[House Report 106-219]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-219
======================================================================
RELIGIOUS LIBERTY PROTECTION ACT OF 1999
_______
July 1, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Canady of Florida, from the Committee on the Judiciary, submitted
the following
R E P O R T
together with
DISSENTING AND ADDITIONAL DISSENTING VIEWS
[To accompany H.R. 1691]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 1691) to protect religious liberty, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 5
Hearings......................................................... 25
Committee Consideration.......................................... 26
Vote of the Committee............................................ 26
Committee Oversight Findings..................................... 26
Committee on Government Reform and Oversight Findings............ 26
New Budget Authority and Tax Expenditures........................ 26
Congressional Budget Office Cost Estimate........................ 26
Constitutional Authority Statement............................... 27
Section-by-Section Analysis and Discussion....................... 27
Dissenting Views................................................. 32
Additional Dissenting Views...................................... 40
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Religious Liberty Protection Act of
1999''.
SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.
(a) General Rule.--Except as provided in subsection (b), a government
shall not substantially burden a person's religious exercise--
(1) in a program or activity, operated by a government, that
receives Federal financial assistance; or
(2) in any case in which the substantial burden on the
person's religious exercise affects, or in which a 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.
(b) Exception.--A government may substantially burden a person's
religious exercise if the government demonstrates that application of
the burden to the person--
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that
compelling governmental interest.
(c) Remedies of the United States.--Nothing in this section shall be
construed to authorize the United States to deny or withhold Federal
financial assistance as a remedy for a violation of this Act. However,
nothing in this subsection shall be construed to deny, impair, or
otherwise affect any right or authority of the Attorney General or the
United States or any agency, officer, or employee thereof under other
law, including section 4(d) of this Act, to institute or intervene in
any action or proceeding.
SEC. 3. ENFORCEMENT OF CONSTITUTIONAL RIGHTS.
(a) Procedure.--If a claimant produces prima facie evidence to
support a claim alleging a violation of the Free Exercise Clause or a
violation of a provision of this Act enforcing that clause, the
government shall bear the burden of persuasion on any element of the
claim; however, the claimant shall bear the burden of persuasion on
whether the challenged government practice, law, or regulation burdens
or substantially burdens the claimant's exercise of religion.
(b) Land Use Regulation.--
(1) Limitation on land use regulation.--
(A) Where, in applying or implementing any land use
regulation or exemption, or system of land use
regulations or exemptions, a government has the
authority to make individualized assessments of the
proposed uses to which real property would be put, the
government may not impose a substantial burden on a
person's religious exercise, unless the government
demonstrates that application of the burden to the
person is in furtherance of a compelling governmental
interest and is the least restrictive means of
furthering that compelling governmental interest.
(B) No government shall impose or implement a land
use regulation in a manner that does not treat
religious assemblies or institutions on equal terms
with nonreligious assemblies or institutions.
(C) 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.
(D) No government with zoning authority shall
unreasonably exclude from the jurisdiction over which
it has authority, or unreasonably limit within that
jurisdiction, assemblies or institutions principally
devoted to religious exercise.
(2) Full faith and credit.--Adjudication of a claim of a
violation of the Free Exercise Clause or this subsection in a
non-Federal forum shall be entitled to full faith and credit in
a Federal court only if the claimant had a full and fair
adjudication of that claim in the non-Federal forum.
(3) Nonpreemption.--Nothing in this subsection shall preempt
State law that is equally or more protective of religious
exercise.
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) Attorneys' Fees.--Section 722(b) of the Revised Statutes (42
U.S.C. 1988(b)) is amended--
(1) by inserting ``the Religious Liberty Protection Act of
1998,'' after ``Religious Freedom Restoration Act of 1993,'';
and
(2) by striking the comma that follows a comma.
(c) Prisoners.--Any litigation under this Act in which the claimant
is a prisoner shall be subject to the Prison Litigation Reform Act of
1995 (including provisions of law amended by that Act).
(d) Authority of United States To Enforce This Act.--The United
States may sue for injunctive or declaratory relief to enforce
compliance with this Act.
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
government to incur expenses in its own operations to avoid imposing a
burden or 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 that results in the substantial
burden on religious exercise, by retaining the policy and exempting the
burdened religious exercise, by providing exemptions from the policy
for applications that substantially burden religious exercise, or by
any other means that eliminates the substantial burden.
(f) Effect on Other Law.--In a claim under section 2(a)(2) of this
Act, proof that a substantial burden on a person's religious exercise,
or removal of that burden, affects or would affect commerce, shall not
establish any inference or presumption that Congress intends that any
religious exercise is, or is not, subject to any other law.
(g) Broad Construction.--This Act should be construed in favor of a
broad protection of religious exercise, to the maximum extent permitted
by its terms and the Constitution.
(h) 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. As
used 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 subdivision
of a State'' and inserting ``a covered entity or a subdivision
of such an 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 ``any exercise of religion, whether or not compelled
by, or central to, a system of religious belief, and includes
(A) the use, building, or conversion of real property by a
person or entity intending that property for religious
exercise; and (B) any conduct protected as exercise of religion
under the first amendment to the Constitution.''.
(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.
As used in this Act--
(1) the term ``religious exercise'' means any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief, and includes (A) the use, building, or
conversion of real property by a person or entity intending
that property for religious exercise; and (B) any conduct
protected as exercise of religion under the first amendment to
the Constitution;
(2) the term ``Free Exercise Clause'' means that portion of
the first amendment to the Constitution that proscribes laws
prohibiting the free exercise of religion and includes the
application of that proscription under the 14th amendment to
the Constitution;
(3) the term ``land use regulation'' means a law or decision
by a government that limits or restricts a private person's
uses or development of land, or of structures affixed to land,
where the law or decision applies to one or more particular
parcels of land or to land within one or more designated
geographical zones, and where the private person has an
ownership, leasehold, easement, servitude, or other property
interest in the regulated land, or a contract or option to
acquire such an interest;
(4) the term ``program or activity'' means a program or
activity as defined in paragraph (1) or (2) of section 606 of
the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a);
(5) the term ``demonstrates'' means meets the burdens of
going forward with the evidence and of persuasion; and
(6) 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, subdivision, 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 3(a) and 5, includes
the United States, a branch, department, agency,
instrumentality or official of the United States, and
any person acting under color of Federal law.
PURPOSE AND SUMMARY
H.R. 1691, ``The Religious Liberty Protection Act of
1999,'' protects religious activities and practices from being
substantially burdened by government action. H.R. 1691 was
introduced on May 5, 1999 by bi-partisan co-sponsors, and
enjoys the support of over 80 churches and religious
organizations from all points on the political spectrum. H.R.
1691 was introduced, in part, in response to the Supreme
Court's partial invalidation of the Religious Freedom
Restoration Act (RFRA), which itself was enacted in 1993 in
response to an earlier Court decision.
RFRA was a response to the Supreme Court's opinion in
Employment Division v. Smith,\1\ holding that the First
Amendment's protection of the free exercise of religion did not
extend to religious exercise that is burdened by a neutral law
of general applicability. RFRA restored legal protection for
religious exercise in such situations by requiring religious
freedom claims to be analyzed under the strict scrutiny
standard, evaluating whether the offending law is the ``least
restrictive'' means of furthering a ``compelling'' governmental
interest. In 1997, the Supreme Court in City of Boerne v.
Flores \2\ invalidated RFRA as applied to infringement of
religious freedom by state and local governments.
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\1\ 494 U.S. 872 (1990).
\2\ 521 U.S. 507 (1997).
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The Religious Liberty Protection Act of 1998, H.R. 1691's
predecessor, was introduced in the 105th Congress in response
to the Boerne decision. The Subcommittee on the Constitution
held five hearings in the 105th Congress on the need for
federal protection of religious freedom after the Boerne
decision and on the Religious Liberty Protection Act of 1998.
The hearings examined specific cases of generally applicable
laws and government actions that substantially burden the free
exercise of religion, patterns of religious discrimination by
less-than-generally-applicable laws in the area of land use and
zoning, and the constitutionality and effect of the Religious
Liberty Protection Act of 1998. The Subcommittee reported the
bill favorably with certain amendments and no further action
was taken on the bill.
In the 106th Congress, the Subcommittee on the Constitution
held a hearing on H.R. 1691, the Religious Liberty Protection
Act of 1999, on May 12, 1999, and a markup session on May 25,
1999 in which the Subcommittee reported the legislation
favorably with an amendment to clarify language in the
definition section of the bill. The Committee held a markup
session on H.R. 1691 on June 23, 1999 and reported the bill
favorably by voice vote with no amendments.
BACKGROUND AND NEED FOR THE LEGISLATION
Employment Division v. Smith
The First Amendment to the United States Constitution
provides that ``Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof . . .'' Beginning in 1963, free exercise claims were
analyzed under the ``compelling state interest'' test,
providing that when a governmental action or regulation imposed
a significant burden on a sincerely-held religious belief, the
governmental action was unconstitutional as against the
religious practitioner unless it was the ``least restrictive''
means of furthering a ``compelling'' governmental interest.\3\
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\3\ See Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, a
Seventh-Day Adventist who had refused to work on her religion's Sabbath
was awarded unemployment compensation which had previously been denied.
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In Employment Division v. Smith,\4\ however, the Supreme
Court held that the First Amendment did not protect religious
exercise from being burdened by a neutral law of general
application. The Smith decision arose from an unemployment
compensation dispute involving two Native American employees of
a private drug and alcohol rehabilitation facility in Oregon.
The two were fired after they admitted to ingesting peyote, a
sacrament of the Native American Church, during a religious
ceremony. Because Oregon law prohibits the knowing or
intentional possession of a ``controlled substance,'' which
includes peyote,\5\ the state Employment Division determined
that the employers were properly discharged for ``cause'' and
therefore not entitled to unemployment benefits. The employees
sued, challenging the Oregon law as applied to their religious
practice.
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\4\ 494 U.S. 872 (1990).
\5\ See Ore. Rev. Stat. Sec. 475.992(4) (1987).
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The Oregon Supreme Court held that the state's prohibition
on sacramental peyote use violated the Free Exercise Clause,
reaffirming a previous holding that the state could not deny
unemployment benefits. The United States Supreme Court
reversed, declining to apply the ``compelling state interest''
standard from Sherbert.
In essence, the Supreme Court took the cramped view that,
while one has a right to believe a religion, and a right not to
be discriminated against because of religion, one has no
constitutional right to practice religion in a way that is
inconsistent with even trivial laws or regulations.\6\ Smith's
``bare requirement of formal neutrality,'' then, serves as a
substitute for the particular protections that the Free
Exercise Clause envisions, protections ``most often needed by
practitioners of non-mainstream faiths who lack the ability to
protect themselves in the political sphere'' and by ``any
person of religious convictions caught in conflict with our
secular political culture.''\7\
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\6\ See Religious Liberty Protection Act: Hearing on H.R. 1691
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong. (May 12, 1999) (statement of Douglas Laycock,
Professor, University of Texas Law School) <>[hereinafter Laycock Testimony, May 12, 1999].
\7\ McConnell, Free Exercise Revisionism, 57 U.Chi.L.Rev. at 1152-
53.
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The Smith opinion was careful, however, to enumerate
exceptions to its ruling. First, the Court distinguished
earlier decisions that invalidated the application of neutral,
generally applicable laws on free exercise grounds, holding
that those cases involved the assertion of free exercise claims
coupled with other constitutional protections.\8\ The Smith
employees' claim was limited, however, to the Free Exercise
Clause and thus did not fall within the category of ``hybrid''
constitutional claims.
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\8\ In the majority opinion, Justice Scalia wrote:
The government's ability to enforce generally applicable
prohibitions on socially harmful conduct, like its ability
to carry out other aspects of public policy, ``cannot
depend on measuring the effects of a governmental action on
a religious objector's spiritual development.'' Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U.S. 439,
451 (1988). To make an individual's obligation to obey such
a law contingent upon the law's coincidence with his
religious beliefs, except where the State's interest is
``compelling''--permitting him, by virtue of his beliefs,
``to become a law unto himself,'' Reynolds v. United
States, 98 U.S. 145, 167 (1878)--contradicts both
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constitutional tradition and common sense.
Employment Division v. Smith, 494 U.S. at 881-82. See also Wisconsin
v.Yoder, 406 U.S. 205 (1972) (holding that Old Order Amish's free
exercise interests, combined with right of parents to direct child's
education, outweighed state interest in enforcing compulsory education
statute); Wooley v. Maynard, 430 U.S. 705 (1977) (invalidating state
law requiring display of license plate slogan that offended individual
religious beliefs); West Virginia Board of Education v. Barnette, 319
U.S. 624 (1943) (holding unconstitutional compulsory flag salute
statute challenged by religious objectors); Cantwell v. Connecticut,
310 U.S. 296 (1940) (finding state licensing system for religious and
charitable solicitations invalid where administrator had discretion to
deny license to any cause he deemed nonreligious).
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The Court's attempt to justify this distinction between mere free
exercise claims and ``hybrid'' claims rested on its conclusion that the
cases involving hybrid claims ``specifically adverted to the non-free-
exercise principle involved.'' Smith, 494 U.S. at 881, n. 1. This
footnote explanation has been described as ``no explanation at all.''
Sarah J. Gralen Rous, Why Free Exercise Jurisprudence in Relation to
Zoning Restrictions Remains Unsettled After Boerne v. Flores, 52 SMU L.
Rev. 305, 317 (1999). Moreover, Smith itself could have been viewed as
a hybrid case, involving both the right of free exercise and a right
pursuant to the Free Speech Clause to communicate one's religious
message through the act of using peyote. See Michael W. McConnell, Free
Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109,
1122 (1990).
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The Smith opinion also found that the heightened standard
of review adopted in Sherbert would apply (1) where the
challenged law was either facially non-neutral, where, for
example, it attempts to ban ``acts or abstentions only when
they are engaged in for religious reasons or only because of
the religious belief that they display''; (2) even if facially
neutral, where the law had the surreptitious purpose of
burdening religious practices; and (3) where the law was not
generally applicable because it failed to regulate secular
conduct that implicated the same government interests as the
prohibited religious conduct.\9\
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\9\ Smith, 494 U.S. at 877. The Court faced this precise issue in
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
(1993). There, adherents to the Santeria faith leased city land with
plans to engage in worship services involving the killing, cooking, and
ingestion of animals. After becoming aware of the Santeria believers'
intentions, the city adopted an ordinance prohibiting the slaughter of
animals within city limits. The Supreme Court, however, invalidated the
ordinance, holding that, while facially neutral, it failed to reach a
range of secular conduct with similar effects. No longer viewed as a
neutral, generally applicable law, the ordinance thus fell outside the
scope of Smith and the Court struck it down pursuant to the strict
scrutiny standard.
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Finally, and most important for the purposes of the
Religious Liberty Protection Act of 1999, the Court held that
Sherbert's compelling state interest standard applies where
there is ``individualized governmental assessment of the
reasons for the relevant conduct,'' as opposed to an ``across-
the-board criminal prohibition on a particular form of
conduct.''\10\
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\10\ Smith, 494 U.S. at 884.
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The Religious Freedom Restoration Act and City of Boerne v. Flores
After three years of hearings, study, and intense drafting
and redrafting, the Religious Freedom Restoration Act was
enacted by Congress to restore legal protection for religious
exercise by requiring all free exercise claims to be examined
under strict scrutiny. RFRA, in effect, codified the balancing
test that had been used by the courts in the three decades
prior to Smith. Under RFRA's balancing test, ``government may
substantially burden a person's exercise of religion only if it
demonstrates that application of the burden to the person is in
furtherance of a compelling governmental interest; and is the
least restrictive means of furthering that compelling
governmental interest.''\11\
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\11\ 42 U.S.C. Sec. 2000bb-1.
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Congress based its authority for RFRA on Section 5 of the
Fourteenth Amendment, which provides Congress with the ``power
to enforce'' by ``appropriate legislation'' the constitutional
guarantee that no State shall deprive any person of ``life,
liberty, or property, without due process of law,'' nor deny
any person ``equal protection of the laws.''\12\ In City of
Boerne v. Flores,\13\ however, the Supreme Court ruled that in
enacting RFRA Congress had exceeded its enforcement authority
under Section 5 of the Fourteenth Amendment.
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\12\ U.S. Const. amend. XIV.
\13\ 521 U.S. 507 (1997).
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In Boerne, the Archbishop of San Antonio granted permission
to St. Peter Catholic Church, located in the Boerne, Texas, to
meet the needs of its growing congregation by enlarging its
existing mission-style structure, built in 1923. Subsequently,
the Boerne City Council approved an ordinance that required the
approval of a Historic Landmark Commission prior to any
construction that would affect historic landmarks or buildings
located within a historic district. Upon the Archbishop's
application, city authorities denied the permit and
retroactively changed the boundaries of the historic district
to include the church. The Archbishop then filed suit in
federal court, relying upon RFRA to challenge the permit
denial. The district court held that Congress exceeded its
Section 5 enforcement power but the United States Court of
Appeals for the Fifth Circuit reversed, holding that the
statute was constitutional.
The Supreme Court reversed. In an opinion by Justice
Kennedy, the Court ruled that, while Congress has the power to
enact legislation ``enforcing'' the constitutional right to the
free exercise of religion under Section 5 of the Fourteenth
Amendment, its Section 5 power is limited to enacting laws that
will remedy violations of the free exercise clause as the Court
has interpreted it.\14\ Such power exists where Congress has
``reason to believe that many of the laws affected by the
congressional enactment have a significant likelihood of being
unconstitutional.'' \15\ Congress lacks, however, the authority
to decree the substance of the Fourteenth Amendment, and thus
cannot legitimately determine on its own what substantive
rights are protected by it.\16\ In the view of the Court,
RFRA's legislative record lacked sufficient evidence of
discriminatory laws.\17\ Thus, ``RFRA is so out of proportion
to a supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent,
unconstitutional behavior.'' \18\ The Court concluded that RFRA
violated venerable principles of federalism because it subjects
state laws to the most demanding test of scrutiny in
constitutional law, even if those laws did not violate the free
exercise clause. This, the Boerne majority said, ``would
require searching judicial scrutiny of state law with the
attendant likelihood of invalidation. This is a considerable
congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health
and welfare of their citizens.'' \19\ The Supreme Court also
regarded RFRA as contradicting the principle of separation of
powers.\20\
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\14\ See Boerne, 521 U.S. at 519 (citing South Carolina v.
Katzenbach, 383 U.S. 301, 326 (1966)).
\15\ Boerne, 521 U.S. at 532.
\16\ Boerne, 521 U.S. at 532. Commentators have criticized this
important element of the Boerne holding. For example, as Professor
McConnell explains, ``[t]he historical record shows that the framers of
the [Fourteenth] Amendment expected Congress, not the Court, to be the
primary agent of its enforcement, and that Congress would not
necessarily consider itself bound by Court precedents in executing that
function.'' Michael W. McConnell, Institutions and Interpretation: A
Critique of City of Boerne v. Flores, 111 Harv. L. Rev, 153, 194
(1997). See also Religious Liberty Protection Act: Hearing on H.R. 1691
before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong. (May 12, 1999) (statement of Dr. Richard D.
Land, President-Treasurer, Ethics and Religious Liberty Commission)
(stating that the Boerne Court ``incorrectly focused on the issue of
whose right it is to interpret the Constitution. From the Supreme
Court's perspective, it was a turf war.'').
\17\ Boerne, 521 U.S. at 530.
\18\ Boerne, 521 U.S. at 532.
\19\ Boerne, 521 U.S. at 534.
\20\ The opinion appears to reinforce a broad role for courts in
exercising their constitutional function. See Religious Liberty
Protection Act: Hearing on H.R. 4019 Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 105th Cong. (June 16,
1998) (statement of W. Cole Durham Jr., Professor, J. Reuben Clark Law
School, Brigham Young University) << http://www.house.gov/judiciary/
durham.htm>> [hereinafter Durham Testimony] (asserting that Boerne
diminished the legislative role for protection of religious liberty).
Justice Scalia's concurrence, in which he responds to the historical
evidence offered in Justice O'Connor's dissent to cast doubt on the
Smith rule, appears, however, to suggest a broader role for legislative
prerogatives:
Who can possibly be against the abstract proposition that
government should not, even in its general,
nondiscriminatory laws, place unreasonable burdens upon
religious practice? Unfortunately, the abstract proposition
must ultimately be reduced to concrete cases. The issue
presented by Smith is, quite simply, whether the people,
through their elected representatives, or rather this
Court, shall control the outcome of those concrete cases. .
. . The historical evidence put forward by the dissent does
nothing to undermine the conclusion we reached in Smith: It
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shall be the people.
Boerne, 521 U.S. at 544 (Scalia, J., concurring).
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As Professor McConnell argues, however:
The oddity, of course, is that RFRA was enacted by the
elected representatives of the people. In declaring RFRA
unconstitutional, the Boerne Court overturned the will of
the people' in the name of protecting their democratic
voice from undue interference by the judiciary. Justice
Scalia's democratic rhetoric thus seems at cross-purposes
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with his conclusion.
McConnell, Institutions and Interpretation, 111 Harv.L.Rev. at 168.
Impact of the Smith and Boerne Decisions
Following the Boerne decision, the Subcommittee on the
Constitution conducted several hearings to assess the need for
federal protection of religious freedom. The cases presented in
oral and written testimony before the Subcommittee involved
government action which either requires violation of religious
beliefs or practices or which restricts the fulfillment of
religious beliefs or practices.\21\ For an illustration of the
types of cases presented,\22\ consider the following: \23\
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\21\ Testimony regarding cases in the area of land use and zoning
will be described in more detail below in the section devoted to H.R.
1691's land use provision.
\22\ Several witnesses made the point that state and local
governments have taken the message of Smith to be that they never have
to make exemptions for religious believers, and can therefore simply
refuse to respond to their requests. Because RFRA gave citizens a
potentially viable claim, officials had a reason to engage in
discussions with potential claimants which often resulted in mutually
acceptable solutions. The Need for Federal Protection of Religious
Freedom after Boerne v. Flores, II, 1997: Oversight Hearings Before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th
Cong. (March 26, 1998)(statement of Mark Chopko, General Counsel, U.S.
Catholic Conference) <>
[hereinafter Chopko Testimony] (accord statement of Mark Stern,
Director, Legal Department, American Jewish Congress) <> [hereinafter Stern Testimony,
March 26, 1998).
\23\ These anecdotes explain why the issue has come to the
attention of Congress. Elsewhere in the Report, we discuss the sources
of Congressional power to address the problems illustrated by these
examples.
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Testimony included instances where government action
thwarts the fulfillment of religious sacraments. During the
years that RFRA was still valid law, the Ninth Circuit found
that RFRA had been violated when prison personnel deliberately
intercepted confessional communication.\24\ According to the
testimony of Mark Chopko, General Counsel to the U.S. Catholic
Conference, absent this legal protection, it is debatable
whether a prison regulation dictating that all conversations
between prisoners and visitors be intercepted would have to
exempt religious communications.\25\ The strict confidentiality
of communications between priest and penitent, required by the
Catholic church, has come under strong attack, with litigants
attempting to discover sacred confessional information for use
in civil lawsuits.\26\
---------------------------------------------------------------------------
\24\ See Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).
\25\ Chopko Testimony.
\26\ See Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992); Scott v.
Hammock, 870 P.2d 947 (Utah 1994). See Religious Liberty Protection
Act: Hearings on H.R. 1691 Before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 106th Cong. (May 12, 1999) (statement
of Von Keetch, Counsel, Church of Jesus Christ of Latter-Day
Saints)<> [hereinafter
Keetch Testimony, May 12, 1999].
---------------------------------------------------------------------------
Other testimony described religious dietary laws
conflicting with government regulations or practices. The
testimony of Marc Stern of the American Jewish Congress
included a case where the director of an Immigration and
Naturalization Service detention facility refused to provide
detainees--some of whom were seeking asylum for religious
persecution--pork-free diets. Only when President Clinton
ordered federal officials to comply with RFRA after being
threatened with a lawsuit did the manager agree to provide a
pork-free diet.\27\ In Michigan, prison officials refuse to
purchase matzo, the unleavened bread required to be eaten by
Jews on Passover, essentially forcing all Jewish inmates to
violate their sacred religious practices. One Jewish
organization has offered to donate and ship matzo to meet the
prisoners' needs during Passover, but the officials have
refused even the donated matzo.\28\
---------------------------------------------------------------------------
\27\ Stern Testimony, March 26, 1998.
\28\ The Need for Federal Protection of Religious Freedom After
Boerne v. Flores, II: Hearing Before the Subcomm. on the Constitution
of the House Comm. on the Judiciary, 105th Cong. (March 26,
1998)(statement of Isaac M. Jaroslawicz, Director of Legal Affairs for
Aleph Institute) <>
[hereinafter Jaroslawicz Testimony].
---------------------------------------------------------------------------
Religious clothing formed the basis for a number of cases
presented to the Subcommittee. Testimony included a case about
a school district in South Carolina that banned the wearing of
hats in school. The regulation prevented an Orthodox Jewish
student from wearing a yarmulke in school as his religion
requires. Only when advised of the possibility of a lawsuit
under RFRA did the school board accommodate the student.\29\
---------------------------------------------------------------------------
\29\ Jaroslawicz Testimony.
---------------------------------------------------------------------------
Another case illustrating this conflict involved the
Illinois Athletic Association's requirement that basketball
players play bare-headed, precluding any Orthodox Jewish boys
from participating due to their religious obligation to wear
yarmulkes. The league defended its rule on grounds of safety,
contending that if players wore hats, the hats might fall off
and cause other players to trip. When an Orthodox school sought
to play in the league and have its students wear yarmulkes, its
request was denied. The school offered to make the boys attach
the yarmulkes to their hair with clips so that they would not
fall off. Because this was a pre-Smith case, the Seventh
Circuit held that this alternative had to be explored. Without
the strict scrutiny standard, the government could completely
ignore the Orthodox school's position, given that the
regulation at issue is facially neutral.\30\
---------------------------------------------------------------------------
\30\ Id.
---------------------------------------------------------------------------
Testimony included descriptions of numerous conflicts
between laws and religious obligations and practices. In New
York, adult children with strong religious convictions about
caring for their ailing parents are prohibited from
volunteering to assist with their elderly parents housed in
government-regulated nursing homes.\31\ This prevents them from
fulfilling their understanding of the requirements of the
Biblical commandment to honor their father and mother.
---------------------------------------------------------------------------
\31\ Keetch Testimony, May 12, 1999. See Greater New York Health
Care Facilities v. Axelrod, 770 F. Supp. 183 (S.D.N.Y. 1991).
---------------------------------------------------------------------------
Elsewhere, local governments have attempted to interfere
with, or altogether eliminate, the proselytizing by Church
missionaries through so-called ``generally applicable'' laws
that place severe restrictions on the times and places that
missionaries may contact door-to-door. In the span of a year
alone, local officials have attempted to curtail church
proselytizing in such jurisdictions as Mundelein, Illinois;
Dover, New Jersey; Flemington, New Jersey; Chester,
Connecticut; Valencia, California; Media, Pennsylvania; Downers
Grove, Illinois; Marin County, California; and Seven Hills,
Ohio.\32\ In Miami, an Orthodox Jewish rabbi was threatened
with criminal prosecution for leading morning and evening
prayers in a converted garage in one of Miami's single-family
residential areas. The U.S. Court of Appeals for the Eleventh
Circuit held that, in this post-Smith world, the city's
interest in an exception-free zoning plan outweighed the
rabbi's interest because the services ``are not integral to
[his] faith.'' \33\
---------------------------------------------------------------------------
\32\ Keetch Testimony, May 12, 1999.
\33\ The Need for Federal Protection of Religious Freedom After
Boerne v. Flores, II: Hearing Before the Subcomm. on the Constitution
of the House Comm. on the Judiciary, 105th Cong. (March 26, 1998)
(statement of Steve McFarland, Director, Center for Law and Religious
Freedom) <> [hereinafter
McFarland Testimony, March 26, 1998].
---------------------------------------------------------------------------
Government officials in Arapahoe County, Colorado, enforced
specific numerical restrictions on the number of students that
may be enrolled in religious schools, and indeed, on the number
of persons in congregations of various churches, as a way of
limiting growth.\34\ In Douglas County, Colorado,
administrative officials proposed restricting the operational
hours of a church the same way they do any ``commercial''
facility.\35\ Limiting its operational hours means that a
church could not lawfully engage in any act of service or
devotion during those forbidden hours--not even devotions such
as prayer vigils, which attract no crowd .\36\
---------------------------------------------------------------------------
\34\ Chopko Testimony.
\35\ Id.
\36\Id. One such act of devotion performed in Catholic Churches is
known as the Perpetual Adoration of the Blessed Sacrament. This
requires that the Blessed Sacrament in the Church never be left
unattended, necessitating 24-hour access to the Church by parishioners.
---------------------------------------------------------------------------
Throughout the country, religious student groups or clubs
are denied access to campus ministry space if they require that
their student leaders share their particular religious beliefs.
Many campuses deny official charter status altogether to any
group that selects its leadership based on religion. This means
that the chapter cannot use campus resources available to all
other secular groups, meet on campus, use campus media to
announce their activities, or distribute literature to their
peers. Legal battles over this issue have occurred at
University of Arizona, University of Minnesota, University of
Kansas, University of Toledo, Texas Institute of Technology,
Johnson State University (VT), California State University--
Monterey Bay, and Georgia Institute of Technology.\37\
Testimony also included a case in New York where a school
district allows only secular community groups to rent school
facilities on weekends, but denies religious-oriented community
groups the opportunity to rent the facilities for worship or
religious instruction.\38\
---------------------------------------------------------------------------
\37\ Religious Liberty Protection Act: Hearing on H.R. 4019 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
105th Cong. (July 14, 1998) (statement of Steve McFarland, Director,
Center for Law and Religious Freedom) [hereinafter McFarland Testimony,
July 14, 1998].
\38\ McFarland Testimony, July 14, 1998 (citing Bronx Household of
Faith v. Community Sch. Dist., 127 F.3d 207 (2d Cir. 1997), cert.
denied 118 S.Ct. 1517 (1998).
---------------------------------------------------------------------------
Testimony addressed a range of government laws and policies
mandating activities contrary to religious convictions. The
United States Court of Appeals for the First Circuit rejected a
Free Exercise claim brought by parents who objected on
religious grounds to their child's participation in a
government school program conducted by ``Hot, Sexy, and Safer
Productions.'' \39\ During the program the presenter engaged in
a variety of sexually explicit activities in front of the
students, including simulating masturbation, using profanity,
telling one minor he had a ``nice butt,'' and referring to
``anal sex.'' \40\ The court rejected the parents' free
exercise claim, questioning ``whether the Free Exercise Clause
even applies to public education,'' \41\ and finding that the
free exercise claim was not conjoined to any other
constitutional right in order to qualify for Smith's ``hybrid''
exception.\42\
---------------------------------------------------------------------------
\39\ See Brown v. Hot, Sexy, and Safer Prods., Inc., 68 F.3d 525
(1st Cir. 1995).
\40\ See id. at 529.
\41\ Id. at 536.
\42\ See id. at 539.
---------------------------------------------------------------------------
In Maryland, a Catholic hospital was denied government
accreditation because of its religiously-based refusal to
instruct its medical residents on the performance of
abortion.\43\ Mr. Chopko testified that, in some cases, if
church employers are to provide adequate insurance for their
employees, the government requires them to provide a full
panoply of medical services, including abortion, which some
churches unequivocally condemn.\44\
---------------------------------------------------------------------------
\43\ See St. Agnes Hospital v. Riddick, 748 F. Supp. 319 (D. MD.
1990)); Keetch Testimony, May 12, 1999. Alarmingly, the District Court
in St. Agnes found a compelling government interest in requiring the
Catholic hospital to teach abortion.
\44\ Chopko Testimony.
---------------------------------------------------------------------------
Other testimony described the case of a Jewish man killed
on a commuter train by another train coming from the opposite
direction. The coroner insisted on an autopsy as the condition
to certifying the cause of death. The family of the deceased
strongly objected, on religious grounds, to the performance of
an autopsy. The family offered to agree to other, non-
destructive, medical examinations of the body as a compromise,
but the coroner rejected this. Only after a RFRA lawsuit was
contemplated did the state attorney general advise the coroner
to accommodate the request.\45\ One district court held that a
medically unnecessary autopsy of a young Hmong man did not
constitute a violation of the Free Exercise Clause, despite the
religiously-based belief of his family that the autopsy
condemned the spirit of the deceased. The court had originally
ruled in favor of the family, but after Smith, felt compelled
to reverse its earlier ruling.\46\
---------------------------------------------------------------------------
\45\ Stern Testimony, March 26, 1998.
\46\ Keetch Testimony, May 12, 1999.
---------------------------------------------------------------------------
The Subcommittee also heard testimony about a case
involving a family's religious conviction regarding the taking
of interest. A Muslim child won a court judgment for injuries
which left him physically and mentally handicapped. The child's
lawyer sought to invest the judgment in an interest-bearing
account as required by state law. The parents objected, since
their religious beliefs forbade the taking of interest. The
judge ordered the parties to show cause why the lawyer should
not be appointed guardian with the obligation, over the
parents' objections, to invest the monies in an interest
bearing account. While there are financial arrangements that
would provide the same ``return'' but would not violate the
parents' faith, the state law did not permit an accommodation
of this sort.\47\
---------------------------------------------------------------------------
\47\ Stern Testimony, March 26, 1998.
---------------------------------------------------------------------------
The Religious Liberty Protection Act
The Religious Liberty Protection Act of 1998 was introduced
in the House on May 5, 1999. Mindful of the limitations
enunciated by the Court in Boerne, H.R. 1691 employs well
settled sources of Congressional authority for the protection
of religious exercise. After the Boerne decision, the power of
Congress in the area of religious liberty is limited to the
spending power, regulating interstate commerce, and remedying
state infringements on due process, equal protection, or the
privileges and immunities of citizenship. H.R. 1691 employs all
of these remaining avenues of established Congressional
authority.\48\
---------------------------------------------------------------------------
\48\ In addition, H.R. 1691 clarifies that RFRA applies to federal
law, policies, property, and employees. This clarification is
appropriate given that the Supreme Court in Boerne held RFRA
unconstitutional only as applied to actions of state and local
governments. See Florida Prepaid Postsecondary Education Expense Board
v. College Savings Bank, 1999 WL 412723, *7 (U.S., June 23,
1999)(stating that Boerne invalidated RFRA ``insofar as RFRA was made
applicable to the states); In re Young, 141 F.3d 854 (8th
Cir.)(upholding RFRA as applied to federal laws), cert. denied
Christians v. Crystal Evangelical Free Church, 119 S.Ct. 43 (1998).
---------------------------------------------------------------------------
While the means used by H.R. 1691 are different from those
used by RFRA, the ends of each Act are the same: to restore the
requirement that courts examine substantial government burdens
on the exercise of religion to determine whether the offending
state action is the ``least restrictive'' means of furthering a
``compelling'' governmental interest. To trigger a claim under
H.R. 1691, a religious person or organization must first
demonstrate that the government has ``substantially
burden[ed]'' religious exercise. The modifier ``substantially''
is intended to ensure that strict scrutiny is not triggered by
trivial, technical, or de minimus burdens on religious
exercise. While both Acts employ a ``substantial burden''
threshold, H.R. 1691 clarifies that the burdened religious
activity need not be compulsory or central to a religious
belief system as a condition for the claim.\49\
---------------------------------------------------------------------------
\49\ One issue raised during the Subcommittee Markup was whether a
business corporation could make a claim under H.R. 1691. The
requirement of H.R. 1691 that the claimant demonstrate a substantial
burden on religious exercise is equally applicable whether a claimant
is a natural person or a corporation. Most corporations are not engaged
in the exercise of religion, but religious believers, such as people in
the Kosher slaughter business, should not be precluded from bringing a
claim under H.R. 1691 simply because they incorporated their activities
pursuant to existing law.
---------------------------------------------------------------------------
To defeat a religious claim under H.R. 1691's compelling
interest/strict scrutiny test, the government must not merely
show a compelling government interest, but must show that its
refusal to grant an exemption or accommodation for religious
claimants is in furtherance of that compelling government
interest.
Some discussion in the Committee process was motivated by a
concern that H.R. 1691 will ``trump'' certain civil rights
laws. H.R. 1691's purpose is to protect religious liberty, one
of the most fundamental of ``civil rights.'' The question
should not be H.R. 1691's effect on ``civil rights,'' but how
to resolve the inevitable conflicts between the exercise of one
civil right, in this case religious liberty, and other civil
rights.\50\ H.R. 1691 imposes a standard of review, not an
outcome, and cases are litigated on real facts before the
court. Thus, it is difficult in some hypothetical cases to
predict with certainty which interests will prevail. One thing,
however, is certain: Without H.R. 1691, the free exercise
claimant, burdened by a law of general application, will very
nearly always lose.
---------------------------------------------------------------------------
\50\ With respect to claims of racial discrimination, the
government's interest is compelling. See Bob Jones Univ. v. United
States, 461 U.S. 574, 604 (1983) (holding that the government's
``compelling'' and ``overriding interest in eradicating racial
discrimination in education . . . substantially outweighs whatever
burden denial of tax benefits places on petitioners' exercise of their
religious beliefs''). As Steven T. McFarland of the Center for Law and
Religious Freedom testified during a Subcommittee hearing on July 14,
1998, ``the general standard of compelling government interest . . .
has no difficulty being met in the area of racial discrimination.''
McFarland Testimony, July 14, 1998.
---------------------------------------------------------------------------
With respect to claims of discrimination on the basis of
sex, Steven K. Green, Legal Director of Americans United for
Separation of Church and State, states that, ``in most
conflicts involving individual religious claimants, the
antidiscrimination laws will probably prevail.'' Religious
Liberty Protection Act: Hearing on H.R. 4019 Before the
Subcomm. on the Constitution of the House Comm. on the
Judiciary, 105th Cong. (July 14, 1998) (statement of Dr. Steven
K. Green, Legal Director, Americans United for Separation of
Church and State) <>
[hereinafter Green Testimony]. A H.R. 1691 claim would likely
prevail over a sex discrimination claim in the context of the
clergy, according to Professor Doug Laycock of the University
of Texas Law School. Id. (statement of Douglas Laycock,
Professor, University of Texas Law School) [hereinafter Laycock
Testimony, July 14, 1998]. Such a result seems to be a
reasonable balancing of the state's interest in eradicating
sexual discrimination against the liberty of many religions to
adhere to centuries-old practices regarding the ordination of
clergy.
There have also been several cases in which a RLPA-type
defense was raised in response to claims by unmarried
cohabitants of discrimination in housing based on marital
status. The courts are split on this issue. Some hold in favor
of the religious liberty claimant. See Thomas v. Municipality
of Anchorage, 165 F.3d 692, 714 (9th Cir. 1999) (holding that
government has no compelling interest in eradicating marital
status discrimination); Cooper v. French, 460 N.W.2d 2, 6-7,
10-11 (Minn. 1990) (holding that marital status does not
include unmarried cohabitation; plurality holding that the
government has no compelling interest in eradicating marital
status discrimination). Others hold in favor of the unmarried
cohabitants. See McCready v. Hoffius, 586 N.W.2d 723 (Mich.
1998) (finding state's interest in providing equal access to
housing compelling and uniform application of law the least
restrictive means of serving that interest), vacated in part,
1999 WL 226862 (Mich. April 16, 1999); Swanner v. Anchorage
Equal Rights Commission, 874 P.2d 274 (Alaska 1994) (holding
that granting religious liberty claimant an exemption would
thwart the state's interest in eradicating marital status
discrimination); Jasniowski v. Rushing, 678 N.E.2d 743 (Ill.
App. Ct. 1997) (finding state's interest in providing equal
access to housing compelling and uniform application of law the
least restrictive means of serving that interest), vacated, 685
N.E.2d 622 (Ill. 1997).
It is useful to examine in some detail the application and
effect of the substantive provisions of H.R. 1691.
Spending clause provision
H.R. 1691 applies to programs or activities operated by a
government and which receive federal financial assistance. It
does not apply to private-sector grantees, unless they are
acting under color of state law and the government retains
sufficient control that ``the alleged infringement of federal
rights [is] ``fairly attributable to the State.' ''\51\ This
provision is modeled directly on similar provisions in other
civil rights laws, including Title VI of the Civil Rights Act
of 1964, which forbids race discrimination in federally
assisted programs,\52\ and Title IX of the Education Amendments
of 1972, which forbids sex discrimination in federally assisted
educational programs.\53\ Congressional power to attach
conditions to federal spending has been consistently upheld
since Steward Machine Co. v. Davis.\54\ Conditions on federal
grants must be ``[]related to the federal interest in
particular national projects or programs.''\55\ Under H.R.
1691, federal aid to one program does not demand compliance in
other programs; the bill's protections are properly confined to
each federally assisted ``program or activity.''
---------------------------------------------------------------------------
\51\ See Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
\52\ 42 U.S.C. Sec. 2000d (1994).
\53\ 20 U.S.C. Sec. 1681 (1994).
\54\ 301 U.S. 548 (1937).
\55\ South Dakota v. Dole, 483 U.S. 203, 207 (1987).
---------------------------------------------------------------------------
H.R. 1691 protects the religious exercise of beneficiaries
of state and local programs that are federally subsidized or
assisted from most government interference. H.R. 1691 would
make it more difficult for the government to sustain, for
example, a state requirement that welfare-to-work recipients
attend training classes on Sunday, a public school's refusal to
excuse religious students from sexually explicit contraception
programs, and a public medical school's rejection of an
applicant due to her religious objection to performing
abortions. H.R. 1691 would protect the religious liberty of
students and faculty in public schools and universities, job
trainees, welfare recipients, tenants in public housing, and
participants in many other federally-assisted but state-
administered programs. H.R. 1691 would provide a cause of
action where an individual is excluded from a federally-
assisted program because of her religious dress, or because of
her observance of the Sabbath or of religious holidays, or
because she said prayers over meals or at certain times during
the day.
Commerce clause provision
H.R. 1691 relies on Congress' power to regulate commerce
among the States\56\ and includes a jurisdictional element to
be proven in claims resting on this power.\57\ Specifically,
H.R. 1691 states that ``a government shall not substantially
burden a person's religious exercise in any case in which the
substantial burden on the person's religious exercise affects,
or in which a removal of that substantial burden would affect,
commerce with foreign nations, among the several states or with
Indian Tribes.'' H.R. 1691 would make it more difficult for the
government to, for example, deny a Catholic hospital
accreditation for refusing to instruct residents on how to
perform abortions, or prohibit a Jewish day school from
requiring its teachers to be of the same faith. H.R. 1691
provides a claim where an individual is denied an occupational
license or a driver's license because of a religious practice.
---------------------------------------------------------------------------
\56\ U.S. Const. Art. I Sec. 8.
\57\ One objection raised to the use of the commerce clause is
motivated by a generalized concern over the legitimacy of invoking the
commerce clause of the U.S. Constitution as authority for the
legislation. This objection is based on a narrow reading of the
commerce clause that has long been rejected by the Supreme Court. A
wide range of federal laws have relied upon the commerce clause as
constitutional authority. The Federal Fair Labor Standards Act, which
set minimum wage and maximum working hours for employees, has been
upheld by the Supreme Court as a valid exercise of the federal Commerce
Power. See United States v. Darby, 312 U.S. 100 (1941). The Court's
contemporary reading of the Commerce Clause has also been invoked as
constitutional authority for numerous federal criminal laws, including
those prohibiting the possession of a firearm that has been transported
in interstate commerce, see 18 U.S.C. Sec. Sec. 921-928, and
prohibiting extortionate credit transactions or ``loan sharking,'' see
18 U.S.C. Sec. Sec. 891 et seq. Congress has repeatedly used the
commerce power as the basis for effective legislation to protect civil
rights. H.R. 1691 simply follows that tradition. For example, Title II
of the Civil Rights Act of 1964, which prohibits racial discrimination
in places of public accommodation, was based on Congress' power to
regulate commerce. That provision has been upheld by the Supreme Court
as applied to hotels, see Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964); restaurants, see Katzenbach v. McClung,
379 U.S. 294 (1964); and public recreational facilities, see Daniel v.
Paul, 395 U.S. 298 (1969). Similarly, the Age Discrimination in
Employment Act, which prohibits discrimination in employment on the
basis of age, has been upheld by the Supreme Court as a valid exercise
of Congress' power to regulate commerce. See Equal Employment
Opportunity Comm'n v. Wyoming, 460 U.S. 226 (1983).
---------------------------------------------------------------------------
The commerce provision of H.R.1691 provides as an element
of the claim that the burden on religious exercise or the
removal of that burden must affect commerce. Thus, H.R. 1691
protects only as much religious exercise as Congress is
constitutionally empowered to protect. The provision is
tautologically constitutional: to the extent that the commerce
power reaches some burdens on religious exercise, the bill will
protect the religious exercise; to the extent that it does not
reach the burden on religious exercise, the bill will not reach
that far. H.R. 1691 thus does not raise the constitutional
problems associated with the Gun Free Schools Act,\58\ which
was invalidated in United States v. Lopez.\59\
---------------------------------------------------------------------------
\58\ 18 U.S.C. Sec. 922 (1994).
\59\ 514 U.S. 549 (1995).
---------------------------------------------------------------------------
In Lopez, the Court invalidated the Gun Free Schools Act
(the Act) because it was ``a criminal statute that by its terms
has nothing to do with `commerce' or any sort of economic
enterprise.''\60\ The Court stressed that because the Act
``contains no jurisdictional element which would ensure,
through case-by-case inquiry, that the firearm possession in
question affects interstate commerce,'' the Act was
unconstitutional.\61\ The Court distinguished the Act from
another federal firearm statute which it had previously upheld,
18 U.S.C. Sec. 1202(a), which made it a crime for a felon to
``posses[s], or transpor[t] in commerce . . . any
firearm.''\62\ The Lopez Court found it significant that
``[t]he Court [in Bass] interpreted the possession component of
[the firearm statute] to require an additional nexus to
interestate commerce,'' and thus upheld 18 U.S.C.
Sec. 1202(a).\63\ The Lopez Court stated that, ``[u]nlike the
statute in Bass, [the Act] has no express jurisdictional
element which might limit its reach to a discrete set of
firearm possessions that additionally have an explicit
connection with or effect on interstate commerce.''\64\ H.R.
1691, in line with the requirement articulated in Lopez,
includes an express jurisdictional element, and would require a
case-by-case analysis of the affect on interstate commerce.\65\
---------------------------------------------------------------------------
\60\ Id. at 561.
\61\ Id.
\62\ United States v. Bass, 404 U.S. 336 (1971).
\63\ Lopez, 514 U.S. at 562.
\64\ Id.
\65\ There are many ways in which religious activities, whether
engaged in by individuals or institutions, might affect commerce. For
example, according to Marc Stern of the American Jewish Congress,
``many activities of religious not-for-profit corporations come within
the Commerce Clause,'' including purchasing and providing goods and
services. See Religious Liberty Protection Act: Hearings on H.R. 4019
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 105th Cong. (June 16, 1998) (statement of Marc D. Stern,
Director, Legal Department, American Jewish Congress) [hereinafter
Stern Testimony, June 16, 1998] (citing Camps Newfound/Owatanna v. Town
of Harrison, 117 S. Ct. 1590 (1997)). In Camps Newfound, the Supreme
Court concluded that religious camps in Maine were ``unquestionably
engaged in commerce, not only as a purchaser, but also as a provider of
goods and services.'' 117 S. Ct. at 1596 (citations omitted). See also
United States v. Rea, 169 F.3d 1111 (8th Cir. 1999)(upholding federal
prosecution under the commerce power for arson of a church). Mr. Stern
also noted that under the Supreme Court's Commerce Clause
jurisprudence, ``the cumulative effects of small-scale economic
activity can bring an activity within the Commerce Clause.'' Stern
Testimony, June 16, 1998; see Hodel v. Virginia Surface Mining Ass'n,
452 U.S. 264, 277 (1981) (``[E]ven activity that is purely intrastate
in character may be regulated by Congress, where the activity, combined
with like conduct by others similarly situated, affects commerce among
the States or with foreign nations.'') (internal quotation marks
omitted); Lopez, 514 U.S. at 556; and Wickard v. Filburn, 317 U.S. 111,
127-28 (1942). See also 18 U.S.C. Sec. 247 (1994 and Supp. II).
---------------------------------------------------------------------------
Section 5, Fourteenth Amendment land use provision
H.R. 1691 follows the Supreme Court's directive in Boerne
to aim legislation under Section 5 of the 14th Amendment at
certain laws where there is a significant likelihood of
unconstitutionality.\66\ Local land use regulation, which lacks
objective, generally applicable standards, and instead relies
on discretionary, individualized determinations, presents a
problem that Congress has closely scrutinized and found to
warrant remedial measures under its Section 5 enforcement
authority. A detailed description of how land use regulations
substantially burden religious exercise follows the explanation
of H.R. 1691's land use provisions.
---------------------------------------------------------------------------
\66\ See Boerne, 521 U.S. at 532.
---------------------------------------------------------------------------
Section 3(b)(1)(A) specifically targets the established
evidence of discriminatory land use regulations based on
Congress' remedial power under Section 5 of the 14th Amendment,
pursuant to the Court's directive in Boerne,\67\ and tracks the
Smith opinion's explanation that, where governmental bodies
possess authority to make ``individualized assessments'' of the
reasons for certain conduct, those bodies may not substantially
burden a person's free exercise activities without a compelling
interest.\68\ Section 3(b)(1)(A) advances this very
proposition, requiring a compelling state interest ``in any
system of land use regulation or exemption'' in which ``a
government has the authority to make individualized assessments
of the proposed uses to which real property would be put,'' and
thus protects free exercise as interpreted by the Smith Court.
---------------------------------------------------------------------------
\67\ See Boerne, 521 U.S. 507 (1997) (holding that Congress must
accept Court's interpretation of constitutional right that Congress
means to enforce).
\68\ Smith, 494 U.S. at 884.
---------------------------------------------------------------------------
The Court in Boerne explained that Congress's enforcement
power under Section 5 of the 14th Amendment is a remedial power
and may not be used to alter an interpretation of substantive
law made by the Supreme Court.\69\ Statistical and anecdotal
evidence strongly indicates a pattern of abusive and
discriminatory actions by land use authorities who have imposed
substantial burdens on religious exercise. Accordingly, the
land use subsections of H.R. 1691 require these authorities to
meet the strict scrutiny standard to justify their actions. In
remedying the problems that land use regulations have posed for
religious individuals and organizations attempting to exercise
First Amendment rights, H.R. 1691 carefully follows the Boerne
Court's interpretation of Section 5 and operates as precisely
the type of ``enforcement'' that the Boerne Court invited.
---------------------------------------------------------------------------
\69\ Boerne, 521 U.S. at 532.
---------------------------------------------------------------------------
Other subsections in 3(b)(1) remedy substantial burdens
caused by certain specific land use regulation schemes as
demonstrated by extensive testimony. The remedies for these
burdens are different from the strict scrutiny test of
subsection 3(b)(1)(A). Subsection 3(b)(1)(B) seeks to prevent a
municipal zoning authority from treating houses of worship,
scripture studies in homes, and religious schools in a manner
less favorably than nonreligious assemblies.
Subsection 3(b)(1)(C) prohibits land use regulations from
discriminating against an assembly or institution on the basis
of religion or religious denomination. This provision would
prevent a government from discriminating against houses of
worship, church schools, home Bible studies or other religious
gatherings, either because they are religious or because of
their particular religious viewpoint.
Subsection 3(b)(1)(D) requires zoning authorities to make
reasonable provision for religious land use. Under this
provision, a city cannot ban churches altogether nor
unreasonably limit the sites where religious schools may
locate. Reasonableness is a familiar legal standard that relies
upon the facts and circumstances in each case and jurisdiction.
Summary of hearing testimony
Religions are practiced by communities of believers. At the
very core of religious liberty is the ability to assemble for
worship. Finding a location for a new church, however, can be
extremely difficult in the face of pervasive land use
regulation and the nearly unlimited discretionary power of land
use authorities. The frustration of this core First Amendment
right is not limited to certain religions or to certain areas
of land. Churches, large and small, are unwelcome in suburban
residential neighborhoods and in commercial districts alike.
Land use regulations frequently discriminate by design,
other times by their neutral application, and sometimes by
both. Hearings before the Subcommittee on the Constitution in
the 105th and 106th Congresses provide a substantial record of
evidence indicating a widespread pattern of religious
discrimination in land use regulation.\70\
---------------------------------------------------------------------------
\70\ See Religious Liberty Protection Act: Hearing on H.R. 1691
Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong. (May 12, 1999) (statements of Rabbi David
Saperstein, Director and Counsel, Religious Action Center of Reform
Judaism) <> [hereinafter
Saperstein Testimony] (Steven T. McFarland, Director, Center for Law
and Religious Freedom ) <>
[hereinafter McFarland Testimony, May 12, 1999]; Laycock Testimony, May
12, 1999; Keetch Testimony, May 12, 1999; Religious Liberty Protection
Act: Hearing on H.R. 4019 before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 105th Cong. (July 14, 1998)
(statements of Douglas Laycock, Professor, University of Texas Law
School) <> (Rev. Elenora
Giddings Ivory, Director, Washington Office of the Presbyterian Church
(USA) [hereinafter Ivory Testimony) <>; Shoulson Testimony; Religious Liberty Protection Act:
Hearing on H.R. 4019 Before the Subcomm. on the Constitution of the
House Comm. on the Judiciary, 105th Cong. (June 16, 1998) (statement of
Douglas Laycock, Professor, University of Texas Law School) <>; and John Mauck, land use
attorney, Mauck, Bellande & Cheely, Chicago, IL <>); Durham Testimony. A well-organized summary of
this testimony will appear in an article by Prof. Douglas Laycock to be
published in a forthcoming symposium in the University of California-
Davis Law Review.
---------------------------------------------------------------------------
While longstanding churches in residential communities do
not generally feel threatened by outright removal, attempting
to locate a new church in a residential neighborhood is
typically an exercise in futility. The Subcommittee received
testimony explaining that, unless a church can meet in a single
house, the only way to build a church in a residential zone is
to find several adjacent lots that are on the market
simultaneously, buy them, and tear down the houses--an
unfeasible strategy on its face.\71\
---------------------------------------------------------------------------
\71\ See Religious Liberty Protection Act of 1998, Hearing on H.R.
4019 Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 105th Cong. (statement of Bruce D. Shoulson, attorney)
<> [hereinafter cited as
Shoulson Testimony].
---------------------------------------------------------------------------
Commercial districts, therefore, are the only feasible
avenue for the location of new churches. Land use schemes exist
permitting churches only in residential areas, which give the
appearance that regulators are being generous to churches, when
just the opposite is true.\72\ Other testimony revealed that
some land use regulations deliberately exclude all new churches
from an entire city.\73\ One attorney specializing in land use
litigation testified that it is not uncommon for ordinances to
establish standards for houses of worship differing from those
applicable to other places of assembly, such as where they are
conditional uses or not permitted in any zone.\74\ ``The result
of these zoning patterns is to foreclose or limit new religious
groups from moving into a municipality. Established houses of
worship are protected and new houses of worship and their
worshipers are kept out.'' \75\
---------------------------------------------------------------------------
\72\ See Cornerstone Bible Church v. City of Hastings, 740 F. Supp.
654, 663 (D. Minn. 1990) (holding that zoning ordinance left open
``ample alternative channels of communication'' because church could
locate in residential zones), rev'd in part, on other grounds, 948 F.2d
464 (8th Cir. 1991); City of Chicago Heights v. Living Word Outreach
Full Gospel Church and Ministries, Inc., 707 N.E.2d 53, 59 (Ill. App.
1999) (upholding exclusion of churches from commercial zones in part
because residential zones were open to churches). Churches face similar
obstacles from landmarking regulations. See The Need for Federal
Protection of Religious Freedom and Boerne v. Flores, I, Hearing Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
105th Cong. (1998) (statement of Richard Robb, First Presbyterian
Church of Ypsilanti, Michigan) <> (describing case where city landmarked a building on lot
which had been purchased by a church for expansion).
\73\ See Keetch Testimony (describing Corporation of the Presiding
Bishop v. Board of Comm'rs, No. 95-1135 (Chancery Ct. Davidson County,
Tenn., Jan. 27, 1998), where the court found that even though the city
intended there to be and there was in fact ``no property in the City''
where the church locate, ``there was no evidence of discriminatory
intent directed at the church'').
\74\ Shoulson Testimony.
\75\ Id.
---------------------------------------------------------------------------
Another zoning expert testified about a survey of twenty-
nine zoning codes from suburban Chicago. In twelve of these
codes, there was no place where a church could locate without
the grant of a special use permit.\76\ In ten codes, churches
could locate as of right only in residential neighborhoods,
with the attendant problems discussed above.\77\ Some codes
employed a scheme where churches were authorized to locate in
specified sites, but those sites happened to be where existing
churches were already located.\78\ Therefore, twenty-two of the
twenty-nine suburbs effectively denied churches the right to
locate except by grant of a special use permit. In other words,
it was within the complete discretion of land use regulators
whether these individuals had the ability to assemble for
worship. ``The zoning board did not have to give a specific
reason. They can say it is not in the general welfare, or they
can say that you are taking property off the tax rolls.'' \79\
---------------------------------------------------------------------------
\76\ Mauck Testimony.
\77\ Id.
\78\ Keetch Statement (describing Corporation of the Presiding
Bishop v. Board of Comm'rs, No. 95-1135 (Chancery Ct. Davidson County,
Tenn., Jan. 27, 1998), in which the four existing churches and one
school were zoned ER--Educational and Religious Zone); 1999 House
Hearing, supra note 53 (statement of Douglas Laycock, <>) (describing Morning Star
Christian Church v. City of Rolling Hills Estates, Cal. (pending in the
Superior Court of the County of Los Angeles), in which city created
``Institutional Zone'' that included only existing churches, and barred
churches even on special use permit from all other zones).
\79\ Mauck Testimony.
---------------------------------------------------------------------------
Significantly, non-religious assemblies need not follow the
same rules. This survey revealed that uses such as banquet
halls, clubs, community centers, funeral parlors, fraternal
organizations, health clubs, gyms, places of amusement,
recreation centers, lodges, libraries, museums, municipal
buildings, meeting halls, and theaters are often permitted as
of right in zones where churches require a special use permit,
or permitted on special use permit where churches are wholly
excluded.\80\ One explanation suggested for this disparate
treatment was that local officials may not want non-tax-
generating property taking up space where tax-generating
property could locate.\81\
---------------------------------------------------------------------------
\80\ Mauck Testimony. Every code surveyed treated at least one of
these uses more favorably than churches, and one treated twelve of such
uses more favorably. Many business uses are also generally permitted as
of right without special use permits.
\81\ See Mauck Testimony (describing case of Cornerstone Community
Church in Chicago Heights, Illinois, where the city preferred that an
old department store building remain vacant rather than approve the use
by a church because of the opportunity to approve a tax-generating
occupant).
---------------------------------------------------------------------------
Regulators typically have virtually unlimited discretion in
granting or denying permits for land use and in other aspects
of implementing zoning laws. In fact, the Subcommittee heard
testimony of repeated cases in Chicago where the City Council
rezoned an individual parcel of property upon application for a
special use permit by a church to disqualify the church
altogether.\82\ In another example, a city issued a building
permit to a church, and after the church had commenced
construction on the building, the city revoked the permit on
the assertion that the city had erred in calculating the number
of parking spaces its code would require.\83\ This inherent
uncertainty for churches attempting to locate is exacerbated by
the fact that, as one witness explained, the church must commit
to a costly lease or a mortgage to hold the property while it
litigates in order to have standing.\84\
---------------------------------------------------------------------------
\82\ See Ira Iglesia de la Biblia Abierta v. Banks, 129 F.3d 899
(7th Cir. 1997) (holding alderman protected by absolute legislative
immunity).
\83\ See McFarland Testimony, March 26, 1998.
\84\ See Mauck Testimony (``[j]udicial remedies are often not
available. The churches don't have the money, or the municipalities can
wait them out because a church has a choice of buying a building that
it can't use or having to carry that expense and pay the mortgage every
month, if you can get a mortgage, on a building that it can't use, or
walking away.'') See Love Church v. City of Evanston, 896 F.2d 1082
(7th Cir. 1990) (holding that church lacked standing to challenge
zoning restrictions because it did not have a lease on a specific
property, despite fact that no lease would be granted pending zoning
litigation).
---------------------------------------------------------------------------
The Subcommittee heard testimony regarding a study
conducted at Brigham Young University finding that Jews, small
Christian denominations, and nondenominational churches are
vastly over represented in reported church zoning cases.\85\
The testimony included discussion of a pattern of abuse that
exists among land use authorities who deny many religious
groups their right to free exercise, often using mere pretexts
(such as traffic, safety, or behavioral concerns) to mask the
actual goal of prohibiting constitutionally protected religious
activity.\86\ Religious groups accounting for only 9% of the
population account for 50% of the reported litigation involving
location of churches, and 34% of the reported litigation
involving accessory uses at existing churches.\87\ These small
groups plus unaffiliated and nondenominational churches account
for 69% of the reported location cases and 51% of the reported
accessory use cases.\88\ Jews account for only 2% of the
population, but 20% of the reported location cases and 17% of
the reported accessory use cases.\89\
---------------------------------------------------------------------------
\85\ See Keetch Testimony, May 12, 1999; see also Religious Liberty
Protection Act of 1998, Hearing Before the Subcomm. on the Constitution
of the House Comm. on the Judiciary (statement of Prof. W. Cole Durham,
Brigham Young Univ.) <>
(discussing study) [hereinafter Brigham Young Study].
\86\ Durham Testimony. Indeed, as shown by the BYU study, while
factors other than religious prejudice serve to ``explain some of the
disparity . . . the differences (among religious groups) are so
staggering that it is virtually impossible to imagine that religious
discrimination is not playing a significant role.'' Id. (emphasis
added). See Church of the Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520, 534 (1993) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 696
(1970) (Harlan, J. concurring) (``[T]he Free Exercise Clause protects
against government hostility which is masked as well as overt. `The
Court must survey meticulously the circumstances of governmental
categories to eliminate, as it were, religious gerrymanders.' ''). See
also Islamic Center of Mississippi v. City of Starkville, 840 F.2d 293
(5th Cir. 1988) (reversing a district court holding that no inference
of discrimination existed where local officials ordered a Muslim group
to cease worship services in its building, despite the fact that a next
door residence produced more noise and traffic congestion while serving
as a worship center for Pentecostal Christians and was not required to
cease services).
\87\ See Keetch Testimony.
\88\ Id.
\89\ Id.
---------------------------------------------------------------------------
In Congressional testimony regarding a survey of the
efforts of Presbyterian congregations in land use and zoning
matters, almost half of the cases examined involved no
generally applicable rule and individualized decision making by
regulators: 32% of the congregations requiring a land use
permit reported that ``no clear rules permitted or forbade what
we wanted to do, and everything was decided based on the
specifics of this particular case (e.g., variance, waiver,
special use permit, conditional use permit, amendment to the
zoning ordinance, etc.)''; \90\ 15% reported that ``even though
a clear rule seemed to permit or forbid what we wanted to do,
the land use authority's principal decision involved granting
exceptions to the rule based on the specifics of this
particular case.'' \91\ Presbyterian congregations needing a
land use permit in a span of 5 years, 10%, or roughly 325 to
400 congregations, reported significant conflict with
government or neighbors over the land use permit.\92\
Significantly, the Brigham Young study discovered only five
reported cases involving Presbyterian churches,\93\ which
highlights the great disparity between reported and actual
cases. The success rate of churches in the relatively few
reported cases has, in fact, declined.\94\
---------------------------------------------------------------------------
\90\ See Religious Liberty Protection Act of 1998: Hearing on
S.2148 Before the Sen. Comm. on the Judiciary, 105th Cong. (statement
of Prof. Douglas Laycock, Univ. of Texas) (reporting data from survey
of Presbyterian congregations [hereinafter Laycock Senate Testimony).
\91\ Id.
\92\ See Religious Liberty Protection Act of 1998: Hearing on H.R.
4019 Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 105th Cong. (June 16, 1998) (testimony of Rev. Eleanora
Giddings Ivory, Director, Washington Office of the Presbyterian Church
(U.S.A.) (Presbyterians are a mainline denomination, yet still
experience problems). 8% reported that government imposed conditions
that increased the cost of the project by more than 10%. Id.
\93\ Keetch Statement.
\94\ See The Need for Federal Protection of Religious Freedom and
Boerne v. Flores, II: Hearing Before the Subcomm. on the Constitution
of the House Comm. on the Judiciary, 105th Cong. (statement of Von
Keetch, Partner, Kirton & McConkie) <> (citing report showing churches winning 71 out of 106
prior to 1980 and only 48 out of 83 afterwards). See Christian Gospel
Church v. San Francisco, 896 F.2d 1221 (9th Cir. 1990); Messiah Baptist
Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988) (upholding
exclusion of church from agricultural zone); Grosz v. City of Miami
Beach, 721 F.2d 729 (11th Cir. 1983) (upholding prohibition on prayer
services in rabbi's residence); Lakewood Congregation of Jehovah's
Witnesses v. City of Lakewood, 699 F.2d 303, 304 (6th Cir. 1983)
(upholding exclusion of church from ``residential'' lot on six-lane
highway).
---------------------------------------------------------------------------
The statistical and survey-related evidence of religious
discrimination presented to the Subcommittee was supported by
persuasive anecdotal evidence. One witness described twenty-one
cases where cities refused to permit churches to use existing
buildings that non-religious assemblies had previously
used.\95\ In three of the most egregious cases, churches
applied for permits to use a flower shop, a bank, and a
theater. In each case, upon application for a use permit by the
church, the land use regulator rezoned each small parcel of
land into tiny manufacturing zones, rendering the churches non-
permitted uses for these ``zones.'' \96\ Other examples
included the City of Rockford, Illinois's refusal to allow the
Family Christian Center to use a former school building; this
decision was ultimately found to be arbitrary and
capricious.\97\ Living Word Outreach Full Gospel Church and
Ministries in Chicago Heights, Illinois was refused the use of
a Masonic Temple for religious assembly.\98\ Gethsemane Baptist
in Northlake, Illinois was refused the use of a VFW hall as a
church hall.\99\ Faith Cathedral Church in Chicago was refused
the use of a funeral parlor complete with chapel and spacious
parking.\100\ Vinyard Church in Chicago was refused the use of
a former theater for religious services.\101\ Evanston Vinyard
Church in Evanston, Illinois was not allowed to use an office
building with an auditorium for the purpose of religious
assembly.\102\ Cornerstone Community Church in Chicago Heights
was not allowed to use a former department store for religious
gatherings.\103\
---------------------------------------------------------------------------
\95\ See Mauck Testimony.
\96\ Id
\97\ See Family Christian Fellowship v. County of Winnebago, 503
N.E.2d 367 (Ill. App. 1986).
\98\ See City of Chicago Heights v. Living Word Outreach Full
Gospel Church and Ministries, Inc., 707 N.E.2d 53 (Ill. App. 1999)
(finding the denial of the special use permit to be arbitrary and
capricious).
\99\ Mauck Testimony.
\100\ Id.
\101\ Id.
\102\ Id.
\103\ Id.
---------------------------------------------------------------------------
This brash display of religious discrimination is not
endemic to the State of Illinois. In Forest Hills, Tennessee, a
Mormon church was denied a permit to use property which had
formerly been used as a church. The site was in a cluster of
four large churches near a major intersection--one Methodist,
one Presbyterian, and two Churches of Christ. When one of the
churches closed, the Mormon church bought the property and
applied for its use as a church. The city denied the permit on
the basis that a temple would not be ``in the best interests of
and promote the public health, safety, morals, convenience,
order, prosperity, and general welfare of the City'' and citing
its desire to have no more churches in the community. The judge
concluded that the city's decision was ``essentially aesthetic,
to maintain a `suburban estate character' of the City'' and
upheld the exclusion.\104\
---------------------------------------------------------------------------
\104\ Id.
---------------------------------------------------------------------------
Because Orthodox Jews may not use motorized vehicles on the
Sabbath, they must live within walking distance of a synagogue
or shul.\105\ It is very easy, therefore, for land use
regulators to exclude Orthodox Jews from living in a
neighborhood by excluding their place of worship. The City of
Los Angeles refused to allow fifty elderly Jews to meet for
prayer in a house in the large residential neighborhood of
Hancock Park. The City permitted other places of assembly in
Hancock Park, including schools, recreational uses, and embassy
parties, but refused this use because Hancock Park had no place
of worship and the City did not want to create a precedent for
one.\106\
---------------------------------------------------------------------------
\105\ Shoulson Testimony; Stern Testimony, June 1998.
\106\ See Need for Federal Protection of Religious Freedom after
Boerne v. Flores: Oversight Hearings Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 106th Cong. (February
26, 1998) (statement of Rabbi Chaim Baruch Rubin, Congregation Etz
Chaim, Los Angeles, California) <>.
---------------------------------------------------------------------------
One witness before the Subcommittee testified to having
handled more than thirty such cases in New Jersey.\107\ He
explained that land use regulators often refuse permits for
Orthodox synagogues because they do not have as many parking
spaces as the city requires for the number of seats.\108\ One
vivid example of this tactic was the case of the City of
Cheltenham Township, Pennsylvania, which insisted that a
synagogue construct the required number of parking spaces
despite their being virtually unused. When the synagogue
finally agreed to construct the unneeded parking spaces, the
city denied the permit anyway, citing the traffic problems that
would ensue from cars for that much parking.\109\ A related
example occurred in Long Island, New York, where a bustling
beach community with busy weekend night activity excluded a
synagogue on the basis that it would bring traffic on Friday
nights.\110\
---------------------------------------------------------------------------
\107\ Shoulson Testimony.
\108\ Shoulson Testimony; Stern Testimony, June 1998.
\109\ Orthodox Minhan v. Cheltenham Township Zoning Hearing Board,
552 A.2d 772, 773 (Pa. Com. 1989).
\110\ See Stern Testimony, March 1998.
---------------------------------------------------------------------------
The Subcommittee also received testimony of overt religious
bigotry in zoning hearings.\111\ One witness described a
hearing in which ``an objector turned to the people in the
audience wearing skull caps and said `Hitler should have killed
more of you.' '' \112\ In New Jersey, a zoning board invited
testimony on the effect that substantial Orthodox Jewish
populations had had on other communities.\113\ Another witness
discussed a case involving the application for a permit by the
Family Christian Center, where a neighbor implored, ``Let's
keep these God damned Pentecostals out of here.'' \114\ This
sentiment was apparently shared by the judge; although the
application was for a permit to use an existing school
building, the judge said from the bench, ``We don't want
twelve-story prayer towers in Rockford,'' an apparent reference
to the twelve-story prayer tower at Oral Roberts
University.\115\
---------------------------------------------------------------------------
\111\ Racial or ethnic discrimination may also play a part. One
witness testified to a case in which the mayor told the city manager to
deny the permit because ``We don't want Spics in this town.'' The city
manager who disclosed this statement was fired. Mauck Testimony. He
described several other cases in which racial motivations involving
black and Korean churches were evident. Id. (describing Ira Iglesia de
la Biblia Abierta, Christ Center, Pipe Stream Morning Star Retreat, and
Korean Central Covenant Church). Wayne, New Jersey denied a permit to a
black church, after one official opposed the permit on the ground that
the city would soon look like Patterson, a predominantly African-
American city nearby. Stern Testimony, March 1998. Clifton, New Jersey
denied permits for a black mosque four times, offering parking concerns
as the reason, then approved a white church nearby that raised the very
same parking issues. Id.
\112\ Shoulson Testimony. See Stern Testimony, March 1998
(describing anti-Semitic views openly expressed against a Jewish
proposal that had received land use approval in Ohio).
\113\ Id.
\114\ Mauck Testimony.
\115\ Id.
---------------------------------------------------------------------------
This factual record, complete with statistical and
anecdotal evidence, results in the Committee's finding that
many exercises of land use regulation are unconstitutional.
Congress therefore exercises its enforcement power pursuant to
Sec. 5 of the Fourteenth Amendment as a means of remedying
these abuses of the First Amendment right to free
exercise.\116\
---------------------------------------------------------------------------
\116\ See U.S. Const. amend. XIV. See also Boerne, 521 U.S. at 532
(holding that Congress's Sec. 5 enforcement power requires ``reason to
believe that many of the laws affected by the congressional enactment
have a significant likelihood of being unconstitutional.'') (emphasis
added). Cf. Rous, supra note 8, at 331 (arguing that the Smith rule is
``untenable in free exercise zoning challenges''); Shelley Ross Saxer,
Zoning Away First Amendment Rights, 53 Wash. U. J. Urb. & Contemp. L. 1
(1998) (arguing that land use regulations that burden free exercise
rights should be treated as prior restraints); McConnell, Institutions
and Interpretation, supra note 21, at 195 (discussing the ``remedial''
understanding of Sec. 5 and arguing that RFRA was the type of
enforcement legislation that the Fourteenth Amendment envisions).
---------------------------------------------------------------------------
Many cities overtly exclude churches, others do so subtly.
The motive is not always easily discernible, but the result is
a consistent, widespread pattern of political and governmental
resistance to a core feature of religious exercise: the ability
to assemble for worship.
Several conclusions flow from the land use evidence
gathered by the Subcommittee:
Some land use regulations are designed to exclude churches,
other regulations are in fact implemented to exclude churches.
Many zoning schemes around the country make it illegal to start
a church anywhere in the community without discretionary
permission from a land use authority. In a significant number
of communities, it is difficult or impossible to build or
occupy space for a new church. While discrimination can be very
difficult to prove in any individual case, many of the land use
regulations affected by H.R. 1691 have a significant likelihood
of being unconstitutional.
Land use regulation is commonly administered through
individualized processes not controlled by neutral and
generally applicable rules. The standards in individualized
land use decisions are often vague, discretionary, and
subjective.
Conflicts between religious organizations and land use
regulators are much more common than reported cases would
indicate. Smaller and less mainstream denominations are over-
represented in reported land use disputes, but they win their
claims at the same rates as larger churches; this over-
representation in reported cases indicates discriminatory
regulation of these faiths and not the merits of their cases or
their own propensity to litigate. Land use regulation has a
disparate impact on churches and especially on small faiths and
nondenominational churches.
Inferences from reported cases are re-enforced by anecdotal
evidence of discrimination from around the country. Churches
are often refused permission to meet in buildings designed for
meetings, and in which secular meetings have been permitted.
Religious discrimination is sometimes coupled with racial and
ethnic discrimination.
Section 5, Fourteenth Amendment burden shifting provision
Finally, H.R. 1691 simplifies the litigation of all free
exercise claimants by shifting the burden of persuasion to the
government once the claimant shows a prima facie case. Under
Section 3(a), if a claimant demonstrates a prima facie
violation of the Free Exercise Clause, the burden of persuasion
then shifts to the government on all issues except the burden
on religious exercise. This provision facilitates enforcement
of the right to religious exercise as defined by the Supreme
Court. Thus, when a claimant shows a burden on religious
exercise by a discriminatory motivation, by a less than
generally applicable law, or under the hybrid rights
theory,\117\ the burden of persuasion on all elements except
the religious exercise burden would shift to the government.
Because the Supreme Court's free exercise test has many
exceptions of uncertain scope, shifting the burden of
persuasion has important implications. This exercise of Section
5 authority thus favors the constitutional right to free
exercise where the facts are uncertain; where the government
demonstrates that no constitutional violation has occurred
pursuant to rules set forth by the Supreme Court, then the
government wins on the merits.
---------------------------------------------------------------------------
\117\ See Church of the Lukumi Babalu Aye, 508 U.S. 520; Boerne,
521 U.S. 507.
---------------------------------------------------------------------------
Federalism
H.R. 1691 lifts burdens on religious exercise without
dictating the means by which governments might accomplish this.
H.R. 1691 does not impose any specific affirmative duty,
implement a federal regulatory program, or conscript state
officers. Its core policy is not to regulate the states, but to
deregulate the exercise of religion. H.R. 1691 pre-empts state
laws that fall within the scope of Congressional power and
substantially burden religious exercise without a compelling
reason, and it provides a cause of action to enforce that
policy. RFRA deregulates religious exercise at the federal
level, and H.R. 1691 would pre-empt state regulation
inconsistent with that federal policy. The structure of RLPA's
spending and commerce power sections is strikingly parallel to
the structure of the Airline Deregulation Act,\118\ which also
deregulated a field of private activity and pre-empted
inconsistent state regulation.
---------------------------------------------------------------------------
\118\ Laycock Testimony, May 12, 1999; Thomas C. Berg, The
Constitutional Future of Religious Freedom Legislation, 20 UALR L.J.
715, 761-62 (1998).
---------------------------------------------------------------------------
H.R. 1691 does not violate the Tenth Amendment as
interpreted by the Supreme Court in New York v. United
States\119\ and Printz v. United States.\120\ Both cases
explicitly recognize Congressional power to make ``compliance
with federal standards a precondition to continued state
regulation in an otherwise pre-empted field.''\121\ What is
prohibited by New York and Printz is any attempt by Congress to
require a state, in its sovereign capacity, to regulate its own
citizens according to federal dictate, or to impress state
officials to implement or enforce federal policy. Put another
way, the federal government may not ``commandeer'' state
legislatures or state officials to affirmatively enact or
enforce federal policy. But it may prohibit them from violating
federal policy regulating or deregulating private activity in
fields subject to Congressional power.
---------------------------------------------------------------------------
\119\ 505 U.S. 144 (1992).
\120\ 521 U.S. 898 (1997).
\121\Printz, 521 U.S. at 925-26; accord, New York, 505 U.S. at 167;
Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S.
264, 291 (1981).
---------------------------------------------------------------------------
HEARINGS
The Committee's Subcommittee on the Constitution held one
day of hearings on H.R. 1691, Religious Liberty Protection Act
of 1999 on May 12, 1999. Testimony was received from the
following witnesses: Dr. Richard Land, President, Ethics and
Religious Liberty Commission of the Southern Baptist
Convention; Lawrence G. Sager, Robert B. McKay Professor of
Law, New York University School of Law; Von Keetch, Counsel,
The Church of Jesus Christ of Latter-Day Saints; J. Brent
Walker, General Counsel, Baptist Joint Committee on Public
Affairs; Dr. Clarence E. Hodges, Vice President, Seventh-day
Adventist Church of North America; Christopher E. Anders,
Legislative Counsel, American Civil Liberties Union; Rabbi
David Saperstein, Director and Counsel, Religious Action Center
of Reform Judaism; Chai Feldblum, Professor of Law and
Director, Federal Legislation Clinic, Georgetown University Law
Center; Douglas Laycock, Associate Dean for Research,
University of Texas Law School; Oliver S. Thomas, Special
Counsel for Religious and Civil Liberties, National Council of
Churches; Reverend C. J. Malloy, Jr., First Baptist Church of
Georgetown; Bradley Jacobs for Michael P. Farris, President,
Home School Legal Defense Association; Marci A. Hamilton,
Professor of Law, Benjamin N. Cardozo School of Law; Steven T.
McFarland, Director, Center for Law & Religious Freedom,
Christian Legal Society.
COMMITTEE CONSIDERATION
On Wednesday, May, 26, 1999, the Subcommittee on the
Constitution met in open session and ordered favorably reported
the bill, H.R. 1691, as amended, by a voice vote, a quorum
being present. On June 15 and 23, 1999, the Committee met in
open session and ordered favorably reported the bill, H.R.
1691, with amendment by voice vote, a quorum being present.
VOTE OF THE COMMITTEE
There were no roll call votes.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT FINDINGS
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives.
NEW BUDGET AUTHORITY AND TAX EXPENDITURES
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1691, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 28, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1691, the
Religious Liberty Protection Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Dan L. Crippen, Director.
Enclosure.
H.R. 1691--Religious Liberty Protection Act of 1999
CBO estimates that enacting H.R. 1691 would have no
significant impact on the federal budget because this bill
would primarily address state actions. Because enactment of
H.R. 1691 would not affect direct spending or receipts, pay-as-
you-go procedures would not apply.
Under current law, a state or local government may infringe
upon a person's exercise of religion as long as that action
bears a rational relationship to the government's interest.
H.R. 1691 would preclude, under certain circumstances, any
infringement on a person's exercise of religion unless the
state or local government could show that it furthered a
compelling interest by the least restrictive means.
H.R. 1691 would allow the federal government to sue state
and local governments to enforce compliance with provisions of
the bill. CBO expects that any costs associated with this
authority would be insignificant. Such federal costs, if any,
would be subject to the availability of appropriated funds.
Section 4 of the Unfunded Mandates Reform Act excludes from
the application of that act any legislative provisions that
enforce the constitutional rights of individuals. CBO has
determined that H.R. 1691 fits within that exclusion.
The CBO staff contact for this estimate is Susanne S.
Mehlman. This estimate was approved by Robert A. Sunshine,
Deputy Assistant Director for Budget Analysis.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 1; Article I,
section 8, clause 3; Article VI, clause 2; Amendment V; and
Amendment XIV, section 5 of the Constitution.
SECTION-BY-SECTION ANALYSIS
Section 1. This section provides that the title of the Act
is the Religious Liberty Protection Act of 1999.
Section 2. The introductory and concluding clauses of
Sec. 2(a) track the substantive language of RFRA, providing
that where the section applies, government shall not
substantially burden a person's exercise of religion. This
general rule is expressly subject to the compelling interest
exception set out in Sec. 2(b).
Section 2(a)(1) applies this general rule to programs or
activities receiving federal financial assistance. This
subsection ensures that no person will be unnecessarily
deprived of the benefits of a federally assisted program, or
unnecessarily forced to abandon or compromise religious
practices as a condition of participation in a federally
assisted program.
Section 2(a)(2) 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 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, such as
the construction of churches, the hiring of employees, or the
purchase of supplies and equipment. Where the burden or removal
of the burden on religious exercise affects one of these
commercial transactions, the Act applies.
Section 2(b) is taken verbatim from RFRA. It states the
compelling interest exception to the general rule that
government may not substantially burden religious exercise. The
application of the burden to the person whose religious
exercise is burdened--not the government program in general--
must serve a compelling interest by the least restrictive
means.
Section 2(c) prevents any threat of withholding federal
funds from a federally assisted activity. Withholding funds is
too drastic a remedy to be used effectively, and it hurts the
intended beneficiaries of the federally assisted program (who
are also the intended beneficiaries of this Act). But the
United States may enforce the Act with injunctive and
declaratory remedies preserved in this section and expressly
created in Sec. 4(d).
Section 3. This section is legislation to enforce the
Fourteenth Amendment. But in many of its applications, it is
also an exercise of the commerce power, because burdensome
regulation of religious uses will prevent construction projects
or real estate transactions that affect commerce. Where the
effect on commerce can be proved, land use regulation may be
challenged either under Sec. 2(b)(2) or under Sec. 3.
Section 3(a) simplifies enforcement of the Free Exercise
Clause as interpreted by the Supreme Court. 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. Many of
these exceptions present issues in which the facts are
uncertain and difficult to prove, or essential information is
controlled by the government. Section 3(a) 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 or substantial burden
on religion.
Section 3(b)(1) codifies parts of the Court's
constitutional tests as applied to land use regulation. Section
3(b)(1)(A) provides that if a land use regulation gives
government the authority to make individualized assessments of
the proposed uses of real property, then the authorities
applying that regulation may not substantially burden the free
exercise of religion unless application of the burden to the
person furthers a compelling interest by the least restrictive
means. This directly enforces that part of Employment Division
v. Smith, 494 U.S. 872 (1990), that applies the compelling
interest test to cases in which the regulated conduct is
subject to individualized assessment.
Section 3(b)(1)(B) requires that land use regulation treat
religious assemblies or institutions on equal terms with
nonreligious assemblies or institutions. Section 3(b)(1)(C)
forbids land use regulations that discriminate on the basis of
religion or religious denomination. These provisions directly
enforce the constitutional rule that government may not
discriminate against religion or unnecessarily burden religious
exercise with laws that are less than generally applicable.
Section 3(b)(1)(D) provides that government may not
unreasonably exclude religious assemblies from a jurisdiction,
or unreasonably limit them within the jurisdiction. This
provision enforces the rule that First Amendment uses cannot be
excluded from a municipality. Schad v. Borough of Mt. Ephraim,
452 U.S. 61 (1981). What is reasonable must be determined in
light of all the facts, including the physical and financial
availability of land to religious organizations.
Section 3(b)(2) requires a full and fair opportunity to
litigate land use claims arising under the Free Exercise Clause
or under section 3(b). For example, if a zoning board refuses
to entertain a federal claim because of limits on its
jurisdiction, or if it excludes evidence of how places of
secular assemblies were treated, and if the state court then
confines itself to the record before the zoning board, the
resulting judgment is not entitled to full faith and credit in
a federal suit under the Free Exercise Clause or section 3(b)
of this Act.
Section 3(b)(3) expressly provides that equally or more
protective state law is not preempted. Some state zoning laws
make accommodations for religious uses, and those
accommodations are unaffected by this Act.
Section 4. This section provides remedies for violations.
Sections 4(a) and (b) track RFRA, creating a private cause of
action for damages, injunction, and declaratory judgment, and
creating a defense to liability, and providing for attorneys'
fees. 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 and employees.
Section 4(c) subjects prisoner claims to the Prison
Litigation Reform Act. Section 4(d) expressly authorizes the
United States to sue for injunctive or declaratory relief to
enforce the Act.
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.
An example of a religious organization acting under color
of law would be one that undertook by contract to administer a
government program. That government program would be subject to
this Act even though administered by a religious organization.
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.
Section 5(e) emphasizes that this Act does not require
states to pursue any particular public policy or to abandon any
policy, but that each state is free to choose its own means of
eliminating substantial burdens on religious exercise. The Act
preempts laws that unnecessarily burden the exercise of
religion, but it does not impose any specific policy on the
states or require any affirmative conduct by the states.
Section 5(f) provides that proof of an effect on commerce
under Sec. 2(a)(2) does not establish any inference or
presumption that Congress meant to regulate religious exercise
under any other law.
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(h)
provides that each provision of the Act is severable from every
other provision.
Section 6. This section is taken verbatim from RFRA. It is
language designed to ensure that the Act is neutral on all
disputed issues under the Establishment Clause.
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.
Section 8. This section defines important terms used in the
Act. Section 8(a)(1) defines ``religious exercise,'' clarifying
issues that had generated litigation under RFRA. Religious
exercise need not be compulsory or central to the claimant's
religious belief system, and building a church, or otherwise
using real property for religious purposes, is religious
exercise. As under RFRA, religious exercise includes any
conduct that is the exercise of religion under the First
Amendment.
Section 8(a)(2) defines ``Free Exercise Clause'' to mean
both the clause in the First Amendment and the application of
that clause under the Fourteenth Amendment.
Section 8(a)(3) defines land use regulation to include only
regulation that applies to particular parcels or zones and to
persons with a property interest in the affected land.
Regulation that applies to all land in a jurisdiction is not
land use regulation, even if it has some connection to land.
Such regulation may be also reached under Sec. 2 if it affects
commerce or is implemented with federal financial assistance,
but it cannot be reached under Sec. 3.
Section 8(a)(4) 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 state does.
The definition of ``demonstrates'' in Sec. 8(a)(5) is taken
verbatim from RFRA. It includes both the burden of going
forward and the burden of persuasion.
The definition of ``government'' in Sec. 8(a)(6)(A) tracks
RFRA, except that the United States and its agencies have been
deleted, because the United States remains subject to RFRA.
Section 8(a)(6)(B) puts the United States and its agencies back
in for the purposes of Sec. Sec. 3(a) and (5), because the
burden-shifting provision in Sec. 3(a), and some of the rules
of construction in Sec. 5, do not appear in RFRA.
DISSENTING VIEWS
We cannot support H.R. 1691, the ``Religious Liberty
Protection Act of 1999'' (hereinafter ``RLPA''). We believe
that this bill will be found unconstitutional by the Supreme
Court. We are further concerned that the bill is not well-
crafted and will be used to undermine its stated goal of
enhancing religious protections for all citizens. For these
reasons, we offer the following dissenting analysis.
Brief summary of applicable law
H.R. 1691 is a legislative response to several Supreme
Court decisions regarding the Free Exercise Clause of the First
Amendment. Prior to 1990, Sherbert v. Verner, 374 U.S. 398
(1963), was widely recognized as the seminal Free Exercise
case. Sherbert involved a South Carolina woman who was refused
unemployment compensation because she refused to work on her
Saturday Sabbath. The state of South Carolina later refused her
unemployment compensation. The state argued that the woman
simply refused an employment opportunity. The Court held,
however, that the state's refusal violated the Free Exercise
Clause because its denial of unemployment compensation forced
Sherbert to choose between religious adherence and unemployment
compensation benefits. In doing so, the Court applied a
``compelling interest'' test and determined that the state
government's interest in denying the benefits was neither
compelling, nor narrowly tailored to the least restrictive
means. Sherbert, 374 U.S. at 409.
In 1990, the Court retreated from the strict scrutiny
standard it had articulated in Sherbert in Employment Division,
Oregon Department of Human Resources v. Smith, 494 U.S. 872
(1990). Instead of applying strict scrutiny, the Court
determined that laws of general applicability are presumptively
constitutional so long as such laws are not motivated by a
governmental desire to burden religion.
In Smith, two Native American state employees who worked as
counselors for a private drug rehabilitation organization
ingested peyote (a powerful hallucinogen) for ceremonial
purposes as members of the Native American Church. The
rehabilitation agency fired the counselors, who later filed
unemployment compensation claims. The state rejected the
unemployment compensation claims of both workers on grounds
that both were dismissed for ``work-related misconduct.''
After unsuccessfully appealing their claims to the Oregon
Supreme Court, the plaintiffs sought U.S. Supreme Court review
of the state court decision. The Court vacated and remanded the
Oregon high court decision to determine whether sacramental use
of peyote violated Oregon's illicit drug laws. The Oregon
Supreme Court determined that Oregon drug laws prohibited the
consumption of peyote, even for religious uses. The state court
further held that this prohibition violated the Free Exercise
Clause and the case returned to the United States Supreme Court
for review.
The Supreme Court reversed the state court determination
that Oregon drug laws violated the Free Exercise Clause by
prohibiting the religious use of peyote. Justice Scalia,
writing for the majority, observed that the Court has never
held that an individual's religious beliefs excuse that
individual from compliance with an otherwise valid law
prohibiting conduct that the government is free to regulate.
Allowing exceptions to every state law or regulation affecting
religion ``would open the prospect of constitutionally required
exemptions from civic obligations of almost every conceivable
kind.'' Smith, 494 U.S. at 890. Scalia cited compulsory
military service, tax obligations, vaccination requirements and
child-neglect laws as examples of facially neutral laws that
prohibit conduct that the government is free to regulate
regardless of the religious burden. Citing these policy
concerns, the Court concluded that a law which is religiously
neutral may be uniformly applied to all persons without regard
to any burden or prohibition placed on their exercise of
religion. In the case of the plaintiffs in Smith, the Free
Exercise Clause afforded no religious exemption from the Oregon
illicit drug laws for ceremonial uses of peyote. Consequently,
the plaintiffs' claims for unemployment compensation were held
to be properly denied.1
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\1\ Subsequent to Smith, Congress made the religious use of peyote
by members of the Native American Church legal under federal law. See
42 U.S.C. 1996a (enacted October 6, 1994). Oregon also decriminalized
the religious use of peyote. Ore. Rev. Stat. 475.992(5) (1996).
---------------------------------------------------------------------------
RLPA creates a right of action where any religiously-
neutral state or local law is alleged to ``substantially
burden'' a religious practice. Where such a burden is alleged,
the state or local government law at issue will be found in
violation of the statute unless the government can demonstrate
that the law furthers a compelling government interest and is
the least restrictive means of achieving that interest. In
other words, unless the challenged government law survives
strict scrutiny analysis, an individual's right to practice his
or her religion will take precedence over that law. Initially,
RLPA appears to track the ``Religious Freedom Restoration Act
of 1993'' (hereinafter ``RFRA''), which passed a Democratic
majority House of Representatives by a voice vote.2
See 42 U.S.C. Sec. 2000bb-2000bb-4.
---------------------------------------------------------------------------
\2\ Prior to passing RFRA, the Democratic majority passed several
other important reforms to foster a more inclusive religious
environment. When the Supreme Court held that a Jewish soldier did not
have First Amendment right to wear a yarmulke, the 100th Congress
passed a bill that allows members of the U.S., military to wear
religious apparel. 10 U.S.C. 774 (1987). When the Supreme Court held
that road construction proposed on a site held to be sacred by Native
Americans did not pose a free exercise issue, the 100th Congress
withdrew funding for Forest Service road construction that would have
harmed the sacred site. House Comm. on Appropriations, Dept. of the
Interior and Related Agencies Appropriations Bill, 1989, H.R. Rep. No.
713, 100th Congress, 2d Sess. 72 (1988).
---------------------------------------------------------------------------
One major difference between the RFRA and RLPA is that they
use different constitutional authority to impose strict
scrutiny on state and local laws. RFRA drew upon Section 5 of
the Fourteenth Amendment.3 However, in 1997, the
Supreme Court found that the broad protections accorded
individuals against state and local laws under RFRA were
excessive and could not be supported under Section 5. The case,
City of Boerne, Texas v. Flores, 521 U.S. 507 (1997), involved
a local Catholic church that wanted to raze much of its
existing structure to build a larger sanctuary. The Boerne city
council refused to grant a building permit to allow the
expansion, contending that the designation of the sanctuary as
an historic site impeded its expansion under a local historic
preservation ordinance. Archbishop Flores of San Antonio
challenged the denial of the building permit under RFRA. The
city contended that RFRA was unconstitutional as applied to the
local historic preservation ordinance.
---------------------------------------------------------------------------
\3\ Section 2 of the Fourteenth Amendment prohibits states from
depriving ``any person of life, liberty, or property, without due
process of law.'' Religious freedom has been recognized as a
``liberty'' interest under the Fourteenth Amendment. Section 5 of the
Fourteenth Amendment provides that ``Congress shall have power to
enforce, by appropriate legislation, the provisions of this article.''
---------------------------------------------------------------------------
In holding that Congress ``exceeded its authority'' under
Section 5 of the Fourteenth Amendment, the Court explained that
Section 5 is remedial in nature and requires proportionality
between constitutionally recognized harm and the statutory
means used to guard against that harm. Where the extent of harm
is small, the means adopted to cure the harm must be modest.
Where the harm is great, the corrective measures may be more
expansive.
In Boerne, the Court found that RFRA provided extreme
measures to protect free exercise rights but provided no
factual predicate in the legislative record to justify such a
broad enactment. The Court compared RFRA to the Voting Rights
Act of 1965, which also provided broad protections under the
Fourteenth Amendment. However, in the case of the Voting Rights
Act, the Court said, Congress presented a detailed legislative
record identifying the broad scope of the problems to be
remedied by that Act. RFRA, unlike the Voting Rights Act, had
no such factual background, and therefore its broad-based
measures were deemed unconstitutional as applied to state and
local law.4 The proponents of RLPA have proffered
the same sort of legislative record as Congress established in
1993.5 We agree with proponents of RLPA that its
broad protections cannot be achieved by use of Section
5.6 However, unlike RLPA's proponents, we believe
that the substitution of Commerce Clause and Spending Clause
powers raises even more questions of law and policy, which may
invite the Court to overturn RLPA.
---------------------------------------------------------------------------
\4\ It is hard to say with any certainty that the Boerne holding
can be limited solely to the Court's interpretation of Congress' power
under the Fourteenth Amendment. Some scholars, including Professor
Lawrence Sager, contend that the Boerne Court's Sec. 5 analysis masked
deeper misgivings about RFRA that could not be corrected by
substituting Commerce and Spending Clause powers. If, for example,
imposition of the ``compelling interest'' in the text of the statute
violates the separation of powers doctrine, RLPA has inherited this
constitutional defect from RFRA. See Christopher L. Eisgruber &
Lawrence G. Sager, Congressional Power and Religious Liberty After City
of Boerne v. Flores, 1997 Sup. Ct. Rev. 79 (1997); Christopher L.
Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration
Act Is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994).
\5\ The legislative record described in the Boerne opinion bears a
striking similarity to the record that has been established thus far
with respect to RLPA.
RFRA's legislative record lacks examples of modern
instances of generally applicable laws passed because of
religious bigotry. The history of persecution in this
country detailed in the hearings mentions no episodes
occurring in the past 40 years. The absence of more recent
episodes stems from the fact that, as [Doug Laycock]
testified, ``deliberate persecution is not the usual
problem in this country.'' Rather the emphasis of the
hearings was on laws of general applicability which place
incidental burdens on religion. Much of the discussion
centered upon anecdotal evidence of autopsies performed on
Jewish individuals and Hmong immigrants in violation of
their religious beliefs and on zoning regulations and
historic preservation laws, which as an incident of their
normal operation, have adverse effects on churches and
synagogues. It is difficult to maintain that they are
examples of legislation enacted or enforced due to animus
or hostility to the burdened religious practices or that
they indicate some widespread pattern of religious
discrimination in this country. Congress' concern was with
the incidental burdens imposed, not the object or purpose
---------------------------------------------------------------------------
of the legislation.
Boerne, 117 S.Ct. 2157, 2169 (1997) (citations and parentheses
omitted).
---------------------------------------------------------------------------
\6\ We note, however, that the land use provisions included in H.R.
1691 attempt to use Section 5 power. The broad protections included
therein may indeed tempt the Supreme Court to overturn those
provisions, and it seems odd that the framers of the proposed
legislation would forward it without a stronger record of land use
abuse. Given the record, as we will point out later, we believe that
the Supreme Court may well overturn the land use provisions.
---------------------------------------------------------------------------
Commerce clause
Congress has authority to regulate state activities that
``substantially affect'' interstate commerce.7 In
the past Congress has successfully invoked its commerce power
to enact, among other things, many civil rights laws, including
the Civil Rights Act of 1964, the Age Discrimination in
Employment Act and the Americans with Disabilities
Act.8
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\7\ Article I, Section 8, clause 3 of the United States
Constitution provides Congress with authority to ``regulate Commerce
with foreign nations, and among the several states, and with the Indian
Tribes.''
\8\ Other examples of Congressional acts that have successfully
used the Commerce power include federal regulation of intrastate coal
mining, Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452
U.S. 264, 276-280 ((1981), intrastate extortionate credit transactions,
Perez v. United States, 402 U.S. 146, 155-56 (1971), restaurants using
substantial interstate supplies, Katzenbach v. McClung, 379 U.S. 294,
299-301 (1964), inns and hotels catering to interstate guests, Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53 (1964), and
production and consumption of wheat, Wickard v. Filburn, 317 U.S. 111
(1942).
---------------------------------------------------------------------------
For the most part, the Supreme Court has given significant
deference to Congress' determination that its commerce clause
authority is properly invoked in a given statute. However, in
one recent decision, United States v. Lopez, 514 U.S. 549
(1995), the Court did find an outer limit to the commerce
authority of Congress. The Lopez decision may call into
question whether RLPA is a proper exercise of Congressional
authority.
In Lopez, the Court considered the ``Gun-Free School Zones
Act of 1990,'' which, among other things, made it a federal
offense to ``knowingly possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a
school zone.'' In an opinion written by Chief Justice
Rehnquist, the Court found that there was no rational nexus
between the Act and interstate commerce. First, the Court noted
that the Act was a criminal statute, which ``by its terms has
nothing to do with `commerce' or any sort of economic
enterprise.'' Lopez, 514 U.S. at 561. Second, the Court
observed that the Gun-Free Schools Act contained no
jurisdictional element that ``would ensure, through a case-by-
case inquiry, that [ ] firearm possession [ ] affects
interstate commerce.'' Id. Third, the Court noted that the
legislative record contained no findings that the ``effects
upon interstate commerce of gun possession in a school zone.''
Citing these three factors, the Court found that the Gun Free
School Zones Act could not be upheld under the Commerce Clause,
because ``[t]he possession of a gun in a local school zone is
in no sense an economic activity that might, through repetition
elsewhere, substantially affect any sort of interstate
commerce.'' Id. at 567.
It is clear the H.R. 1691 does not provide a facially valid
interstate commerce nexus. Therefore, we believe that Lopez
will require courts to conduct a preliminary hearing on whether
the claimant has established an interstate commerce nexus
before a RLPA case proceeds to the merits. This approach will
no doubt lead to inconsistent results. Moreover, we believe
that tying religious burdens to interstate commerce may create
a bias toward adherents of larger religious groups, since those
groups are more likely to engage in interstate commerce. Even
so, where a particular religious practice is at issue, this
bill may discriminate among practices within a large religious
domination. These consequences do not follow from the spirit of
inclusiveness that have characterized our earlier efforts to
promote religious free exercise.
Spending clause
The test of whether a given enactment is an appropriate use
of Spending Clause power is whether the legislation establishes
a nexus between conditions of accepting the federal financial
assistance in question and the purpose of those funds. The
classic case in this area involved the federal legislation
designed to encourage states to increase the drinking age from
18 to 21 years. In that instance, Congress attempted to
condition the disbursement of federal highway funds on state
agreement to a higher drinking age requirement. The Supreme
Court, in South Dakota v. Dole, 514 U.S. 549 (1995), held that
such a use of spending power was proper. The Court found a
nexus between the condition and the purpose of funds--promotion
of highway safety. Moreover, the Court determined that the
ability of states to reject the condition (and thereby
relinquish their entitlements to the conditioned highway funds)
was a significant factor. As in the Commerce Clause area, RLPA
does not on its face evidence a nexus with federal spending.
Instead, it applies to all ``programs or activities'' that
receive federal financial assistance. The Spending Clause power
implicated in this bill is one of its more curious provisions.
One cannot be certain about what sorts of laws will be
challenged under this provision, and the proponents of this
bill have not articulated any examples.
Separation of powers
We believe that the Boerne decision also indicates that
Congress may have violated separation of powers principles by
enacting RFRA, an issue the Court would be forced to decide if
RLPA is enacted. If the Smith decision stands for anything, it
stands for the Court's determination that an across-the-board
strict scrutiny standard would work a substantial injustice to
other important but not compelling government interests. Rather
than reject strict scrutiny, as the proponents of RLPA have
claimed the Court did, the Court retained that standard but
decided to apply it on an as-needed basis. While Smith no doubt
left the religious community with some uncertainty about the
standard governing Free Exercise challenges, we cannot agree
with the proponents of RLPA that the Court has abandoned its
commitment to our longstanding tradition of religious free
exercise. As Professors Sager and Eisgruber have stated, ``The
Supreme Court held in Employment Division, Department of Human
Resources v. Smith, and reiterated in Church of the Lukumi
Babalu Aye v. Hialeah, 508 U.S. 520 (1993), that `where the
State has in place a system of individual exemptions, it may
not refuse to extend that system to cases of religious hardship
without compelling reason.' '' \9\ By imposing an across-the-
board strict scrutiny standard, which the Court has expressly
declined to apply in Smith, RLPA raises serious separation of
power issues. Indeed, the very language of the Boerne decision
indicates that this concern is real.\10\
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\9\ See, Professors Lawrence Sager and Christopher Eisgruber,
Explanatory Notes on the ``Religious Liberty Enforcement Act,'' (Letter
to Minority Counsel, dated May 20, 1999) (quoting Smith, 494 U.S. at
884 (quotations, citations, and alterations omitted)).
\10\ Consider the final few sentences of the opinion in which the
Court strikes an ominous tone:
Our national experience teaches that the Constitution is
preserved best when each part of the government respects
both the Constitution and the proper actions and
determinations of the other branches. When the Court has
interpreted the Constitution, it has acted within the
province of the Judicial Branch, which embraces the duty to
say what the law is. Marbury v. Madison, 1 Cranch, at 177,
2 L.Ed. 60. When the political branches of the Government
act against the background of a judicial interpretation of
the Constitution already issued, it must be understood that
in later cases and controversies the Court will treat its
precedents with the respect due them under settled
principles, including stare decisis, and contrary
expectations must be disappointed. RFRA was designed to
control cases and controversies, such as the one before us;
but as the provisions of the federal statute here invoked
are beyond congressional authority, it is this Court's
precedent, not RFRA, which must control. . . . Broad as the
power of Congress is under the Enforcement Clause of the
Fourteenth Amendment, RFRA contradicts vital principles
necessary to maintain separation of powers and the federal
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balance.
Boerne, 117 S.Ct. 2157, 2172 (1997). Admittedly, the Court was not
altogether clear about what ``vital principles'' were compromised by
the enactment of RFRA; however, this language does evidence the Court's
disfavor with Congress enacting a statute that seeks to restore a
strict scrutiny standard in an area where the Court has previously
rejected it.
Land use provisions and Section 5 concerns
RLPA sets forth a procedure for religious-based challenges
to all federal, state and local zoning regulations and requires
that the challenged regulations be defended against a strict
scrutiny standard. To effect this sweeping right of action,
RLPA uses the same Congressional authority that the Supreme
Court rejected in Boerne, Section 5 of the Fourteenth
Amendment. Using the test outlined by the Court in Boerne, we
are called to ask whether RLPA's protections are proportionate
to the present land use problems faced by religious
organizations and individuals adherents. We suggest that it is
not.
As we have suggested, the proponents of this bill have
articulated the same sort of anecdotal evidence of land use
discrimination that the Court considered in Boerne. We doubt
that the instances articulated, even when viewed in a totality,
will establish a pattern sufficient to justify making every
federal, state and local land use decision and regulation
vulnerable to attack.
Drafting concerns and other consequences
Even if we agreed that this legislation is necessary (a
position we do not hold), we are not as certain as the
proponents of H.R. 1691 that this bill is crafted in such way
as to meet its goals. We note here a few of the most glaring
deficiencies in the drafting of this bill:
1. H.R. 1691 fails to track the minimal standards governing
Commerce Clause authority. RLPA does not include the baseline
standard established by the Supreme Court in U.S. v. Lopez,
supra, the ``substantial affects'' test. Instead, the framers
of this bill have attempted to broaden its coverage to conduct
that merely ``affects'' interstate commerce.
2. H.R. 1691 contradicts Supreme Court law governing Free
Exercise Clause cases. While Congress may be able to create
statutory rights to protect religious liberty, Congress may not
dictate to the Supreme Court how it is to decide First
Amendment cases. Several sections of RLPA allude to a First
Amendment cause of action, and to the extent that RLPA
contemplates such actions, the across-the- board strict
scrutiny requirement is inconsistent with the Supreme Court
holding in Oregon v. Smith.
3. H.R. 1691 repeats the errors of RFRA by using Section 5
of the Fourteenth Amendment to impose its broad land use
provisions. The land use provisions of RLPA apply to all state
and local land use laws. The Supreme Court considered the very
same record evidence of land use discrimination before it
rejected RFRA, and there is little doubt that the Court would
reach the same result in this context.
These are only a few of the concerns we have about the
drafting of this bill, and we have expressed these concerns
throughout the subcommittee and full committee consideration
process. While proponents of this bill have sought our
endorsement of the bill, they have shown that any efforts to
improve it will be rejected. While there are times when the
national legislature must act in the dark to ensure fairness in
our society, this bill has not been crafted in the dark but has
been in the making for almost ten years. We understand the
frustration of the proponents of this bill but we cannot ``go
along'' with a bill that falls short of its noble goals.
We know from our brief experience with RFRA and with
several state versions of that statute that some religious
groups will use RLPA to attack state and local civil rights
laws. See Smith v. Employment & Housing Comm'n, 913 P.2d 909
(Cal. 1996) (``marital status'' includes unmarried heterosexual
couples and the government's interest in providing equal
housing access to such couples is compelling); Swanner v.
Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1996)
(same); compare, Cooper v. French, 460 N.W.2d 2 (Minn. 1990)
(``marital status'' does not include unmarried cohabiting
couples; a plurality of the court held that there was no
compelling governmental interest in preventing marital status
discrimination); Attorney General v. Desilets, 636 N.E.2d 233
(Mass. 1994) (remanding for further consideration of whether
governmental interest in preventing marital status
discrimination in housing is compelling). However, the Ninth
Circuit recently decided a case in which it held that the
government interest in preventing marital status discrimination
was not compelling. See Thomas v. Municipality of Anchorage,
1999 U.S. App. Lexis 440 (9th Cir. Jan. 14, 1999). We can
expect that, if passed, RLPA will invite more of these
challenges, because it specifically authorizes individuals to
raise a religious liberty affirmative defense in any judicial
proceeding. Thus, the religious liberty defense could be
asserted against federal civil rights plaintiffs in cases
concerning disability, sexual orientation, familial status and
pregnancy. Employers in non-religiously affiliated
organizations, for example, may assert the religious liberty
defense against gay or lesbian applicants. Even if a majority
of these defense claims fail, they will increase the cost of
bringing a federal civil rights suit.
Proponents of RLPA claim that the bill leaves all
protections against racial discrimination intact, because laws
against racial discrimination have always been held to be
compelling.11 However, RLPA will also require that
challenged anti-discrimination laws aimed at race or gender
must follow the least restrictive means of achieving those
purposes. Presumably, substantial litigation could arise on
that ground as well. We therefore regret that the majority has
failed to take into account this issue by protecting civil
rights laws and by rejecting amendments offered before the full
committee that would have addressed this concern.
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\11\ While the race and gender interests may be protected even
under a compelling interest test, the requirement that a law must also
meet the ``least restrictive means'' test seems to open those laws to
attack. On an as-applied basis, it is not out of the question to
suppose that at least some race and gender anti-discrimination laws
could be struck down under this bill.
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We would like to believe that the consequences of RLPA
would end with the civil rights issue. However, not even the
proponents of RLPA can suggest that its potential adverse
impact is so limited. We can expect challenges to historic
preservation ordinances, environmental protection laws and
child welfare laws. Whenever such a law is challenged, the
government will be hamstrung by the strict scrutiny
requirements.
Conclusion
If RLPA is the best that can be done in light of the First
Amendment, then perhaps we should allow the alleged unfairness
of the present system to reveal itself through the many Free
Exercise cases that continue to be argued year after year. This
approach may be more effective and more expeditious in the
long-term than picking a fight with the Supreme Court, as RLPA
may be perceived to do. Perhaps the role of religious free
exercise is less certain today than it was prior to the Smith
decision. Perhaps there is a role for the federal government to
play in fostering an environment in which religious faith is
encouraged. But RLPA is not the panacea its proponents contend
that it is.
By attempting to avoid constitutional traps, the proponents
of RLPA are trapping their own stated interests by relying on
the Commerce and Spending clauses. We cannot agree that drawing
lines between religious adherents based on their interstate
commerce impact follows our tradition of religious free
exercise or our tradition against the establishment of
religion. By imposing an across-the-board strict scrutiny
standard, RLPA will be used to attack state and local civil
rights laws, child welfare laws and a host of other laws that
may not be compelling but that nonetheless serve important
governmental functions. In the end, we find ourselves faced
with a bill that even the Sherbert Court may have recognized as
dangerous. As that Court expressed it, ``Even when [ ] action
is in accord with one's religious convictions, it is not
totally free from legislative restrictions.''
John Conyers, Jr.
Robert C. Scott.
Melvin L. Watt.
Maxine Waters.
Marty Meehan.
Tammy Baldwin.
ADDITIONAL DISSENTING VIEWS
We believe that legislation restoring the legal protections
for the free exercise of religion, which the Supreme Court
rendered virtually a dead letter in its infamous decision in
Employment Division v. Smith,\1\ demands swift and effective
legislative action. The Congress has tried previously to
achieve this with the Religious Freedom Restoration Act
[RFRA],\2\ which the court struck down in part City of Boerne
v. Flores.\3\ While RFRA remains good law at the federal
level,\4\ protection against infringements of this fundamental
liberty by state and local governments remains limited, and the
state of religious liberty in America precarious.
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\1\ 494 U.S. 872 (1990).
\2\ 42 U.S.C. 2000bb et. seq.
\3\ 521 U.S. 507 (1997).
\4\ Christians v. Crystal Evangelical Free Church (In re: Young),
141 F.3d 854, 856 (8th Cir. 1998).
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We strongly believe that legislation along the lines of the
Religious Liberty Protection Act [RLPA] is necessary. It
restores the application of strict scrutiny in those cases in
which facially neutral, generally applicable laws have the
incidental effect of burdening the free exercise of religion.
Government should not have the ability to subject our first
freedom to a substantial burden unless it is able to
demonstrate that it has used ``the least restrictive means of
achieving a compelling state interest.'' \5\ Legislation
restoring this appropriate balance between the rights of
individuals and minority religions, including the religions of
racial and ethnic minorities with different religious beliefs,
on the one hand, and the prerogatives of the majority on the
other, should remain at the top of the legislative agenda.
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\5\ Thomas v. Review Board, Indiana Employment Security Commission,
450 U.S. 707, 718 (1981).
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The Supreme Court's Decision in Smith set a truly dangerous
precedent. As Justice Scalia acknowledged in writing for the
majority, ``It may fairly be said that leaving accommodation to
the political process will place at a relative disadvantage
those religious practices that are not widely engaged in . . .
.'' \6\
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\6\ Smith. at 890.
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Justice Scalia went on to accept this plainly foreseeable
tyranny of the majority as the ``unavoidable consequence of
democratic government.'' \7\ He dismissed our nation's proud
heritage of protecting religious freedom as a ``luxury'' which
we ``cannot afford.'' \8\
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\7\ Id.
\8\ Id. at 888.
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The Framers of our Bill of Rights clearly understood the
danger of subjecting fundamental rights to a popular vote. As
Mr. Justice Jackson explained,
The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to
life, liberty, and property, to free speech, and a free
press, freedom of worship and assembly, and other
fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections.\9\
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\9\ West Virginia State Board of Education v. Barnette, 319 U.S.
624, 638 (1943).
We believe it is important that Congress act affirmatively
to reinstate that understanding. We are, however, concerned
that this legislation, as drafted, would not simply act as a
shield to protect religious liberty, but could also be used by
some as a sword to attack the rights of many Americans,
including unmarried couples, single parents, lesbians and gays.
We find deeply disturbing the prospect that legislation drafted
to restore fundamental rights might have the unintended
consequence of stripping large numbers of Americans of newly-
won rights to seek and retain employment, a place to live and
their just and equal place in society--rights that have for too
long been denied to too many.
We have received testimony from a representative of at
least one organization that has brought free exercise
litigation in an effort to undermine these newly won civil
rights and that fully intends to use the statute, once enacted,
to further that legal effort.\10\ While those religious beliefs
may be sincere and entitled to a fair hearing, we believe it is
necessary to strike the appropriate balance between respect for
such beliefs and the legitimate claims of others to protection
under the law. That balance is, in our view achievable without
threatening this vital legislation and the fundamental
religious liberties it seeks to protect.
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\10\ Hearing on H.R. 1691, The Religious Liberty Protection Act of
1999 Before the Subcomm. On the Constitution of the House Judiciary
Committee, 105th Congress 167 (May 12, 1999) (Testimony of Steven T.
McFarland) (Unofficial Transcript).
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At both Subcommittee and Full Committee, Mr. Nadler offered
an amendment, drafted in consultation with both religious and
civil rights groups, which would have achieved that balance. It
would have done so, without carve-outs and without singling out
any religious belief or practice for different adverse
treatment. Instead, it sought to clarify that religious liberty
is an individual right expressed by individuals and through
religious associations, educational institutions and houses of
worship. It would have made clear that the right to raise a
claim under RLPA would have applied to that individual right,
but that non-religious corporate entities could not seek refuge
in a religious claim under RLPA to attack civil rights laws.
Individuals could still have raised claims based on their
sincerely held religious beliefs which were burdened by
government, whether in the conduct of their businesses, their
employment by governments, their participation in the rental
market, their right to observe the Sabbath or to wear religious
articles and to follow the other teachings of their faith,
including those relating to family life, the education of
children and the conduct of their religious institutions.
At the same time, the amendment recognized that in
protecting rights, we are always balancing other individuals'
rights. The courts do it, Congress does it, and there is no way
around it. It would have provided a basis to enact a bill that
will pass and that will protect people--real people who are in
need of protection.
We all know that without good faith compromise, by people
with vastly different beliefs, this bill will never pass. That
was our experience with RFRA, and nothing has changed.
We regret that the majority rejected the Nadler amendment,
and we hope that through further work and negotiation we can
craft a final bill that protects the rights of all Americans
and finally restores the legal protections for religious
freedom that have been largely out of reach of average citizens
for nearly a decade.
Howard L. Berman.
Jerrold Nadler.
Sheila Jackson Lee.
William D. Delahunt.