however, the hurdles facing passage 
of such a bill, supporters have correctly, in my view, agreed to move 
forward on this more limited, albeit critical, effort. The willingness 
of many serious and well-intentioned persons has brought us to this 
successful conclusion in the Senate today and likely swift action in 
the House of Representatives this fall.
  I thank all persons involved in this effort. Numerous religious 
denominations have come together with other groups in the spirit of 
cooperation to form the Coalition for the Free Exercise of Religion. 
They have joined forces and concentrated their energy on this vital 
issue--I am grateful to all of them.
  In conclusion, I thank the staff members who devoted so much of their 
time and who worked so hard to ensure the success of this bill. In 
particular, I would like to thank Eric George, my former counsel, Manus 
Cooney, my Chief Counsel, Sharon Prost, my Deputy Chief Counsel, and 
Sam Harkness, a law clerk for the Judiciary Committee. Their collective 
work has brought us to where we are today. Furthermore, I would like to 
express my gratitude to the staff of Senator Kennedy; specifically, 
Melanie Barnes and David Sutphen, who were a pleasure to work with. 
Eddie Ayoob, from the office of Senator Reid, also provided valuable 
assistance. Finally, I would like to thank the dedicated professionals 
at the Department of Justice who helped in the effort.
  I ask unanimous consent that following my statement and that of 
Senator Kennedy the following items be printed in the Record: A 
manager's statement consisting of a joint statement by myself and 
Senator Kennedy; a letter received today from the administration in 
support of the bill; and several other letters of support.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. President, I commend Chairman Canady of the House Judiciary 
Committee. I am hopeful that the other body can promptly--even this 
evening is a possibility--pass this bill. I know Congressman Canady has 
and will continue to do everything he can do to enact this important 
legislation.
  Cathy Cleaver of Chairman Canady's staff has also been indispensable. 
I acknowledge her for her efforts.
  I also thank Senators Kennedy, Reid, and Thurmond for their yeoman 
work on this bill. This is one of the most important bills of this new 
century, and it is one I am so pleased to be a part of in passing.

                               Exhibit 1

 Joint Statement of Senator Hatch and Senator Kennedy on the Religious 
           Land Use and Institutionalized Persons Act of 2000


                          summary and purpose

       The Religious Land Use and Institutionalized Persons Act of 
     2000 (``This Act'') is a targeted bill that addresses the two 
     frequently occurring burdens on religious liberty. The bill 
     is based on three years of hearings--three hearings before 
     the Senate Committee on the Judiciary and six before the 
     House Subcommittee on the Constitution--that addressed in 
     great detail both the need for legislation and the scope of 
     Congressional power to enact such legislation.
       The bill targets two areas: land use regulation, and 
     persons in prisons, mental hospitals, and similar state 
     institutions. Within those two target areas, the bill applies 
     only to the extent that Congress has power to regulate under 
     the Commerce Clause, the Spending Clause, or Section 5 of the 
     Fourteenth Amendment. Within this scope of application, the 
     bill applies the standard of the Religious Freedom 
     Restoration Act, 42 U.S.C. Sec. 2000bb-1 (1994): if 
     government substantially burdens the exercise of religion, it 
     must demonstrate that imposing that burden on the claimant 
     serves a compelling interest by the least restrictive means. 
     In addition, with respect to land use regulation, the bill 
     specifically prohibits various forms of religious 
     discrimination and exclusion. Finally, the bill provides 
     generally that when a claimant offers prima facie proof of a 
     violation of the Free Exercise Clause, the burden of 
     persuasion on most issues shifts to the government.


                          need for legislation

       Land Use. The right to assemble for worship is at the very 
     core of the free exercise of religion. Churches and 
     synagogues cannot function without a physical space adequate 
     to their needs and consistent with their theological 
     requirements. The right to build, buy, or rent such a space 
     is an indispensable adjunct of the core First Amendment right 
     to assemble for religious purposes.
       The hearing record compiled massive evidence that this 
     right is frequently violated. Churches in general, and new, 
     small, or unfamiliar churches in particular, are frequently 
     discriminated against on the face of zoning codes and also in 
     the highly individualized and discretionary processes of land 
     use regulation. Zoning codes frequently exclude churches in 
     places where they permit theaters, meeting halls, and other 
     places where large groups of people assemble for secular 
     purposes. Or the codes permit churches only with 
     individualized permission from the zoning board, and zoning 
     boards use that authority in discriminatory ways.
       Sometimes, zoning board members or neighborhood residents 
     explicitly offer race or religion as the reason to exclude a 
     proposed church, especially in cases of black churches and 
     Jewish shuls and synagogues. More often, discrimination lurks 
     behind such vague and universally applicable reasons as 
     traffic, aesthetics, or ``not consistent with the city's land 
     use plan.'' Churches have

[[Page S7775]]

     been excluded from residential zones because they generate 
     too much traffic, and from commercial zones because they 
     don't generate enough traffic. Churches have been denied the 
     right to meet in rented storefronts, in abandoned schools, in 
     converted funeral homes, theaters, and skating rinks--in all 
     sorts of buildings that were permitted when they generated 
     traffic for secular purposes.
       The hearing record contains much evidence that these forms 
     of discrimination are very widespread. Some of this evidence 
     is statistical--from national surveys of cases, churches, 
     zoning codes, and public attitudes. Some of it is anecdotal, 
     with examples from all over the country. Some of it is 
     testimony by witnesses with wide experience who say that the 
     anecdotes are representative. This cumulative and mutually 
     reinforcing evidence is summarized in the report of the House 
     Committee on the Judiciary (House Rep. 106-219) at 18-24, in 
     the testimony of Prof. Douglas Laycock to the Committee on 
     the Judiciary 23-45 (Sept. 9, 1999), and in Douglas Laycock, 
     State RFRAs and Land Use Regulation, 32 U.C. Davis L. Rev. 
     755, 769-83 (1999).
       This discrimination against religious uses is a nationwide 
     problem. It does not occur in every jurisdiction with land 
     use authority, but it occurs in many such jurisdictions 
     throughout the nation. Where it occurs, it is often covert. 
     It is impossible to make separate findings about every 
     jurisdiction, or to legislate in a way that reaches only 
     those jurisdictions that are guilty.
       Institutionalized Persons. Congress has long acted to 
     protect the civil rights of institutionalized persons. Far 
     more than any other Americans, persons residing in 
     institutions are subject to the authority of one or a few 
     local officials. Institutional residents' right to practice 
     their faith is at the mercy of those running the institution, 
     and their experience is very mixed. It is well known that 
     prisoners often file frivolous claims; it is less well known 
     that prison officials sometimes impose frivolous or arbitrary 
     rules. Whether from indifference, ignorance, bigotry, or lack 
     of resources, some institutions restrict religious liberty in 
     egregious and unnecessary ways.
       The House Subcommittee on the Constitution heard testimony 
     to this effect from Charles Colson and Patrick Nolan of 
     Prison Fellowship, and in great detail about violations of 
     the rights of Jewish prisoners, from Isaac Jaroslawicz of the 
     Aleph Institute. The Senate Committee on the Judiciary 
     learned of examples in litigated cases: Mockaitis v. 
     Harcleroad, 104 F.3d 1522 (9th Cir. 1997), in which jail 
     authorities surreptitiously recorded the sacrament of 
     confession between a prisoner and the Roman Catholic 
     chaplain; Sasnett v. Sullivan, 197 F.3d 290 (7th Cir. 
     1999), in which a Wisconsin prison rule prevented 
     prisoners from wearing religious jewelry such as crosses, 
     on grounds that Judge Posner found discriminated against 
     Protestants ``without the ghost of a reason,'' id. at 292; 
     and McClellan v. Keen (settled in the District of Colorado 
     in 1994), in which authorities let a prisoner attend 
     Episcopal worship services but forbade him to take 
     communion. This Act can provide a remedy and a neutral 
     forum for such cases if they fall within the reach of the 
     Spending Clause or the Commerce Clause.
       The compelling interest test is a standard that responds to 
     facts and context. What the Judiciary Committee said about 
     that standard in its report on RFRA is equally applicable to 
     This Act:
       ``[T]he committee expects that courts will continue the 
     tradition of giving due deference to the experience and 
     expertise of prison and jail administrators in establishing 
     necessary regulations and procedures to maintain good order, 
     security and discipline, consistent with consideration of 
     costs and limited resources.
       ``At the same time, however, inadequately formulated prison 
     regulations and policies grounded on mere speculation, 
     exaggerated fears, or post-hoc rationalizations will not 
     suffice to meet the act's requirements.'' Senate Report 103-
     111 at 10 (1993).
       The Prison Litigation Reform Act is working effectively to 
     control frivolous prisoner litigation across the board, 
     without barring meritorious claims equally with frivolous 
     ones. The Department of Justice reports that RFRA ``has not 
     been an unreasonable burden to the Federal prison system,'' 
     and that the federal Bureau of Prisons has experienced only 
     65 RFRA suits in six years, most of which also alleged other 
     theories and would have been filed anyway. Letter of Robert 
     Raben, Assistant Attorney General, to Senators Hatch and 
     Leahy (July 19, 2000). Other empirical studies also show that 
     religious liberty claims are a very small percentage of all 
     prisoner claims, that RFRA led to only a very slight increase 
     in the number of such claims, and that on average RFRA claims 
     were more meritorious than most prisoner claims. See Lee 
     Boothby & Nicholas P. Miller, Prisoner Claims for Religious 
     Freedom and State RFRAs, 32 U.C. Davis L. Rev. 573 (1999).
       Constitutional Authority. The hearings also intensely 
     examined Congress's constitutional authority to enact this 
     bill in light of recent developments in Supreme Court 
     federalism doctrine. Constitutional authority to enact an 
     earlier and much broader bill is explained in the House 
     Committee Report (No. 106-219) at 14-18, 27, and in the 
     testimony of constitutional scholars to the Senate Committee 
     on the Judiciary. See Statements of Prof. Douglas Laycock 8-
     23, 54-64 (Sept. 9, 1999); Prof. Jay Bybee (Sept. 9, 1999) 
     (doubting some aspects of the broader bill then proposed, but 
     expressing confidence that the land use provisions were 
     constitutional); Prof. Michael McConnell (June 23, 1998); See 
     also Thomas C. Berg, The Constitutional Future of Religious 
     Freedom Legislation, 20 U. Ark. Little Rock L.J. 715 (1998).
       Spending Clause. The Spending Clause provisions are modeled 
     directly on similar provisions in other civil rights laws. 
     Congressional power to attach germane conditions to federal 
     spending has long been upheld. South Dakota v. Dole, 483 U.S. 
     203 (1987); Steward Machine Co. v. Davis, 301 U.S. 548 
     (1937). The bill's protections are properly confined to each 
     federally assisted ``program or activity,'' which is defined 
     by incorporating a subset of the definition of the same 
     phrase in Title VI of the Civil Rights Act of 1964. In most 
     applications, this means the department that administers the 
     challenged land use regulation or the department that 
     administers the institution in which the claimant is housed.
       Commerce Clause. The Commerce Clause provisions require 
     proof of a ``jurisdictional element which would ensure, 
     through case-by-case inquiry, that the [burden on religious 
     exercise] in question affects interstate commerce.'' United 
     States v. Lopez, 514 U.S. 549, 561 (1995). The Gun Free 
     Schools Act, struck down in Lopez, and the Violence Against 
     Women Act, struck down in United States v. Morrison, 120 
     S.Ct. 1740 (2000), were invalid because they regulated non-
     economic activity and required no proof of such a 
     jurisdictional element. See id. at 1750-51; Lopez, 514 U.S. 
     at 561-62. But the Court assumes that if such a 
     ``jurisdictional element'' is proved in each case, the 
     aggregate of all such effects in individual cases will be a 
     substantial effect on commerce. Camps Newfound/Owatonna, Inc. 
     v. Town of Harrison, 520 U.S. 564, 586 (1997) (``although the 
     summer camp involved in this case may have a relatively 
     insignificant impact on the commerce of the entire Nation, 
     the interstate commercial activities of nonprofit entities as 
     a class are unquestionably significant''); Lopez, 514 U.S. at 
     559-60 (1995) (explaining how small volumes of home-grown 
     wheat could, in the aggregate, substantially affect 
     commerce).
       The jurisdictional element in this bill is that, in each 
     case, the burden on religious exercise, or removal of that 
     burden, will affect interstate commerce. This will most 
     commonly be proved by showing that the burden prevents a 
     specific economic transaction in commerce, such as a 
     construction project, purchase or rental of a building, or 
     an interstate shipment of religious goods. The aggregate 
     of all such transactions is obviously substantial, and 
     this is confirmed by data presented to the House 
     Subcommittee on the Constitution (testimony of Marc D 
     Stern (June 16, 1998).
       Fourteenth Amendment. The land use sections of the bill 
     have a third constitutional base: they enforce the Free 
     Exercise and Free Speech Clauses as interpreted by the 
     Supreme Court. Congress may act to enforce the Constitution 
     when it has ``reason to believe that many of the laws 
     affected by the congressional enactment have a significant 
     likelihood of being unconstitutional.'' City of Boerne v. 
     Flores, 521 U.S. 507, 532 (1997). The standard is not 
     certainty, but ``reason to believe'' and ``significant 
     likelihood.'' This Act more than satisfies that standard--in 
     two independent ways.
       First, the bill satisfies the constitutional standard 
     factually. The hearing record demonstrates a widespread 
     practice of individualized decisions to grant or refuse 
     permission to use property for religious purposes. These 
     individualized assessments readily lend themselves to 
     discrimination, and they also make it difficult to prove 
     discrimination in any individual case. But the committees in 
     each house have examined large numbers of cases, and the 
     hearing record reveals a widespread pattern of discrimination 
     against churches as compared to secular places of assembly, 
     and of discrimination against small and unfamiliar 
     denominations as compared to larger and more familiar ones. 
     This factual record is itself sufficient to support 
     prophylactic rules to simplify the enforcement of 
     constitutional standards in land use regulation of churches.
       Both the ``General Rules'' in Sec. 2(a)(1), and the 
     specific provisions in Sec. 2(b), are proportionate and 
     congruent responses to the problems documented in this 
     factual record. The General Rule does not exempt religious 
     uses from land use regulation; rather, it requires regulators 
     to more fully justify substantial burdens on religious 
     exercise. This duty of justification under a heightened 
     standard of review is proportionate to the widespread 
     discrimination and to the even more widespread individualized 
     assessments, and it is directly responsive to the difficulty 
     of proof in individual cases.
       Second, and without regard to the factual record, the land 
     use provisions of this bill satisfy the constitutional 
     standard legally. Each subsection closely tracks the legal 
     standards in one or more Supreme Court opinions, codifying 
     those standards for greater visibility and easier 
     enforceability.
       The General Rules in Sec. 2(a)(1), requiring that 
     substantial burdens on religious exercise be justified by a 
     compelling interest, applies only to cases within the 
     spending power or the commerce power, or to cases where 
     government has authority to make individualized assessments 
     of the proposed uses to which the property will be put. Where 
     government makes such individualized assessments, permitting 
     some uses and excluding others, it cannot exclude religious 
     uses without compelling justification. See Church of

[[Page S7776]]

     the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 
     537-38 (1993); Employment Division v. Smith, 494 U.S. 872, 
     884 (1990).
       Sections 2(b)(1) and (2) prohibit various forms of 
     discrimination against or among religious land uses. These 
     sections enforce the Free Exercise Clause rule against laws 
     that burden religion and are not neutral and generally 
     applicable.
       Section 2(b)(3), on exclusion or unreasonable limitation of 
     religious uses, enforces the Free Speech Clause as 
     interpreted in Schad v. Borough of Mount Ephraim, 425 U.S. 61 
     (1981), which held that a municipality cannot entirely 
     exclude a category of first amendment activity. Moreover, the 
     Court distinguished zoning laws that burden ``a protected 
     liberty'' from those that burden only property rights; the 
     former require far more constitutional justification. Id. at 
     68-69. Section 2(b)(3) enforces the right to assemble for 
     worship or other religious exercise under the Free Exercise 
     Clause, and the hybrid free speech and free exercise right to 
     assemble for worship or other religious exercise under Schad 
     and Smith.
       Section 4(a) shifts the burden of persuasion in cases where 
     the claimant shows a prima facie violation of the Free 
     Exercise Clause. There are actual constitutional violations 
     in a higher percentage of the set of cases in which the 
     claimant offers such proof and government cannot rebut it; 
     there is a substantial likelihood of a constitutional 
     violation in every such case.
       Other Constitutional Issues. The Act does not ``compel the 
     States to enact or enforce a federal regulatory program.'' 
     Printz v. United States, 521 U.S. 898, 935 (1997). It 
     preempts certain laws and practices that discriminate against 
     or substantially burden religious exercise, and it leaves all 
     other policy choices to the states. The state may eliminate 
     the discrimination or burden in any way it chooses, so long 
     as the discrimination or substantial burden is 
     actually eliminated.
       The Act's protection for religious liberty does not violate 
     the Establishment Clause. It is triggered only by a 
     substantial burden on, a discrimination against, a total 
     exclusion of, or an unreasonable limitation on the free 
     exercise of religion. Regulatory exemptions are 
     constitutional if they lift such government imposed burdens 
     on religious exercise. Board of Education v. Grumet, 512 U.S. 
     687, 705 (1994); Corporation of the Presiding Bishop v. Amos, 
     483 U.S. 327, 335-36 (1987).


     additional discussion on intended scope on land use provision

     Not land use immunity
       This Act does not provide religious institutions with 
     immunity from land use regulation, nor does it relieve 
     religious institutions from applying for variances, special 
     permits or exceptions, hardship approval, or other relief 
     provisions in land use regulations, where available without 
     discrimination or unfair delay.
     Definition of religious exercise
       The definition of ``religious exercise'' under this Act 
     includes the ``use, building, or conversion'' of real 
     property for religious exercise. However, not every activity 
     carried out by a religious entity or individual constitutes 
     ``religious exercise.'' In many cases, real property is used 
     by religious institutions for purposes that are comparable to 
     those carried out by other institutions. While recognizing 
     that these activities or facilities may be owned, sponsored 
     or operated by a religious institution, or may permit a 
     religious institution to obtain additional funds to further 
     its religious activities, this alone does not automatically 
     bring these activities or facilities within the bill's 
     definition or ``religious exercise.'' For example, a burden 
     on a commercial building, which is connected to religious 
     exercise primarily by the fact that the proceeds from the 
     building's operation would be used to support religious 
     exercise, is not a substantial burden on ``religious 
     exercise.''
     Definition of substantial burden
       The Act does not include a definition of the term 
     ``substantial burden'' because it is not the intent of this 
     Act to create a new standard for the definition of 
     ``substantial burden'' on religious exercise. Instead, that 
     term as used in the Act should be interpreted by reference to 
     Supreme Court jurisprudence. Nothing in this Act, including 
     the requirement in Section 5(g) that its terms be broadly 
     construed, is intended to change that principle. The term 
     ``substantial burden'' as used in this Act is not intended to 
     be given any broader interpretation than the Supreme Court's 
     articulation of the concept of substantial burden or 
     religious exercise.
     Burden of persuasion
       If a claimant proves a substantial burden on its religious 
     exercise, the government shall bear the burden of persuasion 
     that application of the substantial burden is in furtherance 
     of a compelling governmental interest and is the least 
     restrictive means of furthering that compelling governmental 
     interest. However, the party asserting a violation of this 
     Act shall in all cases bear the burden of proof that the 
     governmental action in question constitutes a substantial 
     burden on religious exercise. In any case in which the 
     government provides prima facie evidence that it has made, or 
     has offered in writing to make, a specific accommodation to 
     relieve such a substantial burden, the claimant has the 
     burden of persuasion that the proposed accommodation is 
     either unreasonable or ineffective in relieving the 
     substantial burden.


                           additional comment

       An earlier draft of this legislation had a subsection that 
     would reversed that result in Bronx Household of Faith v. 
     Community School District, 127 F.3d 207 (2nd Cir. 1997), and 
     its progeny. Although that provision did not survive the 
     necessary consensus building that has made possible this bi-
     partisan bill, the holding in Bronx Household is indeed 
     troubling in light of the Supreme Court's counsel in Widmar 
     v. Vincent, 454 U.S. 263, 269 n.6, 271 n.9, 272 n.11 (1981), 
     to not set parameters to public forum that require 
     differentiating between religious worship and all other forms 
     of religious speech. We trust that the federal judiciary will 
     revisit this issue at an early opportunity.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, July 19, 2000.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: I am writing to express the Department 
     of Justice's strong support for S. 2869, the ``Religious Land 
     Use and Institutionalized Persons Act of 2000.'' The 
     Department of Justice has consistently supported legislative 
     efforts, such as the Religious Freedom Restoration Act 
     (``RFRA''), that are designed to protect religious liberty. 
     The Department is proud to have been able to work closely 
     with staff from the House and Senate Judiciary Committees to 
     refine this important legislation. With this letter, we hope 
     to address certain questions that have been raised about the 
     bill.
       We understand that some Members may be concerned about the 
     constitutionality of S. 2869, particularly in light of the 
     Supreme Court's evolving federalism doctrines. Because of the 
     importance of these issues, we have worked diligently with 
     Senate and House staff, as well as with representatives of a 
     wide array of private groups interested in the legislation, 
     to craft a constitutional bill. In our view, S. 2869 is 
     constitutional under governing Supreme Court precedents.
       In addition, apparently there has been some question about 
     the potential effect of S. 2869 on State and local civil 
     rights laws, such as fair housing laws. Although prior 
     legislative proposals implicated civil rights laws in a way 
     that concerned the Department, we believe S. 2869 cannot and 
     should not be construed to require exemptions from such laws.
       Finally, we are aware that some Members may be concerned 
     about the effect of S. 2869 on the operations of State 
     prisons. While section 3 of S. 2869 would apply to State 
     prisons, we do not believe it would have an unreasonable 
     impact on prison operations. RFRA has been in effect in the 
     Federal prison system for six years and compliance with that 
     statute has not been an unreasonable burden to the Federal 
     prison system. Since enactment of RFRA in 1994, Federal 
     inmates have filed approximately 65 RFRA lawsuits in Federal 
     court naming the Bureau of Prisons (or its employees) as 
     defendants. Most of these suits have been dismissed on 
     motions by the defendants. Very few, if any, have gone to 
     trial. With respect to RFRA, Congress emphasized that courts 
     should ``continue the tradition of giving due deference to 
     the experience and expertise of prison and jail 
     administrators in establishing necessary regulations and 
     procedures to maintain good order, security and discipline, 
     consistent with consideration of costs and limited 
     resources.'' S. Rep. No. 111, 103d Cong., 1st Sess. 10 
     (1993); see also H.R. Rep. No. 88, 103d Cong., 1st Sess. 8 
     (1993). We presume the same would be true under section 3 of 
     S. 2869. Moreover, in our experience, RFRA claims almost 
     invariably are joined with other claims, such that the case 
     would have to be litigated even in the absence of the RFRA 
     requirement. In sum, RFRA has not created a substantially 
     increased litigation burden on the Federal Bureau of Prisons, 
     nor has it resulted in any adverse court rulings that have 
     significantly burdened the operation of Federal prisons. 
     Based on our experience at the Federal level, it seems 
     unlikely that section 3 of S. 2869 would impose significant 
     or unjustified burdens on the administration of State 
     prisons.
       We note that the proposal contemplates both private and 
     Federal government enforcement. As is generally the case, we 
     urge that increased Federal enforcement responsibilities be 
     accompanied by appropriate resource increases.
       Thank you for the opportunity to present our views. Please 
     do not hesitate to call upon us if we may be of additional 
     assistance. 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 letter.
           Sincerely,
                                                     Robert Raben,
     Assistant Attorney General.
                                  ____

                                                 Coalition for the


                                    Free Exercise of Religion,

                                    Washington, DC, July 14, 2000.
       Dear Representative: We urge you to co-sponsor the 
     ``Religious Land Use and Institutionalized Persons Act of 
     2000'' (RLUIPA) (H.R. 4862). This legislation will protect 
     important aspects of a right that is foundational in our 
     country--the right to worship free from unnecessary 
     governmental interference. It will provide critical 
     protection for houses of worship and other religious 
     assemblies from restrictive land use regulation that all too 
     often thwarts the practice of faith in our nation. The 
     legislation also will ensure that institutionalized

[[Page S7777]]

     persons will have the ability to exercise their religion in 
     ways that do not undermine the security, discipline and order 
     of their institutions.
       In a series of Congressional hearings beginning in 1997, 
     evidence was presented which indicated that the 
     discretionary, individualized determinations made as a part 
     of local land use regulation result in a pattern of 
     burdensome and discriminatory actions on the activities of 
     houses of worship and other religious assemblies. A study 
     produced by law professors at Brigham Young University and 
     attorneys from the law firm of Mayer, Brown & Platt has 
     shown, for example, that small religious groups and 
     nondenominational churches are greatly overrepresented in 
     reported church zoning cases. Other testimony has documented 
     the fact that some land use regulations intentionally exclude 
     all new houses of worship from an entire city, while others 
     exclude churches except if they are able to secure a special 
     use permit, meaning that zoning authorities hold almost 
     complete discretion in making these determinations. Some 
     testimony presented explicit evidence of religious and racial 
     bias associated with such land use determinations. In a 
     significant number of communities, land use regulation makes 
     it difficult or impossible to build, buy or rent space for a 
     new house of worship, whether large or small.
       Testimony from across the nation also has demonstrated that 
     nonreligious assemblies are often treated far better by 
     zoning authorities than religious assemblies. For example, 
     recreation centers, health clubs, backyard barbecues and 
     banquet halls are frequently the subjects of more favorable 
     treatment than a home Bible study, a church's homeless 
     feeding program or a small gathering of individuals for 
     prayer.
       After close scrutiny of this nationwide problem, members of 
     Congress have properly chosen to address it through Congress' 
     power under Section 5 of the 14th Amendment as well as 
     through the spending and interstate commerce powers, 
     consistent with recent U.S. Supreme Court decisions. RLUIPA 
     generally provides that the government shall not implement 
     land use regulation in ways that substantially burden 
     religious exercise unless such a burden is justified by a 
     compelling governmental interest that is being implemented in 
     a manner that is least restrictive of religious exercise.
       It is important to note that RLUIPA 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 the unavoidable result of its pursuit of a 
     compelling governmental objection. RLUIPA also ensures that 
     the government may not treat religious assemblies and 
     institutions on less than equal terms with a nonreligious 
     assembly, discriminate against any institution on the basis 
     of religion, totally exclude religious assemblies from a 
     jurisdiction or unreasonably limit such uses within a 
     jurisdiction.
       RLUIPA also provides a remedy for institutionalized persons 
     who are inappropriately denied the right to practice their 
     faith, including those in state residential facilities (such 
     as homes for the disabled and chronically ill) and 
     correctional facilities. Congressional testimony included 
     descriptions of instances in which a Catholic priest was 
     forced to do battle over bringing a small amount of 
     sacramental wine into prisons, and cases in which prison 
     officials not only refused to purchase matzo (the unleaved 
     bread Jews are required to eat on Passover), but refused to 
     accept even donated matzo from a Jewish organization.
       RLUIPA used Congress' powers to spend and regulate 
     interstate commerce to address such problems. RLUIPA states 
     that the government may not impose a substantial burden on 
     the religious exercise of an institutionalized person unless 
     that burden is justified by a compelling interest that is 
     furthered by the least restrictive means. It is clear that 
     this standard is applied in a special way in prisons. This 
     provision does not require prison officials to grant 
     religious requests that would undermine prison discipline, 
     order and security. The standard set forth in RLUIPA has been 
     employed by the Federal Bureau of Prisons for many years 
     without negative impact on prison discipline, order and 
     security. Moreover, RLUIPA states on its face that it does 
     not amend or repeal the Prison Litigation Reform Act of 1995. 
     Thus, the courts will continue to be able to reject frivolous 
     lawsuits with ease. We urge you, therefore, to support the 
     legislation as introduced by Representatives Canady, Nadler 
     and Edwards and to reject an amendment thereto.
       RLUIPA is supported by groups as different as the American 
     Civil Liberties Union and the Christian Legal Society, 
     Americans United for Separation of Church and State and 
     Family Research Council, People For the American Way and the 
     National Association for Evangelicals. These groups disagree 
     on many issues, but they agree that the fundamental right of 
     individuals and institutions to the free exercise of religion 
     should be protected as RLUIPA does. While RLUIPA is not 
     coextensive with all the free exercise issues about which the 
     we care, it does address two critical areas that are 
     continuing sources of free exercise problems in the wake of 
     the U.S. Supreme Court's decision in Employment Division v. 
     Smith, 494 U.S. 872 (1990). Thus, we urge you to co-sponsor 
     this critical piece of legislation.
           Sincerely,

                                               Melissa Rogers,

                                                  General Counsel,
     Baptist Joint Committee on Public Affairs.
                                  ____

                                             Leadership Conference


                                              On Civil Rights,

                                    Washington, DC, July 14, 2000.
     Senator Trent Lott,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Senator Tom Daschle,
     Minority Leader, U.S. Senate
     Washington, DC.
       Dear Senator Lott and Senator Daschle: The Leadership 
     Conference on Civil Rights (LCCR) is a coalition of over 180 
     national organizations working to advance civil and human 
     rights laws and policies. The LCCR writes to express our 
     support for the Religious Land Use and Institutionalized 
     Persons Act sponsored by Senators Orrin Hatch (R-UT) and 
     Edward Kennedy (D-MA). We urge the Senate to pass this 
     important legislation without amendment.
       In our letter to you of March 17, 2000, we expressed our 
     concern that the Religious Liberty Protection Act (RLPA) 
     could have unintended, yet potentially harmful effects on 
     other civil rights laws. The Religious Land Use and 
     Institutionalized Persons Act is a less sweeping version of 
     RLPA. Based on our careful review of the new legislation, we 
     do not believe that the Hatch-Kennedy bill will have adverse 
     consequences for other civil rights laws.
       We greatly appreciate the work of the bill's sponsors in 
     drafting the consensus legislation that will provide 
     important new protections for the freedom of religious 
     exercise without the harmful consequences for civil rights 
     laws. These protections are especially important to preserve 
     the exercise of religious beliefs by adherents of minority 
     religions, who of often are in a position of having limited 
     ability to influence the political process.
       We believe that the new legislation will ensure appropriate 
     safeguards against governmental burdens on the free exercise 
     of religious beliefs in two important areas. The legislation 
     will protect the religious exercise of persons whose beliefs 
     are burdened by zoning or landmarking laws, or by laws 
     affecting persons residing in state or locally run 
     institutions.
       Governments have frequently applied zoning and landmarking 
     laws in ways that discriminate against, or severely limit, 
     the ability of houses of worship and individuals to use their 
     houses of worship or homes for religious exercise. The Hatch-
     Kennedy bill will be particularly useful for those religious 
     groups whose ministries of feeding or housing low-income or 
     homeless persons have been curtailed by zoning laws.
       The Hatch-Kennedy bill also provides an important remedy 
     for persons residing in, or confined to, state or local 
     institutions, as defined by the Civil Rights of 
     Institutionalized Persons Act. The new legislation makes 
     clear that, in governmental residential facilities such as 
     state hospitals, nursing homes, group homes, or prisons, the 
     government may not dictate whether, how, or when individuals 
     can practice their religion, unless the government has a 
     compelling interest in enforcing its regulation. The 
     legislation will help ensure that a person will not be 
     stripped of his or her ability to exercise his or her 
     religious beliefs when entering a state or local government-
     run hospital, nursing home, group home, or prison.
       We appreciate your consideration of our views on this 
     issue. We urge the Senate to pass the legislation without any 
     amendments.
           Sincerely,
     Wade Henderson,
       Executive Director.
     Dorothy I. Height,
       Chairperson.

  Mr. KENNEDY. Mr. President, religious freedom is a bedrock principle 
in our Nation. The Religious Land Use and Institutionalized Persons Act 
of 2000 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 
that struck down the broader Religious Freedom Restoration Act that 97 
Senators joined in passing in 1993.
  Our bill has the support of the Free Exercise Coalition, which 
represents over 50 diverse and respected groups, including the Family 
Research Council, the Christian Legal Society, the 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 for this bill by 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

[[Page S7778]]

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 two of the most obvious current threats to 
religious liberty and by leaving open the question of what future 
Congressional actions can be taken to protect religious freedom in 
America.
  Our goal in passing 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 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 rights in the Constitution--the right to worship, free from 
unnecessary government interference.
  I commend Senator Hatch for his commitment and diligence in 
developing this legislation. The consensus bill before us is in large 
part the product of his skillful leadership. Many others in the Senate 
also deserve credit for this legislation, including Senator Lieberman, 
Senator Daschle, Senator Schumer, Senator Reid, Senator Bennett, 
Senator Hutchinson, and Senator Gordon Smith.
  A broad array of groups also played a central role in crafting this 
legislation. Among those deserving special recognition are the American 
Civil Liberties Union, the Baptist Joint Committee, People for the 
American Way, the Union of Orthodox Congregations, the American Jewish 
Committee, and the Christian Legal Society. Professor Douglas Laycock 
of the University of Texas School of Law had an indispensable role in 
this process. Finally, I commend the White House and the Department of 
Justice for their guidance and expertise in developing an effective and 
constitutionally sound bill.
  Senator Hatch and I are including in the Record a section-by-section 
summary of the bill along with a joint statement providing a detailed 
explanation of the need for this important legislation. Numerous 
committee reports have also described numerous examples of thoughtless 
and insensitive actions by governments that interfere with religious 
freedom, even though no valid public purpose is served by the 
governmental action.
  The Religious Land Use and Institutionalized Persons Act of 2000 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.
  Mr. REID. Mr. President, I rise today in support of S. 2869, the 
Religious Land Use and Institutionalized Persons Act. Before addressing 
the substance of this legislation, I would like to thank and 
congratulate the chairman of the Judiciary Committee, Senator Hatch, as 
well as the senior Senator from Massachusetts, Senator Kennedy, for the 
outstanding, bipartisan efforts they have taken to produce the 
legislation we are considering today. I am well aware of the various 
difficulties and interests which had to be addressed, and I believe 
they did a fine job under such circumstances.
  Mr. President, though modified and reduced in scope in order to 
secure its passage, S. 2869 is the most recent attempt by the Congress 
to protect the free exercise of religion. Prior to 1990, American 
courts had generally applied a strict scrutiny test to government 
actions that imposed substantial burdens on the exercise of religion. 
As my colleagues know, the strict scrutiny test is the highest standard 
the courts apply to actions on the part of government. However, in 
1990, in Employment Division, Oregon Department of Human Resources, v. 
Smith, the United States Supreme Court largely eliminated the strict 
scrutiny test for free exercise cases.
  Three years later, in direct response to the Smith decision, the 
103rd Congress enacted the Religious Freedom and Restoration Act 
(RFRA), reapplying and extending the strict scrutiny test to all 
government actions, including those of state and local governments, 
that imposed substantial burdens on religious exercise. In 1997, the 
Supreme Court ruled, in City of Boerne, Texas v. Flores, that RFRA's 
coverage of state and local governments exceeded Congressional 
authority.
  In response to the City of Boerne ruling, the Religious Liberty 
Protection Act (RLPA) was introduced during the 106th Congress. RLPA 
also reapplied a strict scrutiny standard to the actions of state and 
local governments with respect to religious exercise, but attempted to 
draw its authority from Congressional powers to attach conditions to 
federal funding programs and to regulate commerce. While the companion 
measure passed the House of Representatives overwhelmingly in July 
1999, the legislation stalled in the Senate when legitimate concerns 
were raised that RLPA, as drafted, would supersede certain civil 
rights, particularly in areas relating to employment and housing. These 
concerns were most troubling to the gay and lesbian community. 
Discrimination based upon race, national origin, and to lesser 
certainty, gender, would have been protected, regardless of RLPA, 
because the courts have recognized that preventing such discrimination 
is a sufficient enough compelling government interest to overcome the 
strict scrutiny standard that RLPA would apply to religious exercise. 
Sexual orientation and disability discrimination, however, have not 
been afforded this high level of protection.
  Mr. President, as I was considering the merits of the Religious 
Liberty Protection Act, these concerns weighted heavily upon my mind. I 
say that because I was a proud supporter of the Religious Freedom 
Restoration Act, which we passed overwhelmingly during the 103rd 
Congress only to see the Supreme Court strike it down. I was, and 
remain, particularly supportive of the Land use provisions contained 
within RFRA, and RLPA, and which constitute the first of the two major 
sections contained within the Religious Land Use and Institutionalized 
Persons Act which we are considering today. As my colleagues may know, 
land use decisions are extremely important to many of the religious 
organizations which have joined together in the effort to get this 
legislation passed and signed into law. With some affiliations, 
legislation affecting land use decisions are the most important aspects 
of protecting the free exercise of religion. This is especially true 
for the Church of Jesus Christ of Latter Day Saints. Under current law, 
the LDS Church maintains serious reservations about non-uniform zoning 
regulations throughout the country which, though religiously-neutral on 
their face, have the effect of overly-restricting the size and 
location, among other things, of churches and temples. Often times, 
such regulations simply prohibit the construction of any church or 
temple. Under the legislation which Senators Hatch and Kennedy have 
crafted, the strict scrutiny test contained within RLPA would apply to 
land use decisions. In other words, state and local zoning boards would 
be required to use the least restrictive means possible to advance a 
compelling state interest. I recognize that this is a high standard to 
meet, certainly much higher than current law, where zoning regulations 
are rarely overturned in court on religious exercise grounds. However, 
I also believe that the free exercise of religion deserves, in fact 
demands, such a high level of protection.

  As I stated earlier, protecting hard-fought civil rights, including 
those which prohibit discrimination based upon sexual orientation, 
played an important role in my desire to pursue a more narrowly-
tailored religious freedom measure. I am proud to have had the 
opportunity to work with Senators Hatch and Kennedy to accomplish the 
worthwhile endeavor of protecting legitimate civil rights while at the 
same time protecting the free exercise of religion involving land use 
decisions.
  While the first section of S. 2869 focuses upon land use, the second 
concerns the free exercise of religion as applied to institutionalized 
persons, i.e., prisoners. As my colleagues are well aware, in 1993, 
during the consideration of the Religious Freedom Restoration Act, I 
offered an amendment on the Senate floor that would have prohibited the 
applicability of RFRA to incarcerated individuals. I offered

[[Page S7779]]

that amendment for a variety of reasons, not the least of which was my 
belief, one that I continue to hold, that prisoners in this country 
have become entirely too litigious. Frivolous lawsuits seem to be the 
norm, not the exception to the rule. In 1993, more than 1,400 more 
lawsuits were filed by federal prisoners against the government, 
whether it was corrections officers, prison wardens, attorneys general, 
etc., than were filed by the government against criminals. That 
unbelievable situation within our federal judicial system, coupled with 
the high costs that my home State of Nevada was incurring defending 
frivolous prisoner lawsuits, led me to offer the amendment which would 
have prohibited the applicability of RFRA to prisoners. Regrettably, 
that effort failed. However, I remained a proud supporter of the 
underlying legislation.
  Seven years later, I am faced with a similar set of circumstances. I 
support the underlying legislation which protects the free exercise of 
religion as applied to land use decisions, but I remain concerned that 
the applicability of the strict scrutiny standard to religious exercise 
within our federal, state and local prisons will encourage prisoners, 
and the courts, to second guess the decisions of our corrections 
employees and other prison officials. Furthermore, I have been 
contacted by many corrections officers and by the American Federation 
of State, County and Municipal Employees, AFSCME, which represents more 
than 60,000 dedicated men and women who are on the front line in our 
nation's prisons. They have legitimate concerns about what impact this 
legislation may have on prison security.
  A number of corrections officers have contacted me to relay their own 
personal experiences. These dedicated men and women have real concerns. 
In fact, AFSCME recently alerted their corrections officer membership 
that this legislation was coming up for a vote, and was deluged with 
phone calls from members expressing their distress about how this bill 
might affect their ability to maintain security and protect the safety 
of the public. As you can well imagine, getting inmates to comply with 
security measures in prison is no easy task. Many prisoners will use 
any excuse to avoid searches and to evade security measures instituted 
to protect prison personnel and the general public from harm.
  While I continue to believe that we should not extend the privilege 
of a strict scrutiny standard to restrictions on the free exercise of 
religion behind the bars of our nation's prisons, I also recognize 
certain realities. The Prison Litigation Reform Act, PLRA, which we 
passed during the 104th Congress, has led many Senators to believe that 
my amendment is no longer necessary. I disagree with this conclusion 
given that PLRA applied to RFRA from April 1996, through June 1997, and 
there was no perceivable reduction in the number of prisoner RFRA 
lawsuits, or their corresponding burden. Furthermore, with specific 
regard to corrections employees, even when cases are screened and 
dismissed under the provisions of the Prison Litigation Reform Act, 
those lawsuits still show up on the public record, making it much more 
difficult for corrections employees who have been sued to obtain 
mortgages and car loans.
  Mr. President, rather than offer an amendment to strike the 
provisions of S. 2869 relating to Institutionalized Persons and risk 
the certainty that this legislation would fail this year, I have 
decided, in consultation with the managers of this legislation, to 
pursue a different approach. My distinguished colleague from Utah, the 
Chairman of the Judiciary Committee, has agreed to hold a hearing next 
year on the impact of this legislation on our nation's penal 
institutions and their dedicated employees. I am hopeful that this will 
provide the opportunity for corrections administrators and other 
personnel to air their concerns about how this legislation may affect 
security in these institutions. I would also expect several Attorneys 
General, including the Nevada State Attorney General who has made 
limiting frivolous prisoner lawsuits a priority in my home State, to 
express their opinions. I look forward to this debate, and I would 
offer my personal gratitude to Chairman Hatch for the commitment.
  I also plan on joining with Senator Hatch to request that the General 
Accounting Office conduct a detailed study as to what effects the 
Religious Freedom Restoration Act had on our nation's prisons, both 
before, during and after the application of the Prison Litigation 
Reform Act, and what effects, at the appropriate time, this legislation 
will have.
  In conclusion, Mr. President, while I retain serious reservations 
about the inclusion of prisoners in S. 2869, I commend Senators Hatch 
and Kennedy for diligently working in a bipartisan fashion to craft a 
narrowly-tailored religious freedom protection measure that will pass 
this Senate.
  Mr. HATCH. Mr. President, I thank my friend, the assistant Democratic 
leader and the Senior Senator from Nevada, for his leadership which has 
allowed us to bring S. 2869 to the floor today. He has worked closely 
with myself and Senator Kennedy, and I am sure he joins me in thanking 
the Senator for his contributions to this important legislation.
  I would also say that I recognize his commitment to reducing the 
number of frivolous lawsuits by prisoners, and that several of our 
colleagues, particularly Senator Thurmond, have raised serious concerns 
relating to the Institutionalized Persons section of the bill. I 
respect these concerns, and, as I have already relayed to the Senator, 
I am committed to holding a hearing next year in the Judiciary 
Committee on these matters.
  Mr. REID. I thank the distinguished Chairman of the Judiciary 
Committee and I look forward to that hearing next year.
  I also ask if it is the chairman's intention to join with me in 
requesting that the General Accounting Office conduct a study on the 
effects that the Religious Freedom and Restoration Act has had, and 
that the Religious Land Use and Institutionalized Persons Act will have 
on our nation's prisons, both at the federal and state level, including 
the dedicated men and women who serve this country as corrections 
employees.
  Mr. HATCH. The Senator is correct to state that I intend to request 
such a study from the GAO.
  Mr. REID. Again, I thank the distinguished chairman. I also reiterate 
my appreciation and congratulations to him and Senator Kennedy for the 
outstanding work they have done on a bipartisan basis to bring this 
legislation to the floor.
  Mr. HATCH. I ask unanimous consent that the bill be read the third 
time and passed, the motion to reconsider be laid upon the table, and 
any statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 2869) was read the third time and passed, as follows:

                                S. 2869

       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 Land Use and 
     Institutionalized Persons Act of 2000''.

     SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.

       (a) Substantial Burdens.--
       (1) General rule.--No government shall impose or implement 
     a land use regulation in a manner that imposes a substantial 
     burden on the religious exercise of a person, including a 
     religious assembly or institution, unless the government 
     demonstrates that imposition of the burden on that person, 
     assembly, or institution--
       (A) is in furtherance of a compelling governmental 
     interest; and
       (B) is the least restrictive means of furthering that 
     compelling governmental interest.
       (2) Scope of application.--This subsection applies in any 
     case in which--
       (A) the substantial burden is imposed in a program or 
     activity that receives Federal financial assistance, even if 
     the burden results from a rule of general applicability;
       (B) the substantial burden affects, or 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; or
       (C) the substantial burden is imposed in the implementation 
     of a land use regulation or system of land use regulations, 
     under which a government makes, or has in place formal or 
     informal procedures or practices that permit the government 
     to make, individualized assessments of the proposed uses for 
     the property involved.
       (b) Discrimination and Exclusion.--
       (1) Equal terms.--No government shall impose or implement a 
     land use regulation

[[Page S7780]]

     in a manner that treats a religious assembly or institution 
     on less than equal terms with a nonreligious assembly or 
     institution.
       (2) Nondiscrimination.--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.
       (3) Exclusions and limits.--No government shall impose or 
     implement a land use regulation that--
       (A) totally excludes religious assemblies from a 
     jurisdiction; or
       (B) unreasonably limits religious assemblies, institutions, 
     or structures within a jurisdiction.

     SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF INSTITUTIONALIZED 
                   PERSONS.

       (a) General Rule.--No government shall impose a substantial 
     burden on the religious exercise of a person residing in or 
     confined to an institution, as defined in section 2 of the 
     Civil Rights of Institutionalized Persons Act (42 U.S.C. 
     1997), even if the burden results from a rule of general 
     applicability, unless the government demonstrates that 
     imposition of the burden on that person--
       (1) is in furtherance of a compelling governmental 
     interest; and
       (2) is the least restrictive means of furthering that 
     compelling governmental interest.
       (b) Scope of Application.--This section applies in any case 
     in which--
       (1) the substantial burden is imposed in a program or 
     activity that receives Federal financial assistance; or
       (2) the substantial burden affects, or removal of that 
     substantial burden would affect, commerce with foreign 
     nations, among the several States, or with Indian tribes.

     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) Burden of Persuasion.--If a plaintiff produces prima 
     facie evidence to support a claim alleging a violation of the 
     Free Exercise Clause or a violation of section 2, the 
     government shall bear the burden of persuasion on any element 
     of the claim, except that the plaintiff shall bear the burden 
     of persuasion on whether the law (including a regulation) or 
     government practice that is challenged by the claim 
     substantially burdens the plaintiff's exercise of religion.
       (c) Full Faith and Credit.--Adjudication of a claim of a 
     violation of section 2 in a non-Federal forum shall not be 
     entitled to full faith and credit in a Federal court unless 
     the claimant had a full and fair adjudication of that claim 
     in the non-Federal forum.
       (d) Attorneys' Fees.--Section 722(b) of the Revised 
     Statutes (42 U.S.C. 1988(b)) is amended--
       (1) by inserting ``the Religious Land Use and 
     Institutionalized Persons Act of 2000,'' after ``Religious 
     Freedom Restoration Act of 1993,''; and
       (2) by striking the comma that follows a comma.
       (e) Prisoners.--Nothing in this Act shall be construed to 
     amend or repeal the Prison Litigation Reform Act of 1995 
     (including provisions of law amended by that Act).
       (f) Authority of United States To Enforce This Act.--The 
     United States may bring an action for injunctive or 
     declaratory relief to enforce compliance with this Act. 
     Nothing in this subsection shall be construed to deny, 
     impair, or otherwise affect any right or authority of the 
     Attorney General, the United States, or any agency, officer, 
     or employee of the United States, acting under any law other 
     than this subsection, to institute or intervene in any 
     proceeding.
       (g) Limitation.--If the only jurisdictional basis for 
     applying a provision of this Act is a claim that a 
     substantial burden by a government on religious exercise 
     affects, or that removal of that substantial burden would 
     affect, commerce with foreign nations, among the several 
     States, or with Indian tribes, the provision shall not apply 
     if the government demonstrates that all substantial burdens 
     on, or the removal of all substantial burdens from, similar 
     religious exercise throughout the Nation would not lead in 
     the aggregate to a substantial effect on commerce with 
     foreign nations, among the several States, or with Indian 
     tribes.

     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 a 
     government to incur expenses in its own operations to avoid 
     imposing 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 or 
     practice that results in a substantial burden on religious 
     exercise, by retaining the policy or practice and exempting 
     the substantially burdened religious exercise, by providing 
     exemptions from the policy or practice for applications that 
     substantially burden religious exercise, or by any other 
     means that eliminates the substantial burden.
       (f) Effect on Other Law.--With respect to a claim brought 
     under this Act, proof that a substantial burden on a person's 
     religious exercise affects, or removal of that burden would 
     affect, commerce with foreign nations, among the several 
     States, or with Indian tribes, shall not establish any 
     inference or presumption that Congress intends that any 
     religious exercise is, or is not, subject to any law other 
     than this Act.
       (g) Broad Construction.--This Act shall be construed in 
     favor of a broad protection of religious exercise, to the 
     maximum extent permitted by the terms of this Act and the 
     Constitution.
       (h) No Preemption or Repeal.--Nothing in this Act shall be 
     construed to preempt State law, or repeal Federal law, that 
     is equally as protective of religious exercise as, or more 
     protective of religious exercise than, this Act.
       (i) 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. 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 a 
     subdivision of a State'' and inserting ``or of a covered 
     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 ``religious exercise, as defined in section 8 of 
     the Religious Land Use and Institutionalized Persons Act of 
     2000.''.
       (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.

       In this Act:
       (1) Claimant.--The term ``claimant'' means a person raising 
     a claim or defense under this Act.
       (2) Demonstrates.--The term ``demonstrates'' means meets 
     the burdens of going forward with the evidence and of 
     persuasion.
       (3) Free exercise clause.--The term ``Free Exercise 
     Clause'' means that portion of the first amendment to the 
     Constitution that proscribes laws prohibiting the free 
     exercise of religion.
       (4) Government.--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, 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 4(b) and 5, includes the 
     United States, a branch, department, agency, instrumentality, 
     or official of the United States, and any other person acting 
     under color of Federal law.
       (5) Land use regulation.--The term ``land use regulation'' 
     means a zoning or landmarking law, or the application of such 
     a law, that limits or restricts a claimant's use or 
     development of land (including a structure affixed to land), 
     if the claimant has an ownership, leasehold, easement, 
     servitude, or other property interest in the regulated land 
     or a contract or option to acquire such an interest.
       (6) Program or activity.--The term ``program or activity'' 
     means all of the operations of any entity as described in 
     paragraph (1) or (2) of section 606 of the Civil Rights Act 
     of 1964 (42 U.S.C. 2000d-4a).
       (7) Religious exercise.--
       (A) In general.--The term ``religious exercise'' includes 
     any exercise of religion,

[[Page S7781]]

     whether or not compelled by, or central to, a system of 
     religious belief.
       (B) Rule.--The use, building, or conversion of real 
     property for the purpose of religious exercise shall be 
     considered to be religious exercise of the person or entity 
     that uses or intends to use the property for that purpose.

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