[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
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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
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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
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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.
____________________