SPEAKERS CONTENTS INSERTS Tables
Page 1 TOP OF DOC
57–227
1999
PROTECTING RELIGIOUS FREEDOM AFTER BOERNE V. FLORES (PART III)
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
MARCH 26, 1998
Serial No. 55
Printed for the use of the Committee on the Judiciary
Page 2 PREV PAGE TOP OF DOC
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
Page 3 PREV PAGE TOP OF DOC
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
Page 4 PREV PAGE TOP OF DOC
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KERI FOLMAR, Chief Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATE
March 26, 1998
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Page 5 PREV PAGE TOP OF DOC
Ahmad, Imad A. (Dean), Ph.D., American Muslin Council
Chopko, Mark E., General Counsel, United States Catholic Conference
Fisher, Barry A., Fleishman, Fisher & Moest
Jaroslawicz, Isaac M., Director of Legal Affairs for the Aleph Institute
Keetch, Von G., Counsel to the Church of Jesus Christ of Latter-Day Saints
McFarland, Steven T., Director, Center for Law and Religious Freedom of the Christian Legal Society
Stern, Marc D., Legal Director, American Jewish Congress
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Ahmad, Imad A. (Dean), Ph.D., American Muslin Council: Prepared statement
Chopko, Mark E., General Counsel, United States Catholic Conference: Prepared statement
Fisher, Barry A., Fleishman, Fisher & Moest: Prepared statement
Page 6 PREV PAGE TOP OF DOC
Jaroslawicz, Isaac M., Director of Legal Affairs for the Aleph Institute: Prepared statement
Keetch, Von G., Counsel to the Church of Jesus Christ of Latter-Day Saints: Prepared statement
McFarland, Steven T., Director, Center for Law and Religious Freedom of the Christian Legal Society: Prepared statement
Stern, Marc D., Legal Director, American Jewish Congress: Prepared statement
PROTECTING RELIGIOUS FREEDOM AFTER BOERNE V. FLORES (PART III)
THURSDAY, MARCH 26, 1998
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:43 a.m., in Room 2141, Rayburn House Office Building, Hon. Charles T. Canady [Chairman of the subcommittee] presiding.
Page 7 PREV PAGE TOP OF DOC
Present: Representatives Charles T. Canady, Bob Inglis, William L. Jenkins, Bob Barr, Asa Hutchinson, Robert C. Scott, and Jerrold Nadler.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. [presiding] The subcommittee will be in order. This morning the subcommittee on the Constitution convenes to hear testimony from legal and religious experts concerning cases where neutral laws or regulations have substantially burdened the ability of people to freely exercise their religion.
As we have discussed in earlier hearings, America was founded upon the notion that the Government should not interfere with the religious practices of its citizens. Constitutional protection for the free exercise of religion is at the core of the American experiment in democracy.
In 1993, Congress passed the Religious Freedom Restoration Act, or RFRA. RFRA was designed to protect the free exercise of religion by requiring government to have a compelling reason for laws that substantially burden that religious exercise. Congress based its authority for RFRA on section 5 of the 14th Amendment. Unfortunately, the Supreme Court struck down RFRA last June in the Boerne v. Flores case, deciding Congress had exceeded its authority under section 5 of the 14th Amendment.
The result of the Boerne decision is that men and women of faith are now without adequate protection against laws that interfere with their religious practice.
Page 8 PREV PAGE TOP OF DOC
I look forward to hearing from our legal experts and religious leaders today about the religious activities and practices that have been left vulnerable after Boerne v. Flores. The freedom to practice one's religion is a fundamental right. We in Congress should work to ensure that this basic right is not relegated to second class status.
I look forward to working successfully in this Congress to preserve full protection for our first freedom, the freedom to practice one's religion without governmental interference.
Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate you holding this series of hearings on the real life experiences of those who have had their religious expressions disrupted as a result of substantial burdens placed by government.
Under RFRA's balancing test, government may substantially burden a person's exercise of religion only if it demonstrates that that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that governmental interest. Although the Boerne decision overturned parts of RFRA, we've learned from our hearings at there is a compelling need to prevent the government from substantially burdening religious expression and there is ample opportunity to fix the constitutional deficiencies noted by the Court.
Page 9 PREV PAGE TOP OF DOC
This hearing is a necessary part of establishing a record showing that the religious practices can be substantially burdened and deserving of our protection. These hearings are for the purpose of gathering facts. All of what we hear will not necessarily be intended for protection in whatever RFRA type legislation we eventually enact. Any legislation considered will undergo rigorous and deliberate review to ensure that it is neither over-inclusive nor under-inclusive. In addition, RFRA language will have to steer clear of any disruption of any Civil Rights laws and, of course, the legislation will have to comply with the recent Supreme Court decisions.
I thank the witnesses for appearing today and look forward to their testimony.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott.
I want to thank all of you for being here, and I apologize for the delay in beginning the hearing.
First witness on our panel this morning will be Mr. Mark Stern. Mr. Stern is director of the legal department of the American Jewish Congress. Next will be Mr. Mark Chopko. Mr. Chopko is general counsel to the U.S. Catholic Conference. Then we will hear from Dr. Dean Ahmad. Dr. Ahmad is here this morning representing the American Muslim Council. Mr. Steve McFarland will be next to testify. Mr. McFarland is director of the Center for Law and Religious Freedom of the Christian Legal Society. Next will be Isaac Jaroslawicz. Mr. Jaroslawicz serves as executive director and director of legal affairs for the Aleph Institute. Then Mr. Barry Fisher will testify. Mr. Fisher, an attorney specializing in religious liberty, is a former chairman of the American Bar Association Subcommittee on Religious Freedom. And finally this morning, the subcommittee will hear from Mr. Von Keetch. Mr. Keetch is here on behalf of the Church of Jesus Christ of Latter-day Saints, for which he serves as counsel.
Page 10 PREV PAGE TOP OF DOC
We appreciate your participation this morning. I ask that each of you summarize your testimony in 10 minutes or less, and without objection, your full written statements will be made part of the permanent record of this hearing.
With that, Mr. Stern.
STATEMENT OF MARC D. STERN, LEGAL DIRECTOR, AMERICAN JEWISH CONGRESS
Mr. STERN. Mr. Chairman, one of my colleagues looked at my testimony and saw the statement required by House rules that I disclose whether the American Jewish Congress has received any grants in the last 2 years. We haven't and he directed me to ask the committee to help rectify that deficiency. [Laughter.]
Mr. CANADY. That's probably beyond the power of this committee.
Mr. STERN. I want to thank you for holding these hearings, you and Mr. Scott. I have been doing religious liberty law for about 20 years now. If I've litigated 4 or 5 times, it's a lot. Nevertheless, I've always used free exercise protection when it existed, and RFRA when it exists, and still exists to some extent to force the government to take a second look at what it is doing, to consider whether amongst a plenitude of things that government does a particular action infringing on religious practices, is really all that important, whether it's giving due weight to another recognized value that is treasured by our society, and whether there might be other ways of achieving the same governmental end without impinging on religious freedom.
Page 11 PREV PAGE TOP OF DOC
The absence of free exercise protection under Sherbert or Yoder, or under RFRA to the states, has substantially altered the balance. I'd like to tell you a couple of stories, really, of how the fact that I've had a club to force a government official to stop and think, to take a second look, has made a difference, all without litigation. I would urge if you listen to those in the legal academy, they tend to focus on three or four Supreme Court cases and say, well the Court never really took this very seriously, never really enforced it, you can't find a whole lot Supreme Court cases where people won. But the cases I'm involved in never make it to an official report of decision. If I'm real lucky, they don't even make it to the newspapers. And so nobody knows the cases exist. But that doesn't really affect the legal landscape as it exists in my practice.
Just a couple of days ago, I got called, by a friend affiliated with the ACLU. A Muslim child was damaged, apparently in delivery or some point in early childhood, and was left physically and perhaps mentally handicapped. The child won a substantial judgment. The lawyer for the child went to invest it in an interest-bearing account. The parents who are Muslims objected that doing so would violate their religious beliefs. They offered to take the money without interest. The guardian of course is in a dilemma. He's got the interests of the child which, of course, will be aided by having an interest-bearing account. And, on the other, the parents are insisting that the child's interests are not helped by being forced to sin.
In the old days, what you would have done is said to the judge: Look, they can't take interest but there are a bunch of other things they can do. You can invest it in a safe mutual fund. There are Muslim banks that have worked out arrangements that allow what some economists would call interest to be denominated profits, and that would be fine. We would have worked out a settlement because we had a club to make them look at what the law required and what could be done. We don't have that club anymore.
Page 12 PREV PAGE TOP OF DOC
Some years ago there was a case involving a school rule designed to deal with gangs. It banned the wearing of hats. It was applied to stop a Jewish child from wearing a yarmulka. We were able to get them to stop and think and say: Well, gee, there isn't a gang around that uses the yarmulka as a gang symbol. Is this really necessary? Is there some other way of doing it?
There was a case a couple of years ago in Illinois where the State athletic association, which is a recipient of Federal funds, wouldn't allow a Yeshiva high school boy's basketball team to play in the league because the yarmulkes posed clear and present danger to opponents; They're falling off the heads and then people trip on them. In fact, the associate even hired an engineer to research the various friction coefficients of different materials used in yarmulkes to find out the likelihood of somebody of slipping and breaking a leg on it. The Yeshiva came back and said, okay, fair enough, but what about if we pin the yarmulkes to the head. And the league said, our rule is our rule and you do it our way or you don't do it at all. The Seventh Circuit under the impetus of Sherbert and Yoder said, no, you've got to take a second look and see if there is some least-restrictive means of achieving that end. And, of course, one is readily available.
Before Yoder and RFRA sort of died on the vine, when I dealt with a coroner with religious objections to autopsies, I came in and I could force a second look—and some of the stories are in my written testimony—because I could threaten a RFRA lawsuit. I now have to beg. In fact I recently wrote an article for a pastoral journal in which I warned rabbis who think that because there's constitutional protection for free exercise they have the upper hand with coroners, I said, in fact, that the exact opposite is true now. The coroner has the upper hand, they have all the cards, and you've got to essentially beg for something to be done, even when there are perfectly reasonable alternatives available, there is nothing to force a coroner to give those alternatives any consideration.
Page 13 PREV PAGE TOP OF DOC
One can go down the line. In zoning, which has been a particularly sore area, I know, for local governments. Frequently if you have the ability to say to the government, okay, you've got a zoning law but I have a problem, I can't build my church under your zoning law, but here's another way of protecting your core interests without infringing on my religious liberty. You can work out a compromise.
But now there's nothing to force that second look and what zoning officials increasingly are doing are saying: Look, this is our zoning law, you don't like it, tough.
One of the better examples around is very a typical requirement of zoning laws that you have x number of parking spaces per number of seats in your sanctuary, usually 1 space to 4 seats. Except it doesn't make a whole lot of sense in the case of a Orthodox Jewish synagogue where nobody rides to synagogue on the days when the sanctuary is full. And so what may make sense for one of Mr. Chopko's churches makes very little sense in regard to one of our synagogues because we just don't drive to the synagogue on the Sabbath.
Under the old regime, you could force the zoning authorities to say, well, maybe the ratio should be one to six or one to eight. Now, you have no such club to force a second examination.
Probably the best story of all involves the Amish. Ohio or Wisconsin required slow—Minnesota, one of those States west of the Hudson—— [Laughter.]
Page 14 PREV PAGE TOP OF DOC
(I'm reminded I'm from west of the Hudson now.)
——had a requirement that farm vehicles be marked with orange reflective tape. The Amish have a religious belief against bold colors. They said, we'll use white reflective tape. They brought in experts who proved that white reflective tape was actually more visible than orange reflective tape. Under current law, that evidence doesn't even get admitted; It's irrelevant. The law's neutral and it's reasonable, and the Amish are out of court. Under the old system, the court said: Well, this doesn't make any sense, why should we impose on these people's religious beliefs when we can provide the same safety for everybody else with white tape at no loss to the government's interest.
It's that sort of second look that we're missing now.
I'd like to spend just a couple of minutes on some of the more controversial areas that have been mentioned. Zoning, I've already talked about. There are legitimate interests that communities have in zoning but there are also legitimate interests that churches have, or religious institutions have. And only if you don't regard religious liberty as a value that's worthy of respect, is that an easy case.
The second look, in my experience, works very well when you force people to negotiate about how we're going to put this building here and not harm the community. If there's a will, there's usually a way to work that out. Not that you can put a mega-church on a cul-de-sac even under a second look program, but there are lots of other things that you can do that work out well. But now there's nothing to force that examination.
Page 15 PREV PAGE TOP OF DOC
The very hardest cases are the cases that—and this really requires more time—but that Congressman Scott mentioned, which are the civil rights cases. Those are very difficult cases where values of the highest order are at stake on both sides. But, again, the second look makes some of these cases easier. In some cases you just have to choose between one value and the other. But not in all. There are cases cited in my testimony, for example, a pro-choice group is denied the right to rent a hall that the Catholic church generally rents to everybody else, and there's a claim of religious discrimination filed under the public accommodation law—it's unclear that the civil rights laws ought to apply in that case.
Second look means, is it really that important, is there some other place for this group go, some other way of dealing with this problem. Not all civil rights laws are that easy, but even there, the general approach works.
Thank you. I'm sorry I've gone over my time.
[The statement of Mr. Stern follows:]
PREPARED STATEMENT OF MARC D. STERN, LEGAL DIRECTOR, AMERICAN JEWISH CONGRESS
On behalf of the American Jewish Congress, I want to thank you for this opportunity to describe the ways in which the demise of the compelling interest test of Sherbert v. Verner and Wisconsin v. Yoder, and the Supreme Court's invalidation of the Religious Freedom Restoration Act as it applied to the states and local governments, have impacted on my practice as a specialist in religious liberty.
Page 16 PREV PAGE TOP OF DOC
At the outset, I would note that most of the people who consult with me are without question sincere in their assertion of a conflict between religious belief and governmental action. To be sure, there are some few persons who used Sherbert-Yoder or RFRA either in pursuit of a non-religious objection or merely to harass government officials. (The latter category is limited only to a small percentage of prison suits.) These individuals abusing the law are decidedly the minority. People simply do not undertake the burden of dissent from neutral laws without good reason.
It is easy to postulate that citizens will take advantage of RFRA, and undermine the rule of law in pursuit of secular or even selfish ends. The problem exists theoretically; it does not exist in the real world. Religious groups counsel believers in ways to abide by law and religious obligations. They warn against distorting doctrine in pursuit of apparent conflicts with religious teaching, and worry about the public image of the faith if marginal cases are pursued. Lawyers like me will not take cases where the insincerity of the plaintiff is evident. People can of course file pro se—and I will concede there are some less than scrupulous lawyers—but the larger point remains true.
Second, I would tell you that in now over twenty years of practice in this area I have found it necessary to litigate only in a handful of cases. This, even though I have been involved in literally hundreds of clashes between faith and law over the years. Most who find themselves caught between government regulation and religious belief are not interested in litigation or a public vindication of their principles or publicity. They are not interested in a defeat for the secular values embodied in the challenged government action, or in defeating the forces of secularism or evil. They simply want to be allowed to put their faith into practice with a minimum of fuss or burden to themselves or others. They are prepared to do what they can to accommodate the government so long as their religious concerns are taken seriously and accommodated if possible.
Page 17 PREV PAGE TOP OF DOC
Not every claim made in the name of religious liberty can or should be granted. Some claims are simply beyond the power of a civilized society to grant. Others would do too much harm to the social fabric. But in my experience, a majority of cases lend themselves to creative solutions, to compromises, to different ways of achieving the same governmental end, but in a manner that is compatible with religious practice. And some forms of government activity are just not important enough to justify imposing on religious faith. What is needed is a mechanism to force negotiations, to compel public officials to move beyond a mentality of ''this is the way we do things—we don't make exceptions,'' and to force a recognition in these days of omnipresent government that not everything government regulates or undertakes is equally weighty or that there is only one way to do things. When a mechanism is available to force a second look (and, unfortunately, that mechanism sometimes must be the big, thick and clumsy club of litigation) it is often possible to work out compromises acceptable to both sides, compromises that value and preserve as far as possible the legitimate interests of all concerned.
Under the current state of the law, however that mechanism or club is largely missing. There is nothing with which the religious believer can force the government to try something different, or reconsider its demand for total compliance even where that something different comes at little or no cost to the government, or even where it may be better than what government demands. Certainly nothing in federal law can be used to that purpose. It is that lacunae which I hope this committee will find a creative way of addressing within the confines of federal power as determined by the Supreme Court.
I do not wish to be misunderstood as suggesting that given, the overruling of Sherbert, and Yoder religious persecution is now common in the United States. It is not. Nor can I contend that since Boerne there are numerous horror stories with which to illustrate the urgent necessity of a response.
Page 18 PREV PAGE TOP OF DOC
Changes in the law rarely have such an immediate impact. There are changes which I have already felt. There will be many more as government officials from legislators on down realize that they no longer need to accommodate religion. Rules that have allowed for religion to be accommodated—from statutory exemptions to the priest-penitent privilege to the ban on official resolution of intra-church disputes—will be reexamined, and in many cases, discarded. Religious persecution and inquisitions will not take their place, but we will have relegated religious freedom to a value less weighty than any other value enshrined in law
II
As I was writing this testimony, I received a telephone call from a friend in another state. the had been asked to look into a case in which a Moslem child won a judgement for injuries which left him physically, and, to some uncertain degree, mentally, handicapped. The child's lawyer sought to invest the judgement in an interest bearing account as required by state law, and indeed, as would appear to be in the child's best interest. The parents objected that their religious beliefs forbid the taking of interest. The lawyer properly called the matter to the attention of the court. The judge has ordered the parties to show cause why the lawyer should not be appointed guardian with the obligation, over the parents' objections, to invest the monies in an interest bearing account.
At first glance, this is a difficult case. The parents' claim is evidently sincere. On the other hand, the child is too young and incapable of expressing a view on how ''his'' money should be invested. Perhaps at some later date the child will renounce his parents' religious beliefs against the taking of interest, but will remain saddled with the parents' choice and the resulting economic losses, The loss of interest might even someday result in the child becoming a ward of the state.
Page 19 PREV PAGE TOP OF DOC
In fact, the conflict between the interests of the state and religious practice is not as absolute as appears. Islamic law as I understand it permits the taking of profits from an investment. Islamic banks have worked out arrangements under which ''deposits'' are treated as ''investments'' and 'interest'' as 'profits,'' analogous in economic value to interest paid. It might also be possible to settle on relatively safe mutual funds or stocks which would achieve largely the same result for the child (perhaps with a slightly greater risk of default, but perhaps not). The difficulty with the case, as it was explained to me, is that state law does not permit alternative investments of this sort.
Under Sherbert or Yoder, or under RFRA, this would be an easy case. Assuming roughly identical rates of return and risk of loss, insisting on the traditional form of investments would advance no compelling state interest, nor would it be the least restrictive means of advancing the state's interest in protecting the interests of the child. The judge would be able to rely on Sherbert-Yoder or RFRA to justify a departure from the statutory command for investment in an interest-bearing account. And the family would have leverage to insist on such a departure. Today, however, there is no such escape valve. And while before Smith the matter probably could have been resolved short of full litigation, today there is no alternative but to bring a Sherbert-like claim and litigate it under the state constitution.
Another example. Several weeks ago I received a call from the director of an ACLU office in the western United States. The director of an Immigration and Naturalization Service detention facility refused to provide detainees—some of whom were probably seeking asylum from religious persecution—pork-free diets. His attitude was: this is the diet, if you do not want to eat it, starve. Because the President has ordered federal officials to comply with RFRA, when threatened with a law suit, the manager agreed to provide a pork-free diet. It was the availability of a club which brought this matter to a speedy conclusion. But if these detainees were held in a state or local facility under contract with the INS—as is the case in my home state of New Jersey—the detainees would have now no recourse under federal law. It is surely not plain why federal dollars should not carry with them the same obligation of religious accommodation on a local government contractor that the federal government imposes on itself. Whether an INS detainee is able to observe his faith in detention should not depend on whether the or she is incarcerated in a federal or local facility. As the law stands now, it does.
Page 20 PREV PAGE TOP OF DOC
The impact of the absence of a lever with which to force thought of workable alternatives cannot be underestimated. Just weeks before the decision in Employment Division v. Smith, I received a call from a Jewish community in South Carolina. It seems that a school district had a rule barring the wearing of hats in school. The rule was applied to a Jewish boy who wished to wear a yarmulke in school as Orthodox Jewish practice requires. I told the community to inform the school board that if they did not waive the rule, I would sue it within 24 hours. Not surprisingly, the school board rethought application of its rule, and accommodated its student. I could not do that today. Indeed, it is doubtful that if I were to litigate that case, whether I would get beyond a motion to dismiss for failure to state a claim.
Rules against headgear are generally defended as an anti-gang measure. I am unaware of any gang that has adopted the yarmulke as its signature. What the adoption of rules like that of this South Carolina district tells us is that the scope of religious liberty is today determined by the least law abiding elements of society, that the most naive and otherworldly believer may have his or her liberty restricted because some lawbreaker might do something similar. The test of RFRA was well adapted to ferret out those cases where the state's interest was truly important and where it was ephemeral, and more importantly, where the state's interest could be accomplished in some other way. Today, there is no such check.
Some three years ago, a friend of mine was killed on a commuter train when another train coming in the opposite direction ran a red signal. My friend was sitting at the point of impact. No one in the whole state doubted the cause of death. The coroner insisted upon an autopsy as the condition for certifying the cause of death. The family of the deceased objected on religious grounds to the performance of an autopsy. The coroner was adamant. I asked the coroner if either a CAT scan or an MRI would be acceptable. I was told that the coroner would not accept either alternative. RFRA was in force and a lawsuit was threatened. The State Attorney General advised the coroner that the lawsuit could not be won. A CAT scan showed the cause of death was a severed spinal cord. Here again, the ability to force a second look, to force a consideration of alternatives, led to a result which was acceptable to both sides, which resulted in the preservation of the reliability of death certificates and yet respected the religious beliefs of a grieving family. But nothing in federal law now forces that second look.
Page 21 PREV PAGE TOP OF DOC
Just recently, I was involved in another case involving the same coroner. But because I had no federal right to force the use of—indeed, even the consideration of—alternatives, I was forced to rely on a state law which provides relatively little flexibility and does not explicitly require the consideration of alternatives. Ultimately, the coroner and I worked out an acceptable arrangement, only because this coroner (for whom I have much respect) is respectful of the feelings of believers. But this is personal to her and her office. Not every medical examiner takes matters of faith into account.
So when I recently wrote on the subject of autopsies and the law for a pastoral journal for Orthodox rabbis, I was obligated to tell them that in dealing with coroners they must recognize, as I am certain that many do not, that they cannot assume that because autopsies raise religious difficulties for Orthodox Jews, that the freedom of religion that they take for granted has any legal force in any concrete dispute over an autopsy, no matter how gratuitous. (Some state statues give medical examiners virtually unfettered authority to require an autopsy.) Thus, I wrote, they should begin by assuming that the decision whether to conduct an autopsy lies totally within the discretion of medical examiners. Their approach, I suggested, should be one of the supplicant seeking a favor, not a citizen demanding respect for a fundamental right.
I want to repeat that I do not contend that every religious claim must be accepted. Of course, only sincerely religious claims need be considered. As I noted at the outset, in some cases the costs of accommodations are simply too high to tolerate. Sometimes truly crucial interests are at stake. In others it will be impossible to devise a workable alternative. It does not follow that religious practice must yield to any governmental interest no matter how slight. And we need to view with some skepticism the persistent and universal response of ''it is too expensive, too dangerous, too disruptive'' to accommodate religious practice. Two cases, one of which I helped litigate many years ago, further illustrate the point.
Page 22 PREV PAGE TOP OF DOC
Ohio requires slow moving vehicles to be marked with orange reflective tape. The Amish objected to the color of the tape but not to reflective tape of a more modest color, such as white. The state insisted on orange. The trial testimony demonstrated that the Amish's proposed alternative was more visible than the state-mandated orange. That is, it was safer. Because of RFRA, the Amish prevailed. They would not even be allowed to introduce that evidence today, let alone prevail on it.
The Illinois Athletic Association required ball players to play bare-headed. Now this is a classic facially neutral rule, and it was generally applicable. It is also the case that it would never be adopted in a league composed of Orthodox boys (or perhaps Moslem women), so that the claim of neutrality is less than it seems. In any event, the league defended its rule on grounds of safety concerns. It argued that if players wore hats, the hats might fall off and other players could trip over them. It's possible, but surely not common among young Orthodox boys (which I used to be) that a yarmulke would fall off, and someone else would trip and break a bone or otherwise be injured. When an Orthodox school sought to play in the league and have its students wear yarmulkes it was told no. Safety was invoked. (The league actually commissioned a study on whether yarmulkes made of different materials—cotton, wool, velvet, etc.—would lessen the likelihood of injury. That document is one of the proudest possessions of my organization). But, said the schools, our boys can attach their yarmulkes to their hair with clips so they will not fall off. Under Sherbert-Yoder, the Seventh Circuit held, that alternative had to be explored. And indeed it was on those terms that the case ultimately settled, and that settlement remains in effect, as far as I can tell, without any problem.
Page 23 PREV PAGE TOP OF DOC
Under current law, the case does not begin—the rule was facially neutral, and it was reasonable. End of case. But why should that be in a society which values religious diversity and relies on individual initiative? And if we require governmental bodies which receive federal funds to accommodate the handicapped in their athletic departments, and if we require them to see to it that boys and girls have an equal opportunity to participate in sports, why should we not require recipients of federal funds to give serious and weighty consideration to religious practices?
These are cases in which the costs of accommodation were small or nil. Indeed, in the Amish case it may well be that the process of exploring accommodations pointed to a better result for all.
III
Religious liberty does not have to be cost free to be worthy of protection. If religious liberty means only that practitioners may practice what others may do it is not a value of any importance in our society. Presumably, every law, every ordinance, every governmental action furthers some public purpose. Presumably, too, the public as a whole is better off for the enforcement of these rules than their non-enforcement. But it is hardly a secret that sometimes larger values, sometimes abstract in the form of what we call rights take precedence over more narrowly focused and more immediately beneficial policies. This is assuredly true, when the question is not the general enforceability of the rule, but whether total compliance is necessary to further the government's interests.
Perhaps the most obvious example is the law of libel after New York Times v. Sullivan. I do not share the view that ''words can never hurt me.'' False statements, even about people occupying places of prominence, can and do damage reputations. I surely do not need to tell veterans of the rough and tumble political process that the truth sometimes does not catch up to the slander and libels that accompany political life. Defamation lawsuits serve an important purpose in providing redress.
Page 24 PREV PAGE TOP OF DOC
But the vindication of reputation comes at a price to self governance, in self censorship to avoid the costs of a defamation suit. That is a cost we have generally deemed too high a cost for the benefit conferred in the case of public figures, at least in the absence of malice. Individuals are denied redress not because what was said about him was true, or yet because her reputation suffered no damage, but because larger social interests demand that the individual bear some of the costs of living in a democratic society that depends on an informed electorate. One could multiply examples from other fields of constitutional law; indeed from public policy generally.
The same notion applies to religious liberty. Obviously, there are limits, as there are in other fields. An important limit in the area of accommodation is the constitutionally mandated ban on forcing others to participate in another's religious practice. An inmate has the right to practice her faith—subject to the institution's interest in security and good order, and subject to legitimate logistical concerns—but she does not have the right to practice her faith in a way that compels others to participate against their will. I cannot conceive off-hand of a right to inflict physical harm on an unwilling adult.
It does not follow that no costs are appropriate to impose on society generally, or even on individuals. A liberty is a legal claim that trumps other claims. Almost by definition it comes at a cost. Those who would insist that it is inappropriate to bear any costs for religious accommodation are guilty of what Justice Goldberg warned against in another regard—an overarching secularism, which is hostile to religion, not merely neutral.
IV
Page 25 PREV PAGE TOP OF DOC
The cases I have discussed until now have been relatively non-controversial. Let me turn to some harder cases. I will address areas where there has been particular controversy, either at the national level or in state legislatures as they consider state RFRA's. Some of these issues are hard, some I have personal experience with, some I know only from afar. Some I believe should be decided one way or the other, and some I am happy I do not have to decide. Overall, the approach of the second look works quite well in structuring the discussion of these hard cases.
Zoning
As the Church of Latter Day Saints has demonstrated in their comprehensive review of church zoning cases, in its amicus brief in Boerne, there is a sharp inverse correlation between a church's likelihood of being involved in zoning litigation and the number of adherents its in the community. This suggests that factors other than land use play a large role in zoning decisions. Actually, in my experience bias is often open and notorious. It is true that if one can prove a deliberate effort to exclude a group because existing residents do not want different people in their community, or dislike a particular church, the church is entitled to a remedy.
However, the lower courts have generally proved quite resistant to proof of illicit motive. In one recent case involving freedom of speech, the First Circuit held that the fact that some members of a council made illicit remarks in support of an illicit policy did not justify a conclusion that the decision of the council as a whole to take the same action was premised on illicit concerns. The Tenth Circuit recently held that illicit motive must be alleged in a complaint, and refused to allow discovery to find evidence of bad motive. On the defendants' motion to dismiss, it went on to speculate about hypothetical permissible motives for the defendants' decision at issue there. In short, under such a regime, proof of bad intent is all but impossible to adduce.
Page 26 PREV PAGE TOP OF DOC
Now consider the following cases: A small congregation sought permission to convert a private home into a small synagogue. At the city council session called to consider its application, one councilman warned that if the application were granted, this nearly all white suburb would begin to resemble an adjoining city which was largely minority and full of storefront churches. I protested that bias was not a permissible basis for a decision. Would I have been able to convince a court that a decision denying the application was tainted? Not likely.
In a case still pending in Ohio, a consortium of Orthodox Jewish congregations and educational institutions seek to develop a common campus. The planning director of the city worked with the consortium to work out an acceptable plan. Community opposition developed because of fears that the campus would attract residents who would send their children to religious schools. Although the planning commissioner testified at a hearing that the plan, from a planning point of view, was perfect and should not be changed, it was defeated at a public referendum during which opponents of the plan did not conceal their biases. The defeat of the plan had nothing to do with traditional zoning concerns. But to challenge it now would require proof that bias was the motivating factor in the referendum—and it is not clear that a court would permit such an inquiry as to a public referendum. Under a RFRA-like statute, this would be far easier case. The question would be whether the denial of the permit was necessary to further a traditional zoning interest, and as to that, the testimony of the planning commissioner would have been dispositive.
That these cases are more easily treated under RFRA is relatively easy to demonstrate. But the same is true where religious institutions are excluded under traditional zoning criteria. Here the crucial point is the one I made earlier—that religious liberty is a value which is weighty and which is entitled to significant consideration in deciding how land will be used.
Page 27 PREV PAGE TOP OF DOC
Where the second look doctrine is in place, religious institutions and municipalities are forced to negotiate the results are often enough results acceptable to both sides. But even if not, and the harm is not great, the larger and more permanent value ought to be dispositive.
Again some examples: The rule in New York (and New Jersey) is that a religious institution is presumed to be a good neighbor and to contribute to the welfare of the community. Wholesale exclusions of such institutions from a community or from residential neighborhoods are impermissible. However, the institution is generally required to engage in a planning process—to seek a special use permit—which allows the municipality to address the impact of the institution on a neighborhood. During that process, concerns such as noise, traffic, environment, lighting, parking, bulk, and the like, can be addressed. If it is possible to address those concerns with modifications of the plan, or by restrictions on the use of the property, this must be done. If it cannot be done, and if the harms to the community are real and substantial, the special permit may be denied. Courts, religious institutions and zoning boards have used these powers creatively to accommodate the interests of church and state, but the process also weeds out improper use of zoning laws, or applications which serve trivial interests.
Not all states have such enlightened procedures. In some, for example, religious institutions are treated as any other applicant for a variance. Not only neighborhoods, but whole towns are off limits to religious institutions. In one state, order to even apply for a variance, which is wholly discretionary, churches must first purchase a piece of property, and then seek zoning approval. And if it is denied a church is stuck with a piece of property which is useless to it. In the most developed sections of our nation, the lot size requirements for religious institutions cannot be met on available vacant land. The result in many of these cases is that the religious status quo is frozen in place.
Page 28 PREV PAGE TOP OF DOC
Sometimes the result of straight forward application of zoning rules—all that is required under Smith—are wholly absurd. A good example, encountered frequently by anyone representing Orthodox synagogues, is the requirement for a number of parking spaces per set number of seats in the sanctuary—even though on the days when the sanctuary will be filled worshippers do not drive. Courts applying a second look can deal with this absurdity by requiring a more reasonable number of parking spaces. But there is now no federal requirement that they do so. Many state courts which do apply the second look principle originally adopted the rule under the assumption that the First Amendment required it. That is not the case any longer. I am confident that some states will now abandon a second look in favor of enforcement of zoning ordinances as written.
Another case illustrates how neutral laws can be hostile to religion. Several years ago I represented a small congregation which sought to establish itself in a beachside town in Long Island. The town said that the small number of people coming on Friday nights would ruin the residential character of the town. The local trial judge agreed. Unfortunately for the town, the appeals court judge who heard the case happened to own a summer home in town. He wanted the answer to one question: why was the small minion more disruptive than the large secular parties held by many residents on Friday evenings? The town had no answer and lost its case. Under RFRA that was the right result. It is not clear under present federal law that the question need be answered.
My home town of Clifton, New Jersey is currently in a dispute with a church which wants to buy an abandoned theater. The town wants an art group in the theater and has denied a permit for the church. But is this religious liberty when a town expresses an official preference for secular First Amendment activity over religious activity?
Page 29 PREV PAGE TOP OF DOC
Concededly, state zoning law can be invoked to defeat some of these applications of the zoning law. But review is by deferential standards, and often by judges who are required to run for election in the very towns on whose zoning decisions they are passing. More to the point, it is simply the case that where rules are embodied in case law, zoning boards are likely to do what is politically expedient and let the courts take the heat, and the religious institution bears the expense of litigation, perhaps in the hope that it will seek a site elsewhere. They are more willing to follow statutory directions. I know the system is not supposed to work this way, but it does, not only in my experience, but in the experience of zoning officials with whom I have discussed the issue in private.
Prisons
When Congress originally enacted the Religious Freedom Restoration Act, it took note of the special needs of prison officials. In legislative history which was repeatedly cited by the courts, that history made clear that special deference was due prison officials, that concerns for security, discipline and efficient operations of prisons could, if proven, be compelling. Moreover, the history noted that prison officials could point to budgetary constraints as a justification for limiting inmate rights. There was not to be unlimited deference to prison officials, however. RFRA litigation was not reduced to the ipse dixit of prison officials. It remained the province of the courts to insure that alleged compelling interests were not exaggerated, speculative, or post hoc rationalizations for policies or decisions which were not at all well considered. The federal system continues to operate under RFRA, without apparent difficulty.
Page 30 PREV PAGE TOP OF DOC
In most litigated cases, courts found for prison officials. But not in all, and these tend not to be reported. Thus, in one unreported case in which I was involved, the State of Pennsylvania took the position that it need not provide kosher food for inmates. It took a federal judge just minutes to decide to the contrary, a not surprising conclusion since the federal system and New York State all manage to provide such food without any great difficulty. Indeed, while one still encounters claims by prison officials that they cannot possibly run a secure prison system and provide religiously acceptable diets, it is strange that a variety of other prison systems manage just that.(see footnote 1) While I recognize that prison systems differ in terms of facilities, security requirements and budgetary limitations, anyone who engages in in prison related work cannot help but be struck by the fact that what prison officials insist in one facility would bring chaos and a total breakdown of security, works perfectly well in apparently comparable facilities. RFRA works well to test which predictions of chaos are legitimate and which are nothing more than the usual bureaucratic reluctance to accept outside oversight.
Several years ago, I was involved in an effort to improve the provision of Kosher food to Jewish inmates in New York State. After much work with the Commissioner's office, the office of the nutritionist, and the state-wide office of security, we reached an acceptable arrangement. When it did not go into effect promptly we requested a meeting with the Commissioner, who told us bluntly that the corrections department was only in theory a department directed from the top down. In reality, the Commissioner had to negotiate with the administration of local facilities for their cooperation. But should such bureaucratic recalcitrance (sometimes masking bigotry), which is a reality, be a reason to interfere with religious practice?
The second look of which I have spoken earlier works in the prison context as well, if there is a reason for prison officials to sit down and talk. Although others do more of this than I do, and can give more examples, one case in which I was involved should illustrate the point. Several years ago, Jewish inmates in Michigan sought permission to light Chanuka candles. The response was that to allow them to light candles in the cell or dormitory area would be both a fire and security hazard. Fair enough. But the inmates proposed lighting one set of candles (as opposed to individual lighting, which is the ordinary, but not required, practice) in the chaplains office under, if need be, the eye of a guard. In addition, I suggested that instead of using paraffin candles which in theory could be picked up and transported to other places in the prison, oil candles be used. Such candles further minimized any minimal security risk that existed. Prison officials continued to resist even this reasonable proposal, until threatened with a RFRA lawsuit. They then yielded, all without any harm to legitimate prison interests.
Page 31 PREV PAGE TOP OF DOC
When RFRA was in effect, New York State modified its rules to follow what I understand is the federal practice—to allow beards worn for religious reasons. As long as RFRA was in effect, such beards were allowed, and without any demonstrated problems. As soon as Boerne was decided, and with no other factual basis, the State reverted to its earlier ban. Now I do not doubt its right to do so, but the question which must be asked is what penological purpose was served by that change other than an assertion of raw power?
Public Schools
Some two years ago, I chaired a group of civil liberties and religious organizations—organizations which spanned the ideological and theological spectrum—in drafting guidelines for religion in the public schools. The President and the Secretary of Education used those guidelines as a basis for their own guidelines. Now, we have collectively decided to reexamine those guidelines to determine if they need modification. Those that dealt with the Establishment Clause ban on school sponsorship of religion needed no change. But we had to propose revisions to those sections dealing with free exercise rights, because, more or less, these no longer exist. Let me illustrate: The student who seeks to wear a yarmulke or who seeks to display a rosary, no longer enjoys any clear federal right to do so. The student who, out of a religiously based sense of modesty, seeks excusal from a gym clothes requirement, or from a co-ed gym class, now has no basis to approach school officials seeking an accommodation. To be sure, there are some fancy and uncertain legal theories which might prevail in some of these cases. But I am at a loss to understand why school officials should not be bound to make accommodations in these areas, unless they can prove real harm—and in these cases they cannot.
Page 32 PREV PAGE TOP OF DOC
More difficult are a series of cases in which students seek to be excused from instructional units which conflict with their religious beliefs. Several courts have held that mere exposure to ideas with which one disagrees is no burden on religious liberty. Of course, if there was no burden, there was no claim under either Sherbert or Yoder or RFRA, and there is nothing more to discuss. But the correctness of that result is debatable. I myself think the result wrong, and that the correct question in those cases is whether excusing a student would create an undue burden on the school.(see footnote 2) There are other difficult questions raised by these claims concerning the rights of children vis-a-vis their parents, and the interests of society in an educated child. But these are not always implicated in important ways in these cases.
The theoretical issues are interesting. But on the ground, the picture is quite different. Most, but not all, school systems routinely honor requests for exemption, at least if the request is limited to a segment of a course.
I used to make such requests all the time and without any objection—about Christmas holiday observances. Whatever their legality under the Establishment Clause, these observances can be very painful for non-Christian children. Every discussion I have with school officials about such observances begins with my request for an excusal of children who do not wish to participate—an excusal that presumes no penalty for non-participants. This is inevitably granted. It no longer need be. Why not?
In fact, for all the legal controversy over excusal it is—or it has been—widely practiced until now. Schools which insist on resisting the principle of excusal, offer excusals any way. And the litigated cases about objection to textbooks in all but the smallest number of cases proceed on the basis that the student was offered an alternative.
Page 33 PREV PAGE TOP OF DOC
To be sure, there are powerful, but not conclusive arguments for mandating sex education. But all, or almost all, states mandate exemption from such courses, which are invoked, if I remember the statistic correctly, less than 1 percent of the time. Is it really the case that reading this novel rather than that one is that important? And does not religious liberty carry some weight here? It could be that a child who does not have sex education will be exposed to life threatening illnesses as a result (of course, religious teaching on abstinence provides the same result) but is that true of a novel or a short story? Perhaps it is, but the second look process is well designed to take all the relevant concerns into account, and give them the weight they are due.
Civil Rights Law
No issue has raised greater controversy than the application of the accommodation principle to the civil rights law. Those seeking exemption protest that these laws force them to violate fundamental principles of their faith, or to directly facilitate or condone sin. I take those claims seriously. On the other hand, opponents of exemption argue powerfully that as a society we are committed to the equal treatment of all our citizens, and that religion should not be allowed to depart from this fundamental concern, particularly given the newness of the nation's commitment to those principles.
It should be noted that most civil rights laws already exempt religious institutions to one degree or another. Some of these exemptions are limited to religious discrimination by religious organizations. Some are somewhat broader, permitting religious organizations to engage in discrimination if necessary to further their religious purpose. Courts have applied those exemptions judiciously, and, I think, overall with a minimum of controversy.
Page 34 PREV PAGE TOP OF DOC
Second, again as a practical matter, no church of any consequence in the United States today teaches a doctrine of racial segregation. The so-called Identity churches do, but these are small, and, it would appear, not much concerned with what the laws says one way or another. In addition to the relative handful of people who might make such a choice, passage of RFRA would not affect our commitment to ending racial discrimination, since even if one could surmount the sincere belief hurdle, there is likely a compelling interest in eradicating racial bias which cannot otherwise be satisfied.
The harder question arises in the context of sex, and, most commonly today, sexual orientation, and not so much by religious institutions, but by private persons. These are exquisitely hard cases for me, because they put into conflict two principles I value highly—those of equal rights and religious liberty.
I would not, however, foreclose the argument one way or the other. I can imagine cases where the harm to civil rights enforcement is minimal, in exempting a few believers, but the damage to religion great. Conversely, I can imagine cases where the harm to egalitarian principles is too great to tolerate. For example—and without expressing a view for AJCongress—I think that a refusal to rent to a cohabitating unmarried couple by a homeowner renting a basement apartment would stand on a different footing than discrimination by a large-scale commercial landlord. A law banning discrimination in housing might well be applied to prevent a pro-life landlord from renting to a tenant who has had an abortion, but should a public accommodation be applied (as actually happened in Vermont) to require a pro-life printer to print pro- choice pamphlets? Or to a pizza store which refused to supply pizza to pro-choice gatherings? Or (as happened in Minnesota, until reversed by an appellate court) to require a Catholic church to let space for a meeting by a group which was at odds with the church?
Page 35 PREV PAGE TOP OF DOC
I do not believe that all of these cases are identical, nor that they all need be decided one way or the other. On the contrary, they together urge the wisdom of case-by-case adjudication, and application of the second look principle.
CONCLUSION
The second look approach of RFRA leads to balanced and sensible results. Its demise tips the balance too strongly towards a mindless statism, which ill serves the cause of liberty. The Committee should do what it can to restore the balance.
Note: Neither I nor the American Jewish Congress has received any federal grants in the last two years.
Mr. CANADY. Mr. Chopko.
STATEMENT OF MARK E. CHOPKO, GENERAL COUNSEL, UNITED STATES CATHOLIC CONFERENCE
Mr. CHOPKO. Thank you, and good morning. I want to thank the subcommittee for its continued concern about the cause of religious liberty, and its very visible leadership in undertaking this search for an appropriate and constitutional legal protection for religious freedom. I speak as legal counsel for the Conference of Bishops, although I need to be understood not to be speaking for any one or another of the bishops; We're a rather diverse community.
Page 36 PREV PAGE TOP OF DOC
I will address three general issues that arise out of my written testimony. One is the context out of which we speak as a community. Second, our general experience in looking at the cases post-Boerne and post-Smith. And some specific issues that I want to bring to the committee's attention.
First, why we speak. We're the largest community in the United States, we Catholics, but yet in the United States there is no majority religion. We are all minorities somewhere. Therefore, as a community we strive to work for the common good in collaboration with our religious partners, our partners in faith, for the good and the improvement of the entire country. Therefore, we, like they, remain concerned about the inadequacy of protection for religion.
We also feel a special responsibility because the case that went to the Supreme Court in the City of Boerne case involved one of our churches. Although that church has since resolved its difficulties with the city, it is still illustrative of the kinds of cases which persist around the country.
To prepare this testimony, I asked a random sample of our 190 dioceses and more than 24 State Catholic Conferences around the country for assistance. From their returns, I have drawn specific examples, but the committee should understand that they are anecdotal and illustrative only. I have not attempted to quantify the results nor have I attempted to prioritize them by order of relative importance. But like other communities, I suspect, we have little actual litigation to draw on.
Page 37 PREV PAGE TOP OF DOC
What I emphasize here is that as charitable and tax-exempt organizations that are service and mission driven, there will be numerous instances where our needs and the needs of our communities butt up against the demands of government. There have been and there will be conflicts with government. What I see as a duty to accommodate, others see as an expectation that there will be administrative conformity. What this subcommittee is assessing here and in other places is going to be, by what standard should these religious claims be evaluated.
Second, what is our experience? The pattern of instances relayed to me show that religious persons and organizations are being treated much like everything else is in the United States. Generally—generally, although there are exceptions—we are not being treated worse than our secular cousins, but certainly we are not being treated any better than our secular cousins. However, I would point out, that the negative effect of such identical treatment is sometimes exacerbated by the nature of our institutions.
In one instance, a county applied hours of operations for commercial facilities to churches. So if a barber shop or hardware store is going to be opened and closed, it would open at 8:00 a.m. and close at 9:00 p.m. We're a few weeks away from Easter and I don't know how a church under those circumstances would lawfully be able to conduct the sunrise service, unless we have figured out how to manipulate the times. Or how it would be able to conduct an Easter vigil mass, which occurs in darkness. In those instances, the church would not lawfully be able to conduct religious services in that setting.
That's what I mean by there being particular examples when being treated the same exacerbates the negative effect on our institutions because of the nature of the institutions. Most of the laws that apply do not have the means to evaluate what the religious claim is and assign it any weight.
Page 38 PREV PAGE TOP OF DOC
In the specific areas that I highlight in my written testimony, the issue is not, therefore, whether some other body of law can be used to fill the gaps left by the invalidation of the Religious Freedom Restoration Act, but whether that law has the means by which to evaluate the unique nature of religious rights and provide a duty to accommodate. A broad, generally applicable, neutral law does not provide that kind of basis.
Third, in my written testimony I illustrate concerns in four areas. The first is the area of confidentiality of religious processes. The Oregon confession case, which is cited in my testimony, is the extreme case but there are more routine cases. There are more cases involving both oral testimony and compulsion for written testimony that then implicates a patchwork of clergy confidentiality statutes around the country. Those statutes, in many instances, are not adequate to take into account the rights of religious leaders and religious communities. In many places, they only protect the rights of the communicant, but they do not adequately protect the rights of the religious community.
So in a case like Oregon—where the prisoner tried to waive rights—the religious community is not left with any basis at all on which to defend the sanctity of the sacrament and the integrity of its disciplinary process.
The second issue that I illustrate is in the area of property. Churches are present in their municipalities, in the community of believers, but also in the physical presence of real property. These properties change and grow along with the religious community. There are numerous instances that are highlighted in my testimony involving government imposed limits on enrollment of religious schools, size of congregations, hours of operations, and even, in one instance, a limitation on the numbers of users for retreat facilities. This limitation caused a denial of access for religious persons to places for spiritual retreat, as well as a denial of rights to the religious entity to offer those services and fulfill its religious mission to serve the religious community. Those are impacts which are not capable of being assessed under broad, generally applicable government property laws.
Page 39 PREV PAGE TOP OF DOC
A third area is in the area of regulation. There are instances where Catholic entities are being demanded to provide access to a full range of health services including abortion which we oppose. This debate is not about abortion, this debate is about conscience, and many States do not have adequate conscience clause protections that would guarantee the protection of our entities.
A similar example would come up in the area of organ transplants. There are many States that have organ harvesting statutes that allow for the harvesting of corneas and other body parts of people unless the coroner knows that there is an objection. But, for many in the religious community, not just the Catholic community but in the Jewish community, we would oppose those harvests as, again, immoral in certain circumstances. But the laws are broad, and generally applicable and admitted no exceptions.
A fourth area would be in the area of torts. I am not arguing for charitable immunity, and I'm not arguing about specific claims. In the area of punitive damages, punitive damage laws apply generally across the board, and they admit of no exceptions. Where religious organizations are subjected to the potential to be punished on account of internal governance rules or the inadequacy of policies, I submit, we need some means to evaluate the legitimacy of the State's interest against the specter of the religion being punished on account of the way it governs itself. Liability fears are having an impact on the common good. The ''Wall Street Journal'' last month illustrated a number of instances in which religious people and religious communities are withdrawing from counseling and other services on account of liability concerns.
Page 40 PREV PAGE TOP OF DOC
The absence of strong protection for religious freedom means that we must withdraw or at least rethink how we do our business. But, because we're dealing with people who feel obliged to provide services to the community, conflicts will continue to occur.
I thank the subcommittee again for its attention and its continued leadership in the cause of religious freedom.
[The statement of Mr. Chopko follows:]
PREPARED STATEMENT OF MARK E. CHOPKO, GENERAL COUNSEL, UNITED STATES CATHOLIC CONFERENCE
Thank you, Mr. Chairman, for the opportunity to present the views of the United States Catholic Conference on a matter of priority for the Conference and for the Committee, the search for appropriate and constitutional legislative protection for religious freedom in the United States. The United States Catholic Conference, to which I am the principal legal advisor, consists of the active Roman Catholic Bishops in the United States and is the agency through which the Bishops address matters of national public policy, especially when that policy concerns the rights and liberties of individual Catholics and Catholic organizations and dioceses around the country. The question of religious liberty is fundamental to the Church, its Bishops, and to the Catholic people. Indeed, it is a fundamental human right enjoyed by all and protected, in the United States, by the Religion Clauses of the First Amendment. My testimony today is devoted to illustrating the experience of the Catholic community dealing with the government and exploring ways in which appropriate legislation can materially assist the Catholic community in resisting the overreaching of government.
Page 41 PREV PAGE TOP OF DOC
My testimony is anecdotal and not quantitative or statistical in any sense. I have requested representatives of dioceses and State Catholic Conferences around the country to suggest examples of the kinds of cases in which an appropriate legislative protection for religious freedom would have been helpful or useful. I do not claim that these examples are exhaustive of the potential range of cases, nor do I claim that any one of these cases is more important than anything else that the Subcommittee might face. I also would like to note for the record that my testimony today should be understood in the context of the testimony that I offered to this Subcommittee on July 14, 1997, in the aftermath of the City of Boerne v. Flores and my testimony in 1992 in the aftermath of Employment Division v. Smith. The Catholic Bishops of the United States remain committed to the search for an appropriate legislative solution to the difficulties created by these cases. Indeed, we feel a special responsibility because the case that led to the invalidation of the Religious Freedom Restoration Act (RFRA) was raised in the context of a dispute between one of our parishes and a city government in Texas concerning the right of that Catholic parish to worship as a community in space devoted and consecrated for that purpose. Although the parties in that litigation have apparently resolved their differences, that case is not unlike others that persist.
Finally, by way of introduction, I would note our continuing concern with the direction in which our common life in the United States is experienced. There is a trend in the interpretation of the Religion Clauses to treat religion like everything else. This is indeed a fundamental underpinning of Employment Division v. Smith. This is not unlike the situation replicated numerous times everyday across the country. We are dealing with large and pervasive bureaucracies. These bureaucracies expect that conformity, not accommodation, will be the rule. Those who have been entrusted with the administration of these bureaucracies believe that once an exception is made for one person for one reason they must make exceptions for all. This expectation discards the longstanding tradition in our country of making accommodations for each other's religious beliefs and practices as a matter of right, not as a matter of convenience. Indeed, we have many times in our history seen evidence of our ability to be inconvenienced on account of not forcing one or another person to choose between adherence to God and adherence to Caesar. It was unfortunate that the Supreme Court should strengthen the contrary trend through Employment Division v. Smith. It is equally unfortunate that when Congress passed RFRA to add new protection for religious rights, the Court has disrupted that protection, allowing Smith to remain. Although much has been said about the litigation potential of RFRA, the real power of the Religious Freedom Restoration Act, I believe, lay in its use in negotiation and persuasion in numerous local and administrative disputes across the country. The ability to have some legal basis on which religious persons and organizations could depend as a starting point in negotiations was an enormous benefit in continuing to give life to our tradition that, although our practices are diverse and plural, our devotion to the protection of religious liberty remains singular and supreme. RFRA gave religious people and their organizations the right to insist that accommodation, not conformity, be the norm.
Page 42 PREV PAGE TOP OF DOC
We have joined the renewed search for legislative protection for religious freedom—a statutory right to appropriate accommodations absent a narrowly drawn compelling reason to do otherwise. As I said in earlier testimony, of the available alternative approaches, a federal statute is preferred.
It is against this background that I would like to review examples of the kinds of situations in which the religious freedom of individual Catholics or Catholic organizations has been compromised by the actions of government. In each of these situations, the presence or absence of a statutory guarantee of religious freedom would have made or could have made a difference in the way in which the case was presented. It would not guarantee a favorable result in every instance but it could have changed the way in which the case could have been pursued. I will in turn deal with cases illustrating four different areas: confidentiality of communications, property, regulation, and torts.
CONFIDENTIALITY OF COMMUNICATIONS
In the Catholic tradition, confidentiality of communications is not just about protecting privacy of the individuals and what they say to each other. Rather, confidentiality of communications is an important ingredient to the sanctity of the Church process itself. It is well established in the United States, and has long been the tradition in the Church since its beginning, that Catholic priests may not reveal the contents of confessions, even when given the ability to do so by those who seek the sacrament. Although we Catholics call reconciliation or ''confession'' a sacrament, the process by which individual believers recognize their sin and turn to God for forgiveness is an integral aspect of the religious experience common in Christian and non-Christian religions. Thus, it is not surprising that a significant instance in which a religious freedom statute would have positively and did positively affect the outcome of a case involved the deliberate interception of a confession of a prisoner to a Catholic priest. The case that resulted from this situation, Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997), protects strongly the right of the prisoner to seek reconciliation and the right of the Church to protect the confidences obtained therein and the confidentiality of the process.
Page 43 PREV PAGE TOP OF DOC
The Ninth Circuit found that the interception was not just an impairment of the prisoner's rights but also the rights of the priest who heard the confession and a violation of the rights of the community represented by the Archbishop. It bears repeating that the confessional communication was deliberately selected for interception by prison personnel specifically because they knew from their own experience and training that the sacrament of confession should contain a full and complete acknowledgment of wrongdoing and an expression of repentance. It is plain that those who are incarcerated face a diminution of their rights as an incident of lawful incarceration. A prison regulation dictating that all conversations between prisoners and outsiders will be intercepted is the kind of rule which would generally apply and bind religious and nonreligious communications. In a sense, absent a religious freedom law, it is debatable whether we would have had adequate protection for the rights of the confessor and the Church to resist and seek restitution for this breach of confidentiality. Clearly, the finding by the Ninth Circuit that the Religious Freedom Restoration Act had been violated, in addition to the Fourth Amendment, was instrumental in the resolution of the case. Absent the Religious Freedom Restoration Act, it is not clear how the Court would have ruled on the Free Exercise claim as the Court did not decide the case on that basis.
This Subcommittee is aware that the disclosure of confessional communications is already a subject of debate in other instances in the Pacific Northwest. A minister of an Evangelical Reformed Church has refused to disclose the nature of counseling communications between him and a member of his Church. He testified here last month. It is clear both that the demands of law enforcement are pervasive and that there are limitations to other statutory remedies. Many of the clergy privilege statutes around the country do not expressly grant to the religious body, or the religious official hearing the penitential communication, the right to protect the sanctity of that communication as an element of the discipline of a church. In those states, the clergy confidentiality statute would be inadequate to protect the rights of religious persons and/or organizations. In those states, religious leaders and organizations, confronted by cases where there is a demand by the state for disclosure and a waiver by the penitent, lack the ability to resist, absent a constitutional argument or other statutory basis. Without strong protection for religious freedom, the ability of religious organizations to reconcile persons in private according to their beliefs may be substantially diminished. For us, the sanctity and discipline of the sacraments is violated, and, indeed, confidence in the Church is undermined. As the Ninth Circuit said in Mockaitis, interception of and disclosure of these communications would be a cheap way for a government to obtain any evidence that it needs.
Page 44 PREV PAGE TOP OF DOC
It is not just situations where the state seeks to compel disclosure of personal communications that must be protected. This concern also extends to the protection of church written records, prepared in private as part of an internal church process. If Employment Division v. Smith is the applicable law, trial courts around the country may override religious rules securing the secrecy and confidentiality of these communications in favor of generally applicable discovery principles. I do not believe that churches are immune from tort liability or contractual liability when they engage in wrongdoing, nor am I advocating a broad and sweeping rule of secrecy in litigation. Rather, I am acknowledging that forced disclosure of private communications that are an integral part of the discipline of a church will undermine and impair, for example, a church's administration of its penal law or a church's internal governance. Widespread disclosure of these communications will deter those persons who might communicate with the church, with the expectation that these matters will be private and intended only for the internal administration of church governance. As noted above, the absence of clarity and strong protection for church bodies under clergy communication statutes and under other constitutional provisions strengthens our plea for vigorous federal protection for religious rights.
PROPERTY CASES
A religious community has a presence in a community that it serves through its physical real property. As the religious community changes, so must the physical presence change or the community will decline and die or move on, causing disruption in the place it originally served. In some instances, the needs of a growing religious community conflict with the desire of the state to restrict growth. This was the dispute in City of Boerne v. Flores and it is replicated numerous times around the country. For example, landmarking of church properties, occasionally even including the interiors of churches, continues to occur. Church buildings are designated as historical landmarks over the objections of church leaders, which, in turn, restricts the ability of church communities to expand or contract to suit the needs and demands of worshipers. How that specifically impacted on the St. Peter Church in Boerne and why it was an affront to Catholics is described in my testimony on July 14. Moreover, our dioceses report that where a church is located in a historic district, the church is not allowed to use related or appurtenant properties for religious purposes. In one diocese, a church was precluded from demolishing an already dilapidated house it owned adjacent to the church in a historic district. It was told to rehabilitate the property at a cost several times its value. That case is still in litigation.
Page 45 PREV PAGE TOP OF DOC
At times, the experience of a religious community works in the opposite direction. The demands of either government or private developers for land which is occupied by a church sometimes conflicts with the needs of the church community. The absence of effective statutory protection for religion forces religious organizations to defend themselves against seemingly arbitrary government action relying on state property laws. If those laws are generally applicable and facially neutral, churches may not defend themselves under the constitutional right designed for their protection, the Free Exercise Clause. In this second tier of cases, some of our dioceses report conflicts over the loss of land by eminent domain for such things as creation of bicycle paths or parking lots. In addition, two weeks ago, St. Michael's Abbey in Orange County, California, sued the civil authorities to set aside a plan approving large-scale private development on land adjacent to the Abbey, land which had been, until now, dedicated to private and quiet religious services. It is plain that, in all of the above cases, there are possible political and administrative solutions short of litigation. However, I return to my initial observations that the power of a statutory right for protection of religion is not in the actual litigation but as a strong legal basis on which churches may negotiate and persuade that their rights are important, too.
The potential for infringement of these rights is evident in a series of cases in the State of Colorado. Officials in Arapahoe County have placed numerical limits on the number of students that may be enrolled in religious schools and, indeed, on the size of congregations of various churches as a way of limiting their growth. Since churches aspire to evangelize and measure their success, in part, by that growth, numerical limits on the size of church congregations operate in a particularly detrimental way to the historic and traditional evangelical efforts of churches. Catholic communities are not alone in feeling the effects of such actions. In Douglas County, Colorado, administrative officials initially proposed limiting the operational hours of a church the same way that they do any type of ''commercial'' facility. Limiting its operational hours means that a Catholic church may not lawfully engage in certain acts of service and devotion traditionally associated with our community—perpetual adoration of the Blessed Sacrament or overnight spiritual retreats. In the Grand Teton area, local officials have proposed limiting the number of persons who may seek spiritual consolation and retreat at the Camp St. Malo owned by the Archdiocese of Denver. The Camp was used by Pope John Paul II during his visit to the United States in 1993 for a day of quiet reflection. Because numerical limits were placed on the number of retreatants, the Camp has found that it cannot conduct some retreats, and that it must turn away potential individual users who seek the consolation and prayerfulness of that setting. Because it potentially operates now at a loss, it may have to close, thereby depriving everyone of the opportunity to find spiritual solitude and guidance in that setting.
Page 46 PREV PAGE TOP OF DOC
In earlier ages, religious rights were entitled to preferential treatment. They are now treated as simply another inconvenience that the government must confront. The actual impact of these rules has a direct detrimental affect on the daily lives of people. The religious rights of individual believers and their communities are being adversely impaired.
REGULATION
The needs of religious organizations to seek exemption and accommodation from various regulations which are written in broad, generally applicable, and neutral language is apparent. For example, many religious primary and secondary schools must contend with overreaching and potentially harmful workplace regulations. In religious settings, sometimes those laws can be employed against the rights of the religious community to conduct its educational and evangelical operations in accord with its own principles. What I am suggesting is that, in particular cases, there can be a clash between the demands of religious belief and secular law. For example, courts and administrative agencies can become involved in religious doctrinal disputes when called upon to resolve certain employment related matters. In 1979 in N.L.R.B. v. Catholic Bishop of Chicago, the U.S. Supreme Court recognized the potential serious First Amendment issues involved with the exercise of civil authority over certain employment relationships in religious schools. It is reported that dioceses have abandoned RFRA-type claims in the wake of Boerne v. Flores. In the absence of adequate statutory protection for religious freedom, there is the quite reasonable fear that religious authorities will be treated like everyone else and subjected to the same kinds of restrictions even when to do so would operate to the detriment of the rights of the religious community.
Page 47 PREV PAGE TOP OF DOC
Other times, the rights of individual believers have been leveled according to the secular community. Already in the record of this Subcommittee's deliberations are examples of individual believers who have not been granted time for religious observances or have been penalized for objecting to particular kinds of assignments on account of religious belief. Even more insidious is the absence of protection for objections based on religious conscience. It is reported that, if church employers are to provide adequate insurance for their employees, they must also provide a full array of medical services, including abortion which our religious community condemns as intrinsically evil. Our inability to obtain adequate conscience clause protection in certain parts of the country makes the rights of religious communities more precarious. The presence of a strong statute protecting religious freedom would offer a useful way in which we could resist this additional demand that our religious communities conform to the secular norm.
TORT CASES
I want to be clearly understood that I do not advocate a broad immunity for churches against the consequences of their wrongdoing. Where churches violate the law, they risk the consequences of that violation. However, it is clear that the legitimate rights and expectations of churches are not being adequately balanced around the country in litigation that is directed against religious authorities. I wish to highlight two concerns that continue to be materially affected without an adequate federal statute.
The first is the issue of punitive damages. On two occasions in legal periodicals, I have advocated for limitations on punitive damages against churches on constitutional grounds. It is plain that when litigants seek to involve the state or federal courts in punishing a religious organization on account of their doctrine, as was the case in Lundman v. McKown, such claims need to be precluded and dismissed. The state simply has no business punishing the church on account of its own internal practices and belief system. Where the situation does not involve the deliberate endangerment of the public by the church but rather is related to the adequacy of internal practices (which often times involve pastoral and religious assessments) or governance or administration of a church, then I believe that punitive damages should be barred. However, punitive damage rules are neutral and generally applicable. Absent claims that target religious belief, the Free Exercise Clause (after Smith) is, as some commentators have suggested, little help. But claims targeting internal practices and governance of a church may be just as detrimental, seeking to compel a judicial reformation of church administration. In one case, the Conference confronted claims (including punitive damage claims) for ''failing to act as a reasonably prudent religious organization.'' RFRA would have been a significant part of our defense.
Page 48 PREV PAGE TOP OF DOC
This concern is also valid in litigation of certain invasive claims which target the nature of the relationships within the religious body and make them the predicate for liability. I am not speaking of ordinary direct negligence of the religious entity (which as I said is accountable) or even some forms of agency liability. In some instances, courts, under a broad and neutral fiduciary duty claim, dictate the type and quality of religious counseling offered by churches in similar matters. The fear of liability has already been documented in a recent article in the ''Wall Street Journal'' which noted that religious communities around the country are restricting the amount and type of counseling available. Most ministers believe that they have an obligation to counsel members of the religious community who seek their guidance on spiritual and religious questions. Often these counseling questions do not involve theology or pastoral practice questions isolated from the context and direction of that person's life. In those circumstances, the mixture of religious and nonreligious questions is one which cannot, in my view, reasonably be separated. Allowing for liability where the person does not believe that the counseling was adequate or feels in some way offended as was the case in Moses v. Episcopal Diocese of Colorado or Winkler v. Rocky Mountain Conference of the United Methodist Church, both Colorado cases, undermines the ability and willingness of churches to do good and to promote the welfare of the community. It is this kind of claim which, I think, could reasonably be subjected to scrutiny under an effective statute protecting religious practices and beliefs.
We urge the Committee to continue its pursuit of statutory language protecting religious rights to give religious communities the protection they need in contemporary and increasingly secular life. The Conference believes the need is evident as restrictions and the failure of accommodation jeopardize our ability to govern ourselves and minister to those in need, according to our own beliefs and pastoral practices.
Page 49 PREV PAGE TOP OF DOC
Mr. CANADY. Thank you, Mr. Chopko. Dr. Ahmad.
STATEMENT OF IMAD A. (DEAN) AHMAD, PH.D., AMERICAN MUSLIN COUNCIL
Mr. AHMAD. In the name of God, the Gracious, the Merciful.
Good morning, Mr. Chairman, members of the committee. Thank you for this opportunity to speak on behalf of the 6 million Muslims in the United States. Our experiences may be taken as representative of those of the many religious traditions that are misunderstood or even unrecognized.
Before the Smith decision, the first amendment rights of all Americans seemed to be protected not only from deliberate, overt and discriminatory intrusion by the Federal Government, but also from unintended, covert, or indiscriminate abridgement by the government at any level. Many of us had believed that the State's police powers, on the one hand, and the people's fundamental right to freedom of religion, on the other, were well balanced by the strict scrutiny test. We expected that any law incidently placing a substantial burden on the free exercise of religion or any other fundamental human right must meet that test.
RFRA statutorily restored that standard struck down by the narrowest of majorities in Smith. Since the Supreme Court has now struck down parts of RFRA, Muslims, among others, have been left naked before the power of State and local authorities as I shall illustrate by some examples.
Page 50 PREV PAGE TOP OF DOC
Two New Jersey fire fighters and a policeman have been disciplined, and two of them were dismissed, for growing beards. In Islam, the growing of beards falls in the category of religiously motivated acts called Sunnah. Although not necessarily mandatory, their desirability is well established by Muslim tradition.
Muslims who have not previously observed such traditions often adopt them after undergoing the profound experience of the pilgrimage to Mecca. The tradition of the beard goes back the Profit himself—peace be upon Him. The reason offered for the no-beards rule by the fire department is that they may interfere with breathing apparatus used by the firefighters. These concerns are speculative as OSHA does not prohibit beards in this connection and many, many jurisdictions have no such rule—and D.C. firefighters have beards with no problems.
Invoking RFRA, the firefighter, Abdul Shakid Yasin, won in New Jersey State Office Administrative Law. RFRA does not admit of speculative concerns. But the city appealed to the Merit System Protection Board and after RFRA was struck down, the case was remanded.
The other firefighter, Ibrahim Abdul Haqq, was initially put on an inactive list pending the outcome of the Yasin matter. After Yasin's victory, however, the City of Newark's fire department suspended and subsequently terminated Mr. Abdul Haqq. He must now appeal the case without the benefit of the RFRA provisions that permitted his fellow firefighter, and fellow Vietnam veteran, to prevail initially.
Mikail Muhammad, a police officer in New Jersey, had a beard for most of his 12 years with the department, but he grew it thicker after the pilgrimage to Mecca 5 years ago. He was given a choice of shaving the beard or resigning. Absent RFRA he has filed a complaint under title VII but title VII is not as strong as RFRA. The EEOC has made a determination of probable cause of a violation but the Justice Department declined to pursue the matter.
Page 51 PREV PAGE TOP OF DOC
The faith of these firefighters and police officers plays an important role in providing them with the courage and self-possession that they require in laying their lives on the line to protect us from fires and dangerous criminals. It is shameful to leave them insufficiently protected when a government attempts to deprive them of the freedom to exercise in a manner meaningful to them, the religion from which that faith springs.
Tanya Davis' husband is incarcerated at the State correction institution in Dallas, Pennsylvania. She made frequent visits to the prison to see her husband and had become a volunteer receiving certificates of appreciation in recognition of her work. On one occasion, a male officer asked her to raise her dress during what she took to be a routine search. Because Islamic tradition prohibits a woman from exposing her bare midriff to an unrelated post-pubescent male, she declined.
She left to put on a garment under her dress so that she could comply with the search without exposing her body. On her return the officer refused to complete the search now claiming that the previous search had not been routine, but that he had perceived puffiness at her waistline and suspected contraband. Her visiting privileges were suspended and her volunteer status was terminated.
Certainly, terminating an inmate's spouse or a volunteer because her religious beliefs require modesty before members of the opposite sex does not serve the compelling interests of searching for contraband in the least restrictive manner. Surely a pat-down by a female officer would have been sufficient.
Page 52 PREV PAGE TOP OF DOC
Let us contrast these post-Boerne decisions with some cases while RFRA still applied to State and local governments. The Federal courts granted to Muslim practitioners of Sufi rituals a preliminary injunction in their challenge of a prison ban on the display and possession of dhikr beads. The beads, like rosaries, are used to keep count of the recitation made in the remembrance of God. The prison officials maintained a compelling interest in prohibiting gang violence and justified the ban on the beads on the grounds that the beads could be used to identify gangs by their colors.
The court found that the inmates had demonstrated a substantial burden on the religious exercise and that the prison was unlikely to succeed in proving that the ban was the least restrictive method of furthering the compelling interest.
The importance of RFRA in the court decision is made clear in the following passage: ''The idea that prison authorities will be unable to distinguish the bona fide practice of dhikr from the showing of colors by gang members is, at this stage of the proceeding at least, the product of speculation by what one suspects are non-Muslims dealing with an unfamiliar ritual. It is precisely because of Congress' fears that lack of contact with unfamiliar religious practices might lead to the suppression of such practices on insufficient grounds that RFRA causes against the use of speculation to justify limitations on the free expression of one's religion.''
Although this particular example deals with prison authorities, RFRA's protection extended to regulatory authorities and other government bodies like police and fire departments. Authorities' unfamiliarity with certain religions also leads to lumping together incompatible denominations. One imagines government officials would hesitate to force Quakers and Evangelicals to share a single religious service, yet prison officials forced the followers of the Temple of Islam, a group strongly opposed to Louis Farrakan's Nation of Islam, to share facilities and chaplains with the latter.
Page 53 PREV PAGE TOP OF DOC
RFRA was instrumental in permitting the courts to dismiss the authority's bald allegations of an interest in maintaining order and discipline as sufficient to support a summary judgment motion. Given the failure of many to distinguish even between Orthodox Islam with its utter repudiation of racism, from other groups that brand some people as devils because of the color of their skin, the implications of the weaker standard are frightening to mainstream Muslims like myself.
The many Muslims who cover their hair in public were benefitted by a Federal court's decision to deny summary judgment to prison officials against an inmates claim that a ban on religious headgear violated RFRA and the first amendment. The importance of RFRA is seen in the court's statement that the defendants failed to show a narrowly tailored compelling interest.
Absent RFRA it is a problem for free citizens as well as it is for prisoners as is demonstrated by a law in Philadelphia originally directed against Catholic nuns, now a problem for Muslim women, prohibiting public school teachers from covering their hair.
Before Boerne, almost all the cases I saw involved prisoners. Indeed, when firefighter Ibrahim Abdul Haqq initially filed his complaint pro se, he had to use a form designed for prisoners. It is as though the mere existence of RFRA had a salutatory effect on how government agencies dealt with their employees and the public. RFRA's legislative history specifically noted that prison order and discipline are compelling State interests. Now these concerns are being spread to cases involving the general public.
Page 54 PREV PAGE TOP OF DOC
After Boerne, not only prisoners, but volunteers, firefighters and even policemen, are suffering from inadequately formed regulations and policies grounded on mere speculation, exaggerated fears and post-hoc rationalizations.
I'd like to close with some general observations from my personal experience as a Muslim chaplain in a maximum security hospital. During the time RFRA was in effect the patients in my JamaAE3 (congregation) had a much easier time getting access to the Qur'an, the Islamic scripture, than before RFRA or after Boerne. My experience supports what can be inferred from other cases I've discussed: When government agencies and employees understand that they may not infringe upon a person's religious freedom without a compelling government interest, and when they realize that any such interest must be met in the least restrictive means possible, they act with a pronounced reasonability and restraint that almost vanishes when those safeguards against bureaucratic arrogance are removed.
I thank you for your time and attention, and I pray that you will find some effective and tenable means for restoring the freedom of religion and fundamental rights in general. May God guide you in your search.
[The statement of Mr. Ahmad follows:]
PREPARED STATEMENT OF IMAD A. (DEAN) AHMAD, PH.D., AMERICAN MUSLIN COUNCIL
In the name of God, the Gracious, the Merciful.
On behalf of the estimated six million Muslims in the United States, I thank the Committee for the opportunity to speak today on this most important issue. As a minority neither as well known nor even as well recognized as the various minority Christian denominations, and as practitioners of a religion even more misunderstood than Judaism, our experiences may be taken as representative of those faced by many other Americans belonging to the numerous other minority religious traditions also unrecognized or misunderstood. Further, the fact that Muslims conceive religion to cover all aspects of life means that our experience with free exercise questions relates well to the fundamental issues raised by the Smith decision and now brought back into public debate by Boerne v. Flores.
Page 55 PREV PAGE TOP OF DOC
Before the Smith decision, the First Amendment rights of all Americans seemed to be protected not only from deliberate, overt, and discriminatory intrusion by the federal government, but also from unintended, covert, or indiscriminate abridgement by government at any level. Many of us had believed that the states' police powers on the one hand and the peoples' fundamental right to freedom of religion on the other were well balanced by the strict scrutiny test. We expected that any law incidentally placing a substantial burden on the free exercise of religion (or any other fundamental human right) must meet the twin tests of serving a compelling government interest and meeting that interest in the least restrictive manner possible. The Religious Freedom Restoration Act (RFRA) statutorily restored that standard struck down by the narrowest of majorities in Smith. Since the Supreme Court has struck down parts of RFRA, Muslims, among others, have been left naked before the power of state and local authorities, as I shall illustrate in the examples that follow.
Two New Jersey firefighters and a policeman have been disciplined (two of them were dismissed) for growing beards.(see footnote 3) In Islam, the growing of a beard falls in the category of religiously motivated acts called ''sunnah.'' Although such acts are not necessarily mandatory, their desirability is well-established by Muslim tradition. Muslims who may not have previously observed such traditions will often adopt them after undergoing the profound experience of the pilgrimage to Mecca. The tradition of the beard goes back to the Prophet Muhammad himself (peace be upon him).
The reason offered for the no-beards rule by the fire department is that they may interfere with breathing apparatus used by firefighters. These concerns are speculative as OSHA does not prohibit beards in this connection. Such speculative concerns were not allowed under RFRA. Invoking RFRA, firefighter Abdul Shahid Yasin won in the New Jersey state office of administrative law, but the city appealed to the merit system board and, after RFRA was struck down, the case was remanded. The other firefighter, Ibrahim Abdul Haqq, was initially put on an inactive list pending the outcome of the Yasin matter. After Mr. Yasin's victory, however, the City of Newark Fire Dept. suspended and subsequently terminated Mr. Abdul Haqq. He must now appeal his case without benefit of the RFRA provisions that permitted his fellow firefighter and Vietnam veteran to prevail initially.
Page 56 PREV PAGE TOP OF DOC
Mikail Muhammad, a police officer in New Jersey, had a beard for most of his twelve years with the department, but he grew it thicker after his pilgrimage to Mecca five years ago. He was given a choice of shaving his beard or resigning. Absent RFRA, he has filed a complaint under Title VII, but Title VII is not as strong as RFRA. The EEOC has made a determination of probable cause of a violation, but the Justice Dept. has declined to pursue the matter. The faith of these firefighters and police officers plays an important role in providing the courage and self-possession they require in laying their lives on the line to protect us from fires and dangerous criminals. It is shameful to leave them insufficiently protected when government attempts to deprive them of the freedom to exercise, in a manner meaningful to them, the religion from which their faith springs.
Tanya Davis' husband is incarcerated at the State Correctional Institution in Dallas, Pennsylvania.(see footnote 4) She made frequent visits to the prison to see her husband and had become a volunteer, receiving certificates of appreciation in recognition of her work there. On one occasion a male officer asked her to raise her dress during what she took to be a routine search. Because Islamic tradition prohibits a woman from exposing her bare midriff to an unrelated post-pubescent male, she declined. She left to put on a garment under her dress so that she could comply with the search without exposing her body. On her return the officer refused to complete the search, now claiming that the previous search had not been routine, but that he had perceived puffiness at her waistline and suspected contraband. Her visiting privileges were suspended and her volunteer status terminated.
Certainly, suspending or terminating the privileges of an inmate's spouse or of a volunteer because her religious beliefs require modesty before members of the opposite sex does not serve the compelling interest of searching for contraband in the least restrictive manner. Ms. Davis protests that had the officer really suspected contraband, he should have employed a pat down by a female officer or other female employee as prison policy requires in such cases.(see footnote 5) Perhaps the courts will eventually find for the complainant in this case, but I question if the matter would have gone this far had RFRA not been struck down.
Page 57 PREV PAGE TOP OF DOC
Let us contrast these post-Boerne situations with some cases while RFRA still applied to state and local governments. The federal courts granted to Muslim practitioners of Sufi rituals a preliminary injunction in their challenge of a prison ban on the display and possession of dhikr beads.(see footnote 6) The beads are used to keep count of recitations made in remembrance of God. The prison officials maintained a compelling interest in prohibiting gang violence and justified the ban on the beads on the grounds that beads could be used to identify gangs by their colors. The court found that the inmates had demonstrated a substantial burden on their religious exercise and that the prison was unlikely to succeed in establishing that the ban was the least restrictive method of furthering its compelling interest in preventing gang violence. The importance of RFRA in the court's decision defending the Sufis right to their religious practice is made clear in the following passage: ''The idea that prison authorities will be unable to distinguish the bonafide practice of dhikr from the showing of colors by gang members is, at this stage of the proceeding at least, the product of speculation by (what one suspects) are non-Muslims dealing with an unfamiliar ritual. It is precisely because of Congress' fears that lack of contact with unfamiliar religious practices might lead to the suppression of such practices on insufficient grounds that RFRA cautions against the use of speculation to justify limitations of the free expression of one's religion.''(see footnote 7) Although this particular example deals with prison authorities, RFRA's protection extended to regulatory authorities or other government bodies like police and fire departments.
Authorities' unfamiliarity with certain religions also leads to lumping together incompatible denominations. One imagines government officials would hesitate to force Quakers and Evangelicals to share a single religious service. Yet, prison officials forced followers of the ''Temple of Islam,'' a group strongly opposed to Louis Farrakhan's ''Nation of Islam'' to share facilities and chaplains with the latter.(see footnote 8) RFRA was instrumental in permitting the court to dismiss the authorities' ''bald allegations'' of interest in maintaining order and discipline as insufficient to support a summary judgment motion. The court wrote that ''the directives are in support of a legitimate interest and are rationally connected to that interest,'' that is, they met the weaker standards absent RFRA. Given the failure of many to distinguish even between orthodox Islam, with its utter repudiation of racism, from other groups that brand some people ''devils'' because of the color of their skin, the implications of this weaker standard are frightening to mainstream Muslims like myself.
Page 58 PREV PAGE TOP OF DOC
The many Muslims who cover their hair in public were benefited by a federal court's decision to deny summary judgment to prison officials against an inmate's claim that a ban on religious headgear violated RFRA and the First Amendment.(see footnote 9) The importance of RFRA is seen in the court's statement that the defendants failed to show a narrowly tailored compelling interest. From personal experience as Muslim chaplain at a maximum security hospital I know that the issue of head covering is a recurrent issue in maximum security institutions. Absent RFRA it is a problem for free citizens as well as is demonstrated by the law in Philadelphia—originally directed against Catholic nuns, now a problem for Muslim women—prohibiting public school teachers from covering their hair.
In preparing my testimony I was struck with the realization that before Boerne almost all the cases I saw involved prisoners. (Indeed, when firefighter Ibrahim Abdul Haqq initially filed his complaint pro se he had to use a form designed for prisoners.) It is as though the mere existence of RFRA had a salutary effect on how government agencies dealt with their employees and with the public. RFRA's legislative history specifically noted that prison order and discipline are compelling state interests and prison officials must be afforded the deference needed to protect such interests. After Boerne, not only prisoners, but volunteers, firefighters, and even policemen are suffering from ''inadequately formulated . . . regulations and policies grounded on mere speculation, exaggerated fears and post-hoc rationalizations.''(see footnote 10)
I would like to close with some general observations from my own experience as Muslim chaplain in a maximum security hospital. During the time that RFRA was in effect, the patients in my jamaAE3' (congregation) had a much easier time getting access to the Qur'an, our holy scripture, than before RFRA or after Boerne. My personal experience supports what can be inferred from the other cases I have discussed. When government agencies and employees understand that they may not infringe upon a person's religious freedom without a compelling governmental interest, and when they realize that any such interest must be met in the least restrictive means possible, they act with a pronounced reasonability and restraint that almost vanishes when those safeguards against bureaucratic arrogance are removed.
Page 59 PREV PAGE TOP OF DOC
I thank you for your time and attention, and pray that you shall find some effective and tenable means for restoring the strict scrutiny test for religion freedom and for all fundamental rights. May God guide you in your search.
Mr. CANADY. Thank you, Dr. Ahmad. Mr. McFarland.
STATEMENT OF STEVEN T. MCFARLAND, DIRECTOR, CENTER FOR LAW AND RELIGIOUS FREEDOM OF THE CHRISTIAN LEGAL SOCIETY
Mr. MCFARLAND. Thank you, Mr. Chairman, members of the committee.
Congressional action is vitally necessary to protect our first freedom. Houses of worship have to go to court just to get equal access to a suitable facility or land in their own community. Churches and religious charities across the country are having their offering plates confiscated by bankruptcy trustees. Student religious groups at public universities and graduate schools, many of them chapters of the Christian Legal Society, are increasingly confronted with rules that prohibit them from meeting on campus if they have a prerequisite of a religious faith for the leaders of their own private group. And religious believers with conscientious objections to participation in the taking of human life are afforded little or no accommodation in many places; they find no solace in Federal constitutional or statutory protection in light of the Smith and Boerne decisions.
Page 60 PREV PAGE TOP OF DOC
America's religi