[Congressional Record Volume 146, Number 101 (Tuesday, September 5, 2000)]
[Senate]
[Pages S7991-S7993]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000
Mr. THURMOND. I rise today to express reservations about S. 2869, the
Religious Land Use and Institutionalized Persons Act of 2000, and the
larger issue of the impact of religious liberty legislation in the
context of prisons and the military.
One of the founding principles of our Nation involves the freedom to
worship. I have always been a strong supporter of this most basic
right. For example, for many years I have introduced a constitutional
amendment to permit prayer in public schools, and I would be very
pleased if we could pass that amendment.
In the closing hours of the Senate before the August recess, the
Senate considered the Religious Land Use and Institutionalized Persons
Act, which is essentially an attempt to change the way the courts
interpret the Free Exercise Clause of the Constitution regarding
prisons and land use regulations throughout the Nation. Ever since the
Supreme Court held the Religious Liberty Protection Act
unconstitutional as applied to the states, supporters of this
legislation have tried to reverse that decision. Just as the Religious
Liberty Protection Act has been held unconstitutional as applied to the
states and its legality is still unclear regarding the federal
government, there are legitimate issues regarding whether S. 2869 is
constitutional. Moreover, there are serious questions about whether
this bill is good public policy, especially as it relates to the
prisons and jails across America.
I first wish to note what this bill is not. It is not directed at
laws that intentionally discriminate against a particular religion or
even all religions. We all recognize that laws that intentionally
discriminate against religious groups cannot be tolerated, and the
courts already routinely invalidate such laws. Rather, this bill is
directed at laws that apply to everyone equally, but have the effect of
burdening someone's exercise of his or her religion. It is this
indirect impact that the supporters are trying to address. However, in
the process, the bill is entirely inconsistent with the principles of
federalism, and it creates significant problems in many areas.
I would like to specifically address prisons. The safe and secure
operation of prisons is an extremely difficult and complex task. I fear
that establishing new legal rights for inmates through this law will
only make that job more difficult and more dangerous.
The Supreme Court under O'Lone and other cases established a
reasonable standard for evaluating religious freedom claims in prison,
balancing the needs of inmates and the institution. Then, in 1993, the
Religious Freedom Restoration Act imposed a very difficult burden on
correctional officials when prisoners made demands that they claimed
were based on their religious faith. Although R.F.R.A. was held
unconstitutional a few years later, the bill will again upset the
balance.
Applying this legislation in prison has the real potential to
undermine safety and security. Inmates have used religion as a cover to
organize prison uprisings, get drugs into prison, promote gang
activity, and interfere in important prison health regulations.
Additional legal protections will make it much harder for corrections
officials to control these abuses of religious rights.
One example of a successful prisoner lawsuit before R.F.R.A. was held
unconstitutional concerns an inmate who refused to take a tuberculosis
test in Jolly v. Coughlin. The New York prison system wished to prevent
the spread of T.B. to staff and inmates, so it implemented a mandatory
testing program to screen inmates for T.B. so the disease could be
treated before it became active and contagious. The plaintiff refused
to take the test based on his religious beliefs, and won. The courts
permitted the inmate to violate this very reasonable health policy.
This is a clear interference with prison safety and security. There is
no excuse for courts to allow inmates to tell authorities what health
policies they will or will not follow.
This case is just an example of how S. 2869 has the potential to put
courts back in the business of second-guessing correctional officials
and micromanaging state and local jails. There should be deference to
the expertise and judgement of prison administrators. These
professionals know what is needed to protect the safety and security of
inmates, staff, and the public.
The possibilities for inmate demands for religious accommodation
under S. 2869 are limited only by the criminal's imagination. As the
Attorney General of Ohio said in a letter last year, ``We have seen
inmates sue the states for the `right' to burn Bibles, the `right' to
engage in animal sacrifices, the `right' to burn candles for Satanist
services, the `right' to certain special diets, or the `right' to
distribute racist materials.''
There was a large increase in prisoner demands and a rise in lawsuits
based on religious liberty while R.F.R.A. was in effect. The Solicitor
of Ohio testified a few years ago that there were 254 inmate R.F.R.A.
cases in the Lexis computer database during the three years the law
applied to the states. This does not include cases that were not
included in the database, and some of the cases listed actually
included many inmates because the cases were class action suits.
Winning lawsuits will encourage inmates to challenge authority more
and more often in day to day prison life, and S. 2869 will make it much
more likely that they will win. However, even if a prisoner's claim
fails, it costs the prison much time and money to defend, at a time
when prison costs are rising. The new legal standard will make it much
harder to get cases dismissed before trial, greatly increasing the
diversion of time and resources.
As former Senator Alan Simpson said during the debate on R.F.R.A. in
1993, applying this legislation to prisons will impose ``an unfunded
Federal mandate requiring the State and local governments to pay for
more frequent, expensive, and protracted prisoner suits in the name of
religious freedom.''
Some have argued that the fact that S. 2869 must comply with the
Prison Litigation Reform Act solves any problems regarding inmates.
Unfortunately, as the National Association of Attorneys General has
recognized, this is incorrect. It is true that the P.L.R.A. has limited
the number of frivolous lawsuits inmates can bring. However, under this
new legislation, lawsuits that formerly were frivolous now will have
merit because this bill changes the legal standard under which
religious claims are considered. Because S. 2869 makes it much easier
for prisoners to win their lawsuits, the P.L.R.A. will be of little
help.
Not all prisoners abuse the law. Indeed, it is clear that religion
benefits prisoners. It helps rehabilitate them, making them less likely
to commit crime after they are released. In fact, it is ironic that S.
2869 may actually diminish the quality and quantity of religious
services in prison. If R.F.R.A. is any indication, requests for
religious accommodation will rise dramatically for bizarre, obscure or
previously unknown religious claims. These types of claims divert the
attention and resources of prison chaplains away from delivering
religious services. The great majority of inmates who legitimately wish
to practice their religious beliefs will be harmed by this law.
I am pleased that the General Accounting Office will be conducting a
study regarding the impact of religious liberty legislation in the
prison environment. We must continue to review this important issue
very closely.
Additionally, I wish to discuss my concerns regarding the effect of
religious rights legislation in the military. While S. 2869 does not
directly impact the Armed Services, the Administration considers the
predecessor to S. 2869, the Religious Freedom Restoration Act, to be
constitutional and binding on all of the federal government,
[[Page S7992]]
including the military. I strongly believe that the military should be
excluded from any legislation creating special statutory religious
rights.
In discussing religious rights, it is important to note that the Free
Exercise Clause of the Constitution has never provided individuals
unlimited rights. The Free Exercise Clause must be balanced against the
interests and needs of society in various circumstances.
Government interests are especially significant outside of general
civilian life, and the military is the best example. Here, governmental
interests are paramount for a variety of reasons that the courts have
always recognized. The courts have always been tasked with balancing
the rights of individuals against the interests of society. In this
area, I believe the courts have struck a good balance.
In Goldman v. Weinberger, the key legal authority on this issue, the
Supreme Court reaffirmed its long-standing position and made clear that
courts must defer to the professional judgment of the military
regarding the restrictions it places on religious practices. The
military, not the courts, generally should decide what is permitted and
what is not permitted.
This does not mean that soldiers have no religious rights under the
Constitution, but the courts generally must defer to the professional
judgement of the military on applying these rights in the military.
This is essential because of the military's need to foster discipline,
unity, and respect in achieving its mission of protecting America's
national security.
As the court in Goldman explained, ``The military is, by necessity, a
special society separate from civilian society. . . . The military must
insist upon a respect for duty and a discipline without counterpart in
civilian life. . . . The essence of military service is the
subordination of the desires and interest of the individual to the
needs of the service.''
The R.F.R.A. entirely rejected this approach. It put the courts in
the business of deciding what religious activities should be permitted
in the military and what should not. It does this by establishing a
very high legal standard, called the strict scrutiny test, that must be
met before the government, including the military, may enforce a law or
regulation that interferes in any person's exercise of their religious
rights. Under this test, a restriction on religious practices is
permitted only if it is narrowly tailored to achieve a compelling
governmental interest. This is a very difficult legal standard to meet
and is an unrealistic and dangerous burden for the military. However,
under this law, the courts must treat all requests for religious
practice under the same standard, whether it is the Armed Forces or
anywhere else in society.
The R.F.R.A. does not in any way recognize the special circumstances
of the military. This is a serious mistake. There is simply no reason
why the courts should be in the business of second-guessing how the
military handles these matters.
In the past, the Department of Defense has recognized this problem. A
comprehensive Defense Department study of religion in the military in
1985 concluded that the ``strict scrutiny'' test should not apply to
the military. It concluded that adopting this standard ``would be a
standing invitation to a wholesale civilian judicial review of internal
military affairs. . . . It would invite use of the results in civilian
cases as a model for the military context when, in fact, the
differences between civilian and military society are fundamental.
Adoption of the civilian `strict scrutiny' standard poses grave dangers
to military discipline and interferes with the ability of the military
to perform its mission.''
The Armed Forces today fully accommodates religious practices. In
fact, I have concerns about whether the Defense Department is too
generous in what it is permitting on military bases today. For example,
as reported last year in the Washington Post, Army soldiers who
consider themselves to be members of the Church of Wicca are carrying
out their ceremonies at Fort Hood in Texas. The Wiccas practice
witchcraft. At Fort Hood, they are permitted to build fires on Army
property and perform their rituals involving fire, hooded robes, and
nine inch daggers. An Army chaplain is even present.
More recently, I read about an ongoing case where a Marine soldier
disobeyed a direct order against leaving his military base because the
date fell on the new moon, a holy day for Wiccas, and he said he needed
to get copper sulfate to perform a ritual. This is just the type of
case that a soldier could win under R.F.R.A.
I do not believe that the Armed Forces should accommodate the
practice of witchcraft at military facilities. The same applies to the
practices of other fringe groups such as Satanists and cultists. Racist
groups could also claim religious protection. For the sake of the
honor, prestige, and respect of our military, there should be no
obligation to permit such activity.
Members of some groups, such as the Native American Church and
Rastafarians, use controlled substances in their religious ceremonies.
The military today broadly allows the use of the drug peyote for
soldiers who claim to be members of the Native American Church. Peyote,
a controlled substance, is a hallucinogenic drug. According to a 1997
letter from the National Institute on Drug Abuse, peyote appears to
cause an acute psychotic state for up to four hours after it is
ingested. The long term effects of its use, especially its repeated
use, are simply not known, including the possibility of flashbacks and
mood instability. As part of the Authorization Bill for the Department
of Defense, I am requiring that the Defense Department conduct a study
on this drug. It simply has no legitimate place within our Armed
Forces. This is an excellent example of the military going too far
today in its efforts to accommodate religious practices.
Another problem from the military's efforts to accommodate fringe
groups is that it can harm recruitment. Last year, various religious
organizations called for a boycott of the Armed Forces because of its
accommodation of these fringe religious groups. The military is having
significant difficulty today with recruitment for our all-volunteer
force, and the accommodation of groups such as the Wiccas further
complicates this problem.
Without R.F.R.A., it is clear that the military could severely limit
or prevent practices such as these if it wished. It is less clear
exactly what limits the military can impose under R.F.R.A., to the
extent that the law is constitutional as applied to the Federal
Government.
When I have raised concerns about these matters with Defense
Department officials, I have been told that the military will not
permit soldiers to practice beliefs that pose a threat to good order
and discipline. Unfortunately, that is not the legal standard the
Department is faced with under R.F.R.A. Under religious liberty laws,
the courts make the decision based on whether the religious restriction
is the least restrictive means to accomplish a compelling governmental
interest, not whether the restriction is based on good order and
discipline.
Religious liberty legislation could cause many problems for the
military that have not been considered. Although there have been few
claims under R.F.R.A. in the military to date, this could easily change
in the future. Soldiers who adhere to various faiths, including many
established religions, could make claims that violate important, well-
established military policies. For example, soldiers who are
Rastafarian can claim protection to wear beards or dread-locks, and
Native Americans can claim protection for long hair. Also, Rastafarians
may claim an exemption from routine medical care that require
injections, such as immunizations. Although it is my understanding that
the military does not accommodate exemptions from grooming standards or
receiving health care, soldiers could bring such claims and likely win.
To date, inmates or guards in prisons have won cases similar to these
in court, and there is little reason to expect that cases brought by
soldiers would turn out any differently.
Soldiers brought lawsuits in the 1960s seeking exemptions from
immunizations and exemptions from work on certain days based on
religious practices, but these claims failed under the deferential
standard. However, under R.F.R.A., there are endless opportunities for
religious practices to interfere
[[Page S7993]]
in important military policies and practices, and it is much more
likely that such cases would be successful.
One such matter arose during the Persian Gulf War. At the time, the
military imposed restrictions on Christian and Jewish observances and
the display of religious symbols for soldiers stationed in Saudi
Arabia. This was important so that our troops would not violate the
laws and religious decrees of the host nation. There was some talk of
lawsuits against our military because of these restrictions. Although
this matter arose before R.F.R.A. was enacted, such a lawsuit is much
more likely to be successful today.
In short, it is not in the best interest of our nation and national
security for religious liberty legislation to apply to our Armed
Forces. Decisions about religious accommodation should be left to the
military, not the courts.
I will continue to monitor this most serious matter. It is my sincere
hope that the next Administration will recognize the seriousness of
this issue and support excluding the military from legislation that
creates special religious rights.
____________________