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RELIGIOUS LIBERTY PROTECTION ACT OF 1998
HEARINGS
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
H.R. 4019
JUNE 16 AND JULY 14, 1998
Serial No. 134
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Printed for the use of the Committee on the Judiciary
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
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
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JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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, General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
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HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
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
JOHN H. LADD, Acting Chief Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATES
June 16, 1998
July 14, 1998
BILL TEXT
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H.R. 4019
OPENING STATEMENT
Canady, Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Berg, Thomas C., Professor, Cumberland Law School, Samford University
Dodson, William, Director, Government Relations, Southern Baptist Convention
Durham, W. Cole, Jr., Brigham Young University Law School
Eisgruber, Christopher L., Professor, New York University School of Law
Farris, Michael P., President, Home School Legal Defense Association
Green, Steven K., Legal Director, Americans United for Separation of Church and State
Hamilton, Marci, Professor, Benjamin N. Cardozo School of Law, Yeshiva University
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Ivory, Reverend Elenora Giddings, Director, Washington Office, Presbyterian Church (USA)
Laycock, Douglas, Professor, Associate Dean for Research, University of Texas Law School
June 16, 1998
July 14, 1998
Mauck, John, Attorney, Mauck, Bellande & Cheely, Chicago, IL
May, Colby M., Senior Counsel, Office of Governmental Affairs, American Center for Law and Justice
McFarland, Steven T., Director, Center for Law and Religious Freedom
Nolan, Patrick, President, Justice Fellowship
Raskin, Jamin, Professor, Washington College of Law, American University
Schaerr, Gene, Attorney, Sidley & Austin, Washington, DC
Shoulson, Bruce D., Attorney at Law, Lowenstein Sandler, P.C.
Stern, Marc, Director, Legal Department, American Jewish Congress
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Berg, Thomas C., Professor, Cumberland Law School, Samford University: Prepared statement
Durham, W. Cole, Jr., Brigham Young University Law School: Prepared statement
Eisgruber, Christopher L., Professor, New York University School of Law: Prepared statement
Farris, Michael P., President, Home School Legal Defense Association: Prepared statement
Green, Steven K., Legal Director, Americans United for Separation of Church and State: Prepared statement
Hamilton, Marci, Professor, Benjamin N. Cardozo School of Law, Yeshiva University: Prepared statement
Ivory, Reverend Elenora Giddings, Director, Washington Office, Presbyterian Church (USA): Prepared statement
Laycock, Douglas, Professor, Associate Dean for Research, University of Texas Law School: Prepared statement
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June 16, 1998
July 14, 1998
McFarland, Steven T., Director, Center for Law and Religious Freedom: Prepared statement
Nadler, Hon. Jerrold, a Representative in Congress from the State of New York: Prepared statement
June 16, 1998
July 14, 1998
Nolan, Patrick, President, Justice Fellowship: Prepared statement
Raskin, Jamin, Professor, Washington College of Law, American University: Prepared statement
Schaerr, Gene, Attorney, Sidley & Austin, Washington, DC: Prepared statement
Stern, Marc, Director, Legal Department, American Jewish Congress: Prepared statement
RELIGIOUS LIBERTY PROTECTION ACT OF 1998
TUESDAY, JUNE 16, 1998
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House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles Canady, Robert C. Scott and Jerrold Nadler.
Staff Present: John Ladd, Chief Counsel; Robert J. Corry, Counsel; Cathleen Cleaver, Counsel; Michael Connolly, Staff Assistant; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. This is the fourth hearing the subcommittee has conducted over the last year concerning the protection of religious liberty in the wake of the Boerne v. Flores decision of the Supreme Court.
Today's hearing will focus specifically on H.R. 4019, the Religious Liberty Protection Act of 1998, legislation which Mr. Nadler and I introduced last week.
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[The information referred to follows:]
105TH CONGRESS
2D SESSION
H. R. 4019
To protect religious liberty.
IN THE HOUSE OF REPRESENTATIVES
JUNE 9, 1998
Mr. CANADY of Florida (for himself and Mr. NADLER) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To protect religious liberty.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
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This Act may be cited as the ''Religious Liberty Protection Act of 1998''.
SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.
(a) GENERAL RULE.—Except as provided in subsection (b), a government shall not substantially burden a person's religious exercise—
(1) in a program or activity, operated by a government, that receives Federal financial assistance; or
(2) in or affecting commerce with foreign nations, among the several States, or with the Indian tribes;
even if the burden results from a rule of general applicability. (b) EXCEPTION.—A government may substantially burden a person's religious exercise if the government demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) FUNDING NOT AFFECTED.—Nothing in this section shall be construed to authorize the United States to deny or withhold Federal financial assistance as a remedy for a violation of this Act.
(d) STATE POLICY NOT COMMANDEERED.—A government may eliminate the substantial burden on religious exercise by changing the policy that results in the burden, by retaining the policy and exempting the religious exercise from that policy, or by any other means that eliminates the burden.
(e) DEFINITIONS.—As used in this section—
(1) the term ''government'' means a branch, department, agency, instrumentality, subdivision, or official of a State (or other person acting under color of State law);
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(2) the term ''program or activity'' means a program or activity as defined in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a); and
(3) the term ''demonstrates'' means meets the burdens of going forward with the evidence and of persuasion.
SEC. 3. ENFORCEMENT OF THE FREE EXERCISE CLAUSE.
(a) PROCEDURE.—If a claimant produces prima facie evidence to support a claim of a violation of the Free Exercise Clause, the government shall bear the burden of persuasion on all issues relating to the claim, except any issue as to the existence of the burden on religious exercise.
(b) LAND USE REGULATION.—
(1) LIMITATION ON LAND USE REGULATION.—No government shall impose a land use regulation that—
(A) substantially burdens religious exercise, unless the burden is the least restrictive means to prevent substantial and tangible harm to neighboring properties or to the public health or safety;
(B) denies religious assemblies a reasonable location in the jurisdiction; or
(C) excludes religious assemblies from areas in which nonreligious assemblies are permitted.
(2) FULL FAITH AND CREDIT.—Adjudication of a claim of a violation of this subsection in a non-Federal forum shall be entitled to full faith and credit in a Federal court only if the claimant had a full and fair adjudication of that claim in the non-Federal forum.
(3) NONPREEMPTION.—Nothing in this subsection shall preempt State law that is equally or more protective of religious exercise.
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(4) NONAPPLICATION OF OTHER PORTIONS OF THIS ACT.—Section 2 does not apply to land use regulation.
SEC. 4. JUDICIAL RELIEF.
(a) CAUSE OF ACTION.—A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
(b) ATTORNEYS' FEES.—Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended—
(1) by inserting ''the Religious Liberty Protection Act of 1998,'' after ''Religious Freedom Restoration Act of 1993,''; and
(2) by striking the comma that follows a comma.
(c) PRISONERS.—Any litigation under this Act in which the claimant is a prisoner shall be subject to the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).
(d) LIABILITY OF GOVERNMENTS.—
(1) LIABILITY OF STATES.—A State shall not be immune under the 11th amendment to the Constitution from a civil action, for a violation of the Free Exercise Clause
under section 3, including a civil action for money damages.
(2) LIABILITY OF THE UNITED STATES.—The United States shall not be immune from a civil action, for a violation of the Free Exercise Clause under section 3, including a civil action for money damages.
SEC. 5. RULES OF CONSTRUCTION.
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(a) RELIGIOUS BELIEF UNAFFECTED.—Nothing in this Act shall be construed to authorize any government to burden any religious belief.
(b) RELIGIOUS EXERCISE NOT REGULATED.—Nothing in this Act shall create any basis for regulation of religious exercise or for claims against a religious organization, including any religiously affiliated school or university, not acting under color of law.
(c) CLAIMS TO FUNDING UNAFFECTED.—Nothing in this Act shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this Act may require government to incur expenses in its own operations to avoid imposing a burden or a substantial burden on religious exercise.
(d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON FUNDING UNAFFECTED.—Nothing in this Act shall—
(1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a government as a condition of receiving funding or other assistance; or
(2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this Act.
(e) EFFECT ON OTHER LAW.—Proof that a religious exercise affects commerce for the purposes of this Act does not give rise to any inference or presumption that the religious exercise is subject to any other law regulating commerce.
(f) SEVERABILITY.—If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected.
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SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.
Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the first amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the ''Establishment Clause''). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. As used in this section, the term ''granting'', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.
SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.
(a) DEFINITIONS.—Section 5 of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb–2) is amended—
(1) in paragraph (1), by striking ''a State, or subdivision of a State'' and inserting ''a covered entity or a subdivision of such an entity'';
(2) in paragraph (2), by striking ''term'' and all that follows through ''includes'' and inserting ''term 'covered entity' means''; and
(3) in paragraph (4), by striking all after ''means,'' and inserting ''an act or refusal to act that is substantially motivated by a religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief.''.
(b) CONFORMING AMENDMENT.—Section 6(a) of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb–3(a)) is amended by striking ''and State''.
SEC. 8. DEFINITIONS.
As used in this Act—
(1) the term ''religious exercise'' means an act or refusal to act that is substantially motivated by a religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief;
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(2) the term ''Free Exercise Clause'' means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion and includes the application of that proscription under the 14th amendment to the Constitution; and
(3) except as otherwise provided in this Act, the term ''government'' means a branch, department, agency, instrumentality, subdivision, or official of a State, or other person acting under color of State law, or a branch, department, agency, instrumentality, subdivision, or official of the United States, or other person acting under color of Federal law.
Mr. CANADY. From the outset of our history as Americans, concern about religious liberty has been central to our national experience. The bill we consider today is based on the conviction that the Congress has an ongoing responsibility to use its constitutionally established powers to protect the freedom of individual Americans to practice their faith against undue incursions by the force of government.
It is a fact of life that the actions of government will, from time to time, come into conflict with the religious practices of some individuals and institutions. As the scope of the activities of government has grown, the occasions for such conflict have increased. The bill on which we will hear testimony today simply attempts to ensure that such conflicts will be taken seriously and that the impact of governmental action on religious freedom will be given full consideration.
As our witnesses will explain, that does not mean that conflicts between the actions of government and the religious practices of individuals and institutions will always be resolved against the government. It does mean, however, that within the scope of the activities subject to protection by the Congress, the value of religious liberty will not be recklessly trampled by insensitive policies and thoughtless bureaucratic actions.
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In America, we enjoy many important freedoms, but there is no freedom more fundamental than the freedom to practice one's faith without the interference of government. That is why we are here today, and I look forward to hearing the testimony of our witnesses who will explain the various aspects of the legislation under consideration.
Mr. CANADY. Mr. Scott is recognized.
Mr. SCOTT. Thank you, Mr. Chairman. And I appreciate the opportunity to participate in today's hearing on H.R. 4019, the Religious Liberty Protection Act, and I wholeheartedly agree with the bill's sponsors and their beliefs that too often certain religious practices are substantially burdened to the point where our constitutional freedoms of religious expression are compromised.
Reverend Wilson, a minister from my district, came to one of our hearings and testified that his church was prevented from serving meals to homeless people despite the fact that feeding the hungry is a core component of his church's religious beliefs, and that legislation that prohibited churches from serving food prohibited no other group from such service. And so churches were singled out in that case, and that is one of the cases that deserve our attention and response.
Our response, however, must be deliberate and within our authority to act. The Reverend Wilsons of the world deserve no less.
Now, I have not signed on to the language of H.R. 4019 because I am not convinced that the bill as currently drafted can pass constitutional muster. The bill is being vetted by constitutional law experts throughout the country, and as we begin to receive responses from our inquiries, a number of very significant concerns have been raised. RFRA was overturned because the Court held that the Congress lacked authority and failed to create a proper record that would justify any congressional authority, and I am delighted that we have had hearings, and numerous hearings, on this issue and hopefully are creating a record that can help us pass constitutional muster.
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The Commerce Clause, the Spending Clause and section 5 authority of RLPA have been reviewed by a number of experts that contend that the authority that we are using in H.R. 4019 may be questionable. In addition, concerns have been raised in regard to the constitutionality of State sovereign immunity and the Prison Litigation Act provisions of the bill.
Mr. Chairman, I am delighted that we are focusing our attention to a specific bill, because it will help us focus our attention on certain—on specific language and not generalities, so that as we discuss the constitutionality, we will have the document before us.
It is my hope that we will have a series of hearings to ensure that H.R. 4019 is constitutional and that we are creating the proper record. We have excellent witnesses testifying before us today. They are all experts in this field, and many have been very closely associated with some of the cases that have created the confusion that we are in and the cases that we have to deal with as we consider the constitutionality of this bill.
So I want to thank you for putting together an excellent hearing, and I look forward to hearing the witnesses.
Mr. CANADY. Thank you, Mr. Scott.
We will now go to our first panel. I would ask that the members of the first panel please come forward and take your seats.
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This morning we will hear from witnesses on two panels. Our first panel is composed of six witnesses, and the second panel will be composed of two witnesses.
On our first panel this morning, our first witness will be Professor Douglas Laycock, who is the associate dean for research at the University of Texas Law School.
Next will be Professor Thomas C. Berg. Professor Berg teaches at the Cumberland Law School in Birmingham, Alabama.
Following him will be Professor Christopher L. Eisgruber of the New York University School of Law.
The fourth witness will be Professor Marci Hamilton. Professor Hamilton comes to us from the Benjamin N. Cardozo School of Law, Yeshiva University, where she specializes in constitutional law, the First Amendment and Copyright law.
The next witness will be Mr. Gene Schaerr, who is with the law firm of Sidley & Austin in Washington, D.C.
And our final witness on this panel will be Mr. Marc Stern. Mr. Stern is the director of the legal department at the American Jewish Congress.
I want to thank all of you for being here with us this morning. Those of you who have been here before, I welcome you back.
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I would ask that you do your best to summarize your testimony in 5 minutes or less and try to be governed by the light. When it is red, that means you should try to conclude as soon as possible.
But without objection, of course, your full written statements will be made a part of the permanent record of the hearing.
Mr. CANADY. With that, we will begin with Professor Laycock.
STATEMENT OF DOUGLAS LAYCOCK, PROFESSOR, ASSOCIATE DEAN FOR RESEARCH, UNIVERSITY OF TEXAS LAW SCHOOL
Mr. LAYCOCK. Thank you, Mr. Chairman, and Mr. Scott.
I strongly support this bill. The House unanimously concluded that a bill of this sort was necessary 5 years ago when it enacted RFRA, and now the question is what constitutional authority is available and how much of the religious liberties of the American people can Congress protect.
I have tried to address the constitutional and scope issues in detail in my written statement. I will try to summarize the highlights here.
First, as to the Spending Clause, the Spending Clause provisions of this bill are based squarely on the provisions in such familiar statutes as Title VI of the Civil Rights Act, Title IX on sex discrimination in education, and the Equal Access Act. The bill would ensure that the intended beneficiaries of federally-assisted programs are not excluded by unnecessary burdens on their religious exercise and would ensure that Federal funds are not spent contrary to congressional intent to unnecessarily burden religious exercise.
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Those purposes are at the very core of the power to attach conditions to the grant of Federal funds, and I think in all but the most unusual applications the Spending Clause provisions would pass constitutional muster.
The Commerce Clause provisions track the language of the Clayton Act, the Federal Trade Commission Act, the Americans with Disabilities Act and many other familiar statutes. ''In or affecting commerce'' is the historic constitutional standard for what Congress can regulate. This provision is constitutional by definition.
Religious exercise beyond the reach of the Commerce Clause is simply outside the scope of the bill. Marc Stern's testimony later today will show that religious exercise has broad commercial consequences, and on standard economic models a substantial burden on religious exercise will reduce the volume of that exercise and reduce the volume of the resulting commerce.
I think this will have a broad range of applications. It won't reach all the religious liberty Congress would like to protect, but it will reach a very large part of it.
Section 3 is based on the power to enforce the Fourteenth Amendment. Section 3(a) would enforce the Free Exercise Clause as interpreted by the Supreme Court. There are important parts of Employment Division v. Smith that actually do protect religious liberty, but each of those exceptions to the Smith rule poses difficult factual questions where proof is elusive, where the evidence is often in the hands of the government and where the truth is uncertain.
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Section 3(a) changes no element of the Supreme Court's test, but by shifting the burden of persuasion, it protects religious liberty when the case for suppression has not been fully proven.
Section 3(b) would impose prophylactic rules on church land use regulation. The record from the earlier hearings before this committee is overwhelming that land use regulation is administered in individualized processes with few generally applicable rules; that it is rife with discrimination against religious organizations and especially against minority churches and nonmainstream churches.
Each of these facts brings land use within one of the exceptions to the Smith rule, but these facts are very difficult to prove one case at a time. Only Congress has the ability to examine many cases and find the factual pattern that pervades across the cases. These facts support the need for section 3(b) as enacted to enforce the Fourteenth Amendment.
The Court said in City of Boerne that Congress may act where there is reason to believe that many of the laws have a significant likelihood of being unconstitutional. The standard is not certainty. It is reason to believe and significant likelihood, and that standard is, in my judgment, easily met by this hearing record.
With respect to prison litigation, the bill is subject to the Prison Litigation Reform Act, which is succeeding. In the first year of the Act, prisoner litigation was reduced by 31 percent. Further reductions can reasonably be expected as the bill becomes more fully effective.
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Mr. Scott asked about challenges to the constitutionality of that Act, and I have been following those challenges. Six circuits have upheld the Act. Only the Ninth Circuit has struck it down, and even there only with respect to retroactive reopening of final judgments. That is a very sensitive issue, but it is not an issue that would be posed by any of the interactions of the Religious Liberty Protection Act and the Prison Litigation Reform Act. The provisions on frivolous prison litigation, so far as I know, have not even been challenged; I don't think they successfully could be challenged.
With respect to sovereign immunity, the law is fairly clear. Section 4(d) overrides the States' Eleventh Amendment immunity with respect to claims under section 3, which enforces the Fourteenth Amendment. That override is squarely authorized by Justice Rehnquist's opinion in Fitzpatrick v. Bitzer. Fitzpatrick is reaffirmed in the 1996 case of Seminole Tribe v. Florida. Seminole Tribe also holds that Congress cannot override the Eleventh Amendment in Commerce Clause legislation, and this bill does not do that. The override is squarely confined to the Fourteenth Amendment provisions.
With respect to the Establishment Clause, the bill does not violate that Clause. The Court has unanimously held that Congress can exempt religious exercise from burdensome regulation, and that those exemptions do not have to come packaged with similar benefits for secular activities. That was the Amos decision in 1987, reaffirmed after Smith and Board of Education v. Grumet in 1994.
Finally, I think the bill is consistent with federalism limitations on Congress' power. The bill declares a Federal policy that religious exercise should not be unnecessarily burdened. It preempts State laws that are inconsistent with that policy. The structure and effect and even the syntax of the bill's Commerce and Spending Clause provisions is indistinguishable from the structure and effect of preemption bills such as the Airline Deregulation Act. That is no coincidence. This is effectively a religion deregulation act.
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The Court recognized the validity of that sort of preemptive legislation in United States v. Printz, its most recent federalism decision, when it cited with approval its earlier decisions in FERC v. Mississippi and Hodel v. Virginia. There are similar statements in New York v. United States, and all of these statements are cited fully and quoted where appropriate in my written testimony.
I think the bill is constitutional under existing precedent. No one can predict the future, but Congress would act entirely responsibly to protect the liberties of the American people with this bill.
Thank you, sir.
Mr. CANADY. Thank you, Professor Laycock.
[The prepared statement of Mr. Laycock follows:]
PREPARED STATEMENT OF DOUGLAS LAYCOCK, PROFESSOR, ASSOCIATE DEAN FOR RESEARCH, UNIVERSITY OF TEXAS LAW SCHOOL
Thank you for the opportunity to testify this morning in support of H.R. 4019, the Religious Liberty Protection Act of 1998. This statement is submitted in my personal capacity as a scholar. I hold the Alice McKean Young Regents Chair in Law at The University of Texas at Austin, but of course The University takes no position on any issue before the Committee.
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I have taught and written about the law of religious liberty, and also about a wide range of other constitutional issues, for more than twenty years. I have represented both religious organizations and secular civil liberties organizations, including important cases under the Religious Freedom Restoration Act. I wish to address Congress's constitutional authority to enact RLPA, the range of cases to which the bill might be applied, and some of the drafting choices presented by the bill.
But first let me say a little about the importance and universality of this bill. RLPA is not a bill for left or right, or for any particular faith, or any particular tradition or faction within a faith. There is an extraordinary diversity of beliefs about religion in America, from the very far left to the very far right both theologically and politically, from the most traditional orthodoxies to the most experimental and idiosyncratic views of the supernatural. RLPA will protect people of all races, all ethnicities, and all socio-economic statuses.
Religious liberty is a universal human right. The Supreme Court has taken the cramped view that one has a right to believe a religion, and a right not to be discriminated against because of one's religion, but no right to practice one's religion. To the extent that it has power to do so, Congress should enact more substantive protection for religious liberty.
I. THE SPENDING CLAUSE PROVISIONS.
Section 2(a) of RLPA tracks the substantive language of the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq. (1994), providing that government shall not substantially burden a person's religious exercise, and applies that language to cases within the spending power and the commerce power. Section 2(b) also tracks RFRA. It states the compelling interest exception to the general rule that government may not substantially burden religious exercise.
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Section 2(a)(1) specifies the spending power applications of RLPA. The bill applies to programs or activities operated by a government and receiving federal financial assistance. ''Government'' is defined in §2(e)(1) to include persons acting under color of state law. In general, a private-sector grantee acts under color of law only when the government retains sufficient control that ''the alleged infringement of federal rights [is] 'fairly attributable to the State.' '' Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
Section 2(a)(1) would therefore protect against substantial burdens on religious exercise in programs or activities receiving federal financial assistance and operating under color of state law. It would protect a wide range of students and faculty in public schools and universities, job trainees, workfare participants, welfare recipients, tenants in public housing, and participants in many other federally assisted but state-administered programs. An individual could not be excluded from a federally assisted program because of her religious dress, or because of her observance of the Sabbath or of religious holidays, or because she said prayers over meals or at certain times during the day—unless these burdens served a compelling interest by the least restrictive means.
The federal interest is simply that the intended beneficiaries of federal programs not be excluded because of their religious practice, and that federal funds not be used to impose unnecessary burdens on religious exercise. The provision is modeled directly on similar provisions in other civil rights laws, including Title VI of the Civil Rights Act of 1964, which forbids race discrimination in federally assisted programs, 42 U.S.C. §2000d (1994), and Title IX of the Education Amendments of 1972, which forbids sex discrimination in federally assisted educational programs, 20 U.S.C. §1681 (1994).
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Congressional power to attach conditions to federal spending has been consistently upheld since Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Conditions on federal grants must be ''[ ]related to the federal interest in particular national projects or programs.'' South Dakota v. Dole, 483 U.S. 203, 207 (1987). Federal aid to one program does not empower Congress to demand compliance with RLPA in other programs; the bill's protections are properly confined to each federally assisted ''program or activity.'' Dole upheld a requirement that states change their drinking age as a condition of receiving federal highway funds, finding the condition directly related to safe interstate travel. Id. at 208. The connection between the federal assistance and the condition imposed on that assistance by RLPA—ensuring that the intended beneficiaries actually benefit—is even tighter than the connection in Dole. I am confident that §2(a)(1) is constitutional.
''Program or activity'' is defined in §2(e)(2) by incorporating a subset of the definition of the same phrase in Title VI of the Civil Rights Act of 1964. The facial constitutionality of that definition has not been seriously questioned, and I do not believe that it could be. If it turns out, in the case of some particularly sprawling state agency, that federal assistance to one part of the agency is wholly unrelated to a substantial burden on religious exercise imposed by some other and distant part of the agency, the worst case should be an as-applied challenge and a holding that the statute cannot be applied on those facts. Given the variety of ways in which agencies are structured in the fifty states, I believe that it would be difficult to draft statutory language for such unusual cases, and that they are best left to case-by-case adjudication.(see footnote 1)
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Section 2(c) provides that the bill does not authorize the withholding of federal funds as a remedy for violations. This provision is modeled on the Equal Access Act, another Spending Clause statute that precludes the withholding of federal funds. 20 U.S.C. §4071(e) (1994). Withholding funds is too harmful, both to the states and to the intended beneficiaries of federal assistance. Because the remedy is so harmful, it is rarely used. The individual right of action provided in §4 of RLPA is a far more appropriate remedy. States may accept or reject federal financial assistance, but if a state accepts federal assistance subject to the conditions imposed by this bill, it is obligated to fulfill the conditions and the courts may enforce that obligation. Private rights of action have been the primary and effective means of enforcement under other important Spending Clause statutes, including Title IX (see Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Cannon v. University of Chicago, 441 U.S. 677 (1978)), and of course the Equal Access Act (see Board of Education v. Mergens, 496 U.S. 226 (1990).
The rule of construction in §5(c) provides that RLPA neither creates nor precludes a right to receive funding for any religious organization or religious activity. The bill is therefore neutral on legal and political controversies over vouchers and other forms of aid to religious schools, charitable choice legislation, and other proposals for funding to religious organizations. The Coalition for the Free Exercise of Religion includes groups that disagree fundamentally on these issues, but all sides have agreed that this language is neutral and that no side's position will be undermined by this bill.
As already noted, private-sector grantees not acting under color of law are excluded from the bill. This exclusion is important, because some private-sector grantees are religious organizations, and applying the bill to them would sometimes create conflicting rights under the same statute. The result in such cases might be to restrict religious liberty rather than protect it. Extending the bill to secular grantees in the private sector would sometimes overlap with other statutory protections, as in the employment discrimination laws and public accommodations laws. The free exercise of religion has historically been protected primarily against government action, with statutory protection extended to particular contexts where Congress or state legislatures found it necessary. This bill need not change the existing scope of protection in the private sector.
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II. THE COMMERCE CLAUSE PROVISIONS.
Section 2(a)(2) protects religious exercise ''in or affecting commerce.'' This language is taken verbatim from the Federal Trade Commission Act, and it tracks similar or identical language in the Clayton Act, the Americans with Disabilities Act, and many other statutes.(see footnote 2) This language embodies the historic constitutional standard. The bill protects all that religious exercise, and only that religious exercise, that Congress is empowered to protect. This part of the bill is constitutional by definition; any religious exercise beyond the reach of the Commerce Clause is simply outside the bill.
In testimony prepared for this hearing, Marc Stern of the American Jewish Congress has documented some parts of the enormous volume of commerce that is based on religious exercise. This data makes clear that the activity of religious organizations substantially affects commerce; the religious exercise of these organizations is protected by the bill, subject to the compelling interest test. The religious exercise of individuals will sometimes be protected by the bill, as when religious exercise requires the use of property of a kind that is bought and sold in commerce and used in substantial quantities for religious purposes, or when an individual is denied an occupational license or a driver's license because of a religious practice.
Substantial burdens on religious exercise prevent or deter or raise the price of religious exercise. On standard economic models, such burdens reduce the quantity of religious exercise and therefore the quantity of commerce growing out of religious exercise. Religious exercise and associated commerce that is not prevented may be diverted or distorted, which are other ways of interfering with the free flow of commerce. Congress has plenary power to protect the commerce generated by religious exercise or inhibited by substantial burdens on religious exercise, and Congress's motive for acting is irrelevant. United States v. Darby, 312 U.S. 100 (1941).
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Models for the Commerce Clause provisions include the Privacy Protection Act of 1980, 42 U.S.C. §2000aa (Supp. II 1996), protecting papers and documents used in preparation of a publication in or affecting commerce, which has not been challenged, the commerce clause provisions of the Federally Protected Activities Act, 18 U.S.C. 245 (1994), which the Tenth Circuit has upheld, United States v. Lane, 883 F.2d 1484, 1489–93 (10th Cir. 1989), and the public accommodations title of the Civil Rights Act of 1964, 42 U.S.C. §2000a (1994), forbidding racial and religious discrimination in places of public accommodation affecting commerce, which the Supreme Court has upheld.
The public accommodations law is particularly instructive. Congress's first public accommodations law was the Civil Rights Act of 1875, enacted to enforce the Thirteenth and Fourteenth Amendments. The Supreme Court struck that law down as beyond the enforcement power. Civil Rights Cases, 109 U.S. 3 (1883). Congress's second public accommodations law was the Civil Rights Act of 1964, enacted with substantially the same scope in practical effect but pursuant to the commerce power. The Court upheld this Act in Katzenbach v. McClung, 379 U.S. 294 (1964), and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
The public accommodations law and the Federally Protected Activities Act are also instructive in another way. Each uses a variety of federal powers to protect as much as possible of what Congress wanted to protect. The public accommodations law applies to operations that affect commerce and also to those whose discrimination is supported by state action. 42 U.S.C. §2000a(b) (1994). The Federally Protected Activities Act uses the enforcement power, the commerce power, the spending power, and power to prohibit interference with federal programs and activities (thus invoking all the powers which Congress used to create such programs and activities) to protect a broad list of activities. 18 U.S.C. §245 (1994). RLPA is more focused and less miscellaneous, but it is similar in its use of those powers that are available to protect activities in need of protection.
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I have given considerable thought to United States v. Lopez, 514 U.S. 549 (1995), in which the Court struck down the Gun Free Schools Act as beyond the reach of the Commerce Clause. 18 U.S.C. §922 (1994). The offense defined in that Act was essentially a possession offense; neither purchase nor sale of the gun nor any other commercial transaction was relevant. The Court emphasized that the offense ''has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms,'' 514 U.S. at 561, and that the offense ''is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.'' Id. at 567. Lopez appears to reaffirm the long-standing rule that Congress may regulate even ''trivial'' or ''de minimis'' intrastate transactions if those transactions, ''taken together with many others similarly situated,'' substantially affect interstate commerce. Id. at 556, 558. I will refer to this rule as the aggregation rule: in considering whether an activity substantially affects commerce, Congress may aggregate large numbers of similar transactions.
The aggregation rule is important to the scope of the bill, and especially to the protection of small churches and individuals. A small church with a RLPA claim need not show that it affects commerce all by itself; it is enough to show that churches in the aggregate affect commerce. An individual need not show that his religious practice affects commerce all by itself; it is enough to show that the practice affects commerce in the aggregate, or perhaps that a broad set of related or analogous religious practices affects commerce in the aggregate.
There will likely be cases in which the effect on commerce cannot be proved, and which therefore fall outside the protections of the bill. That is the nearly unavoidable consequence of being forced to rely on the Commerce Clause. But there will be many cases in which the burdened religious exercise affects commerce when aggregated with ''many others similarly situated,'' Lopez, 514 U.S. at 558, and in those situations, restricting or eliminating the religious exercise by burdensome regulation would also affect commerce. I am certain that the Commerce Clause provisions are constitutional, and I am confident that they will have a wide range of applications.
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III. OTHER PROVISIONS IN §2.
Section 2(d) states explicitly what would be obvious in any event—that the government that burdens religious exercise has discretion over the means of eliminating the burden. Government can modify its policy to eliminate the burden, or adhere to its policy and grant religious exceptions where necessary to avoid imposing burdens, or make any other change that eliminates the burden. The bill would not impose any affirmative policy on the states, nor would it restrict state policy in any way whatever in secular applications or in religious applications that do not substantially burden religious exercise. The bill would require only that substantial burdens on religious exercise be eliminated or justified.
The definition of ''demonstrates'' in §2(e)(3) is incorporated verbatim from the Religious Freedom Restoration Act.
IV. THE ENFORCEMENT CLAUSE PROVISIONS.
Section 3 would be enacted primarily as a means of enforcing the Fourteenth Amendment. Section 3 attempts to simplify litigation of free exercise violations as defined by the Supreme Court, facilitating proof of violations in cases where proof is difficult. In some applications—church construction projects are the most obvious example—§3 could also be upheld as an exercise of the commerce power.
A. Shifting the Burden of Persuasion.
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Section 3(a) provides that if a claimant demonstrates a prima facie violation of the Free Exercise Clause, the burden of persuasion then shifts to the government on all issues except burden on religious exercise. No element of the Court's definition of a free exercise violation is changed, but in cases where a court is unsure of the facts, the risk of nonpersuasion is placed on government instead of on the claim of religious liberty. This provision facilitates enforcement of the constitutional right as the Supreme Court has defined it. City of Boerne v. Flores, 117 S.Ct. 2157 (1997), of course reaffirms broad Congressional power to enforce constitutional rights as interpreted by the Supreme Court.
This provision applies to any means of proving a free exercise violation recognized under judicial interpretations. See generally Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Employment Division v. Smith, 494 U.S. 872 (1990). Thus, if the claimant shows a burden on religious exercise and prima facie evidence of an anti-religious motivation, government would bear the burden of persuasion on the question of motivation, on compelling interest, and on any other issue except burden on religious exercise. If the claimant shows a burden on religious exercise and prima facie evidence that the burdensome law is not generally applicable, government would bear the burden of persuasion on the question of general applicability, on compelling interest, and on any other issue except burden on religious exercise. If the claimant shows a burden on religion and prima facie evidence of a hybrid right, government would bear the burden of persuasion on the claim of hybrid right, including all issues except burden on religion. In general, where there is a burden on religious exercise and prima facie evidence of a constitutional violation, the risk of nonpersuasion is to be allocated in favor of protecting the constitutional right.
The protective parts of the Smith and Lukumi rules create many difficult issues of proof and comparison. Motive is notoriously difficult to litigate, and the court is often left uncertain. The general applicability requirement means that when government exempts or fails to regulate secular activities, it must have a compelling reason for regulating religious activities that are substantially the same or that cause the same harm. See, e.g., Lukumi, 508 U.S. at 543 (''The ordinances . . . fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree''); id. at 538–39 (noting that disposal by restaurants and other sources of organic garbage created the same problems as animal sacrifice). But there can be endless arguments about whether the burdened religious activity and the less burdened secular activity are sufficiently alike, or cause sufficiently similar harms, to trigger this part of the rule. The scope of hybrid rights claims remains uncertain. Burden of persuasion matters only when the court is uncertain, but, as these examples show, the structure of the Supreme Court's rules leave many occasions for uncertainty.
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The one issue on which the religious claimant always retains the burden of persuasion is burden on religion. Note that in the free exercise context, the claimant need prove only a burden, not a substantial burden. The lower courts have held that where the burdensome rule is not generally applicable, any burden requires compelling justification. Hartmann v. Stone, 68 F.3d 973, 978–79 & nn.3–4 (6th Cir. 1995); Brown v. Borough of Mahaffey, 35 F.3d 846, 849–50 (3d Cir. 1994); Rader v. Johnston, 924 F. Supp. 1540, 1543 n.2 (D. Neb. 1996).
B. Land Use Regulation.
Section 3(b) enacts prophylactic rules for land use regulation. Section 3(b)(1)(A) provides that land use regulation may not substantially burden religious exercise, except where necessary to prevent substantial and tangible harm. Power to enact this standard without limitation to the scope of the commerce or spending power depends on a hearing record showing ''reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional.'' City of Boerne v. Flores, 117 S. Ct. 2157, 2170 (1997). Note that the standard is not certainty, but ''reason to believe'' and ''significant likelihood.''
This is the fourth hearing before this Subcommittee on the subject matter of this bill. The record of these hearings is replete with statistical and anecdotal evidence of likely constitutional violations in land use regulation. More evidence to the same effect is being offered at this hearing. I believe this factual record is ample to support §3(b) as legislation to enforce the Fourteenth Amendment.
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The hearing record shows that land use regulation is administered through highly individualized determinations not controlled by generally applicable rules. Land use regulation thus falls within the Smith exception for regulatory schemes that permit ''individualized governmental assessment of the reasons for the relevant conduct.'' Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993); Employment Div. v. Smith, 494 U.S. 872, 884 (1990). The hearing record also shows that these individualized determinations frequently burden religion and frequently discriminate against religious organizations and especially discriminate against smaller and non-mainstream faiths. Even without the benefit of the Congressional hearing record, some courts have recognized that land use cases can fall within exceptions to the general rule of Employment Division v. Smith. See Korean Buddhist Dae Won Sa Tample v. Sullivan, 953 P.2d 1315, 1344–45 n.31 (Hawaii 1998); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992); Keeler v. Mayor of Cumberland, 940 F. Supp. 879 (D. Md. 1996).
The practice of individualized determinations makes this discrimination extremely difficult to prove in any individual case, but the pattern is clear when Congress examines large numbers of cases through statistical surveys and anecdotal reports from around the country. This record of widespread discrimination and of rules that are not generally applicable shows both the need for, and the constitutional authority to enact, clear general rules that make discrimination more difficult.
Sections 3(b)(1)(B) and (C) provide that governments may not deny religious assemblies a reasonable location somewhere within each jurisdiction, and that religious assemblies may not be excluded from areas where nonreligious assemblies are permitted. The record of individualized determinations and religious discrimination also supports these provisions, but they are not so dependent on that record. It is unconstitutional to wholly exclude a First Amendment activity from a jurisdiction. Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981). Section 3(b)(1)(B) codifies this rule as applied to churches. Discrimination between different categories of speech, and especially discrimination between different viewpoints, already requires strong justification;(see footnote 3) §3(b)(1)(C) codifies this rule as applied to land use regulation that permits secular assemblies while excluding churches.
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Section 3(b)(2) would guarantee a full and fair adjudication of land use claims under subsection (b). Procedural rules before land use authorities may vary widely; any procedure that permits full and fair adjudication of the federal claim would be entitled to full faith and credit in federal court. But if, for example, a zoning board with limited authority refuses to consider the federal claim, does not provide discovery, or refuses to permit introduction of evidence reasonably necessary to resolution of the federal claim, its determination would not be entitled to full faith and credit in federal court. And if in such a case, a state court confines the parties to the record from the zoning board, so that the federal claim still can not be effectively adjudicated, the state court decision would not be entitled to full faith and credit either.
Full and fair adjudication should include reasonable opportunity to obtain discovery and to develop the facts relevant to the federal claim. Interpretation of this provision should not be controlled by cases deciding whether habeas corpus petitioners had a ''full and fair hearing'' in state court. Interpretation of the habeas corpus standard is often influenced by hostility to convicted criminals seeking multiple rounds of judicial review. Whatever the merits of that hostility, a religious organization seeking to serve existing and potential adherents in a community is not similarly situated.
Subsection 3(b)(3) provides that equally or more protective state law is not preempted. Zoning law in some states has taken account of the First Amendment needs of churches and synagogues, and to the extent that such law duplicates or supplements RLPA, it is not displaced.
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Subsection 3(b)(4) provides that §2 shall not apply to land use cases. The more detailed standards of §3(b) control over the more general language of §2. But note that this provision does not say anything about sources of constitutional power. The land use provisions may be upheld in all their applications as an exercise of power to enforce the Fourteenth Amendment; they may also be upheld in many cases as an exercise of the commerce power. There may even be cases of federally assisted land use planning processes in which these provisions would also be an exercise of the spending power. But however many sources of Congressional power support these provisions, the statutory standards to be applied in land use cases come from §3, and not from §2.
V. JUDICIAL RELIEF
A. General Remedies Provisions.
Section 4 of the bill provides express remedies. Section 4(a) is based on the corresponding provision of RFRA; it authorizes private persons to assert violations of the Act either as a claim or a defense and to obtain appropriate relief. This section should be read against a large body of law on remedies and immunities under civil rights legislation. Appropriate relief includes declaratory judgments, injunctions, and damages, but government officials have qualified immunity from damage claims.
Section 4(b) provides for attorneys' fees; this is based squarely on RFRA and is essential if the Act is to be enforced.
B. Prisoner Litigation.
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Section 4(c) makes clear that litigation under the bill is subject to the Prison Litigation Reform Act. This provision effectively and adequately responds to concerns about frivolous prisoner litigation. In the first full year under the Prison Litigation Reform Act, federal litigation by state and federal prisoners dropped 31%. Administrative Office of the United States Courts, L. Meacham, Judicial Business of the United States Courts: 1997 Report of the Director 131–32 (Table C–2A). Further reductions may be reasonably expected, as the Act becomes better known; some provisions of the Act, such as the authorization of penalties on prisoners who file three or more frivolous actions, have not yet had much opportunity to work.
There has been substantial litigation over the constitutionality of some provisions of the Prison Litigation Reform Act, but that litigation does not affect RLPA. The courts of appeals have taken seriously the claim that provisions on existing consent decrees unconstitutionally reopen final judgments. Even so, six out of seven courts of appeals have upheld that part of the Act. Only the Ninth Circuit has struck it down, and only with respect to reopening final judgments.(see footnote 4)
I have followed this litigation closely for my casebook, Modern American Remedies. I expect the Ninth Circuit to be reversed even in the highly problematic context of reopening final decrees, because the Act addresses only the prospective effect of those decrees. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 (1995) (noting Congressional power to ''alter[ ] the prospective effect of injunctions''). But however that difficult issue is resolved, it does not affect RLPA. RLPA does not require that any final judgment be reopened, and the provisions of the Prison Litigation Reform Act most important to RLPA are not the structural reform provisions that have drawn so much litigation, but the provisions that deter frivolous individual claims. I am confident that those provisions are constitutional in all but unusual applications.
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If further legislative action on prisoner claims is needed, it should follow the approach of the Prison Litigation Reform Act, which addresses prisoner litigation generally. Congress should not exclude prisoners from the substantive protections of RLPA. RFRA did not cause any significant increment to prisoner litigation. The Attorney General of Texas has stated that his office handles about 26,000 active cases at any one time. Of those, 2200 are ''inmate-related, non-capital-punishment cases.'' Of those, sixty were RFRA claims when RFRA applied to the states. Thus, RFRA claims were only 2.7% of the inmate caseload, and only .23% (less than one-quarter of one percent) of the state's total caseload. It is also reasonable to believe that many of these sixty RFRA cases would have been filed anyway, on free exercise, free speech, Eighth Amendment, or other theories. This data is reported in Brief of Amicus Curiae State of Texas 7–8, in City of Boerne v. Flores (No. 95–2074), 117 S.Ct. 2157 (1997).
Members are well aware that prisoners sometimes file frivolous claims. But they should also be aware that prison authorities sometimes make frivolous rules or commit serious abuses. Examples include Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997), in which jail authorities surreptitiously recorded the sacrament of confession between a prisoner and the Roman Catholic chaplain; Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996), vacated on other grounds, 117 S.Ct. 2502 (1997), in which a Wisconsin prison rule prevented prisoners from wearing religious jewelry such as crosses, on grounds that Judge Posner found barely rational; and McClellan v. Keen (settled in the District of Colorado in 1994), in which authorities let a prisoner attend Episcopal worship services but forbad him to take communion.
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RLPA is needed to deal with such abuses to the extent that Congress can reach them. Whether RLPA applies will depend on whether the particular prison system receives federal financial assistance, on whether the prisoner can show a substantial effect on commerce, or on whether the prisoner can show a prima facie violation of the Free Exercise Clause. Probably some prisoner claims will be covered and others will not. But it is important not to exclude those that can be covered.
C. Sovereign Immunity.
Section 4(d) waives the sovereign immunity of the United States, and overrides the Eleventh Amendment immunity of the states, ''in claims for a violation of the Free Exercise Clause under section 3.'' This waiver and override does not apply to claims under section 2.
Congress has power to waive the sovereign immunity of the United States whenever it chooses, so there is no doubt about the constitutionality of §4(d)(2). It is a discretionary choice, and not a constitutional requirement, that the bill confines the waiver of sovereign immunity to claims under §3.
Section 4(d)(1) fully conforms with constitutional limitations on Congressional power to override the Eleventh Amendment immunity of the states. The relevant law is clearly set out in Seminole Tribe v. Florida, 517 U.S. 44 (1996). Seminole Tribe holds that Congress can not override Eleventh Amendment immunity in legislation under the Commerce Clause. It concludes that ''Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.'' Id. at 73.(see footnote 5)
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But the Court's opinion twice distinguishes and apparently reaffirms Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Seminole Tribe, 517 U.S. at 59, 65–66. Fitzpatrick holds that Congress can override Eleventh Amendment immunity in legislation to enforce the Fourteenth Amendment. Then-Justice Rehnquist's opinion for the Court concluded:
But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment. . . . We think that Congress may, in determining what is ''appropriate legislation'' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.
427 U.S. at 456. Fitzpatrick was a Title VII suit for retroactive pension benefits to be paid by the state of Connecticut, so the holding unambiguously includes suits on statutory claims if the statute was enacted to enforce the Fourteenth Amendment. Accordingly, the override of Eleventh Amendment immunity can include both claims directly under the Free Exercise Clause and claims under §3 of RLPA, which would be enacted to enforce the Free Exercise Clause.
VI. RULES OF CONSTRUCTION.
The rules of construction in §5 clarify the bill and greatly reduce the risk of misinterpretation.
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Section 5(a) is based on RFRA. It provides that the Act does not authorize government to burden any religious belief, avoiding any risk that the compelling interest test might be transferred from religious conduct to religious belief. Section 5(b) provides that nothing in the bill creates any basis for regulating or suing any religious organization not acting under color of law. These two subsections serve the bill's central purpose of protecting religious liberty, and avoid any unintended consequence of reducing religious liberty.
Sections 5(c) and 5(d) keep this bill neutral on all disputed questions about government financial assistance to religious organizations and religious activities. Section 5(c) states neutrality on whether such assistance can or must be provided at all. Section 5(d) states neutrality on the scope of existing authority to regulate private entities as a condition of receiving such aid. Section 5(d)(1) provides that nothing in the bill authorizes additional regulation of such entities; §5(d)(2), perhaps in an excess of caution, provides that existing regulatory authority is not restricted except as provided in the bill. Agencies with authority to regulate the receipt of federal funds retain such authority, but their specific regulations may not substantially burden religious exercise without compelling justification.
Section 5(e) provides that proof that a religious exercise affects commerce for purposes of this bill does not give rise to an inference or presumption that the religious exercise is subject to any other statute regulating commerce. Different statutes exercise the commerce power to different degrees, and the courts presume that federal statutes do not regulate religious organizations unless Congress manifested the intent to do so. NLRB v. Catholic Bishop, 440 U.S. 490 (1990).
Section 5(f) states that each provision and application of the bill shall be severable from every other provision and application.
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Section 6 is also a rule of construction, taken directly from RFRA, insuring that this bill does not change results in litigation under the Establishment Clause.
VII. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.
Section 7 of the bill amends RFRA to delete any application to the states and to leave RFRA applicable only to the federal government. Section 7(a)(3) amends the definition of ''religious exercise'' in RFRA to conform it to the RLPA definition, discussed below.
VIII. DEFINITIONS.
Section 8 contains definitions. Section 8(1) defines ''religious exercise'' to mean ''an act or refusal to act that is substantially motivated by a religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief.'' Section 7(a)(3) inserts the same definition into RFRA.
This definition codifies the intended meaning of RFRA as reflected in its legislative history. The decisions that most thoroughly examined the legislative history and precedent concluded that Congress intended to protect conduct that was religiously motivated, whether or not it was compelled.(see footnote 6)
The Supreme Court's cases have not distinguished religiously compelled conduct from religiously motivated conduct. The Congressional Reference Service marshalled these opinions for the RFRA hearings, noting that the Court has often referred to protection for religiously motivated conduct. Letter from the American Law Division of the Congressional Research Service to Hon. Stephen J. Solarz (June 11, 1992), in Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 131, 131–33 (1992). Since that compilation, justices on both sides of the issue have treated the debate as one over protection for religious motivation, not compulsion.(see footnote 7)
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Congress nowhere expressed any intention to confine the protection of RFRA to practices that were ''central'' to a religion. This concept did not appear either in statutory text or legislative history; it was read into the statute by some courts after RFRA's enactment. Other courts rejected or ignored this misinterpretation; the most extensive opinion concluded that Congress did not intend such a requirement, that pre-RFRA cases did not contain it, and that courts could not resolve disputes about the centrality of religious practices. Muslim v. Frame, 891 F. Supp. 226, 230–31 (E.D. Pa. 1995), aff'd mem., possibly on other grounds, 107 F.3d 7 (1997).
Insistence on a centrality requirement would insert a time bomb that might destroy the statute, for the Supreme Court has repeatedly stated that courts cannot hold some religious practices to be central and protected, while holding other religious practices noncentral and not protected. Employment Div. v. Smith, 494 U.S. 872, 886–87 (1990); Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 457–58 (1985). The Court in Smith unanimously rejected a centrality requirement. 494 U.S. at 886–87 (opinion of the Court); id. at 906–07 (O'Connor, J., concurring); id. at 919 (Blackmun, J., dissenting). The Court's disagreement over whether regulatory exemptions are constitutionally required does not depend on any disagreement about a centrality requirement.
In the practical application of the substantial burden and compelling interest tests, it is likely to turn out that ''the less central an observance is to the religion in question the less the officials must do'' to avoid burdening it. Mack v. O'Leary, 80 F.3d 1175, 1180 (1996), vacated on other grounds, 118 S.Ct. 36 (1997). The concurring and dissenting opinions in Smith imply a similar view, in the passages cited in the previous paragraph. But this balancing at the margins in individual cases is a very different thing from a threshold requirement of centrality, in which all religious practices are divided into two categories and cases are dismissed as a matter of law if the judge finds, rightly or wrongly, that a practice falls in the noncentral category. Such an either-or threshold requirement greatly multiplies the consequences of the inevitable judicial errors in assessing the importance of religious practices. RLPA properly disavows any such interpretation.
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Section 8(2) cautiously defines the Free Exercise Clause to include both the clause in the First Amendment and the application of that clause to the states through the Fourteenth Amendment.
Section 8(3) defines government to include both the state and federal governments. But note that for purposes of §2, government includes only state governments. The reason is straightforward. Section 2 adds nothing that will not be in RFRA as amended, and RFRA still applies to the federal government. In re Young, 1998 Westlaw 166642 (8th Cir., Apr. 13, 1998), cert. petition filed (Apr. 27, 1998); EEOC v. Catholic University, 83 F.3d 455, 470–71 (D.C. Cir. 1996). But §3 includes provisions not contained in RFRA, §4 provides remedies that apply to §3, and the rules of construction apply to §3. So all of the bill except §2 properly applies to both the state and federal governments.
IX. OTHER CONSTITUTIONAL OBJECTIONS.
A. The Establishment Clause.
Justice Stevens suggested that RFRA might violate the Establishment Clause. City of Boerne v. Flores, 117 S.Ct. 2157, 2172 (1997). He got no vote but his own, and his view has no support in the Court's precedents. Government is not obligated to substantially burden the exercise of religion, and government does not establish a religion by leaving it alone. RLPA would not violate the Establishment Clause.
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The Supreme Court unanimously upheld regulatory exemptions for religious exercise in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). There the Court held that Congress may exempt religious institutions from burdensome regulation. The Court so held even with respect to activities that the Court viewed as secular, id. at 330, even though the Court expressly assumed that the exemption was not required by the Free Exercise Clause, id. at 336, and even though the exemption applied only to religious institutions and not to secular ones, id. at 338–39. Amos held that alleviation of government-imposed burdens on religion has a secular purpose, id. at 335–36, and that the religious organization's resulting ability better to advance religious ends is a permitted secular effect, id. at 336–37. Exempting religious practice also avoids entanglement between church and state ''and effectuates a more complete separation of the two.'' Id. at 339. Amos expressly rejected the assumption that exemptions lifting regulatory burdens from the exercise of religion must ''come packaged with benefits to secular entities.'' Id. at 338.
The Court reaffirmed these principles, after Employment Division v. Smith, in Board of Education v. Grumet:
[T]he Constitution allows the state to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice.
512 U.S. 687, 705 (1994).
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The Supreme Court has at times questioned or invalidated exemptions that focus too narrowly on one religious faith or one religious practice, that do not in fact relieve any burden on religious exercise, or that shift the costs of a religious practice to another individual who does not share the faith. Id. at 703; Texas Monthly v. Bullock, 489 U.S. 1 (1989); Estate of Thornton v. Caldor, 472 U.S. 703 (1985). RLPA avoids these constitutional dangers. The bill minimizes the risk of denominational preference by enacting a general standard exempting all religious practices from all substantial and unjustified regulatory burdens; its even-handed generality serves the important Establishment Clause value of neutrality among the vast range of religious practices. By its own terms, the bill does not apply unless there is a substantial burden on the exercise of religion. And if particular proposed applications unfairly shift the costs of a religious practice to another individual, those applications will be avoided by interpreting the compelling interest test or by applying the Establishment Clause to the statute as applied.
Religion and the exercise of religion should be understood generously for purposes of RLPA, and unconventional beliefs about the great religious questions should be protected. But the Constitution distinguishes religion from other human activities, and it does so for sound reasons. In history that was recent to the American Founders, government regulation of religion had caused problems very different from the regulation of other activities. The worst of those problems are unlikely in America today, and our tradition of religious liberty is surely a large part of the reason. Today the greatest threat to religious liberty is the vast expansion of government regulation. Pervasive regulation regularly interferes with the exercise of religion, sometimes in discriminatory ways, sometimes by the mere existence of so much regulation written from a majoritarian perspective. Many Americans are caught in conflicts between their constitutionally protected religious beliefs and the demands of their government. RLPA would not establish any religion, or religion in general; it would protect the civil liberties of people caught in these conflicts.
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B. Federalism.
RLPA is consistent with general principles of federalism that sometimes limit the powers granted to Congress.
In particular, RLPA would not violate Printz v. United States, 117 S.Ct. 2365 (1997). Printz struck down federal imposition of specific affirmative duties on state officers to implement federal programs. It held that Congress ''cannot compel the States to enact or enforce a federal regulatory program,'' and that it ''cannot circumvent that prohibition by conscripting the State's officers directly.'' Id. at 2384.
The proposed bill does not impose any specific affirmative duty, implement a federal regulatory program, or conscript state officers. The substantive provisions of the bill are entirely negative; they define one thing that states cannot do, leaving all other options open. The bill thus pre-empts state laws inconsistent with the overriding federal policy of protecting religious liberty in areas constitutionally subject to federal authority.
The bill operates in the same way as other civil rights laws, which pre-empt state laws that discriminate on the basis of race, sex, and other protected characteristics, and in the same way as other legislation protecting the free flow of commerce from state interference. Congress could itself regulate all transactions affecting interstate commerce, and then exempt burdened religious exercise from its own regulation; it has instead taken the much smaller step of pre-empting state regulation that unnecessarily burdens religious exercise. Cf. New York v. United States, 505 U.S. 144, 167 (1992):
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Where Congress has power to regulate private activity under the Commerce Clause, we have recognized Congress's power to offer states the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.
RLPA would pre-empt to the minimum extent compatible with the federal policy; it pre-empts the unjustified burden on religious exercise but leaves all other options open. As already noted, §2(d) makes explicit what would be clear in any event—states can pursue any policy they choose, and remove burdens in any way they choose, so long as they do not substantially burden religious exercise without compelling reason.
Printz distinguishes and leaves unchanged two important pre-emption cases upholding federal statutes in the era of National League of Cities v. Usery, 426 U.S. 833 (1976). In each case, the Printz majority noted that the federal law ''merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field.'' 117 S.Ct. at 2380.
The first of these cases was Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264 (1981), which upheld a federal statute that required states either to affirmatively implement a specific federal regulatory program or turn the field over to direct federal regulation. The Court said that ''nothing'' in National League of Cities ''shields the States from pre-emptive federal regulation of private activities affecting interstate commerce.'' Id. at 291. Hodel is reaffirmed not only in Printz, but also in New York v. United States, 505 U.S. 144, 161 (1992).
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The Court reached similar conclusions in Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742 (1982) (the FERC case). The statute there went further, and required the state to ''consider'' implementing an affirmative federal policy. But the state was not required to adopt the policy, and law's provisions ''simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals.'' Id. at 765.
In Hodel, the Court commented that ''Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining.'' Id. at 290. RLPA would not go nearly so far. It would prohibit only some state regulation of religious exercise—regulation that falls within the reach of spending or commerce powers, that substantially burdens religious exercise, and that cannot be justified by a compelling interest.
Hodel and FERC also went much further than RLPA in another way, because they required states either to implement or consider specific and affirmative federal policies or cede the field to federal regulation. RLPA imposes no specific policies, but only the general limitation that whatever policies they pursue, states can not substantially burden religious exercise without compelling reason.
Some provisions of the statutes in Hodel and FERC were directed expressly to the states and, in a sense, applied only to the states. Only the state agency could implement or consider the federal policy. But this did not render the statutes invalid for singling out the states. Congress was pursuing a policy for the appropriate regulation of private conduct, and it required the states to conform to that policy or to vacate the field. This is the classic work of federal pre-emption.
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If RLPA seems in any way odd, it is because the federal policy with respect to the private sector is generally one of deregulation, not regulation. The Congressional policy is that religious exercise not be substantially burdened without compelling reason. Congress has no more affirmative or more specific regulatory policy for religion to substitute for the pre-empted regulation. But that is not unique either. As Professor Thomas Berg points out in a forthcoming article, the statutes deregulating the transportation industries broadly pre-empted state regulation and substituted only minimal federal regulation in its place. He cites the Staggers Rail Act of 1980, 40 U.S.C. §10505 (1994), and the Airline Deregulation Act of 1978, 49 U.S.C. §41701 et seq. (1994).
It is instructive to compare the pre-emption provision of the Airline Deregulation Act with the central provision of RLPA:
There is no difference in structure or in principle between these two provisions. Both on their face regulate state laws and only state laws. Both in their operation pre-empt state laws that are inconsistent with a federal policy of deregulation. The Airline Deregulation Act provision was broadly construed, without constitutional challenge, in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). Nothing in either Printz or the National League of Cities line of cases casts doubt on federal power to pre-empt state regulation inconsistent with federal policy in areas where Congress could regulate directly if it chose. That is all the Religious Liberty Protection Act would do.
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X. CONCLUSION.
This bill is needed for the reasons set forth by other witnesses and in earlier hearings. The bill's opponents seem to be few in number, but they are able and creative; they can think of many arguments. In this testimony, I have tried to anticipate those arguments.
No one can predict how the Supreme Court might change the law in the future. But Congress should not be intimidated into not exercising powers that have been established for decades because of the risk that the law might change in the future. The bill is clearly within Congressional power under existing law, and I urge its enactment.
Mr. CANADY. Professor Berg.
STATEMENT OF THOMAS C. BERG, PROFESSOR, CUMBERLAND LAW SCHOOL, SAMFORD UNIVERSITY
Mr. BERG. Thank you, Mr. Chairman. I appreciate the opportunity to come today and testify about the religious liberty protection bill.
I have two themes to what I want to say today. First is that this bill is drafted with several components of congressional power, and there is a good reason for that. One of the moral advantages of the Religious Freedom Restoration Act was in its breadth of coverage; that it reached all claims of religious exercise brought by people of all faiths, majority faiths, minority faiths, popular ones, unpopular ones. It assured equal religious liberty for people of different faiths as opposed to a case-by-case kind of accommodation where the squeaky wheel gets the grease or the more powerful interest is accommodated over others.
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Now, Congress cannot reach the same breadth of religious practices that it did under RFRA because of the Court's ruling in the Boerne case. It must rely on more discrete powers like the more limited Fourteenth Amendment powers that remain, the Spending Clause and the Commerce Power. But there still remains an important advantage, moral advantage, in general—in legislation that is as general as possible and protects as many religious faiths and claims as is possible. And that is a reason for Congress to try to exercise all of the powers that it has available to it and to think very carefully before it considers foregoing any reliance on any of these powers.
The second theme is don't make the perfect the enemy of the good. We can't have a statute that is quite as broad as RFRA was because of Boerne, but that shouldn't blind us to what this bill can actually accomplish.
Now I want to talk a little bit about constitutional power under the Spending Clause and the Commerce Clause and echo quite a bit of what Professor Laycock said. Under the spending power, the constitutional basis for the statute is extremely strong. There is—well, as Professor Laycock said, the statute tracks the established language in Title VI and other programs, other civil rights laws, involving federally—Federal funding of State programs.
There is a strong Federal interest in assuring that beneficiaries of those programs do not have their religious freedom burdened, and particularly in assuring that they do not have to drop out of the program and lose the benefits of it because of conflicts with their religious belief. It is perfectly reasonable for Congress to conclude that that happens.
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Just one example, I think, would be it is perfectly reasonable to think that a number—a number of parents who have left the public schools have done so because of conflicts between public school regulations and their religious beliefs. There are reported cases on those kinds of conflicts, and I think it is something that happens.
Now, the Spending Power would have important effects, as the public school cases show. In public schools alone there have been plenty of cases of religious freedom conflicting with school regulations over the years; objections to curriculum to force—for children being forced to be exposed to curriculums that violate their religious beliefs; questions about whether student religious groups can have as a criterion that their leaders be members of the faith. That has been an issue that religious groups have had to litigate; questions about whether students can wear nondangerous religious garb or jewelry in the schools. All of those cases would be within the coverage of the bill. The religious believer might not win in every case, but the Spending Clause would have important effects.
To reiterate the strength of the spending power basis constitutionally, the governing law on this is South Dakota v. Dole, written by Chief Justice Rehnquist and joined by Justice Scalia, which said that as long as there is a reasonable relation between the purpose of the expenditure and the condition, that the condition is constitutional.
I think even if the Court were to tighten up on that a little bit, this provision falls well within the Spending Power because of the Federal interests that I described.
Now, on the commerce power, I want to say something briefly about the nature of this statute. It may seem in some ways inappropriate to rely on the commerce power to protect a fundamental civil right such as religious freedom, but before we start thinking along those lines, we should remember that Congress has done that many, many times, and perhaps the major precedent here is the Civil Rights Act of 1964, which protected the human right of equality and nondiscrimination based on a rationale that discrimination affected interstate commerce.
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On the constitutional power under the Commerce Clause, religious entities do affect commerce. Congress should make careful and detailed findings—detailed findings on that. There will be evidence to support that. But the whole range of Federal regulation, based on the Commerce Clause, has typically been applied to religious institutions, based on the premise that they affect commerce. When religious institutions have been free from the Fair Labor Standards Act or the National Labor Relations Board jurisdiction or other commerce statutes, Title VII, it has not been because courts have ever held that they fall outside the scope of commerce. It has been because of religious freedom concerns or because the statute was drafted in a way that did not reach them, did not reach to the full scope of the commerce power.
It seems to me that if religious entities can be regulated under the Commerce Clause, subject to First Amendment or other kinds of exemptions, but if they can be within the scope of regulation under the Commerce Clause, then Congress certainly has the power to exempt them from State regulation under the Commerce Clause as well. That seems only to follow as a matter of fairness.
In some cases, the religious entity in itself may not affect interstate commerce in an individual case, but where the institution is engaged in some kind of commercial activity, the law is clear. Even under United States v. Lopez, that individual instances can be aggregated for the purpose of calculating the effect on interstate commerce, Lopez says that clearly. Numerous court of appeals decisions after Lopez have reaffirmed that the aggregation theory remains viable where there is some commercial component to the activity.
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In the case of religious entities, employment is a commercial activity. Religious entities buy and sell materials in order to serve their parishioners or their beneficiaries or the general public. They engage in a number of different kinds of activities that would fall within the notion of commercial.
That applies to small entities as well, not just large entities that individually are involved in interstate commerce. Because of the aggregation theory, the valid aggregation theory, small entities can be covered as well.
Individual cases will sometimes be covered when the individual is engaged in commercial activity and the religious conflict comes up in that case, or when there is some kind of commercial connection. As Professor Laycock indicated, the bill won't cover the case unless some kind of connection to interstate commerce can be made.
Finally, I want to say something about the United States v. Printz decision, the State sovereignty question, and to echo Professor Laycock's point on that. There is a tremendous difference between the affirmative mandate to State officials that was struck down in the Brady bill case, Printz, and the simple displacing of State laws that happens—that would happen under a religious liberty bill, displacing of State laws for the purpose of deregulating, leaving unregulated, private activity, religious activity by private individuals and groups. In most cases—well, go back. The courts said that preemption, the displacing of State laws by preemption, even after Printz clearly remains within Congress' power. And in most cases, Congress replaces the State law with its own scheme of regulation, and that is why this case may seem a little different from other preemption cases, but it is not.
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There are examples of deregulatory preemption. The deregulation of the trucking industry, Congress deregulated the trucking industry and preempted State laws that would continue to regulate it. The same thing, as Professor Laycock indicated, with the airline industry, and you should read his testimony to note the striking parallels between the provision in the Airline Deregulation Act and the provision of the religious liberty bill.
I will stop there and thank you for the opportunity.
Mr. CANADY. Thank you, Professor Berg.
[The prepared statement of Mr. Berg follows:]
PREPARED STATEMENT OF THOMAS C. BERG, PROFESSOR, CUMBERLAND LAW SCHOOL, SAMFORD UNIVERSITY
I appreciate the opportunity to appear today and give testimony concerning the Religious Liberty Protection Act of 1998 (RLPA). I am friendly toward this bill, but I am not particularly an insider on it; I saw and commented on one early version but have had no further involvement in the drafting. I am testifying, of course, in my personal capacity and not as a representative of my institutions, Cumberland Law School or Samford University.
My testimony has two purposes, although they overlap. One purpose is to address some questions that have been raised concerning the constitutionality of various provisions of RLPA, or the maximum scope that those provisions could have and still be constitutional. The second purpose is to address some criticisms of the bill, primarily those raised by a few conservative organizations and individuals. Several of those criticisms are on constitutional grounds, hence the overlap. But before I discuss constitutional issues in detail, I want to say a few words about the value of legislation like RLPA and the superiority of such legislation to the alternatives.
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A. THE VALUE OF GENERAL RELIGIOUS FREEDOM LEGISLATION
The premise of this testimony, and of RLPA itself, is that the proper scope of religious freedom requires that sometimes religiously motivated conduct be protected against generally applicable laws—not just against laws that single out religious conduct for prohibition. To the founding generation, religious conscience was worth protecting because it involved duties to a higher power, duties that in James Madison's words were ''precedent, both in order of time and degree of obligation, to the claims of Civil Society.''(see footnote 8) Religious duties also tend, as a class, to be especially deeply felt and to provoke especially strong reaction when the believer is forced to violate them. These harms—the violation of deeply felt duties to a higher power—affect religious believers or groups whenever their religious practices are prohibited by law, whether or not the law applies to a host of other people or not. Particularly in this day of pervasive government regulation, religious conduct will be highly restricted if it is subject to every law that applies to the broader society.
We continue to return here because this vision of religious freedom is not fully protected under existing law. The Supreme Court held in Employment Division v. Smith(see footnote 9) that the Free Exercise Clause usually is not violated by the application of a ''neutral and generally applicable'' law to prohibit religious conduct. This general rule has a number of possible limits and exceptions, which can be and have been used to protect religious freedom in particular circumstances. But litigation under those exceptions is complex and uncertain and still may produce insufficient scope for religious freedom in a highly regulated society.
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For these reasons, Congress in 1993 passed the Religious Freedom Restoration Act (RFRA), which provided that even generally applicable federal and state laws could not impose ''substantial'' burdens on religious exercise unless they were supported by strong governmental interests. But the Supreme Court last year in City of Boerne v. Flores(see footnote 10) struck down RFRA as applied to state and local laws, holding that the statute exceeded Congress's Fourteenth Amendment power to enforce constitutional rights against states. The Court said that the Fourteenth Amendment power was limited to enforcing the Court's interpretation of the Free Exercise Clause. Since the largest number of restrictions on religious practice come from generally applicable laws at the state and local levels, Boerne returned religious freedom to the very uncertain state that existed before RFRA.
There are important reasons for Congress to try again to pass religious freedom legislation that shares some of the qualities of RFRA. It is important to protect religious exercise from generally applicable laws. Moreover, it is important to do so in a consistent, across-the-board fashion. RFRA, which protected all claims of religious exercise under the same standard, reflected a moral, constitutional, and practical insight: that religious freedom protection should be the same for all groups. In the words of the Coalition for the Free Exercise of Religion, RFRA was meant ''to allow[] any faith, no matter how small, unpopular or politically ineffectual, to press its claims before a neutral arbiter under an objective and religiously neutral standard. The consideration and adjudication of [such] claims facilitates judicial review for fairness and minimizes favoritism.''(see footnote 11)
The Religious Liberty Protection Act seeks to provide as broad a coverage of religious freedom claims as is possible after the Boerne decision, by relying on a variety of enumerated powers including but not limited to the Fourteenth Amendment enforcement power. As members of Congress discuss the several components of the legislation, I urge them to remember that it is an important goal to try to cover as wide a range of religious practices as is possible.
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The value of general religious freedom legislation is shown by the fact that RFRA itself accomplished some important results during a very short time.(see footnote 12) Just in its application to state laws, the statute had preserved the confidentiality of Catholic confessions from invasion by prosecutors,(see footnote 13) enabled soup kitchens and homeless shelters to overcome or limit seriously burdensome zoning regulations,(see footnote 14) and permitted Amish buggy drivers, Sikh children, and prisoners of various faiths to follow religious practices in ways not causing danger to others.(see footnote 15)
It is true that in recent years, religious believers and institutions have sometimes managed to protect themselves within the framework of Employment Division v. Smith, by arguing that the law burdening them was not generally applicable, that it was applied in a discriminatory fashion, or that it implicated some ''hybrid'' of another constitutional interest with religious exercise. But it would not be wise to rely solely on litigation under Smith. Discriminatory intent and discriminatory application of law are difficult to prove. There is no guarantee that the Supreme Court will end up maintaining the ''hybrid''-rights category of analysis or that it will accept all of the broad assertions of hybrid rights, especially expressive rights, that have succeeded in some lower court decisions. In any event, RLPA would add an explicit form of protection to the claims that religious believers and institutions can raise. Lawyers representing churches and believers continue to report that while RFRA was in effect, it improved their position in negotiating with state and local government officials.
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Some critics of RLPA, especially from the conservative side, acknowledge the need to protect religious freedom from generally applicable laws but claim that there are better ways to do so. This is the position of the recent memorandum from the Home School Legal Defense Association (HSLDA), the only written arguments of this kind of which I am aware. But the alternatives HSLDA suggests are simply not viable; dropping RLPA and pursuing them would truly make the perfect the enemy of the good.
Two of the alternatives HSLDA suggests cannot, with all respect, be taken seriously: ''passing a Congressional resolution stating that RFRA is constitutional'' and ''re-enacting RFRA without changes as a demonstration to the Supreme Court that Congress believes RFRA to be constitutional.''(see footnote 16) These measures would either have no legal force or else would be struck down immediately in litigation, most likely with monetary sanctions imposed on the religious believers who raised the ''reenacted'' RFRA as a claim. There is no point in Congress merely thumbing its nose at the Court or precipitating a direct constitutional clash by reenacting a statute struck down a year ago.
The other two suggested options—state RFRA-type statutes or a federal constitutional amendments—are more serious, but those who have given the most thought to protecting religious freedom after Boerne have concluded that they are not adequate in themselves. The push for state constitutional amendments and RFRA-type statutes, of course, is vigorously underway and is already yielding fruits. But the state-by-state process moves very slowly, and its results are practically guaranteed to be uneven. Various states have proposed to immunize prisoner regulations, anti-discrimination laws, and other kinds of laws from having to satisfy heightened scrutiny. Federal action would provide an important supplement to the patchwork of state rules.
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That leaves a federal constitutional amendment. I am no expert on politics, but those who are and are closest to the religious freedom efforts have concluded unanimously that an amendment is not a viable option. Their reasons seem compelling. The process is long and arduous, and nothing would be accomplished unless the required three-fourths of the states ratified the amendment. Interest groups that oppose religious freedom in particular circumstances—groups from prison wardens to the architectural preservation lobby to public educators to animal rights activists—could force exceptions to be written into the amendment at the front end. More likely and more dangerously, they could defeat it entirely at the back end by blocking passage in just a few states. The experience could be similar to that of the Equal Rights Amendment, which shot out of the starting gate in 1972 but ran into insurmountable barriers in getting the last three states necessary to ratify. The amendment process would also tend to sweep in other issues in the contentious area of church and state, such as prayers in public schools and financial aid to religious schools. Congress knows from very recent experience that disputes over those matters would divide religious freedom advocates and doom any such amendment.
Given the value of religious freedom legislation, there would have to be strong reasons to justify opposing it. The criticisms I have seen, whether they are of policy or of constitutionality, do not seem to me to make a sufficient case against RLPA. I am going to address the criticisms by first discussing two of the major sources of power on which RLPA would rely—the Spending and Commerce powers—and then turn to other matters.
B. SPENDING POWER COMPONENT
Section 2(a)(1) of RLPA would apply heightened scrutiny to substantial burdens on religious exercise imposed ''in a program or activity, operated by a government, that receives Federal financial assistance.'' The basis for this authority is Congress's power to tax and spend for the general welfare,(see footnote 17) under which Congress can set conditions on the use of its expenditures. The provision is modeled on the various anti-discrimination laws, which prohibit discrimination based on race, sex, handicap, or age in any program or activity receiving federal funds.(see footnote 18) The purpose of the provision is to ensure that federal funds are not used to support burdens on the religious practice of beneficiaries, and that beneficiaries are not forced to withdraw from federally funded programs, and forego the programs' advantages, because the programs impose burdens on their faith. For example, the federal government offers funding to most public school districts in order to help them provide a better education. When school districts impose unnecessary burdens on the religious conscience of parents and students—whether through forcing students to read objectionable materials or exposing them to unnecessary or excessive sex education programs(see footnote 19)—those parents may well move their children to private schools, which would frustrate the federal purpose of aiding their education. RLPA might not require accommodations in all these cases, but it would require the school to prove that no accommodation can be made.
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These purposes easily satisfy the current Spending Power test, set forth in South Dakota v. Dole.(see footnote 20) There the Court upheld Congress's power to condition federal highway funds on a state's adopting a 21-year-old minimum drinking age. The condition concerning teenage drinking, the Court said, bore a reasonable relation to highway construction because of concerns for highway safety. If such a loose connection was sufficient in Dole, certainly there is a sufficient interest in preventing federally subsidized programs from burdening or driving away their beneficiaries because of impositions on their faith.(see footnote 21)
The HSLDA's objection to the Spending Power component of RLPA is not that it is inappropriate, but that it ''will not often be of assistance to religious believers'' because ''very few free exercise cases come up in the context of federally funded programs.''(see footnote 22) That is simply false. Most public school districts will be covered, and they have given rise to a number of religious freedom disputes—from the curriculum and sex education disputes mentioned above, to questions about whether student religious groups may limit their leadership or membership to adherents of their faith,(see footnote 23) whether students may wear religious items mandated by their faith,(see footnote 24) and whether schools may disregard the educational level and achievements of religiously home-schooled students when they enter the public system.(see footnote 25) When one adds in public universities, state welfare programs, and other state activities receiving federal funding, the number of likely religious freedom interests covered by RLPA is far from few.
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For some unexplained reason, the HSLDA memorandum includes public school students on its list of persons who would have no protection under RLPA. HSLDA Mem. at 6.
C. COMMERCE POWER COMPONENT
Section 2(a)(2) of RLPA would apply heightened scrutiny to burdens on religious exercise ''in or affecting commerce with foreign nations, among the several States, or with the Indian tribes.'' The basic theory of congressional power here is that, at least in some instances, religious believers and institutions are actors in commerce, buying or selling goods or services or employing people, and that government restriction of their activity may thereby reduce or distort commerce as well as religious exercise. This component of the bill has attracted the most criticism from the conservative side, and it also raises the most complicated constitutional issues. I would like to address several points concerning it.
1. Reliance on a Commercial Rationale
Some of the critics' objections to the Commerce Power component of RLPA are not on constitutional grounds, but on what might be called moral, rhetorical, or even theological grounds. They argue that a ''reduction of faith and religious practice to commerce'' is demeaning, ''sacrilegious'' and ''at the very least silly.''(see footnote 26) ''Never before in our Nation's history,'' they cry, ''has a fundamental right been reduced to a level of a commercial transaction.''(see footnote 27) They also complain that the commercial rationale will distract attention from the real task of restoring religious freedom by new Fourteenth Amendment legislation or by a constitutional amendment.(see footnote 28)
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