SPEAKERS CONTENTS INSERTS
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PROTECTING RELIGIOUS FREEDOM AFTER BOERNE V. FLORES
MONDAY, JULY 14, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2141, Rayburn House Office Building, Hon. Charles Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles Canady, Henry J. Hyde, Robert C. Scott, Bob Goodlatte, and Jerrold Nadler.
Also present: Brett Shogren, clerk, Kathryn Lehman, chief counsel, John Ladd, counsel, Keri Harrison, counsel, Robert Corry, counsel and Perry Apelbaum, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order.
This morning the Subcommittee on the Constitution convenes to consider proposals to protect the free exercise of religion after the U.S. Supreme Court's recent decision in Boerne v. Flores. In Boerne, the Supreme Court held that the Religious Freedom Restoration Act was not a valid exercise of Congress' power under section 5 of the 14th Amendment. The Religious Freedom Restoration Act, or RFRA, passed by Congress in 1993 requires Government to give a compelling reason for laws which substantially burden religious exercise.
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The Boerne decision has left men and women of faith without adequate protection against laws that interfere with their free exercise of religion. Because the freedom to practice one's religion is a fundamental right, we are meeting this morning in the wake of Boerne to consider what sources of authority Congress may utilize to protect this most precious freedom from governmental infringement.
Before we begin, I would like to make two observations: First, there have been questions raised as to whether RFRA is a valid exercise of Congress' authority with respect to Federal laws. The Boerne decision struck down RFRA as being outside of the scope of Congress' enforcement authority under section 5 of the 14th Amendment. The 14th Amendment allows Congress to protect individual rights against State infringement. It would appear, therefore, that RFRA is still valid as to the Federal Government. It is, however, noteworthy that the U.S. Supreme Court remanded a case involving an application of RFRA to a Federal bankruptcy issue for consideration in light of the Boerne ruling. If the Federal component of RFRA is struck down, I believe Congress would be well within its authority to enact legislation to instruct Federal agencies to accommodate religious practices that are substantially burdened by the Federal Government's actions.
Second, and most importantly, the Court's holding regarding the role of the Congress in interpreting the Constitution and protecting individual liberties raised troubling issues concerning the relationship between the judiciary and the elected representatives of the people in the Legislative branch. Although we will not delve deeply into these issues this morning, we may well give further attention to these components of the decision at a later date.
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This morning the witnesses will help us to explore options for preserving our first freedom. I want to thank each of the witnesses for being with us this morning. I look forward to hearing their testimony.
Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I'd like to begin by thanking you for scheduling the hearing and providing this opportunity for the subcommittee to consider how to address the Supreme Court decision. The Religious Freedom Restoration Act is the product of years of hard work done by uncharacteristically broad coalitions involving religious groups, Members of Congress, civil liberties organizations, and constitutional scholars. Despite their accomplishments, the Supreme Court has spoken, and now we have to respond.
RFRA's balancing test that the Government may substantially burden a person's exercise of religion only if it demonstrates the application of the burden to the person, is in furtherance of a compelling governmental interest and is the least restrictive means for furthering the compelling Government interest. Although the Supreme Court has overturned the means by which we attempted to enforce RFRA, the end of ensuring free exercise of religion is still legitimate.
There have been a number of ways suggested to maintain the protection of RFRA: Reconfiguring the statute based on an Interstate Commerce clause or on the Spending Clause are the credible options we have before us. We will, however, have to ensure that the manner of implementing these protections does not in any way compromise the original intent of RFRA. Although the task before us is a difficult one, I'm confident that we will be able to craft an effective response to the Boerne decision without delay, and I look forward to hearing testimony from today's witnesses and look forward to working with you in developing the ends that we had in RFRA to begin with and working with the coalitions to address this issue.
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And I thank you for calling the hearing and also for having witnesses that can go through, particularly, the legal implications, because for once I think we have a consensus on what the end is. It's just a matter of getting there. Usually, we have very diverse views on what our ends would be. So, obviously, getting there is usually very contentious. Thank you.
Mr. CANADY. Thank you, Mr. Scott.
I'd like to invite the members of our first panel to come forward and take their seats.
The first witness of our first panel this morning will be Charles W. Colson. Mr. Colson is chairman of the board in Prison Fellowship, an outreach organization he founded to assist prisoners, ex-prisoners, victims, and affected families. Mr. Colson is the author of several inspirational books and was awarded the Templeton prize for progress in religion in 1993. Mr. Colson will be accompanied by Pat Nolan, president of the Justice Fellowship.
We will then hear from the Reverend Oliver Thomas. Reverend Thomas is special counsel for religion and civil liberties to the National Council of Churches, the Nation's largest ecumenical body.
Next, we will hear from Mark V. Stern. Mr. Stern, co-director of the American Jewish Congress' Commission on Law and Social Action, is a legal expert in the areas of church and State matters and civil rights.
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The final witness on the first panel will be Mark E. Chopko. Mr. Chopko is general counsel to the U.S. Catholic Conference where he advises national organizations chartered by the U.S. Roman Catholic bishops on civil law issues.
Thank you all for appearing this morning. I would like to ask that each of you, please, attempt to summarize your testimony in 5 minutes or less, and without objection, your statement will be included in the record. Although the 5-minute rule is something we attempt to follow, we are not going to strictly enforce it today. So do your best. Again, we want to thank each of you for being with us. Your input on this issue is very important to us, and we'd like to begin with Mr. Colson.
STATEMENT OF CHARLES W. COLSON, PRESIDENT, PRISON FELLOWSHIP MINISTRIES
Mr. COLSON. Thank you, Mr. Chairman. I appreciate the flexibility on the 5-minute rule, because a politician turned preacher can barely get through his introduction in 5 minutes. [Laughter.]
I thank you very much for holding this hearing. I think I speak for people of all faiths in telling you how much we admire your courage in doing this in the face of this, what I view to be a usurpation by the Supreme Court of the congressional power: the power of the people to make their own decisions according to their moral traditions.
I have with me this morning Pat Nolan, and Pat and I both have the same background: politicians who got—Pat was the minority leader of the California assembly, and both of us had a post-graduate course courtesy of the United States Government, free room and board following our political careers, and so we've seen the justice system from the top and from the bottom, and gives us somewhat of a unique perspective, less unique than it used to be among politicians.
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There are three issues, and I will not try to address the written testimony which you have before you, and people can read, but simply try to summarize very quickly the three issues. The publicity about this decision, the Boerne case, and even the Court's own decision, talks as if Congress is trying to impose some new standard of law. All that Congress was attempting to do in RFRA was reinstate what had been settled constitutional law since 1963, at least was assumed to be settled law. There was nothing new in what the Congress endeavored to do, nor did it establishing some new right or substantive law; Congress was merely going back and correcting an error the Court made. The Court continues to make the same error by misrepresenting its own precedents in its interpretation of the cases on compelling State interest.
The Boerne decision makes religious liberty an inferior right. It's only going to be enforceable if it can be coupled with some other constitutional right, and, therefore, makes it the first hybrid liberty. This is preposterous to those of us in the religious community and should be preposterous to most Americans, because freedom of conscience should be the first of the inalienable rights, something Government does not grant, but rather something Government recognized in the Declaration of Independence and in the founding of the Constitution. The formation of the Constitution saw to it that Government's duty would be to protect that inalienable right which does not come from Government, which preceded Government—the right of free conscience.
The general problem with this from our standpoint is twofold: As the head of a nonprofit, Christian organization, we would see the possibilities for mischief with the repeal of RFRA to be endless. If, for example, in our hiring practices we were to refuse to hire someone, because they did not believe what we believe in our statement of faith, local governing bodies could penalize us or force us to hire people who believe things contrary to what we believe. Or if we were to discharge someone or a church excommunicates someone because of behavior which we believe was prohibited by scripture, but there were laws providing recourse to those aggrieved employees, we could find ourselves in a position in which we could not exercise our own faith in our own organizations.
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I use the example of communion in my prepared testimony simply to show how absurd the applications of the laws could be if we repealed the compelling Government interest and made the only test the general applicability of a statute. Hospitals that are—Christian hospitals that would not wish to perform abortions could be made to do so or to lose their accreditation.
In the prisons, the problem is really severe, as Pat and I can testify to. You live at the whim of that warden. We now work in 1,200 prisons in America, and we know the delicate negotiations we go through to get access in order to be able to bring religious programming into the prisons. It is obviously an administrative burden to the officials of that prison, understandably. They're somewhat restrictive of outside activities, but, again, in order to be able to do our job in the prisons, we need some assurance that free exercise will be respected.
I had one commissioner of corrections tell me that if RFRA were repealed, he would shut down any religious programming, and when I argued with him, he said he'd get rid of the chaplains. He said, ''Why should I maintain them?'' He said, ''Anybody can go in their cell and practice their own religious beliefs in their own ways,'' and he simply reflects a misunderstanding of what Christianity is, because Christianity is a communal religion. It is one in which we have to be together to practice our faith; to administer the sacraments, and to be part of a community of believers; that's what Christian faith is. So, you can't do it just by worshipping privately in your cell.
The irony of restricting it in prisons is particularly painful, because we know from 20 years of work that, religion, faith is the one thing that will turn the lives of these prisoners around. A study was done in New York of the programming of Prison Fellowship, funded by the Templeton Foundation and done by the National Institute of Mental Health. This study discovered that if people were in 10 of our programs in a year, the recidivism rate was reduced from 41 percent, which was the recidivism rate in that prison, to 14 percent among those who went through our programs. Why in the world it would make any sense to restrict religious activities in the prisons when we can show that, in over 20 years' experience, that's the one thing that makes a difference, is a question that I will leave for the Committee.
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The second point I want to make very quickly is that, contrary to what the public believes, the Constitution does not give the Supreme Court the right to make ultimate decisions about what is constitutional and what is not. The Constitution is silent, because both the conservatives and the liberals, Hamilton and Jefferson, opposed giving that right to the Supreme Court. The Supreme Court took it in the case of Marbury v. Madison, Chief Justice Marshall's opinion in 1803, but it didn't take it the way this Court has interpreted it. This Court has misinterpreted Marbury v. Madison. Marbury v. Madison, Chief Justice Marshall said, ''In a case of controversy which comes before us, a statute is in conflict with the Constitution and is unconstitutional, we have the right to say that that statute is unconstitutional.'' They assumed the right. It was challenged by Jefferson at the time; it was challenged by Andrew Jackson in the Bank case; it was challenged by Abraham Lincoln in the Dred Scott decision—thank God it was.
But only in recent years has the Court been applying this as recklessly as they have in the Boerne decision. Because in the Boerne decision, they've created brand-new constitutional law. The Congress must not turn away from this challenge. What they have said to the Congress is, ''You can't pass any kind of law that makes a substantive determination about a constitutional right that either adds to or subtracts from it.'' If that had been enforced during the civil rights movement in this country, we would still have applications of the Dred Scott decision and its successor decisions on the books, because what they're basically saying—strip away all the language and all the mistaken interpretations of court decisions and precedents by the Supreme Court—what they're basically saying, is that only the Supreme Court can decide what is a constitutional right, and only the Supreme Court can enforce what is a constitutional right.
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Congress is reduced to procedural powers only. This is a preposterous challenge to the authority of this body which represents the people. When the people of the United States, through their elected representatives, almost unanimously say this is how we want to protect our first freedom, and for the Supreme Court to say this body acting on behalf of the people does not have authority, is a preposterous challenge. It is throwing down the gauntlet, and if this Congress even hints that its answer is a constitutional amendment, you will be ratifying one of the most preposterous decisions that this Court has ever rendered—a far overreaching of the authority of the Court and a usurping of the legislative process and the voice of the people.
I'd just say, finally, Mr. Chairman, that one of the things that I think all of us should fear most is if we now say, ''OK, let's have a constitutional amendment,'' acknowledging that the Court's interpretation on the Boerne case is correct, what happens to all the other legislation that rests upon section 5 of the 14th Amendment which is designed to protect or define constitutional liberties or even restrict them, as in the case of something I know is close to the chairman's heart and close to my heart. The Partial Birth Abortion Ban Act would be, by the Boerne decision, something Congress does not have the power to do. I hate to say that; I hate to plant that thought, but it will be very clear. But there are many others in civil rights and in voting rights where the Congress will end up being told, if it accepts Boerne, that it can no longer legislate in this area.
I just have to say, finally, that the religious community, the Christian community, in this country might be forgiven for feeling that the Court has decided that this is perhaps a new class of people to be set aside for special treatment. If you look at the language of Romer v. Evans in which those motivated by religious feelings were accused of being bigoted in bringing their religious convictions into public policy; if you look at this case where clearly beyond any argument the right of free exercise of religion is reduced to a second-class right under the Constitution, inferior to free speech, enforceable only if you can attach it to free speech protections. Thus, the religious community might be forgiven for thinking that this Court has decided to create another class of people in those who are people of faith.
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There are many remedies, Mr. Chairman, and I've outlined some of them in my prepared testimony, such as enforcing RFRA under other provisions of the Constitution; for repassing RFRA or having a joint resolution of this Congress in which they say, ''The Supreme Court clerks had better go back and do their homework, because they made some serious mistakes and this Congress does not wish to be harassed by them—taking a page out of Lincoln's book or Jackson's book or Jefferson's book; repassing RFRA under the Commerce Clause—many possible remedies which I hope and pray this Committee in its deliberations will do before it even thinks in terms of a constitutional amendment.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Colson follows:]
PREPARED STATEMENT OF CHARLES W. COLSON, PRESIDENT, PRISON FELLOWSHIP MINISTRIES,
I congratulate this Subcommittee and its distinguished chairman, Mr. Canady, for holding this necessary hearing. It is necessary because the Supreme Court, some three weeks ago, launched a devastating salvo in a war with this body over two great issues: what it means to have a right to the free exercise of religion, and what body within our constitutional system has the right to render final and binding interpretations of the Constitution.
In the Boerne v. Flores decision, Justice Kennedy, writing for a 6-to-3 majority, invalidated the Religious Freedom Restoration Act, which Congress passed in 1993 with only three nay votes, and which President Clinton signed into law with much fanfare. This legislation was made necessary by the Court's 1989 decision Employment Division v. Smith, which overturned what religious freedom litigators had thought was a well-established rule, namely, that government had to show a compelling interest before it can prohibit religiously motivated conduct (or compel religiously prohibited conduct). In Smith, Justice Scalia, writing for a five-vote majority of the Court, held that the Free Exercise Clause of the First Amendment does not require religiously-based exemptions from laws that are facially neutral.
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What do these terms mean? Imagine a law that said ''No wine may be used at communion services.'' This would be found to violate the Free Exercise Clause, even under Smith, because it directly targets a religious practice. But suppose the law bans alcoholic beverages throughout the state, and churches that use wine in their communion services claim an exemption. Before Smith, they would get it. Under Smith, they're at the mercy of the state legislature. (Note: all fifty states prohibit the consumption of alcohol by minors. Now that RFRA has been struck down, states are free to enforce these laws against churches that make communion wine available to children.)
Justice Scalia's decision was a jarring departure from a quarter century's worth of Free Exercise cases. Some scholars, including some who are Christians, took an optimistic view of this decision, seeing it as simply a reflection of Scalia's trust in democracy and his distrust of federal judges: better legislatures than courts, he believes, to police the border zone between personal religious practice and general legislation.
With due respect for Justice Scalia's faith in democratic procedures, and with due admiration for his general approach to the role of the judiciary in a democratic system, I stand with the vast majority of religious freedom experts in decrying the dangers facing believers as long as faith-based conduct is deprived of heightened legal protection. For those who actually litigate religious freedom cases, Smith started causing problems on the ground almost from day one. I know. I've spent the last twenty years working in prisons. I've seen the doors slam shut to religious services on the whim of administrators. I have experienced the arbitrary refusal of some officials to allow religious activities. And immediately after the Smith decision, prison officials were able to prevent Jewish prisoners from wearing yarmulkes, deny Catholic prisoners access to a priest, and restrict Bible studies for evangelical prisoners.
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This would be serious enough if only the personal religious rights of prisoners were at issue. But in fact, there is a societal interest involved here as well. Religious observance by prisoners is strongly correlated with successful rehabilitation. While it seems pretty clear that the First Amendment would prohibit the government from overtly pressuring prisoners to practice religion, it is sheer social folly to place any obstacles in the way of the many prisoners who, on their own initiative, seek out ministers, priests, rabbis, Bible studies, and so forth. Yet I myself have spoken with wardens who seem more interested in cost containment than in rehabilitating prisoners, and who have told me that, were it not for prisoners' legal ability to sue for denial of free exercise, they would withhold even ordinary, mainstream, non-controversial forms of religious accommodation.
Whether in a prison or on the outside, the brute fact is that when confronting an overweening bureaucrat, ''I'll sue you'' is much more effective than, ''I'll have my state representative offer a bill changing the statute under which you're doing this to me.''
That's why the response to the Smith decision from a wide range of religious groups was one of: ''Thanks but no thanks. We want judges to handle these questions and we want them to use the legal standard that was in effect before Smith''—i.e., that religious practice must be accommodated unless refusing to accommodate it is the least restrictive means of achieving a compelling state interest.
Congress heeded the outcry from the religious community, and passed the Religious Freedom Restoration Act of 1993, or ''RFRA,'' by lopsided majorities. And now the Court has struck it down. Its formal rationale is the theory that Section 5 of the 14th Amendment, which gives Congress the power to ''enforce'' the substantive clauses of Section 1, does not empower Congress to enlarge the meaning of those clauses beyond the interpretations placed on them by the Supreme Court.
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This in itself is a novel and dangerous doctrine. It should be of particular interest to this Subcommittee that the Boerne theory of Section 5 casts doubt on Congress's power to legislate on a number of interesting subjects, including, for instance, partial-birth abortion.
But there's more in Boerne than this dubious view of Congress's power. The majority implicitly—and Justice Scalia explicitly, in his concurrence—took the occasion to re-argue Smith as well. It's not just a question of the meaning of Section 5 of the 14th Amendment: the meaning of the Free Exercise clause is also very much in issue, and the Court knows it. It is engaged in a high-stakes war with Congress over this question as well as over the general question of Congress's Section 5 powers. For reasons I have already given, I think the Court's view of the meaning of the Free Exercise clause is out of keeping with the values that the clause was drafted to protect. But more to the point, this Congress—our country's national legislature, accountable to the people through direct election of both houses, a fact that ought to satisfy Justice Scalia's concern for democratic decision-making—has resoundingly rejected the Court's view. And the Court has just as resoundingly rejected this body's right to reject its view.
Right now, nobody can say with certainty what our free exercise rights are. What is the law? Can bureaucrats restrict religious liberty with impunity? One only has to look back over recent years at the constant chiseling away of religious liberties to view with alarm what may happen in the vacuum created by this decision. Religious liberties are genuinely imperiled.
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But the Court has raised the stakes above the question of the meaning of the Free Exercise Clause, crucial though that is. The gauntlet has been thrown down—the question no one before has wanted to ask: who has the final word on what the Constitution means?
As this Committee probably knows, the Constitution is silent on this critical question. Thomas Jefferson, who distrusted both federal power and judges, clearly opposed giving the final say to the Court. His frequent sparring partner, Alexander Hamilton, was scarcely more open than Jefferson to the notion of the judiciary as supreme lawgiver. He wrote in The Federalist, no. 78: ''The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse and can take no active resolution whatever.'' The power of the courts to hold an enactment of Congress void is limited, Hamilton said, to instances where that enactment is ''contrary to the manifest tenor of the Constitution,'' giving as examples ex post facto laws and bills of attainder, which are expressly forbidden by the Constitution. Hamilton's view gives the Court no room for interpretation.
It was in its own decision in Marbury v. Madison in 1803 that the Supreme Court awarded itself a broad power to declare laws unconstitutional. The great constitutional scholar Alexander Bickel (a mentor of Judge Robert Bork), in his book The Least Dangerous Branch: the Supreme Court at the Bar of Politics, aptly characterized Chief Justice John Marshall's reasoning in Marbury as circular. Marshall simply posed the question: what is the Court to do when asked to give effect to a statute repugnant to the Constitution? The answer to him was obvious: decline to give it effect; i.e., strike it down. So, he reasoned, the Court must have the power to do this. But, as Bickel pointed out, how did we know in the first place that the statute was, in fact, repugnant to the Constitution? Because the Court said so? But its power to say so is the very thing Marshall had to prove. He didn't. He simply assumed it.
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But no one at the time or even until modern times believed that power, even if it was rightly assumed by Marshall, to be final. Jefferson, for instance, advocated a theory of coordinate review, in which each of three branches could reach its own conclusion on the constitutionality of congressional enactments or executive actions. President Andrew Jackson, a Jeffersonian, took this view. When the Court upheld the Second Bank of the United States, over Jackson's objection that Congress lacked the power to create such an institution, the ever-belligerent Jackson is said to have remarked: ''Justice Marshall has made his decision. Now let him enforce it.''
Abraham Lincoln conceded the Court's power to overturn laws, but with a major reservation. He pointed out in his debates with Stephen Douglas that if the political branches lacked the power to treat Supreme Court decisions as temporary and subject to reversal, then the Supreme Court is the sole government of the land. He conceded the Court's power to decide the Dred Scott case as far as the parties in that case were concerned, and he conceded the provisionally binding nature of that decision for similar cases, but he also affirmed the right of the other branches of government to overturn that decision by appropriate action.
The next move now is up to Congress. For most of this century, Congress has been remarkably timid, unwilling to challenge the judiciary over its usurpation of the democratic process. Will it flinch again?
With due respect to Rep. Ernest Istook and others who are seeking to protect religious liberty through a constitutional amendment, I would point out that the amendment—process which was deliberately and rightly made difficult by the framers of our Constitution—has become a stud farm for moribund causes: causes sent there can continue to have a good time, but their racing days are over. Just ask the supporters of term limits, a balanced budget, and protection for the flag. Amendments on these issues are offered in Congress year after year, failing by a vote here and a vote there, but always providing a rallying cry for the next election.
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If that happens to religious liberty as well, then, while the whips are doing their forlorn vote counts up here, Jewish prisoners will not be allowed to wear yarmulkes, Bible studies will be canceled, school children will be denied the right to express themselves on religious topics, and churches will find their tithes plundered by bankruptcy trustees as ''fraudulent transfers.'' (Several such cases have been litigated—and the churches have relied on RFRA as a defense).
No, this is a time when the other branches of government must be as bold as the Court has been. I believe Congress should announce that, as far as it is concerned, RFRA is still in effect. President Clinton could join in and tell the executive branch, especially the U.S. Attorneys, to take the same view and to decline prosecution in cases where defendants make a credible claim of RFRA protection for their conduct (unless, of course, enforcement of the law against such a defendant can pass the compelling interest test).
There are other strategies as well. Congress could adopt what Judge Bork has advocated so cogently in his recent bestseller Slouching Toward Gomorrah: subjecting the Supreme Court's constitutional decisions to a ratification vote in Congress. This would require a constitutional amendment, but it would accurately reflect the intent of the founding fathers more faithfully than our present regime of unlimited judicial review. Or Congress could invoke its powers under Article III, Section 2, paragraph 3 of the Constitution and curb the judiciary's jurisdiction over free exercise cases. Alternatively, Congress could enact a more limited but still valuable RFRA by invoking the spending power: heightened protection for religious exercise would become a condition of receipt of federal funds.
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In any event, Congress cannot duck this fight. To fail to act would be to hand over to the Court the final vestiges of legislative authority. It would be to abandon the First Amendment. The Court has thrown down the gauntlet. To fail to rein in its rampaging quest for power would simply insure the imposition of an illegitimate elite consensus in many areas of American life, ousting the moral common sense of the American people. Congress must respond. Our tradition of a written Constitution hangs in the balance.
Mr. NADLER. Mr. Chairman.
Mr. CANADY. Thank you, Mr. Colson.
Mr. Nadler.
Mr. NADLER. Mr. Chairman, I ask unanimous consent to go out of order, after I should have, in reading an opening statement.
Mr. CANADY. Without objection.
Mr. NADLER. Thank you. Thank you, Mr. Chairman. I first want to thank you for scheduling this hearing so soon after the Supreme Court's disastrous ruling in Flores. I think the timing of this hearing appropriately reflects the crisis precipitated by the Court's recent ruling.
For the second time in this decade, the Supreme Court has launched an assault on religious liberty in America. In the Smith case in 1990, the Court said that it was not the job of the courts to protect religious freedom. I can't imagine a worse reading of the First Amendment. I can't imagine any reading of the First Amendment.
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In Flores, the Court told us that Congress lacks the power to protect religious freedom. According to the current Supreme Court, the Constitution protects religious freedom, but no one has the authority to enforce that protection. That's an absurd reading of the Constitution, one which must not be allowed to stand. The Supreme Court has mindlessly sacrificed religious liberty on the alter of its own cramped view of the Bill of Rights. Clearly, the best course of action would be for the Court to rethink the Smith decision. One would at least hope that the Justices would seek the benefit of having such significant changes to the First Amendment briefed and argued, something that has never happened.
Properly and carefully reviewed, I do no believe that Smith would hold up, though I am not confident that a majority of the current Justices would so hold. Nonetheless, as Justice Souter has written, ''whatever Smith's virtues, they do not include a comfortable fit with settled law.''
In Flores, the majority continued its fixation with the need to find the existence of some discriminatory intent to demonstrate a violation of the Free Exercise Clause. In reviewing RFRA's legislative history, the Justices observed that ''RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.''
I continue to believe that if one's free exercise of religion is burdened or restricted by Government, it is immaterial whether that came about as a result of bigotry or inadvertence. The right is nonetheless abridged and the First Amendment should provide a remedy.
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In fact, one of Congress' principal concerns was that, as a practical matter, unpopular and minority faiths would receive a less sympathetic hearing as all faiths attempted to use the legislative process to obtain relief from generally-applicable laws having the incidental effect of burdening religion.
It was clear to Congress when we enacted RFRA that that inequitable treatment of different faiths in granting such exemptions or the inequitable treatment of religion as opposed to business or other interests in granting exemptions would violate the Free Exercise Clause as interpreted by Smith. Congress' understanding of how the legislative process works or fails to work—and I have been a part of that process at the State and Federal level for the last two decades—was reflected in RFRA's structure.
RFRA was based on the recognition that legislatures, which are responsive to the popular will, are inherently less suited to granting such exemptions than is the independent judiciary. RFRA was based on the recognition that one's religious freedom should not depend on political popularity or power. RFRA attempted to return the granting of such exemptions back to the independent judiciary on the basis of an appropriated standard: strict scrutiny.
The independent judiciary's active resistance to fulfilling its role in our system of Government is troubling, but I do not agree with some of our colleagues who have argued that the appropriate response is to join the current majority's assault on this sound bulwark of our rights. Judicial independence was established to protect the rights of minorities from the majority. RFRA was premised on the belief that the courts, and not the legislatures, should continue in that role.
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I am also concerned that, despite the majority's denials, their narrow reading of Congress' power to enforce the 14th Amendment threatens other civil rights legislation. If the Court persists in its line of reasoning, and continues to exalt the rights of States at the expense of the rights of individuals, the legal protections many in this country now take for granted may be seriously diminished by future rulings. Indeed, it has already been reported that some States and localities are attempting to capitalize on the reasoning in Flores by attacking other civil rights laws. This situation requires swift but careful action on the part of Congress. This hearing is an important first step.
I do not believe that a constitutional amendment is needed or well advised. As today's witnesses and other commentators have correctly pointed out, Congress still has numerous legislative options at its disposal. Pursuing the constitutional amendment route, which at best would result in substantial delay and tremendous uncertainty in its results, would under these circumstances be irresponsible.
If one thing is clear from the Court's decision, it is that we must pay careful attention to the current law on Congress' power with respect to the States and the court, and we produce a careful and complete record to support the legislation we write.
Religion is our most fundamental freedom, our first freedom. It is the reason why many of our families came to this country. That commitment to religious liberty unites Americans from across party lines, across the political spectrum, and across denominational lines. That diversity will be our strength as we all work together to overturn this direct assault on our fundamental freedoms.
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Just as a broad and diverse coalition of religious and civil liberties groups, with bipartisan cooperation in the Congress, succeeded in passing the Religious Freedom Restoration Act, I am confident that we will succeed in restoring once more the freedom of religion this Court has so cavalierly stripped from our citizens.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Nadler. We'll go back to the regular order now, and recognize Reverend Thomas.
STATEMENT OF OLIVER THOMAS, SPECIAL COUNSEL FOR RELIGIOUS AND CIVIL LIBERTIES NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.
Mr. THOMAS. Thank you, Mr. Chairman. I am Oliver Thomas, special counsel to the National Council of Churches.
The Supreme Court's decision striking the Religious Freedom Restoration Act is not only a blow to the sovereignty of Congress, it is a blow to the American people. As the Dred Scott decision of a century ago was for African-Americans, so City of Boerne v. Flores is for religious Americans, but as with Dred Scott, Americans working together will overcome this setback to freedom. I want to pause and commend the chairman of this subcommittee as well as the members present for beginning this national conversation.
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My overriding message to you today is one of caution. When bad things happen, we oftentimes rush in and try with the very best of intentions and in a commendable effort to remedy the problem. It's encouraging that Congress is doing that today, but as we seek to correct the problem let me encourage us not to run the risk of creating a bigger problem. In particular, I want to discourage efforts, premature efforts, I think, to amend the First Amendment.
First, there is the problem with all constitutional amendments: They are broad; they are general; they are risky. While statutes can be drafted with great specificity, constitutional amendments frequently cannot. They speak in broad generalities; they must stand the test of time. Decades pass before the true meaning of the amendment can be deciphered by the courts, and oftentimes, Mr. Chairman, we are surprised—indeed, dismayed—by the interpretations that the Court gives the very words that we the people select. Who would have thought that laws prohibiting the free exercise of religion, for example, did not include laws prohibiting the free exercise of religion? How could the framers have been more clear? It is stated in the most absolute terms; yet, the Supreme Court has decided that only laws intentionally discriminating against religion are barred by that broad, broad provision.
Then there's the problem of exemptions. Mr. Chairman, as the chairman of the coalition that worked on this issue, I can tell you that what brought our coalition together was a single unifying principle: religious liberty for all Americans—no exemptions for prisoners; no exemptions for public schools; no exemptions for landmarked churches; religious liberty for everybody; a sensible balancing test giving due deference in certain situations in the military, and so forth, where there are more important interests at stake, but no exemptions.
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We will hear today from a representative of a State, and there are many like him, who found it in themselves to oppose what I think is a very important protection for religion because of its application to prisons. A relative smidgeon of cases, less than one quarter of 1 percent of all the prison litigation in the State of Texas, for example, involved the Religious Freedom Restoration Act, and a small percentage of those were frivolous claims. Yet, we saw a great wave of opposition to the Religious Freedom Restoration Act, and I seriously question whether this coalition and the Congress, were we to agree on a constitutional amendment and get it passed, could get it through those State legislatures right now without exemptions.
Finally, a constitutional amendment should be considered a matter of last resort. You know how long it takes to work that process, and it should be considered only when all else has failed. The good news is, all else has not yet failed. This Congress has before it several options, and I'm delighted that you have constitutional scholars here today to explore those options.
I think you can do something positive to protect religious liberty, short of amending the First Amendment. A joint congressional resolution, I think, first should be done just to educate the American people about what has happened and the course of action that we ought to take. It also serves the benefit of getting your colleagues on record as supporting reasonable efforts to shore up the protections for religious liberty. That will be helpful later on when legislation is introduced by some of the Members perhaps present here today.
Secondly, Federal legislation—you'll hear from scholars today, talking about the options that you have under the Commerce Clause, under the Spending Clause, under the Necessary and Proper Clause; I hope you'll consider those seriously.
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And finally, a litigation strategy that we'll be carrying on in State and Federal courts simultaneously with what is going on here in the Congress.
Let me conclude by saying that a constitutional amendment, though an important last resort, is not a sprint; it is a marathon, and before we begin that marathon let us exhaust all available State and Federal remedies.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Thomas follows:]
PREPARED STATEMENT OF OLIVER THOMAS, SPECIAL COUNSEL FOR RELIGIOUS AND CIVIL LIBERTIES NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.
I am Oliver Thomas, Special Counsel for Religious and Civil Liberties to the National Council of the Churches of Christ in the U.S.A. (NCCC). The NCCC is the nation's premier ecumenical body with 33 Anglican, Orthodox and Protestant member communions with an aggregate membership of over 50 million persons. The Council does not purport to speak for all of its members but rather for its governing body, the General Assembly, in which all of its member communions are represented.
I am also the Chair of the Coalition for the Free Exercise of Religion. This coalition—which worked with members of Congress to draft and secure passage of the Religious Freedom Restoration Act (RFRA)—comprises 68 religious and civil liberties groups ranging from the Traditional Values Coalition to the American Civil Liberties Union. The Coalition is united in its support of legislation providing religious liberty for all Americans. It is divided, however, over the advisability of a constitutional amendment. For that reason, I do not speak for the Coalition in my remarks today.
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The Supreme Court's decision to strike down the Religious Freedom Restoration Act (RFRA) is a blow not only to the sovereignty of the Congress but to the American people as well. As the Dred Scott decision of a century ago was for African–Americans, so City of Boerne v. Flores is for religious Americans today. But, as with Dred Scott, Americans working together will overcome this setback to freedom. Thank you, Chairman Canady and Members of the Subcommittee, for beginning a national conversation on what the proper response to Flores should be.
Although I have spent most of my adult life litigating, lobbying and advocating for religious freedom, my overriding message to you today is one of caution. In your commendable effort to correct what can only be viewed as a profound national wrong, there is the danger that we could upset the delicate balance between the institutions of church and state. In particular, if we were to amend the First Amendment we would risk creating larger problems than the one we seek to solve.
First, there is the problem with all constitutional amendments. They are broad. They are general. They are risky.
While statutes can be drafted with great specificity, constitutional amendments frequently cannot. As part of the broader legal/social compact, they speak in what the Supreme Court has called ''majestic generalities'' that must stand the test of time. Decades pass before the true meaning of an amendment can be deciphered by the courts. Oftentimes we are surprised by their interpretations and wonder how they could have strayed so far from what we understood the language to mean. For example, who would have thought that laws ''prohibiting the free exercise'' of religion did not include laws prohibiting the free exercise of religion? How could the Framers have been more clear? Yet the Supreme Court in Employment Division v. Smith, has interpreted the language to prohibit only the handful of laws that intentionally discriminate against religion, while omitting those that do so incidentally or accidentally.
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Then, there is the problem of exemptions. The Congress and the Coalition were able to unite behind a single unifying idea: religious liberty for all. For that reason, exemptions for prisons, historic districts and public schools all were considered and refused. Yet, many state attorneys general and others came to oppose RFRA simply because a smidgen of prisoners filed frivolous claims. In light of all the negative publicity that has been given to this subject, do we really believe that a constitutional amendment that did not exempt prisons could be passed in 38 state legislatures?
Finally, we do well to remember that although the United States is the most religiously diverse nation on earth, we have avoided the religious strife and the bloodshed that has characterized other parts of the world. Many, including myself, would attribute America's success to the genius of the First Amendment.
For all these reasons, a constitutional amendment should be a matter of last resort—to be utilized only when all else has failed.
But, has all else failed?
Close examination reveals that a number of less drastic remedies should be pursued first. True, none provides the universal relief that a constitutional amendment would offer, but none carries such risks or requires such an investment of time and resources.
Some of the alternatives are:
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1. A JOINT CONGRESSIONAL RESOLUTION—One thing Congress can do immediately is to speak with one voice on the Flores decision through the passage of a joint congressional resolution regarding congressional commitment to address the loss of protection afforded people of faith by the Court's action. Several things could be accomplished with such a resolution. First, Congress could further educate the American people about the inadequacy of the Court's current protections for religious liberty. Second, we could put members on record as supporting reasonable efforts to shore up federal protections for the free exercise of religion.
2. FEDERAL LEGISLATION—Additional hearings should be held with participation from a broad array of constitutional scholars to determine what, if any, sort of curative federal legislation might be possible. Possibilities would seem to exist under a variety of constitutional provisions including the spending, commerce, and necessary and proper clauses. Legislation targeted at specific problem areas such as the bankruptcy code or zoning laws might also be considered. Finally, serious thought should be given to determining whether a substantial record of religious discrimination can be proven so as to justify remedial legislation under Section 5 of the 14th Amendment.
3. LITIGATION STRATEGY— As Congress considers its legislative alternatives, a litigation strategy should be pursued at the state and federal level. Already, four state supreme courts (Maine, Massachusetts, Minnesota and Wisconsin) and the California Court of Appeals have rejected the rationale of Employment Division V. Smith and have chosen to provide RFRA-type protection for religion on the basis of their own constitutions. Only Vermont has considered strict scrutiny analysis and rejected it in favor of Smith's more narrow interpretation.
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No state litigation strategy can substitute for a long term strategy aimed at overturning Smith. Justice O'Connor's dissenting opinion in Flores invites us to present the Court with an opportunity to rectify its 1990 decision, and two—perhaps three—of the justices share her view. Considering that the Court's two most senior members were in the Smith majority and that the President is an ardent advocate of RFRA and of the compelling interest test, it is likely that the underlying source of our problem could be eliminated in 3 to 5 years. This is a long time to wait, but not when one considers the length of time that would be required for a constitutional amendment. Moreover, a series of temporary measures—such as targeted federal legislation and state RFRAs—could soften the blow until Smith can be overturned.
By striking down the Religious Freedom Restoration Act, the Supreme Court has placed America's first freedom in jeopardy. For that reason, Congress must carefully consider all of the options available to it as it seeks to provide relief.
A constitutional amendment, though an important last resort, is not a sprint. It is a marathon. We should exhaust all of our available remedies at the state and national level before seriously considering such a radical alternative.
Mr. CANADY. Thank you, Reverend Thomas.
Mr. Stern.
STATEMENT OF MARC D. STERN, DIRECTOR, LEGAL DEPARTMENT, AMERICAN JEWISH CONGRESS
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Mr. STERN. One of the difficulties of following a Southern Baptist preacher is you're necessarily going to sound boring. I won't even attempt to equal Reverend Thomas.
I would like to turn to what I think are the legal and sociological issues that confront us at this time.
I don't expect religious persecution to pop up everywhere as a result of the Supreme Court's decision in Boerne. The Supreme Court has made it clear that if, in fact, any municipality or State Government or the Federal Government intentionally discriminates against any particular faith, a panoply of Federal protections will still be available.
The first difficulty is one of proof. I have myself represented churches and synagogues at zoning hearings, where the popular clamor against a particular grant of a zoning variance, or a zoning permission, is clearly based in bias, but the hearing officers, the zoning board, they have a lawyer, and they're clever enough not to couch their decision in those terms. So you have incredible difficulties of proof. Everybody in a town knows what is happening. But, the courts tend to look at formal decisions, and the formal decisions are always entirely neutral.
One case I know of where intentional discrimination was ultimately found, the litigation expenses must have run to over $1 million, and included the efforts of the United States Government. So that's, it seems to me, something Congress ought to be looking at: how common that problem of proof is. The Supreme Court has, I think, left open the possibility of legislating to deal with the difficulty of proof. The zoning context is a uniquely fertile one for that. I think the people sitting in the room can probably give you a dozen or two dozen cases of where that's happened.
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But more importantly, the major threats to religious liberty today don't really involve intentional persecution of religious groups. They represent a changed circumstance from the 18th to 19th century: the emergence of the regulatory State. The danger to religion today comes not so much from malicious and evil State governments or local governments, but people who are in good faith enforcing other policies of government. Typically, nobody's given any thought to the impact on religious liberty. That is where the problem is; that is where American religion comes into conflict with government, that is where RFRA helped the most, and that is where religious liberty is today most at risk.
This is not simply a question of special pleading on behalf of those of us who make a living presenting religious institutions. American religion's vitality stems very directly from two factors: One is low entry costs. It was always easy to set yourself up as a church—and I use ''church'' in a very generic sense here, obviously—and secondly, you could do your own thing. Unless you were engaged in cannibalism (or, bigamy), you were pretty much free to try your vision out on the American people, and see if you could sell it in the marketplace of ideas. That's no longer the case.
Zoning is, again, a paradigm. To start a congregation today in most suburban communities has become a matter of great expense and great burden. You've got to go through the zoning process. You can't just a buy a plot of land and throw up a church. In many communities, you can't even rent a storefront anymore and set up a congregation; you've got to get zoning approval.
There are communities—I've encountered them—in which you cannot set up a congregation in a storefront, because they want to preserve the land and the facilities for business. I've also encountered communities that want to keep out storefront churches, because they think they serve minority groups, and it will change the composition of the community. But even on a purely neutral ground, that zoning has become a significant entry cost; that's a huge change in the status of American religion, and it has to be addressed.
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Let me suggest just quickly—and there are others have more expert than I—that there are avenues available to you which will both, as Reverend Colson has suggested, assert congressional authority without yielding the field to the Supreme Court, which is what happens if you go first to a constitutional amendment, but will not precipitate a larger constitutional crisis. And here, I part company with Reverend Colson on one important point; I think what the Court did Boerne was wrong in substance, but not a departure from the tradition of Marbury v. Madison.
I think the Congress ought not to sort of throw it in the face of the Supreme Court, nor ought it to go quietly into the night as if the Court had the last word, and I think what that requires is very careful attention to details, as some of the Members talked. Compiling the record of that will persuade the Court.
Under the Commerce Clause, for example, which is a basis for most of the early sixties civil rights legislation, I think it can be demonstrated, first of all, the large impact that religious institutions and religious believers have on the national economy, and that might itself be a basis for legislation.
Secondly, I believe—although this might or might not prove to be true upon investigation—that you'll be able to demonstrate that if in some states there are no religious exemptions regulatory statutes, you will find people choosing where they work and where they live based on the compatibility of that State's traditions with their own religious practices. Jewish families are unlikely to move to States, for example, that treated children who skipped class on Rosh Hashana and Yom Kippur as truants, and I'm sure my good friend Mark Chopko would not advise anybody to move to a State that wouldn't allow minors to take communion because the wine was alcoholic, and they refuse to have an exemption for minors to drink communion wine.
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So, I think that will have an impact on commerce; that's exactly the sort of theory that underlies the public accommodation section of the 1964 Civil Rights Act. In 1964, Congress compiled a record that made that case. I think we ought to be doing that per religion as well.
I think under section 5 of the 14th Amendment the difficulties of proof that I spoke about, if we can demonstrate them, will justify legislation. I think, as well, if we can find particular areas—zoning, again, comes quickly to mind; the prisons come to mind—where it can be demonstrated that as a class of cases discrimination is a common phenomenon—doesn't necessarily have to be, I think, 50 or 60 percent of the cases, but it is a common phenomenon, that is very difficult to prove and smoke out. I think the Court's opinion leaves open the possibility of legislation directed either to those cases specifically or perhaps more generally.
I think the spending power is another power that Congress has. The narrowest version of the spending power that I think is clearly constitutional would be for Congress to say, ''We give money to State and local governments, and we want all taxpayers who provided those funds to be able to use them. If in the course of administering that program States or localities have practices which substantially burdens religious practice, and people cannot participate because they don't want to compromise their religious views, Federal tax dollars are being used fairly. We insist as a condition of your taking Federal funds that every taxpayer and every citizen be able to use them.'' That's the narrowest version of the Spending Clause. There are broader versions of Congress power under the Clause. The Court has in South Dakota v. Dole, some limits.
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Let me just close with one word about constitutional amendments. I agree with what's been said, both by the Members and my co-panelists, that a constitutional amendment is not how the appropriate response to Boerne. It's not right because, first of all, it yields the power of Congress to the Court. It simply throws in the towel, and says, ''You're right. We'll play the game another way.''
Secondly, as Reverend Thomas said, it's not so easy to get States to pass constitutional amendments that are aimed only at themselves, because, as the chairman said, the power of the Congress to enact legislation governing how the Federal Government operates seems uncontested.
And thirdly, there is the principle which has served the country well: that constitutional amendments ought not to be used promiscuously; only in case of last resort and need, and we haven't yet exhausted the need. In particular, though, there are two ways of—as a practical matter, now that Congress confronts two methods of amending the Constitution to deal with the Boerne case. The first, is a freestanding amendment directed only at Boerne. If to go to a constitutional amendment becomes necessary, that would be my strong preference.
What I think would be particularly unhelpful would be to engage in the common practice of tacking an uncertain proposal onto a popular one. Now that happens all the time. I've been guilty of trying to do it myself on occasion. But in terms of a constitutional amendment, it seems to me singularly bad policy to take an amendment dealing with the Establishment Clause, on which there is great disagreement, and there's been for a long time. It's legitimate; it's hard fought, and I don't question anybody's motives, but there's no consensus on what an amendment to the Establishment Clause will look like if we need one at all.
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There certainly is a consensus in the religious community and in large parts of the civil liberties community, about what a free exercise amendment ought to look like. It would be a real abuse of the process for us to take an amendment which enjoys broad support and have tacked onto that something that couldn't make it on its own.
And, second, it will be a terrible precedent for amending the Constitution. If you look at the Amendment—since the 14th Amendment, there is not one amendment which covers more than one subject. I think that's a policy that served the nation well. I would urge the committee not to, should we come to that.
Thank you for letting me—if I may just tell you a quick story that Nathan Lewin tells. Apparently, he took two of his justices of the Israeli Supreme Court to watch an argument in the United States Supreme Court. It was a hotly contested argument; two very skilled advocates. When the argument finishes he walked out with the justices of the Israeli Supreme Court, and he says to them, ''What impressed you the most?'' thinking they'd tell him the room, the argument, and so on. They said, ''We want that red light on the podium; we can't get our lawyers to shut up.'' [Laughter.]
[The prepared statement of Mr. Stern follows:]
PREPARED STATEMENT OF MARC D. STERN, DIRECTOR, LEGAL DEPARTMENT, AMERICAN JEWISH CONGRESS
Mr. Chairman and members of the Subcommittee, on behalf of the American Jewish Congress,(see footnote 1) I wish to express appreciation to the Chair and members of this Subcommittee for so promptly convening hearings to explore possible congressional responses to the decision of the United States Supreme Court in City of Boerne v. Flores.
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City of Boerne not only leaves religious liberty without effective federal protection—that is bad enough—but also cuts a wide swathe through Congress' power to address pressing national social problems under §5 of the Fourteenth Amendment. The Court's decision is particularly problematic because it does not lay down any discernable rule by which Congress can determine in advance whether a particular piece of legislation does or does not pass muster under §5.
Instead, the Court has reserved to itself the right to determine whether an exercise of congressional power is proportionate to a problem as the Court sees it. This new test—for which the Court was able to cite exactly no case or other authority—massively shifts power from Congress to the courts. It puts in doubt important pieces of congressional legislation enacted with broad bipartisan support: the Americans With Disability Act, particularly as it applies to local government (there are already many suits challenging application of the ADA to state prisons and local jails); the Violence Against Women Act; and others. I doubt that anyone other than the Justices can say with certainty what exercises of congressional power under §5 today would pass muster under the Court's amorphous test. It is even unclear whether a practice which passes muster as of the time of enactment would still pass muster years later if the circumstances have changed.
We of course recognize that there are profound differences amongst members of Congress about when the federal government ought to intrude on state and local governmental authority. Both liberals and conservatives have objected to various federal initiatives as a breach of ''our federalism.'' We do not seek to eliminate federalism from our political tradition. Federalism is an integral part of American political tradition. The American Jewish Congress believes that it should remain part of our political discourse.
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And because judicial review is also part of our political tradition, it is the case that the courts, and particularly the Supreme Court, will review exercises of congressional power to ensure that they do not breach ''our federalism. But the test the Court has created out of whole cloth to invalidate RFRA is a wholly subjective one—does the Court judge the response proportionate to the problem? This is a quintessentially legislative judgment. That a majority comprised of Justices generally suspicious of expansive notions of judicial power over legislative initiatives should adopt as expansive a judicial check over the Congress as is to be found in the pages of the United States Reports is one of the crowning ironies of the City of Boerne decision.
That the first three legal citations in support of the judgement date from the eighteenth or early nineteenth centuries—in a case which presented the question of how a post-Civil War amendment altered federalism—is startling but revealing. The need for affirmative federal protection of religious freedom is a direct result of the growth of the twentieth century regulatory state. It rested firmly on an amendment which presupposed that the states and local governments would often not be sufficiently protective of fundamental rights. It is no wonder that a Court looking to precedents from the eighteenth and early nineteenth centuries would deliver a judgment wholly out-of-touch with twentieth century realities.
The distortion of federalism occasioned by City of Boerne must not overshadow the fact that for the first time since World War II, religious practitioners have no recourse under federal law when government interferes with religious practice. That this state of legal affairs comes at a time of increased diversity in American religion is yet another irony of the City of Boerne decision.
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The decision in City of Boerne is, by its terms, no license for government to target religious groups for onerous legislation. Such actions, though often difficult to prove, remain unconstitutional. I do not expect that Jews will be targeted for oppressive legislation as they have been in societies far less welcoming than this one. But it is of small comfort that zoning officials can bar synagogues from a community only if they are willing to also bar churches pursuant to a neutral rule (although I am understating the ability of neutral rules to mask discriminatory administration).
In any event, it is also the case that the challenge to religion today in the United States comes not only from faiths intent on suppressing competition, but also from those of little or no faith, who see no special value in religious practice, and who are perfectly willing to have the regulatory state squelch or impede religious views with which they disagree. The danger to religious liberty comes not only from those who would use the machinery of the state to suppress competing faiths, or to compel belief, but also from those who would uniformly require churches to abandon visions nourished by faith for those nourished by utilitarian analyses of pragmatic cost-benefit analysis.
As Jews, we know the importance of mandatory accommodation, whether it be in the form of excusals from public schools on Jewish holidays—or from Christmas pageants—to school rules barring the wearing of skullcaps, to decisions relaxing the zoning laws for religious institutions. Jewish prison inmates, too, have depended on the Free Exercise Clause or RFRA to obtain the most minimum of accommodation. Unfortunately, prison officials in some states have refused accommodations long ago adopted by other states or by the federal prison system. When there was federal law requiring accommodation, those rejections could be tested to see if they were justified by legitimate consideration of prison security. Today they need not be.
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I would add only that Justice Scalia has urged that accommodation will be reached through the democratic processes. This will often be nothing more than a pious hope. If the Catholic Church cannot build a new church in the largely Catholic City of Boerne, what hope is there for less well organized (and smaller) churches?
Each of these problems—that of protecting religious liberty and preserving the integrity of congressional power—is serious. Each deserves a substantial response. If left unaddressed, each of the adverse impacts created by the City of Boerne decision will create social problems of substantial impact, and each will minimize ordered liberty, rather than enhance it.
That both problems need to be addressed adequately and expeditiously is beyond question. But just as it is important that these problems be addressed promptly is the need to see to it that they are addressed soberly and soundly. A rush to legislate with legislation that has not been thoroughly considered is no boon to religious liberty. Nor is it helpful to pass legislation which will inevitably be struck down by the Supreme Court in the name of federalism or separation of powers.
Some have urged that the appropriate response is a constitutional amendment, either one addressing only free exercise issues, or one which is piggy-backed onto existing proposals to address the Establishment Clause issues. The latter proposal is wholly unacceptable; the former simply premature.
As members of the Subcommittee know, the American Jewish Congress and almost the entire Jewish community is unalterably opposed to proposed constitutional amendments to mandate school prayer, or to require government to fund religious enterprises on fully equal terms with secular ones.(see footnote 2) We are not alone in that opposition. Many religious groups and other concerned citizens also oppose such an amendment. As repeated efforts to enact such an amendment over the last three decades indicate, no consensus exists around the need, desirability or substance of a constitutional change in the Establishment Clause. It also certainly cannot be said that the Supreme Court has frozen its Establishment Clause doctrine such that an amendment is the only available response. Cases such as Agostini v. Felton and Rosenberger v. Board of Visitors, W.V., as vague and uncertain as they are, demonstrate that the law of Establishment Clause is in flux.(see footnote 3) That process is ongoing and should not be short-circuited now.
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We recognize that tacking a less popular proposal onto a more popular one is an accepted legislative technique. But it is not one that has been used in amending the Constitution, nor should it be now. Our nation's fundamental law should be changed only where there is a broad popular consensus on the need for a change. That change should be judged on its own merits, not as an adjunct to some other proposal on which there is a consensus. There may be a consensus about protecting free exercise of religion, but there plainly is no consensus about amending the Establishment Clause, much less on how the Clause should be amended. A fortiori, Congress should not sneak through changes to the Establishment Clause on the back of a fortified Free Exercise Clause.
There is no question that a constitutional amendment protecting the Free Exercise of religion could, if carefully drafted, effectively restore protection for freedom of religion for all Americans, and do so as a matter of right. However, if Congress were to act promptly, the process of obtaining ratification would be slow. Given that three-quarters of states would have to ratify an amendment aimed solely at themselves, ratification is hardly a sure thing.
It may well be that at some point in the future it will be necessary to consider such an amendment which, like RFRA, will require a second look at any law or regulation that effectively interferes with religious practice. As an organization, we do not foreclose the possibility of endorsing such an amendment should it be the only available means of providing real protection for religious practice. We do not believe that this is yet the case.
In our view, constitutional amendments should reflect not only a broad consensus that a change is necessary, but address a need that only an amendment can satisfy. If, for example, the entire Court had adopted Justice Stevens' suggestion that statutory exemptions were infirm as establishments of religion, then the only remedy available would be a constitutional amendment. But that is, as best as we can tell, not were we are.
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As we read City of Boerne, it simply holds that §5 of the Fourteenth Amendment, the source of authority Congress relied upon did not sustain the broad scope of the Religious Freedom Restoration Act. It does not foreclose the possibility—as Justice Stevens would—of legislation based on other bases of congressional authority. While none of these standing alone might be as comprehensive as RFRA, together with state constitutional protection, and, one hopes, state RFRA's, they might prove sufficiently comprehensive to obviate the need for a constitutional amendment.
Moreover, should Congress simply pass a constitutional amendment now, it will have ceded to the Supreme Court without so much as a protest, much of its authority under §5 of the Fourteenth Amendment. We think that would be undesirable.
Several possibilities suggest themselves for immediate congressional action. First and foremost, should the lower courts hold that so much of RFRA that applies to the federal government is not severable from the invalidated parts, Congress should promptly reenact a federal-only RFRA.
Second, under the Taxing and Spending Clause, Congress could insist that, in any program receiving federal funds, states and local governments apply RFRA standards to laws, regulations or practices that substantially burden religious practice. The federal government, which has bound itself not to interfere with religious practice without a narrowly targeted compelling interest, has a legitimate interest in seeing to it that its funds are used in keeping with this policy. It likewise has an interest in seeing to it that all taxpayers can enjoy the benefits of tax funds, and are not excluded by application of rules which, as a practical matter, exclude them from federally funded programs because of a clash with their religious principles.
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Some have suggested a broader use of the spending power, to condition any federal aid on compliance with RFRA. That is to say, a state or local government which accepts any federal funding would be bound in all of its activities by RFRA standards. While we would, other things being equal, endorse this proposal, we are doubtful that it would pass muster with the Supreme Court. We see little benefit in challenging the Court's authority once again when it is doubtful that under existing authority it would pass muster.
In South Dakota v. Dole, 483 U.S. 203 (1987), the Court explained that the spending power can be used to impose restrictions on the states only if: (1) they further the general welfare; (2) the conditions are stated unambiguously; (3) the conditions are related to the particular interest in the national program; and (4) they do not violate some other constitutional provision.
A RFRA-like condition targeted at federally funded programs surely satisfies the first, second and fourth provisions. If limited to the program receiving federal funds, it would satisfy even the narrowest reading of the third provision since the regulation would have as its purpose guaranteeing full access to federally funded programs. We would suggest that the definition of ''program'' be taken from existing civil rights legislation, notably Title VI of the 1964 Civil Rights Act, as amended, 42 U.S.C. §2000(d)–4(a).
The exact scope of the third condition is unclear. The Court in Dole noted that some have sought a restriction to regulations which are ''directly related'' to the purposes of the grant. The Court left open the question of whether to accept that reading, or to grant Congress some broader leeway. 483 U.S. at 2797, n.3. We believe that the Subcommittee should explore, with constitutional scholars, the exact parameters of this requirement. Perhaps it will be the consensus of scholars that the spending clause will sustain broader regulations than just a program-specific one. For example, it might be possible to offer financial incentives to states to enact state RFRA's, or perhaps, federal grants to offset the (minimal) costs imposed by religious accommodation. If so, Congress should take the fullest possible advantage of its authority.
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The Commerce Clause, too, should be available as a source of authority to sustain some RFRA-like legislation. The Commerce Clause has sustained other civil rights legislation, beginning with the desegregation of interstate transportation in the 1940's and culminating in the ban on racial and religious discrimination in Title II of the 1964 Civil Rights Act, sustained easily by the Court in Heart of Atlanta Motel v. Katzenbach. More recently, the Violence Against Women Act has been built in part on the Commerce Clause.
Just this Term the Court held that not-for-profit institutions are protected by the interstate Commerce Clause. There is no question that institutional religion is sufficiently large to have a substantial effect on interstate commerce, over which Congress has largely plenary authority. Moreover, it is also the case that states which regulate in ways which burden religious practice are not likely to be attractive to persons who hold such burdened practices. Other things being equal, Catholics are likely to shun a state which does not allow minors to drink communion wine, and Jews will not readily move to a state whose schools treat students absent for Rosh Ha-Shana and Yom Kippur as mere truants.
Unfortunately, U.S. v. Lopez casts an uncertain shadow on the scope of Congress' use of the Commerce Clause as a basis for regulation. The decision may mean only that the statute had no requirement of demonstrating a nexus between possession of a gun in a school and interstate commerce, and the legislative record did not supply one. It may, however, mean that the Court is about to second guess Congress' judgments about the impact of particular actions on interstate commerce. Still worse, Lopez may mean that the Court's new-found enthusiasm for states' rights is an independent check on the Commerce Clause power.
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We believe that despite the uncertainties, Congress should proceed under the Commerce Clause, and that it should do so based upon detailed legislative findings both about the impact of religious institutions on the national economy and more particular impacts on the ability of believers and institutions to move freely between states. Compiling such a record will take time, but in our judgment will be worth the effort.
Neither City of Boerne nor Employment Division v. Smith challenges in any way the proposition that intentional legislative religious discrimination is unconstitutional. The Court appears to have concluded that there was not a sufficient quantum of such discrimination extant to justify RFRA as a means of countering unprovable discrimination. Since the Court reaffirmed the validity of the 1982 Amendments to the Voting Rights Act, it is plain that the Court continues to believe that prophylactic legislation requiring justification of illicit effects as a means of compensating for the difficulty of proving intentional discrimination remains a viable basis of authority under §5. The Court's judgment that intentional discrimination is not a major problem is, as best as we can tell, premised on the relative handful of cases finding intentional religious discrimination. Curiously, the Court seems to have not been bothered that of the two cases it has decided on this ground, Larsen v. Valente and Church of the Lukumi Babalu Aye v. City of Hialeah, one involved reversals of two lower court decisions failing to find intentional discrimination when the Court itself had no difficulty in finding such discrimination.
But the Court's focus on cases which are decided on the grounds of intentional discrimination is entirely too narrow as a basis for assessing the reality of religious discrimination. Often religious discrimination surfaces in particular religious liberty disputes, which are resolved short of formal judicial findings, or are resolved for the religious institution on other grounds. In some cases the institution or the believer simply do not have the resources to pursue the matter. And in some the difficulties of proof mask illicit conduct.
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I have personally been involved in several zoning matters in which popular opposition to a proposed zoning decision is explicitly premised on religious bias of one sort or another, but the formal decision is cast in ostensibly neutral terms. It defies belief that zoning authorities are deaf to the political pressure generated by religious bias, even if they are sophisticated enough to cast their decisions in other, more acceptable, terms.
The problems of religious discrimination are apparent in many areas of discretionary governmental authority—zoning, schools, prisons and others. If given sufficient lead-time, the religion and civil liberties communities will, I believe, be able to demonstrate both that discrimination is far more common than the Court believed, and that it is often very difficult to prove. At the least such a showing would justify legislation addressed to specific areas (e.g., zoning, schools, and the like), and, perhaps, more general RFRA-like legislation.
More narrowly, Congress ought to give serious attention to the question of whether the remedies for intentional religious discrimination are adequate. Over the last decade, the Supreme Court has limited the availability of damages as a remedy for non-pecuniary losses of constitutional rights and erected a formidable series of immunities to suits against government and public officials. The result is that, when compounded with the difficulty of proving intentional religious discrimination, there are powerful reasons for state and local governments to go with the political flow rather than to comply with the sometimes politically unpopular constitutional mandates of religious equality.
Congress without question has the power to redress this imbalance. It could address this problem by lowering the plaintiff's burden of proof, by diluting or eliminating immunities, at least from suit if not damages, and by increasing the available damages. We are uncertain whether Congress could do so only for intentional religious discrimination, or should include as well racial, ethnic and gender discrimination. That, too, is a problem which merits careful consideration.
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These steps will not directly provide redress in cases where a state or local government acting out of purely benign motives restricts religious liberty unnecessarily. It will, however, redress those cases where there is some indication of religious bias. The increased risks of losing a case premised on bias are likely to make governments more amenable to some reasonable compromise than if it is unlikely that any serious penalties attach to a finding of illicit discrimination.
The entire problem we address today is a creation of the Court's decision in Employment Division v. Smith, holding that the Free Exercise Clause does not prohibit enforcement of facially neutral laws despite their impact on religious practice. Were the Court to reverse itself about Smith, the problem addressed by RFRA would once again be addressed by the Constitution. The task is to ensure that the Court undertakes such a recommendation.
An important step Congress could take to facilitate such a plenary re- examination would be to create a category of mandatory appellate jurisdiction for cases claiming an impingement of free exercise. Such a category would force the Court to confront the issue head-on, and not hide behind denials of certiorari.
CONCLUSION
The religious toleration which characterizes American government is in large part the result of stated legal norms which have appeared to require, or at least favor, accommodation of religious practices. There were, to be sure, departures from the norm. Historically, these departures have come from insensitivity or hostility by majorities toward religious minorities. But because the legal norms as stated have tended to emphasize tolerance, those entrusted with governmental powers have tended not to exercise their authority to the fullest, and have, where reasonably possible, tended to accommodate religion, if through nothing more than an exercise of prosecutorial discretion (a practice itself subject to abuse because it can so easily be exercised in discriminatory fashion).
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Now, however, that the Supreme Court has twice told governments that they need not take religion into account, the message will go out to bureaucracies across the country that they need take no special account of religion, that the may enforce laws no matter how they interfere with religious practice, that happy tradition is certain to erode unless something is done. We have outlined some of the steps we believe Congress can take. We urge you to pursue these and the suggestions which will be made by others, in prompt, but deliberate, fashion. We pledge to work with you in this important cause.
Mr. CANADY. Thank you.
Mr. Chopko.
STATEMENT OF MARK E. CHOPKO, GENERAL COUNSEL, U.S. CATHOLIC CONFERENCE
Mr. CHOPKO. Good morning. I thank the subcommittee for the opportunity to appear. I also thank the committee for its continued interest in exploring ways to strengthen the protection for religious liberty in the United States.
With your permission, I would address four points briefly. First, the context in which we speak; second, the position of the Catholic Conference; third, why Americans should care about religious liberty, and fourth, ''Now what do we do?''
In dealing with the context, my co-panelists have already addressed much about the City of Boerne litigation, the Religious Freedom Restoration Act, and the particular dangers to religious freedom. My point, setting context, is that I would urge the committee to avoid the linguistics of restoration and instead adopt a standard to protect religious liberty. What I think the Supreme Court did in the City of Boerne litigation had more to do with addressing rhetoric than following law. The Court made references to the rhetoric of restoring the constitutional status quo, and neglected its opportunity to apply its precedent faithfully, which is more than adequately set out in the brief of Archbishop Flores, written and argued by Professor Douglas Laycock. My first point is to avoid the linguistics of restoration and instead focus on protecting religious liberty.
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Second point—the position of the Catholic bishops. Bishops in the United States are administrators of complex organizations and institutions in this society, dioceses. We work with pastors and religious superiors and our brothers and sisters in other communities in every part of the country. We educate the young; we serve the poor; we house the homeless; we deliver health care; we own property; we minister to prisoners; we strengthen and support families; we conduct worship; we administer the sacraments.
In each area of mission and ministry, we must deal with countless administrators and regulators, and in an increasingly secular world, religion tends to be treated like everything else. Even though we are all minorities in different parts of this country and in the country as a whole, the Catholic community is still the largest faith community. Therefore, it is no wonder that the conflict that became the Supreme Court decision was spawned between the city of Boerne and St. Peter Catholic Church.
The event itself in the life of St. Peter was not insignificant. We Catholics believe that we worship in community, in a space that is consecrated and dedicated for that purpose. There, we are part of the body of Christ. It does make a difference whether we worship in consecrated space or in a rented town hall. In the words of the Catechism of the Catholic Church, ''When the exercise of religious liberty is not thwarted, Christians construct buildings for divine worship. These visible churches are not simply gathering places, but signify and make visible the Church living in this place; the dwelling of God with men reconciled and united in Christ.''
The words of the Holy Father and the Fathers of the church are significant for the City of Boerne case. The inability of the Catholics of St. Peter to worship together in community in space consecrated and dedicated for that purpose was an affront to their dignity and their religious rights, their human rights, and a substantial burden to that religious community.
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Third, why should Americans care? Because there are thousands of ''St. Peter churches'' in every part of this country, in the many different ways in which we experience our religious life, and the myriad ways in which our religious institution serve our human needs.
Two faces and two forces in American life pervade almost everything that we do: religion and government. The committee faces the choice of which rule of law shall apply. Shall religion be the supplicant going to government, always looking for something, or shall religion be accommodated as a rule of law? I would urge the committee to choose the latter, as it did before. Our history, our tradition, our law demand as much. I believe that it is consistent with our expectations as American people.
But to my brothers and sisters in the religious community, I would point out that religion still needs to make the case, in the 1990's, why it should be accommodated. We need to remind Americans that our mission and ministry is not just one to their hearts and minds, but is found in their streets, their hospitals, their schools, their nursing homes, their shelters.
Fourth, what shall we do? I think three things: First, I think we need to reestablish Congress' commitment to religious liberty. Reverend Thomas suggests a joint resolution or similar device to put Congress back on record. I think the people deserve as much and would demand as much.
Second, I think we need to study avenues to pass uniform legislation. Many have been suggested in this testimony already. I would remind you of them, and, again, emphasize the Spending Clause, the Commerce Clause, privileges and immunities. I think the Court invites, in the City of Boerne case a record, if one can be made, on section 5 of the 14th Amendment. Other avenues are explored in my testimony, Mr. Stern's testimony, and in other places.
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If we can, I think the committee should take the time that it needs now, engage experts, and study the various constitutional dimensions of the problem. If it can, I think the committee should study ways in which to pass appropriate legislation in the fall, not to restore the Religious Freedom Restoration Act, but to protect religious liberty.
Finally, if there were no other avenues available to the Congress after it has conducted this study, it should consider alternatives. These alternatives, I think, would include strengthening State laws; considering a broader-based litigation strategy and, as a last resort, a constitutional amendment. I do not believe that a constitutional amendment is something that we should rush to in any manner, way, shape, or form. I think that are alternatives and that the Congress has not exhausted them.
In closing, I turn to the words of the Canticle of Zechariah (Luke 1:68–79) which restates the promise that God made to Abraham. We are reminded there that God came to set His people free, not free to engage the operations of corporate America, but free to worship him without fear. ''Free to worship him without fear, all the days of our lives.'' We pray and we worship in words and in actions. Our American tradition is that we have room in this country for faith alive. That faith makes us better as a people. That room is what Congress should assure once again.
Thank you.
[The prepared statement of Mr. Chopko follows:]
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PREPARED STATEMENT OF MARK E. CHOPKO, GENERAL COUNSEL, U.S. CATHOLIC CONFERENCE
Thank you, Mr. Chairman, for the opportunity to present the views of the United States Catholic Conference (USCC) on the recent Supreme Court decision invalidating the Religious Freedom Restoration Act of 1993. As leaders of a major religious denomination in this country, the Catholic Bishops deeply appreciate the critical need to protect religious freedom, and for that reason joined the quest for a solution to the Supreme Court's 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990). The Bishops recognize the human rights of individuals and religious organizations to practice their religion free of unwarranted government intrusion at any level. Embodied in the Religion Clauses of the First Amendment, this principle is at the core of our heritage and has served our country well.
Our Tradition of Accommodation
The ''religion question'' in America runs deep. Religion is truly personal, but lived corporately through many thousands of worshiping religious communities. From colonial times, it has always been diverse and pluralistic. At the heart of the religious experience in America, I believe, is the conviction that religious values and practices place upon a believer a set of obligations, different than those embraced for convenience or even choice. Forcing a religious observer to choose between God and country in a sense was always considered unconscionable. It was from this shared experience, I believe, that there developed a spirit of accommodation. The history of accommodation reflected in judicial interpretation and colonial experience is thoroughly reviewed by Professor Michael McConnell, who testifies in these same hearings, in his seminal article about the Origins of the Free Exercise Clause. THE ORIGINS AND HISTORICAL UNDERSTANDING OF FREE EXERCISE OF RELIGION, 103 Harv.L.Rev. 1409 (1990). The spirit of accommodation reflected the idea that, to get along in peace, we sometimes have to make exceptions for others' differences. We tried, sometimes imperfectly, to model ''doing unto others, as we would have them do unto us.'' For this reason, I think accommodation, not conformity, was the national golden rule and it found expression in our laws and traditions. In 1952 in Zorach v. Clausen, 343 U.S. 306, 314, Justice William Douglas reminded Americans that, when public institutions make adjustments in the conduct of their affairs to account for ''sectarian needs, it follows the best of our traditions.''
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Religious people no longer live in these times. In 1997, we live in a time of increasingly complex and highly regulated social structures. We routinely deal with large and often unaccommodating government bureaucracies. The world of our predecessors, like the America of the Framers, has been transformed. The presence and power of the government is pervasive and compelling in ways not imagined by them. Social, educational, and health and welfare services, formerly and in colonial times delivered almost exclusively by churches, now are vast public programs characterized by conformity to bureaucratic and administrative convenience. The breadth and penetration of regulation has made government, not individual choice or religious value, the most dominant force in our society. America is becoming rapidly more secular and the governmental bureaucracies with which we must contend have become increasingly inflexible.
The Question of Religion
For religious observers, there was always hope. The Free Exercise Clause of the Constitution held open a promise that government could not ''prohibit the free exercise'' of their religion. Over time, the Supreme Court of the United States enforced this promise by requiring those who would burden religious practices to show that the burden was the narrowest means necessary to fulfill a compelling governmental interest. Administrative convenience was not good enough. Conformity was not expected. Rather, the government had to demonstrate why its proposed inroad on religious practice was justified. Over time, especially in the 1980's, the Supreme Court eroded this promise, sometimes applying and sometimes not applying the compelling interest test. More often than not, courts shifted to a test where religion was balanced against the asserted government interest. As I noted in testimony before the Subcommittee in 1992, in the years prior to Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court had not always applied a compelling interest analysis and religion often did not fair well. The track record for religious claims in the lower courts was even worse. Religious scholar and Federal Judge John Noonan aptly demonstrated this trend in his dissenting opinion in EEOC v. Townley Engineering, 859 F.2d 610, 622–25 (9th Cir. 1988). In an appendix to his dissenting opinion, Judge Noonan listed 72 decisions under federal circuit courts of appeals, 65 of which were decided against the religious claimant. Thus, perhaps it was a small step for the Supreme Court in 1990 to abandon the pretext of compelling interest analysis and substitute a simple rational relation test.
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More importantly, in the Smith decision in 1990, the burdens of proof and persuasion were dramatically altered. Any litigator will quickly note that who bears the burdens is at a disadvantage. Prior to Smith, the governmental entity imposing the regulation or denying the exemption had the burden to prove that it was justified. Even though a true compelling interest test was not always applied, the burdens placed on the government were not insignificant. After Smith, absent deliberate discrimination or where another right is implicated, the burden is now on the religious claimant in a Free Exercise case to show why the government acted unreasonably. In declining to follow a strict scrutiny or compelling interest analysis, and deciding to shift burdens to the religious claimant, the Supreme Court made religious values, once accorded the highest treatment in the American society because of the widely recognized dilemma that a conflict between religious obligation and governmental prescription would create, subject to a mere rational basis test. Religion was not well protected in Smith, and something needed to be done.
I must also acknowledge that, although USCC came to embrace the Religious Freedom Restoration Act, in my 1992 testimony, buttressed by a 1991 analysis and other critiques, we expressed reservations about the precise legislative bill then pending in the Congress. We were absolutely convinced that the statute, despite its name, was not restoration. It embraced a broader application of the compelling interest test than had been applied in the cases immediately prior to Smith and would apply the test in a broader class of cases. More importantly, we were convinced that this was not simply a revision or rewrite of constitutional language. We were not ''restoring the Free Exercise Clause'' as some would have wanted the American public and others to think. Only the Supreme Court can ''restore'' the Free Exercise Clause. USCC recognized from the outset that Congress was writing a new statutory right, making it unlawful for persons in government to take any action that would have the effect of burdening a religious practice unless there was some compelling reason to do so. When adjustments were made by the sponsoring coalitions and drafters in the Congress, USCC strongly endorsed the legislative model because we were convinced that the Supreme Court would not readily abandon the rule of decision that it had adopted only three years before in Smith. Our concern about whether the compelling interest test would be a legitimate basis on which to contend with government, to be frank, has been shown to be not well taken as, in fact, under the Religious Freedom Restoration Act, religion did far better than many of us thought it would. The courts took seriously Justice Antonin Scalia's warning in Smith that a true ''compelling interest test'' would be the highest and most difficult test for the government to pass. Under RFRA, accommodation was once again the rule.
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Finally, I would be remiss if I did not note that Employment Division v. Smith is only part of the problem confronting religion across the board. Taken together, Employment v. Smith and Aguilar v. Felton, 473 U.S. 402 (1985), penalized religion to a very great extent. For those whom the Religion Clauses were ordinarily designed to protect, religious people and their religious organizations, the law had been turned inside out. Aguilar placed the burden on the religious claimant to show that a beneficial state program involving religious organizations (in that case, remedial education of poor children), was itself constitutional to a certainty. Despite a record in which there was a never a violation of any constitutional precept, Aguilar ruled that, because the government could not prove to a certainty that there would never be a problem, the program was declared unconstitutional and enjoined. To the same extent, Employment Division v. Smith placed the burden on the religious practitioner to show that the government was acting unreasonably. Thus, conduct beneficial to religion, either attained through governmental programs or sought as an accommodation between religious obligation and governmental regulation, was subjected to additional litigation burdens before it could be sustained.
Throughout these last several years I asked whether the judicial process itself was contributing to a spirit of hostility towards religion. Indeed, Smith laid the problem back at the feet of legislators, noting that if religion wanted some accommodation it should seek accommodations through the legislative process. At the same time, cases like Aguilar and Texas Monthly v. Bullock, 489 U.S. 1 (1989), raised the specter that, if an accommodation were in fact obtained, it could be declared unconstitutional under the Establishment Clause because it would have failed the very high threshold created by the Court. This situation created, in my view, the politics of doing nothing. Why should government regulators give an accommodation if it would be subject to invalidation under the Establishment Clause? The Religious Freedom Restoration Act addressed some of this problem. The June 23 Supreme Court decision on Agostini v. Felton, XXX U.S. XXX, 65 U.S.L.W. 4524 (1997), reversed Aguilar and may prove very significant in the long run to promote better cooperative relations between government and religion. For forty eight hours at the end of June, things were looking up. Unfortunately, on June 25, the Court's action in the City of Boerne v. Flores, XXX U.S. XXX, 65 U.S.L.W 4612 (1997), has brought us back to where we are today.
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The Boerne Case
In City of Boerne v. Flores, the Court followed the restoration rhetoric and not the law. The Court took seriously the proposition that the Religious Freedom Restoration Act ''restored the Free Exercise Clause'' to its pre-eminent position in American life. It was a political proposition, not a statutory rule. The rhetoric was not law. If RFRA were simply restoring the Free Exercise Clause, USCC and others might have continued to resist RFRA as potentially unconstitutional. Congress does not have the authority simply to restore the Free Exercise Clause. But the Congress, we thought, and still think, does have the power to enact a statutory remedy to protect religious rights. The brief of Archbishop Patrick Flores, ably prepared and argued by one of the preeminent constitutional lawyers in the United States today, Professor Douglas Laycock, lays out the reasons why the Religious Freedom Restoration Act was well supported by the Court's precedent in the Voting Rights Act and other cases. If the Court had followed the law and followed the theme of its own decisions, instead of the rhetoric, it would have reached the same conclusion as the federal courts of appeals: that the Religious Freedom Restoration Act was constitutional.
What the Court did was write a decision about power and the allocation of constitutional power, not a decision about religious liberty. Certainly, there is almost no mention about the idea of religious liberty and the need to protect it extensively except in the dissenting opinions. Smith is (and was) the law on Free Exercise and there may not be sufficient votes on the Court to revisit Smith anytime soon. Without the Religious Freedom Restoration Act, we are thrown back into the chaos that confronted religious organizations from 1990 to 1993. Others, notably the Baptist Joint Committee on Public Affairs, have catalogued the litigation results in cases following Smith. As the analyses prepared prior to the adoption of the Religious Freedom Restoration Act bear out, courts which applied the Smith analysis to a variety of civil statutes and claimants almost inevitably reached the result that religion loses and the government prevails. This is not a good state of affairs for religious claimants and it is distinctively un-American.
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RFRA followed the best of our traditions. It required adjustments to the regulatory and service machinery of government for religious persons and practices unless some countervailing important reason was being sacrificed in the process and could not itself be obtained in some other way. It tipped the scales of justice slightly back in the direction of religion. Given our history and public traditions, the near united support among the American people and the Congress, RFRA seemed to strike a responsive chord in the soul of our country. We were finding ways to accommodate our differences in a complex highly regulated society. In simpler times, we might have been able to do so by persuasion or by making accommodations as ''the right thing to do.'' In our litigious society, dealing with bureaucracies that expect conformity and lack mechanisms to make exceptions or evaluate the strength or weakness of various requests for exemption, RFRA served as an important tool in negotiation, bargaining, and reaching compromise in more instances than we can count.
Why a Religious Freedom Act is Needed
It is for this reason, primarily, that USCC still advocates some legislative remedy to protect the religious freedom of all Americans. We do not believe that anti-religious discrimination is rampant. In fact the Smith case, confirmed several years later in Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), notes that governmental entities which target religious practice for adverse treatment must show a compelling interest in order to sustain this kind of action. Intentional discrimination is not the rule and discrimination is not tolerated in this society. But anti-religious feelings, especially about religious minorities—and we are all a minority somewhere in this country—is still felt even if it is not express. Moreover, it is also widely recognized that burdens can be created for religious practitioners and on religious practices in myriad unintended ways. The litigation which gave rise to the conflict in the City of Boerne is an apt illustration. There, the facade of the Church extended into a historic district. The Church leadership was willing to make an accommodation and preserve the facade but it needed to expand its sanctuary in order for that Catholic parish to worship as a community.
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We Catholics find the Body of Christ in community. The need to worship together as one body is a sign of our unity and solidarity not just with each other but with our risen Lord. Catechism of the Catholic Church, 1108, 1140–41. We celebrate together in community as an essential element of our worship. Id. at 1179. The inability for the Catholics of St. Peters to worship together in community in the consecrated space dedicated for that purpose was a direct affront and a substantial burden to that community. As restated in the Catechism (1180), ''When the exercise of religious liberty is not thwarted, Christians construct buildings for divine worship. These visible churches are not simply gathering places but signify and make visible the Church living in this place, the dwelling of God with men reconciled and united in Christ.'' The inability of the City leadership to make an accommodation in that instance, therefore, penalized the rights of the worshiping community and burdened their religious practices. The Religious Freedom Restoration Act held out a strong, but not exclusive, avenue for relief.
There are thousands of St. Peters churches across the country. They do not all have zoning problems. Churches, mosques, synagogues, and individual practitioners routinely conflict with the demands of the bureaucratic, highly regulated society. We do not always understand the impact of even asking a witness to swear an oath, as some faith communities will not allow their members to do so. We do not always understand why asking a Sikh to remove his head covering in a court to show reverence for the judge ascending the bench is an affront to his religious belief. We do not always understand how autopsy or uniform donation of organ rules can adversely impact the rights of religious believers who, when their bodies are violated, can be denied eternal life. When we lose the right to be different, we lose the right to be free. When we lose the sense that we need to get along, to preserve the civic peace which is a value at the core of our constitutional democracy, we threaten the very heart of what it means to be an American. Our tradition is that we find ways to get along. Our tradition is that religion has always been accorded different and beneficial treatment.
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Religion has always been accorded special status under the law. It is the First Right mentioned in the Bill of Rights. It has often been understood that religion places obligations on its adherents that are different from even the claims of a moral, but secular, conscience. To be denied the right to conduct a ritual that one believes in strongly for secular reasons does not have the same potential impact for that person as it does for a religious observer who may not worship in community in consecrated space. The choice between a peaceful life now and a peaceful life in the hereafter is not one that many of us would want to foist on ourselves or our neighbors. RFRA allowed us a way out. We need to find another one.
What Shall We Do?
I must note that my own thoughts about how to deal with the City of Boerne v. Flores decision are still in a very preliminary state. Indeed, they are evolving the more that I have discussions and the more that I read and research. I also confess that I must rely, and I would urge the Committee to rely, on experts on Separation of Powers and Section 5 of the Fourteenth Amendment. Although I believe that I have some learning in the law, especially on constitutional process, religious liberty, and liability theories, Separation of Powers, federalism, and the intricacies of Section 5 and other avenues of Congressional authority are not my strong suit. I would urge the Committee to seek experts to provide opinions on what the limits and reach of Congress' authority would be in light of the decision in City of Boerne. I would especially invite the Committee to ask those who have been critical of the approach adopted in the Religious Freedom Restoration Act to outline possible legislative remedies. Some are already outlined in the legislative record compiled in 1992. There is more work to be done.
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My own view is that the Congress should explore a statute first. Only if it is satisfied that a statute would not solve the problem which the City of Boerne decision created, should Congress consider a constitutional amendment. In designing a statute, obviously, the Congress would have to explore alternative and different bases for legislative action. These would include the Spending Clause, the Commerce Clause, Privileges and Immunities, and even Section 5 if a record can be compiled showing the precise nature of the problem and the way in which the problem must be solved. Second, it is important that Congress itself be on record, not against Boerne and not necessarily against Smith, but for religion and for