[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.

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