[Congressional Record Volume 146, Number 114 (Friday, September 22, 2000)]
[Extensions of Remarks]
[Pages E1563-E1564]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1563]]



    THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000

                                 ______
                                 

                         HON. CHARLES T. CANADY

                               of florida

                    in the house of representatives

                      Thursday, September 21, 2000

  Mr. CANADY of Florida. Mr. Speaker, tomorrow the President of the 
United States will sign into law the Religious Land Use and 
Institutionalized Persons Act, a bill I was proud to sponsor with my 
colleagues the gentleman from New York, Mr. Nadler, and the gentleman 
from Texas, Mr. Edwards. This Act, which will protect the free exercise 
of religion from unnecessary government interference, is a product of 
the diligent efforts of more than 70 religious and civil rights groups 
from all points on the political spectrum. I commend these groups for 
their work in helping to bring about this important new law.
  The Religious Land Use and Institutionalized Persons Act, S. 2869, is 
patterned after an earlier, more expansive bill, H.R. 1691, which 
passed the House of Representatives with an overwhelming vote after 
several committee hearings, two markups, and the filing of a Committee 
Report. S. 2869, on the other hand, passed the Senate and the House 
without committee action and by unanimous consent. Because it is not 
accompanied by any recorded legislative history, it is appropriate that 
I submit at this time a Section-by-Section Analysis of the S. 2869:

        The Religious Land Use and Institutionalized Persons Act

       Section 1. This section provides that the title of the Act 
     is the Religious Land Use and Institutionalized Persons Act 
     of 2000.
       Section 2(a). The ``General Rule'' in Sec. 2(a)(1) tracks 
     the substantive language of the Religious Freedom Restoration 
     Act (``RFRA''), providing that land use regulation shall not 
     be applied in ways that substantially burden religious 
     exercise, unless imposing that burden on the person 
     complaining serves a compelling interest by the least 
     restrictive means. The provision is substantially the same as 
     Sec. Sec. 2(a) and 2(b) of H.R. 1691, except that its scope 
     has been restricted to land use. H.R. 1691 is the broader 
     Religious Liberty Protection Act, which passed the House and 
     is the subject of H.R. Report 106-219.
       The phrase ``in furtherance of a compelling governmental 
     interest'' is taken directly from RFRA, which was enacted in 
     1993; the phrase was and is intended to codify the 
     traditional compelling interest test. The Act does not use 
     this phrase in the sense in which the Supreme Court 
     interpreted the verb ``furthers'' in City of Erie v. Pap's 
     A.M., 120 S.Ct. 1382 (2000), a case that did not involve the 
     compelling interest test. In that context, the Court held 
     that even a marginal contribution to the achievement of a 
     government interest ``furthers'' that interest. Id. at 1387. 
     This statutory language was drafted long before Paps, and 
     should not be read in light of Pap's.
       Section 2(a)(2) confines the General Rule to cases within 
     Congress's constitutional authority under the Commerce 
     Clause, the Spending Clause, or Section 5 of the Fourteenth 
     Amendment. Section 2(a)(2)(A) applies the General Rule to 
     cases in which the burden is imposed in a program or activity 
     that receives federal financial assistance. This provision 
     tracks other civil rights legislation based on the Spending 
     Clause, and corresponds to Sec. 2(a)(1) of H.R. 1691.
       Section 2(a)(2)(B) applies the General Rule to cases in 
     which the substantial burden affects commerce, or removal of 
     the burden would affect commerce. This so-called 
     jurisdictional element must be proved in each case under this 
     subsection as an element of the cause of action. This 
     subsection does not treat religious exercise itself as 
     commerce, but it recognizes that the exercise of religion 
     sometimes requires commercial transactions, as in the 
     construction, purchase, or rental of buildings. This section 
     corresponds to Sec. 2(a)(2) of H.R. 1691.
       Section 2(a)(2)(C) applies the General Rule to cases in 
     which the government has authority to make individualized 
     assessments of the uses to which the property is put. Unlike 
     the Commerce and Spending Clause sections, this section does 
     not reach generally applicable laws. Laws that provide for 
     individualized assessments of proposed uses are not generally 
     applicable. This section corresponds to Sec. 3(b)(1)(A) of 
     H.R. 1691.
       Section 2(b). Section 2(b) codifies parts of the Supreme 
     Court's constitutional tests as applied to land use 
     regulation. These provisions directly address some of the 
     more egregious forms of land use regulation, and provide more 
     precise standards than the substantial burden and compelling 
     interest tests. These provisions overlap, but some cases may 
     fall under only one section, or the elements of one section 
     may be easier to prove than the elements of other sections.
       Section 2(b)(1) preempts land use regulation that treats a 
     religious assembly or institution on less than equal terms 
     with a nonreligious assembly or institution. Section 2(b)(2) 
     preempts land use regulation that discriminates against any 
     religious assembly or institution on the basis of religion or 
     religious denomination. These provisions substantially 
     overlap, but section 2(b)(1) more squarely addresses the case 
     in which the unequal treatment of different land uses does 
     not fall into any apparent pattern. These sections correspond 
     to Sec. Sec. 3(b)(1)(B) and 3(b)(1)(C) of H.R. 1691.
       Section 2(b)(3) provides that government may not 
     unreasonably exclude religious assemblies from a 
     jurisdiction, or unreasonably limit religious assemblies, 
     institutions, or structures within the jurisdiction. What is 
     reasonable must be determined in light of all the facts, 
     including the actual availability of land and the economics 
     of religious organizations. This section corresponds to 
     Sec. 3(b)(1)(D) of H.R. 1691.
       Section 2(b)(3)(A) is the only provision of Sec. 2 that is 
     confined to ``assemblies'' and does not explicitly include 
     institutions or structures. The subsection is limited in this 
     way because there may conceivably be very small towns that 
     exclude all institutions and all structures
       Section 3. Section 3(a) applies the RFRA standard to 
     protect the religious exercise of persons residing in or 
     confined to institutions defined in the Civil Rights of 
     Institutionalized Persons Act, such as prisons and mental 
     hospitals. Section 3(b) confines the section to cases within 
     Congress' constitutional authority under the Commerce Clause 
     and the Spending Clause. The RFRA standard, the Commerce 
     Clause standard, and the Spending Clause standard in Sec. 3 
     are identical to the parallel provisions in Sec. 2, and the 
     same explanatory comments apply. These provisions are 
     substantially the same as Sec. Sec. 2(a) and 2(b) of H.R. 
     1691, except that their scope has been restricted to 
     institutionalized persons.
       Section 4. Section 4(a) tracks RFRA, creating a private 
     cause of action for damages, injunction, and declaratory 
     judgment, and a defense to liability. These claims and 
     defenses lie against a government, but the Act does not 
     abrogate the Eleventh Amendment immunity of states. In the 
     case of violation by a state, the Act must be enforced by 
     suits against state officials or employees. This section is 
     identical to Sec. 4(a) of H.R. 1691.
       Section 4(b) simplifies enforcement of the Free Exercise 
     Clause as interpreted by the Supreme Court. Employment 
     Division v. Smith, 494 U.S. 872 (1990), held that 
     governmental burdens on religious exercise, without more, 
     receive only rational-basis review. But this rule has 
     important exceptions; the Court applies the compelling 
     interest test to laws that are not neutral and generally 
     applicable, to laws that provide for individualized 
     assessment of regulated conduct, to regulation motivated by 
     hostility to religion, to cases involving hybrid claims that 
     implicate both the Free Exercise Clause and some other 
     constitutional right, and to other exceptional cases. These 
     exceptions present issues in which the facts are uncertain 
     and difficult to prove, or in which essential information is 
     controlled by the government. Section 4(b) is addressed 
     principally to these issues about whether one of these 
     exceptions applies. It provides generally that if a 
     complaining party produces prima facie evidence of a free 
     exercise violation, the government then bears the burden of 
     persuasion on all issues except burden on religion. This 
     section is substantially the same as Sec. 3(a) of H.R. 1691.
       Section 4(c) requires a full and fair opportunity to 
     litigate land use claims arising under section 2. This is 
     based on existing law; no judgment is entitled to full faith 
     and credit if there was not a full and fair opportunity to 
     litigate. Kremer v. Chemical Construction Corp., 456 U.S. 
     461, 480-81 (1982), interpreting 28 U.S.C. Sec. 1738 (1994). 
     The rule has special application in this context, where a 
     zoning board may refuse to entertain a federal claim because 
     of limits on its jurisdiction, or may confine its inquiry to 
     the individual parcel and exclude evidence of how places of 
     secular assembly were treated. If a state court then confines 
     itself to the record before the zoning board, there has been 
     no opportunity to litigate essential elements of the federal 
     claim, and the resulting judgment is not entitled to full 
     faith and credit in a federal suit under section 2
       Section 4(d) tracks RFRA and provides that a successful 
     plaintiff may recover attorneys' fees. This section is 
     substantially the same as Sec. 4(b)(1) of H.R. 1691.

[[Page E1564]]

       Section 4(e) makes explicit that the bill does not ``amend 
     or repeal the Prison Litigation Reform Act.'' The PLRA is 
     therefore fully available to deal with frivolous prisoner 
     claims. This section is based on Sec. 4(c) of H.R. 1691.
       Section 4(f) expressly authorizes the United States to sue 
     for injunctive or declaratory relief to enforce the Act. The 
     United States has similar authority to enforce other civil 
     rights acts. This section is based on Sec. Sec. 2(c) and 4(d) 
     of H.R. 1691.
       Section 4(g). If a claimant proves an effect on commerce in 
     a particular case, the courts assume or infer that all 
     similar effects will, in the aggregate, substantially affect 
     commerce. This section gives government an opportunity to 
     rebut that inference. Government may show that even in the 
     aggregate, there is no substantial effect on commerce. Such 
     an opportunity to rebut the usual inference is not 
     constitutionally required, but is provided to create an extra 
     margin of constitutionality in potentially difficult cases. 
     This section had no equivalent in H.R. 1691.
       Section 5. This section states several rules of 
     construction designed to clarify the meaning of all the other 
     provisions. Section 5(a) provides that nothing in the Act 
     authorizes government to burden religious belief, this tracks 
     RFRA. Section 5(b) provides that nothing in the Act creates 
     any basis for restricting or burdening religious exercise or 
     for claims against a religious organization not acting under 
     color of law. These two subsections serve the Act's central 
     purpose of protecting religious liberty, and avoid any 
     unintended consequence of reducing religious liberty. They 
     are substantially identical to Sec. Sec. 5(a) and 5(b) of 
     H.R. 1691.
       Sections 5(c) and 5(d) have been carefully negotiated to 
     keep this Act neutral on all disputed questions about 
     government financial assistance to religious organizations 
     and religious activities. Section 5(c) states neutrality on 
     whether such assistance can be provided at all; Sec. 5(d) 
     states neutrality on the scope of existing authority to 
     regulate private organizations that accept such aid. 
     Litigation about such aid will be conducted under other 
     theories and will not be affected by this bill. They are 
     identical to Sec. 5(c) and 5(d) of H.R. 1691.
       Section 5(e) emphasizes what would be true in any event--
     that this bill does not require governments to pursue any 
     particular public policy or to abandon any policy, and that 
     each government is free to choose its own means of 
     eliminating substantial burdens on religious exercise. The 
     bill preempts laws that unnecessarily burden the exercise of 
     religion, but it does not require the states to enact or 
     enforce a federal regulatory program. This section closely 
     tracks Sec. 5(e) of H.R. 1691.
       Section 5(f) provides that proof of an effect on commerce 
     under Sec. 2(a)(2)(B) does not
       Section 5(g) provides that the Act should be broadly 
     construed to protect religious exercise to the maximum extent 
     permitted by its terms and the Constitution. Section 5(i) 
     provides that each provision of the Act is severable from 
     every other provision. These sections are substantially the 
     same as Sec. Sec. 5(g) and 5(h) of H.R. 1691.
       Section 6. This section is taken from RFRA. It was 
     carefully negotiated to ensure that the Act is neutral on all 
     disputed issues under the Establishment Clause. It is more 
     general than Sec. Sec. 5(c) and 5(d), which were negotiated 
     in light of this bill's reliance on the Spending Clause. This 
     section is substantially identical to Sec. 6 of RFRA.
       Section 7. Section 7 amends the Religious Freedom 
     Restoration Act. Sections 7(a)(1) and (2) and 7(b) 
     collectively conform RFRA to the Supreme Court's decision in 
     City of Boerne v. Flores, 521 U.S. 507 (1997), eliminating 
     all references to the states and leaving RFRA applicable only 
     to the federal government. Section 7(a)(3) clarifies the 
     definition of ``religious exercise,'' conforming the RFRA 
     definition to the definition in this Act. These sections are 
     substantially the same as Sec. 7 of H.R. 1691, but the 
     incorporated definition of religious exercise has been 
     changed in Sec. 8.
       Section 8. This section defines important terms used in the 
     Act. Section 8(l) defines ``claimant'' to mean a person 
     raising either a claim or a defense under the Act. This 
     section had no equivalent in H.R. 1691.
       The definition of ``demonstrates'' in Sec. 8(2) is taken 
     verbatim from RFRA. It includes both the burden of going 
     forward and the burden of persuasion. This section is 
     identical to Sec. 8(5) of H.R. 1691.
       Section 8(3) defines ``Free Exercise Clause'' to mean the 
     First Amendment's ban on laws prohibiting the free exercise 
     of religion. This section is substantially the same as 
     Sec. 8(2) of H.R. 1691.
       The definition of ``government'' in Sec. 8(4)(A) includes 
     the state and local entities previously covered by RFRA. 
     ``Government'' does not include the United States and its 
     agencies, because the United States remains subject to RFRA. 
     But a further definition in Sec. 8(4)(B) does include the 
     United States and its agencies for the purposes of 
     Sec. Sec. 4(b) and (5), because the burden-shifting provision 
     in Sec. 4(a), and some of the rules of construction in 
     Sec. 5, do not appear in RFRA. These definitions are 
     substantially the same as those Sec. 8(6) of H.R. 1691.
       Section 8(5) defines ``land use regulation'' to include 
     only zoning and landmarking laws
       Section 8(6) incorporates the relevant parts of the 
     definition of program or activity from Title VI of the Civil 
     Rights Act of 1964. This definition ensures that federal 
     regulation is confined to the program or activity that 
     receives federal aid, and does not extend to everything a 
     government does. This section is substantially the same as 
     Sec. 8(4) of H.R. 1691.
       Section 8(7) clarifies the meaning of ``religious 
     exercise.'' The section does not attempt a global definition; 
     it relies on the meaning of religious exercise in existing 
     case law, subject to clarification of two important issues 
     that generated litigation under RFRA. First, religious 
     exercise includes any exercise of religion, and need not be 
     compulsory or central to the claimant's religious belief 
     system. This is consistent with RFRA's legislative history, 
     but much unnecessary litigation resulted from the failure to 
     resolve this question in statutory text. This definition does 
     not change the rule that insincere religious claims are not 
     religious exercise at all, and thus are not protected. Nor 
     does it change the rule that an individual's religious belief 
     or practice need not be shared by other adherents of a larger 
     faith to which the claimant also adheres.
       Second, the use, building, or conversion of real property 
     for religious purposes is religious exercise of the person or 
     entity that intends to use the property for that purpose. It 
     is only the use, building, or conversion for religious 
     purposes that is protected, and not other uses or portions of 
     the same property. Thus, if a commercial enterprise builds a 
     chapel in one wing of the building, the chapel is protected 
     if the owner is sincere about its religious purposes, but the 
     commercial enterprise is not protected. Similarly if 
     religious services are conducted once a week in a building 
     otherwise devoted to secular commerce, the religious services 
     may be protected but the secular commerce is not. Both parts 
     of this definition are based on Sec. 8(l) of H.R. 1691.

     

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