Segment 2 Of 2     Previous Hearing Segment(1)

SPEAKERS       CONTENTS       INSERTS    
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RELIGIOUS LIBERTY PROTECTION ACT OF 1998

TUESDAY, JULY 14, 1998

House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to call, at 9:30 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.

    Also Present: Representative Henry J. Hyde.

    Staff Present: Cathleen Cleaver, Counsel; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel.

    Mr. CANADY. The subcommittee will be in order. This is the fifth hearing the Subcommittee on the Constitution 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.

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    We convene today for the second hearing focusing specifically on H.R. 4019, the Religious Liberty Protection Act of 1998, legislation which Mr. Nadler and I introduced on June the 9th. It is my hope that with today's hearing, the subcommittee will have completed the hearing phase of our work on this issue and that we will be in a position to move forward with consideration of H.R. 4019 after the members have had an opportunity to reflect on the testimony offered by the distinguished witnesses who are with us here today.

    I do want to thank members of both panels for taking the time to be with us. Some are back with us after previously testifying. We appreciate your participation in this ongoing process.

    I now recognize Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman. I am delighted that we are having the hearing to review the legislation. Frankly, I thought the major purpose of the hearing was to hear from the Justice Department. I thought you were instructed to invite the Justice Department.

    Could you tell me what happened, and I will yield.

    Mr. CANADY. Yes, I will be happy to respond.

    We have invited the Department of Justice. They felt that they were unable to be prepared to appear. I think they were given adequate notice. I was disappointed that they were unwilling or unable to be with us here today, because that was something that we had hoped to accomplish here.
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    Let me say that I am ready, willing, and able to hear from the Justice Department whenever they feel that they are in a position to make a presentation. It is disappointing that it is taking them so long, because this is an issue that has been around for some period of time. The bill has been filed for some weeks now. They have known about this. They were aware of this bill even before it was filed, so I am somewhat mystified. I don't want to attack them in this context, but I am disappointed.

    As I had offered previously, I will offer again, once they do have their act together on this, I would be happy to host a briefing for members of the subcommittee or the full committee, as the case may be, to hear from the Department.

    I think that I can state what I understand the Department's position is. They don't see any substantial problems with the bill. I think they may have some different views about the way various things should be phrased in terms of the legislative language. But it is my understanding, and I am not in a position really to represent them, but it is my understanding that they are generally supportive of the approach in the legislation.

    Mr. SCOTT. Well, thank you, Mr. Chairman. I am delighted to know that they were invited, because there are significant concerns with the constitutionality of the bill. We would not want to pass another bill that gets rejected by the Supreme Court.

    I look forward to the testimony of the witnesses. I yield.

    Mr. CANADY. Well, if the gentleman would yield. I have just seen that there is a letter which we have just received from the acting Assistant Attorney General, indicating that the administration supports the goals of this important legislation designed to protect the religious liberties of all Americans. It goes on to say, as you know, the Department is continuing to review and analyze the array of important constitutional considerations raised by H.R. 4019 to help ensure that the legislation conforms with the Supreme Court precedent as well as the important legal and policy issues raised by the legislation.
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    They go on to say that they believe that they can best assist the committee by continuing that process. I would suggest that they can best assist the committee by completing that process and giving us the benefit of their considered judgment.

    Mr. SCOTT. Well, thank you, Mr. Chairman. I think we tend not to agree on many things, but I think we agree on this one, that we would like to hear from the Justice Department. I think we all agree with the goals of the legislation; but if there are constitutional imperfections, we want them cured before the bill proceeds.

    With that, I will yield back.

    Mr. CANADY. Thank you. Are there members wishing to make an opening statement?

    Okay. We will now move to the first of two panels. So if the members of the first panel would come forward to take your seats. We will have five witnesses on this first panel and five witnesses on the second panel.

    On our first panel today, our first witness will be Pat Nolan, who is President of the Justice Fellowship. Following him will be William Dodson, who is the Director of Government Relations of the Southern Baptist Convention. Our third witness this morning will be Michael Farris, who is the President of the Home School Legal Defense Association. Our fourth witness will be Colby May, Senior Counsel, Office of Governmental Affairs with the American Center For Law and Justice. The final witness on our first panel will be Steven McFarland, Director of the Center for Law and Religious Freedom.
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    As most of you know, you have been around the committee, and you have either testified or have observed the proceedings here, we would ask that you would do your best to summarize your testimony in no more than 5 minutes. I don't expect that anyone is going to insist on strict enforcement of the 5-minute rule here today, but if you could, we would appreciate your coming as close to the 5 minutes as you can.

    I would point out that we have another hearing of the subcommittee scheduled this afternoon for consideration of the bill introduced by the chairman of the full committee, so we will have to make certain that we are done in time to convene that hearing. So your consideration would be appreciated.

    Of course, your full written statements will, without objection, be made a part of the permanent record of the hearing.

    Mr. CANADY. With that, I will now recognize Mr. Nolan.

STATEMENT OF PATRICK NOLAN, PRESIDENT, JUSTICE FELLOWSHIP

    Mr. NOLAN. Good morning, Mr. Chairman and members. And thank you for this opportunity to address this panel on a most important topic, religious liberty.

    I am the President of the Justice Fellowship, and we are the public policy arm of Prison Fellowship Ministries, Chuck Colson's ministry. Justice Fellowship works to reform our criminal justice system based on biblical principles of restorative justice. We seek to restore peace to our communities by healing the wounds of victims and renewing the hearts of offenders.
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    I bring a unique background to Justice Fellowship. Prior to being its President, I served for 15 years in the California State Assembly for them as Republican leader. I also was a Federal inmate for 25 months, 25 months in prison, 4 months in a halfway house. This was hard on my wife and young children. The one solace I had was my faith. And I saw firsthand the routine inference with my ability to practice my faith in prison.

    But I am not here to simply bring a prison ministry's perspective to this important issue. I am here to show how this issue is important to all Americans, liberals as well as my fellow conservatives.

    We were disappointed with the Boerne decision and the impact it has had on religious liberty around the country. Following the Boerne decision, religious freedom came under swift attack. Christian day care centers in Philadelphia were served with notice to comply with local ordinances prohibiting discrimination on the basis of faith.

    California death row inmates were prevented from bringing bibles to Bible studies. Bible studies in South Carolina were broken up by local authorities claiming they violated local zoning ordinances. And Texas school children were disciplined for wearing rosaries, by school officials who claimed that they were evidence of gang attire.

    How can these government officials interfere in religious practices like these? The answer is the Boerne decision struck down the long-standing compelling interest test. By knocking that out, the Court emasculated the Free Exercise clause and reduced religious liberty to a second-class right. The Supreme Court gave the green light to government agencies to interfere with religious practices. They have done so with gusto.
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    But the Boerne decision did far more than diminish our religious liberty. It gravely impaired our right to representative government. The courts made a power grab in the Boerne decision, not only ruling that RFRA was unconstitutional, but asserting that the Court and only the Court could interpret the Constitution. Congress, the Court said, could not expand on our constitutional rights.

    That position would have horrified the Founding Fathers who deliberately left this issue ambiguous, giving all three branches some role in constitutional interpretation. Thomas Jefferson rightly feared a judicial oligarchy, which is precisely what that decision, left unanswered, would lead to. Professor Russell Hittinger called the Boerne decision a silent coup d'etat.

    This unprecedented power grab must be challenged immediately or it will stand as precedent. If RLPA does not pass, the courts will be able to arbitrarily dismiss any legislation that Congress passes in accordance with the people's moral traditions. The courts already muzzled the public in Romer v. Evans when they struck down Colorado's Proposition 2. They then muzzled State legislatures and the governors by saying they had no role in the abortion question in Planned Parenthood v. Casey, overturning Pennsylvania's parental consent law. If Congress fails to challenge the Boerne decision by passing RLPA, the court's coup will be complete. They will have silenced all avenues of dissent from their imperial rule.

    As we all know, the Bill of Rights is a floor for our rights and not a ceiling. RLPA protects religious freedom by using two sources of congressional authority explicitly granted to Congress in the Constitution, the Commerce Clause and Spending clause.
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    While not providing protection for all religious activities, RLPA would provide protection for the vast majority of them. Because not all religious freedoms will be protected in RLPA, that doesn't mean that we shouldn't gain the protection that the law would afford us.

    Prison Fellowship Ministries must regain the ability to minister to prisoners using the tools available, just as civil rights forces use these same tools, including the Commerce Clause, to obtain voting rights. Yes, the Constitution already protects religious freedom just as the Constitution granted voting rights, but occasionally Congress must use its explicit powers to reassert these rights.

    The few groups who oppose RLPA do not deny the need for a bill to reinstate the protection of RFRA and challenge the Court. They only object to RLPA because it is based on Congress' authority under the Commerce Clause. They claim it would expand the Federal Government's intrusion into our lives.

    On the contrary, RLPA uses the Commerce Clause to stay the hand of government. The courts have already allowed government agencies to interfere with religious practices. RLPA would intervene to stop that inference. The Commerce Clause is the basis for all manner of Federal action. Whether one supports or opposes those uses of the Commerce Clause, why on earth with anyone oppose using that to protect our religious liberty?

    Because Congress uses its Commerce Clause to reinforce the First Amendment doesn't mean that the people who are protected by it become businesses. That assertion is preposterous. It simply means that Congress has used the Commerce Clause for its authority to restrain civic officials from restricting free exercise.
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    If a religious practice involves commercial activities, then RLPA would protect it and put the First Amendment preeminent over the secular interest. A showing of compelling State interests would then be necessary before the government could interfere with those practices.

    The opponents say they would prefer to use other means, but none of their alternatives are being actively pursued. So by opposing RLPA, they would leave us with no statutory protection for our religious liberty and leave the Court's power grab unanswered. That would be calamitous.

    Do we really want to allow our differences over which clause in the Constitution we should use to prevent Congress from acting to protect religious liberty or to reassert our right to self-determination? There is no question where most conservatives come down on this issue.

    That is why Dr. Jim Dobson, Gary Bauer, Don Hodel, Chuck Colson, myself, and many others are working feverishly to pass RLPA. Our groups, which reach millions of Americans, are mobilizing our supporters to urge you to approve RLPA swiftly. There is no issue before Congress which is more important to our groups. Under the protection of RLPA, Prison Fellowship and other ministries will have new opportunities to minister to thousands of men and women, giving true rehabilitation through the power of the cross.

    Although we are not of the world, we are still in the world and must use whatever incremental approach is necessary to repair the damage done by the Court to religious freedom, just as civil rights had to be established one step at a time.
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    We owe a great debt to you, Mr. Canady, and to the cosponsors of this legislation who have taken the lead in restoring our religious liberty. If Congress does not pass RLPA this session, we will be left with no statutory protection for our first freedom, religious liberty, and grave damage will be done to our ability to legislate in accordance with our moral traditions.

    Thank for you allowing me this opportunity to speak in defense of religious liberty.

    Mr. CANADY. Thank you, Mr. Nolan.

    [The prepared statement of Mr. Nolan follows:]

PREPARED STATEMENT OF PATRICK NOLAN, PRESIDENT, JUSTICE FELLOWSHIP

    Thank you for this opportunity to testify before this Committee on this very important subject of Religious Freedom.

    I am the president of Justice Fellowship, the public policy arm of Chuck Colson's Prison Fellowship Ministries. Justice Fellowship works to reform the criminal justice system based on the principles of restorative justice found in the Bible. We seek to restore peace to our communities by healing the wounds of victims and renewing the hearts of offenders.

    I bring a unique background to Justice Fellowship. Prior to being the president of Justice Fellowship, I served for 15 years in the California State Assembly, four of those as the Assembly Republican Leader. I also was a federal inmate for 25 months in prison and four more months in a halfway house. This was hard on my wife and our three young children. The one solace I had as I served my time was my faith. I know first hand the barriers to religious practices that exist inside our prisons.
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    But I am not here to simply bring a prison ministry perspective to this very important issue. I am here to show how this issue is important to all Americans, liberals as well as my fellow conservatives. We were disappointed with the Boerne decision and its effect on religious liberty in this country. After the Boerne decision, religious freedom came under a swift attack: Christian day-care centers in Philadelphia were served with notice to comply with local ordinances prohibiting hiring on the basis of religion, California death row inmates were prevented from taking their Bibles to Bible study, Bible studies in South Carolina were broken up by officials claiming the meetings violated a zoning ordinance, and Texas school children were disciplined for wearing rosaries which were claimed to be gang symbols.

    How can government officials interfere in religious practices like these? The answer is that in the Boerne decision the court eliminated the long-established standard for protecting religious practices, the ''compelling interest'' test. By knocking that out, the court emasculated the Free Exercise clause, and reduced religious liberty to a second-class right. The Supreme Court gave the green light to government agencies to interfere with religious practices. And they have done so with gusto.

    But the Boerne decision did far more than just diminish our religious liberty. It gravely impaired our right to representative government. The courts made a power grab in the Boerne decision, not only ruling that RFRA was unconstitutional but in asserting that the court, and the court alone may interpret the meaning of the Constitution. Congress, the court said, could not expand constitutional fights! That position would have horrified the founding fathers who deliberately left this issue ambiguous, giving all three branches some role in constitutional interpretation. Thomas Jefferson rightly feared a judicial oligarchy, which is precisely what this decision will lead to. Professor Russell Hittinger called the Boerne decision ''a silent coup d'etat.''
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    This unprecedented power grab must be challenged immediately or it will stand as a precedent. If RLPA does not pass, the courts will be able to arbitrarily dismiss any legislation that Congress passes in accord with the people's moral traditions. The court already muzzled the public in Romer v. Evans, when they overruled Colorado's Proposition 2. And they silenced the states from dissenting in Planned Parenthood v. Casey, which overturned Pennsylvania's parental consent law. If Congress fails to challenge the Boerne decision by passing RLPA, the court's coup will be complete. They will have eliminated all avenues for dissent from their imperial rule.

    As we all know, the Bill of Rights is a floor for our rights and not a ceiling. RLPA protects religious liberty by using two sources of congressional authority explicitly granted to Congress in the Constitution: the commerce clause and the spending clause. While not providing protection for all religious activities, RLPA would provide protection for the vast majority of them.

    Because not all religious freedoms will be protected under RLPA, that does not mean we should not seek to gain the protection this law will afford. Prison Fellowship Ministries must regain the ability to minister to prisoners using the tools available just as the civil rights forces used these same tools (including the commerce clause) to obtain voting rights. Yes, the Constitution already protects religious freedom, just as the Constitution granted voting rights, but occasionally Congress must use its explicit powers to reassert these rights.

    The few groups who oppose RLPA do not deny the need for a bill to reinstate the protection of RFRA and challenge the court. They only object to RLPA because it is based on Congress' authority under the Commerce Clause. They claim it would expand the federal government's intrusion into our lives. To the contrary, RLPA uses the Commerce Clause to stay the hand of government. The courts have already allowed government agencies to interfere in religious practices. RLPA would intervene to stop that.
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    The Commerce Clause is the basis for a manner of federal action. Whether one supports or oppose those uses of the Commerce Clause, why on earth would anyone oppose using it to protect religious liberty?

    Yes, the authority of the congress is under the Commerce Clause, but because Congress uses that authority to reinforce the First Amendment doesn't mean that people who are protected by it become businesses. That is preposterous. It simply means that Congress has used the Commerce Clause for its authority to restrain civic officials from restricting free exercise. If a religious practice involves commercial activities, then RLPA will protect them, and put the First Amendment preeminent over the secular interest. A showing of a compelling state interest would be necessary before the government could interfere with those practices.

    The opponents say they would prefer to use other means, but none of their alternatives are being actively pursued. So, by opposing RLPA, they would leave us with no statutory protection for our religious liberty, and leave the court's power grab unanswered. That would be calamitous. Do we really want to allow our differences over which clause in the Constitution we should use to prevent Congress from acting to protect religious liberty and reassert our right to self-determination? There is no question where most conservatives come down.

    This is why Jim Dobson, Gary Bauer, Don Hodel, Chuck Colson, and myself, among others, are working feverishly to pass RLPA. Our groups, which reach millions of Americans, are mobilizing our supporters to urge congress to approve of RLPA swiftly. There is no issue before Congress which is more important to our groups.

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    Under the protection of RLPA, Prison Fellowship and other ministries will have new opportunities to minister to thousands of men and women, giving true rehabilitation through the power of the Cross. Although we are not of the world, we are still in the world and must use whatever incremental approaches necessary to repair the damage done to religious freedom, just as civil rights had to be established one step at a time.

    We owe a great debt to Congressman Charles Canady and the co-sponsors who have taken the lead in restoring religious liberty. If Congress does not pass RLPA this session, we will be left with no statutory protection for our first freedom, religious liberty; and, grave damage will have been done to our ability to legislate in accordance with our moral traditions.

    Thank you allowing me this opportunity to speak in defense of religious liberty.

    Mr. CANADY. Mr. Dodson.

STATEMENT OF WILLIAM DODSON, DIRECTOR, GOVERNMENT RELATIONS, SOUTHERN BAPTIST CONVENTION

    Mr. DODSON. Thank you, Mr. Canady. It is indeed an honor to be here before this committee, for which I have a very high regard. I am the Director of Public Policy and Legal Counsel for the Ethics and Religious Liberty Commission of the Southern Baptist Convention. I hope that we speak for the sentiments of most of our 16 million members; however, I will not stand here or sit here and say we speak for every single member, because I am sure that there are members who disagree, not the least of which might be the individual to my right for whom I have high regard.
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    Certainly it is not my intent to be here and try to gang up on those who disagree with us on this particular issue. What I am here about is that I believe that religious liberty is a value of much greater weight than some of the concerns which have been expressed against it.

    In short, I think that we are in a situation where Congress simply must respond to the Court's decision in Boerne. The Religious Liberty Protection Act, in my opinion, is a good-faith and magnanimous effort at legislation which conforms to the ruling in Boerne. The Religious Liberty Protection Act is an attempt to give religious liberty the greatest protection possible, given the framework within which the Supreme Court has to make that happen.

    I know that there are other alternatives, but we feel that in light of the possible alternatives, this is the best practical alternative at this approach.

    I don't think that there is momentum in Congress to simply repass RFRA, nor do I think there is momentum at this time for a constitutional amendment, to mention two of the options; and I am sure there are others.

    For some, this is controversial. The RLPA is more controversial than RFRA because of its use of the Commerce and Spending Clauses to extend greater protection to religious liberty. While I am certain that there are many in our convention who would be sympathetic to these concerns, I do believe that the concern for religious liberty overrides any of those concerns with regard to this particular legislation, and a greater weight must be given to the precious value of religious liberty than the value of strictly adhering to a political theory to which we feel no one is morally bound.
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    I think that the vast majority of Americans are correct in their intuitive sense that religious liberty has lost significant ground in recent years and that the courts in general and the Supreme Court in particular no longer share most Americans' conviction that religious liberty should be cherished and protected to the greatest practical extent.

    One very eloquent exception to this is Justice O'Connor, who said in a dissent that the First Amendment's Free Exercise Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference even when such conduct conflicts with a neutral, generally applicable law.

    Before Smith, our Free Exercise cases were generally in keeping with this idea. Where a law substantially burdened religously motivated conduct, we required government to justify that law with a compelling State interest and to use means narrowly tailored to achieve that interest.

    The Court's rejection of this principle in Smith has harmed religious liberty. Justice O'Connor concludes that the historical evidence cast doubt on the Court's current interpretation of the Free Exercise Clause. The record, instead, reveals that its drafters and ratifiers likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre-Smith jurisprudence.

    It is difficult to improve on such straightforward prose. Let me just simply add by way of closing, that I believe that if churches or individual Christians or any person of faith came to me in the future and said, okay, under the Religious Liberty Protection Act, we are in a better position to make our argument before the Court that our interest that we are trying to protect has greater protection under this act than it would have without such an act. And my answer would be, unequivocally, yes, this act helps you, and you would be in a worse position if you did not have this act.
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    Does it cover every situation that RFRA covered? No, it does not. But it offers the greatest protection affordable under the guidelines that the Court has given us, and we strongly support this legislation and encourage you in your efforts to secure its passage.

    Mr. CANADY. Thank you, Mr. Dodson.

    Mr. Farris.

STATEMENT OF MICHAEL P. FARRIS, PRESIDENT, HOME SCHOOL LEGAL DEFENSE ASSOCIATION

    Mr. FARRIS. Thank you, Mr. Chairman, Mr. Scott and Chairman Hyde. I appreciate the opportunity to be here.

    On behalf of the Home School Legal Defense Association, I would like to inform the committee that the defeat of this bill is our number one legislative priority in this Congress because we believe that the supposed gradual step is a discriminatory step; that the step that we are making, supposedly to help religious freedom, is a step forward for the wealthy and the powerful while leaving out the poor, the not powerful, the small, the individual, and the families—like the nearly 60,000 home schooling families of our organization—that depend heavily on Free Exercise protection. We are left out, while the big guys are protected ostensibly by this legislation.

    There is no question that there is a serious problem. For the 22 years I have been an attorney, most of that time has been spent as a Free Exercise litigator. I could have written and fully agree with every word that Pat Nolan said during the first half of his presentation in his critique of Smith and Boerne. And, indeed, I was the initial chairman and ultimately the cochairman of the committee that wrote the Religious Freedom Restoration Act and, obviously, I strongly supported the passage of that legislation.
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    But there are three reasons why we oppose RLPA. First, it discriminates among religious practices. Given the current Commerce Clause jurisprudence, only the big, the wealthy, and the powerful can claim Free Exercise protection under this act.

    Individuals and small ministries like the church of which I am the interim pastor—by the way, I am a Baptist, but not a Southern Baptist—we would be left out. So I just submit to you that if we are going to protect only one group, the big and the wealthy and the powerful are the wrong group to start with. We should be protecting the small and the weak.

    The second reason we oppose this bill is, it denigrates the faith of many who need to claim its protection. I believe that religion is not commerce. Jesus threw the money changers and the merchants out of the temple. And many churches that if RLPA is enacted I would have belonged to have an absolute bar of selling any goods whatsoever on church property. As a lawyer, I have to tell them, ''You are silly for having that bar. The more goods you sell, and the more interstate in character they are, the more likely you will have a claim under this Act.''

    To require us to prove that our exercise of faith is connected to a commercial transaction, and not just any commercial transaction, but a commercial transaction that is big enough to be called one that affects interstate commerce, is an affront to those of us who believe what Jesus said—where he said, ''You cannot serve both God and money.'' Unless you serve both God and money, you have no protection under this act.

    The third reason we do not support this act is, it is an exercise in futility. I believe that, under the Commerce Clause jurisprudence of this Court and the Boerne decision, there is a 95 percent-plus likelihood that the Supreme Court will declare this bill unconstitutional on its face as violating the Separation of Powers. If not Separation of Powers, their Commerce Clause jurisprudence will restrict it to being a virtually ineffective tool in protecting our religious liberty. Read the Lopez decision. I am sure there were guns and bullets purchased in interstate commerce in that case, and it simply didn't make a difference.
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    So we are spinning our wheels. We are wasting time. We are not going to accomplish anything. This bill will be overturned as unconstitutional in a heartbeat. A lower Federal court will declare it unconstitutional. It will not be enforced until the Supreme Court rules, and I predict that they will rule against it.

    One of the witnesses in the Senate—in fact, my cochairman in drafting RFRA—testified: ''Here, look at all these catalogs for church stained-glass windows. They're out of State. And if you buy your stained-glass windows out of State, you'll be protected.'' Well, not if the issue is a city gay rights ordinance and you are trying to hire certain staff, and you don't want homosexuals on your church staff because you have a doctrinal conviction against having homosexuals on your church staff. There has to be a nexus, an interstate commerce connection between the religious activity in question and the government activity in question.

    So the fact that you purchase your stained-glass windows or your communion wine or your Sunday school material from another State is not going to be the issue. It is going to be very narrowly focused, and I think it is an affront to us. We basically have to prove that the movie Elmer Gantry was right, that we really are a bunch of commercial hucksters, and that religion really is about money.

    In fact, George Will wrote a nationally-syndicated column in the Washington Post the Sunday after the Smith decision was rendered in which he said, ''The primary purpose of the founding of this Republic was to establish the primacy of capitalism over religion.'' I think that that is atrocious history, but that is exactly what this bill does. It says, unless we bow our knee to the real god of this nation, money, then we will have no religious protection.
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    There are a substantial number of conservative leaders and organizations, including former Attorney General Ed Meese, Charles Rice of Notre Dame Law School, Phyllis Schlafly, Beverly LaHaye, Don Wildmon, Paul Weyrich, Lou Sheldon, Tom Jipping, Jordan Lawrence (who has testified before this committee as a religious liberty litigator), and a number of others oppose this bill because of its misuse of the Constitution and the betrayal of the principles of faith.

    Mr. CANADY. Thank you, Mr. Farris.

    [The prepared statement of Mr. Farris follows:]

PREPARED STATEMENT OF MICHAEL P. FARRIS, PRESIDENT, HOME SCHOOL LEGAL DEFENSE ASSOCIATION

    My name is Michael P. Farris and I am the Founder and President of the Home School Legal Defense Association (''HSLDA''). For 15 years, HSLDA has been committed to protecting the rights of parents to choose and control the education of their children, to defending religious liberty, and to advocating the principles of federalism, limited government and individual rights. I am here today to speak in opposition to the proposed Religious Liberty Protection Act (''RLPA'').

    There are many points on which I, and those who agree with HSLDA's opposition to RLPA, are in full agreement with the bill's supporters. We agree that there is in this country a great constitutional problem concerning legal protection for the free exercise of religion. This committee has already heard testimony regarding the Supreme Court's disastrous 1990 decision of Employment Division v. Smith, which eviscerated the Free Exercise Clause of the First Amendment; the response of Congress in the 1993 Religious Freedom Restoration Act (''RFRA''); and the Court's 1997 Boerne v. Flores decision holding RFRA unconstitutional. I served as co-chair of the initial drafting committee for RFRA. This committee later grew into the Coalition for the Free Exercise of Religion, many of whose members now support RLPA. I understand the gravity of the problem that the Supreme Court has created with respect to religious freedom, and I am committed to working toward real, lasting solutions to that problem.
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    The RLPA, however, is not such a solution. I do not believe that Congress can employ an expansive theory of the commerce clause to protect religious freedom without violating crucial constitutional principles and without denigrating the role and meaning of religious faith in our society.

RLPA DISCRIMINATES AMONG RELIGIOUS PRACTICES

    Unlike RFRA, RLPA is not a blanket protection for religious freedom. It does not give every American's religious practices the security of the compelling interest/least restrictive means standard. Instead, by its very terms the bill only protects religious conduct when that conduct occurs in a federally-funded program or affects commerce with foreign nations, among the several States, or with the Indian tribes. This is inherently discriminatory. Religious groups and organizations that are large, powerful and involved in economic activities such as publishing houses and products distribution will have little problem establishing that their ministries have an effect on interstate commerce. Not so the ''little guy.'' Individual religious believers, families—including the almost 60,000 home schooling families who make up HSLDA's constituency—and small churches and ministries will be left defenseless. A home school run out of religious conviction will be unable to claim the protections of RLPA because the family will be unable to establish that their faith has any material effect on interstate commerce.

    In fact, this discrimination in favor of affluent and powerful religious groups, against the small and economically weak, runs in total opposition to the purposes of religious liberty protection under our Constitution. The wealthy and powerful are able to seek political solutions to any legal infringement of their sincere religious practices. It is the small and powerless who must be able to turn to the courts for the protection of their fundamental, inalienable rights. Yet these are the very people who would be excluded from protection under RLPA.
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RLPA DENIGRATES RELIGION

    Quite simply, religion is not commerce. If RLPA is enacted, Christians and other people of faith will not be able to seek legal protection for our worship simply because it is commanded by God. Instead, we will be required to prove in court that our religion is interstate commercial activity. This reduction of worship to ''big business'' is highly offensive to many people of faith. The Bible instructs that we cannot serve both God and money. Even if RLPA were successful in winning some cases where religious freedom is at stake, the price is too high. Believers cannot submit to Caesar what is rightly God's, and we cannot allow our religious liberty to be determined by whether we can establish that our worship is commerce.

    There is a law of general applicability in every State banning the use of alcohol by minors. Under Smith and Boerne, applying this law to Holy Communion would not violate the Free Exercise Clause. Suppose a sheriff decides actually to enforce this law during a worship service, and the church defends on the basis of RLPA. ''Don't worry about the religious stuff,'' the church's lawyer would say. ''Under RLPA, the most important thing is to prove that the bread and wine were purchased through channels of interstate commerce. Otherwise, we lose.''

RLPA ATTACKS PRINCIPLES OF FEDERALISM AND LIMITED GOVERNMENT

    Our nation was founded on the principle of federalism and the belief that our national government is one of limited, defined powers. Unlike the States, which have plenary police powers to legislate for the public good, Congress has authority to act only where the Constitution grants express or implied power. All other powers are reserved to the States or the people by the Tenth Amendment.
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    Beginning in the New Deal era of the 1930s, this principle of limited national government has been seriously undermined by an expansive reading of the congressional power under Article I, Section 8 to ''regulate commerce . . . among the several States.'' Originally intended as a national power over rivers, roads and canals which do not fall exclusively under the jurisdiction of any one State, the commerce power has been transformed by the legal fiction that virtually any area of human activity must have some indirect effect on something that once was or someday might be transported in the channels of interstate commerce. Indeed, for many years it was a truism in our nation's law schools that the Commerce Clause gives Congress virtually unlimited power to legislate on any subject. Limited government became a distant historical relic.

    In 1995, the Supreme Court signaled a possible openness to reexamining the principles of federalism and limited government when it decided United States v. Lopez, ruling that an individual's possession of a handgun in a local public school has no clear connection to interstate commerce so as to support congressional action. The Lopez decision has prompted significant speculation by commentators, both those who support it and those who oppose it, that the Court may be moving towards a new era of federalism in which Congress will once again be limited to acting in the areas of its explicit and clearly implied powers.

    RLPA runs in direct opposition to this encouraging development. By enacting the RLPA, and thereby claiming a Commerce Clause power over activity as intrinsically non-commercial as religious worship and practice, Congress would be signaling to the Court that it disapproves of the Lopez decision and seeks plenary regulatory authority over virtually all human activity. If RLPA is enacted, the commitment of this Congress to the principle of limited government would be reduced to mere lip service and empty symbolism.
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CONSERVATIVE OPPOSITION

    For Christians and conservatives who believe in both religious freedom and federalism, this is a very difficult bill because it puts these two values in direct opposition. The more that RLPA protects religious freedom, the more it expands federal regulatory authority over all of life. If, on the other hand, the courts uphold the principle of limited federal government, this bill will accomplish little or nothing in protecting religious believers. This is why so many Christian and conservative leaders and organizations that believe in limited federal power are united in our opposition to this bill. The position that I am advocating today is held by Concerned Women for America, the American Family Association, Eagle Forum, the Traditional Values Coalition, the American Association of Christian Schools, Paul Weyrich and the Free Congress Foundation, and former Attorney General Edwin Meese, among many others. These individuals and organizations represent and are listened to by millions of mainstream Americans.

ALTERNATIVES

    Legal scholars have proposed a number of different possible congressional responses to the Supreme Court's Boerne decision, and I am confident that a remedy can be found that does not contain the problems inherent in RLPA. The alternatives range from a direct reenactment of RFRA to a provision restricting the jurisdiction of the federal courts over RFRA cases to a Constitutional amendment restoring the Free Exercise Clause to its pre-Employment Division v. Smith contours. Each of these has substantial merit and can be examined in due course if RLPA does not derail the debate. The RLPA is, at best, a waste of the time and resources that could be used in developing a non-discriminatory response to the problem of religious liberty that can generate widespread public support.
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    It is interesting to note that some of RLPA's supporters have argued that this bill will ''challenge'' the Supreme Court's Smith and Boerne decisions. There are many possible ways to challenge the Court, including a constitutional amendment, the selection of new Justices, stripping of appellate jurisdiction, impeachment and a ''court packing'' plan like that almost pursued by President Roosevelt in the 1930s. RLPA would present no such challenge. The very act of passing RLPA, giving up both the Free Exercise Clause and the Fourteenth Amendment as legitimate sources of protection for religious freedom and relying instead on an inappropriate source like the Commerce Clause, will signal to the Supreme Court that Congress has acquiesced in the atrocious Boerne decision and accepted the notion that it has no direct power to protect the inalienable right to religious liberty. After RLPA is held unconstitutional by the Supreme Court, as seems quite likely, what federal power will be cited in the next proposed bill?

CONCLUSION

    After the Supreme Court took away serious constitutional protection for religious exercise in 1990, it took three years for a sufficient consensus to develop to pass RFRA. In the interim, liberty suffered but the Republic was able to survive. Now, after RFRA has been held unconstitutional, the situation is once again bad, but not quite as bad. RFRA may still be good law with respect to the federal government (lower courts and commentators are divided on this question), and a number of states have enacted or are considering state-level RFRAs or constitutional amendments.

    This is the time to seek a response to the Supreme Court that can generate wide-spread public and congressional support. It is not the time to jump precipitously into a measure that has divided the religious freedom community because of its use of expansive federal commerce authority, because it discriminates among believers based on their economic power, and because it casts our most deeply held religious beliefs into the role of crass commercial activity. I urge this committee to reject the RLPA.
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    Thank you for you time and consideration of this important matter.

    Mr. CANADY. Mr. May.

STATEMENT OF COLBY M. MAY, SENIOR COUNSEL, OFFICE OF GOVERNMENTAL AFFAIRS, AMERICAN CENTER FOR LAW AND JUSTICE

    Mr. MAY. Mr. Chairman, members of the subcommittee, thank you for extending to me the invitation of this body to participate in this important hearing today on the Religious Liberty Protection Act, legislation intended to protect religious liberty and to require that government at all levels demonstrate a compelling reason before it takes an action which substantially burdens the Free Exercise of religion.

    The problem Congress is addressing was created by the Supreme Court when it issued its Smith decision in 1990. Instead of adhering to the plain language of the Free Exercise Clause that Congress shall make no law prohibiting the Free Exercise of religion, the Supreme Court in Smith instead ruled that government at all levels can indeed make laws prohibiting the Free Exercise of Religion as long as the law has some rational basis and is generally applicable.

    Congress was so alarmed by the Smith ruling that in 1993 it tried to reinstate some semblance of the original constitutional protection for religion by enacting the Religious Freedom Restoration Act. However, in 1997, the Court in its Boerne decision declared that to be unconstitutional, concluding that neither the Due Process nor the Equal Protection portions of the 14th Amendment enabled Congress to address the evisceration of the rights of free exercise resulting from the Smith decision.
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    In other words, the courts have corralled Congress and held that it has no authority to provide any greater freedom by statute than what the Court was giving under its new interpretation of the Free Exercise Clause in Smith.

    The record first for RFRA and now for RLPA make one thing perfectly clear: There is a serious problem. Government in the absence of having to show a compelling interest and least restrictive means of fulfilling that interest has virtual license to abridge the Free Exercise rights of the people.

    Having first created the problem and then rejecting Congress' efforts to address the problem, the Court has changed ''We, the people'' to ''We, the justices.'' This should not, however, be the last word.

    As President Lincoln warned in his first inaugural address, ''The candid citizen must confess that if the policy of government upon vital questions affecting the whole people is to be irrevocably fixed by decision of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent . . . Resigned their government into the hands of that eminent tribunal.''

    The RLPA is a measured and appropriate response to that eminent tribunal's claim in Boerne that it alone has the authority to irrevocably fix, by its decision, the vital question of the standard the government must scale before it burdens the Free Exercise of Religion.

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    On the claim that using the Commerce Clause to advance and protect religious free exercise essentially cheapens religious expression because, only that religious expression which affects commerce is protected by RLPA is really no objection at all.

    Using the Commerce Clause to advance religious liberty does not subordinate things religious to things commercial. Rather, the Commerce Clause is simply being harnessed to advance religious expression as far as it may go. One may wish that the court had not issued the Smith and Boerne decisions, which greatly intruded into the protection of Free Exercise so clearly stated in the Constitution, but it has.

    Using the Commerce Clause here as far as it may go, simply stays the hand of government from intruding unhindered, as it may now, and takes an important step in helping to restore the preeminent first right, the right of free exercise of religion.

    The original RFRA coalition, some members of which now object to RLPA, believing it constitutionally infirm because it uses the enabling power of the Commerce Clause, earnestly believed that RFRA was constitutional and that Congress had plenary power to enact the law under the 14th Amendment. The Supreme Court disagreed.

    Clearly, reasonable and sincere people may disagree on whether courts will uphold use of the Commerce Clause as harnessed in RLPA. Such differences almost always exist. That is simply the way it is. But Congress must nevertheless act in the face of the Supreme Court's assertion that Congress is powerless to advance religious liberties in any manner inconsistent with the Smith decision.

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    RLPA is that action, and the American Center for Law and Justice supports its enactment. We have, over the last 9 years, had more than nine cases argued in front of the Supreme Court, important cases on free exercise, on religious liberty, on virtually every aspect of the First Amendment.

    We believe that the rights that are assessed and otherwise being advanced through RLPA are indeed the preeminent rights. We, as Americans, must be able to have confidence that our government will not intrude in matters religious. To the extent we use the enabling clauses of the commerce power or the spending power to do that, I think Congress is otherwise to be applauded.

    Thank you for this opportunity to be with you today.

    Mr. CANADY. Thank you, Mr. May.

    Mr. McFarland.

STATEMENT OF STEVEN T. McFARLAND, DIRECTOR, CENTER FOR LAW AND RELIGIOUS FREEDOM

    Mr. MCFARLAND. Good morning. Thank you, Mr. Canady—Chairman Canady, Chairman Hyde, Mr. Scott, Mr. Nadler for the opportunity to address this committee on this important subject.

    The Christian Legal Society urges this Congress in this session to wield every constitutional means for the protection of our first freedom. And I ask that my written remarks be submitted after this hearing and be included in the record.
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    Let me respond to my friend, Mr. Farris—some of his comments regarding some conservative concerns. First of all, this bill is not just for the big, the powerful, and the wealthy. It is not just about religious publishers. It will not leave individual believers and small churches defenseless.

    It will be available to any ''economic activity that might through repetition elsewhere substantially affect any sort of interstate commerce,'' obviously the rule in the Lopez decision. The issue will not be the size of a church's budget or of the book store's inventory. The question will be whether there is an adverse impact on religious exercise at one church which, when repeated on a larger scale, on a statewide scale perhaps, will substantially affect interstate commerce; and the answer in many cases will be yes.

    To the argument that religious believers would be reducing their worship to big business: religious believers will be able to seek legal protection without having to either claim that their worship is big or that it is business.

    Mr. Farris would lead one to think that the RLPA's definition of the exercise of religion is that it must be commercial activity. On the contrary, religious exercise, as defined in this bill is ''an act or refusal to act that is substantially motivated by a religious belief.'' The scope of religious practices is not defined in terms of dollars in this bill.

    While the bill recognizes a very broad scope of potentially protected religious activity, RLPA also recognizes that Congress is constitutionally limited in its power. That does not denigrate religion. It recognizes that fortunately we live in a country where the Congress and the Federal Government are not omnipotent. Among those of us who treasure civil liberties, that would seem to be good news.
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    As to the argument that the RLPA would somehow signal to the Supreme Court a disapproval of a more conservative approach toward the Commerce Clause, I think that claim is in error as well. By passing RLPA, the Congress would be neither approving nor disapproving of Lopez. It would simply be abiding by it. It would simply be appropriating, using all of its Commerce Clause power to the furthest extent the clause permits in the service of religious liberty.

    RLPA does not codify Lopez. If the Supreme Court, in further cases, as Mr. Farris predicts, contracts the scope of the Commerce Clause, then the RLPA's scope of protection in that section will contract with it, because its definition closely tracks the constitutional language. If religious exercise is ''in or affects interstate commerce,'' then—to whatever extent the Court recognizes, then that activity is covered. So RLPA will not expand congressional regulatory authority.

    This fact is further guaranteed by not one, but two other explicit disclaimers in RLPA. Section 5(b) says that nothing in this act shall create any basis for regulation of religious exercise or for claims against religious organizations. As if that weren't enough, section 5(e) says that just because religious exercise is protected under RLPA does not mean that the religious practice is now subject to any Federal regulations based on the Commerce Clause.

    As to the argument that RLPA will protect only a few religious practices or a few religious believers, that is not correct. It will protect many believers, individuals as well as large institutions, without expanding Federal power. The Spending Clause power, which Mr. Farris overlooked mentioning—needless to say, congressional dollars are spent all over the country, not the least of which is public schools. So public schools could not refuse to permit a student to make up work after missing class or an exam because of a religious holiday. A public school would have to excuse a student from attending a sexually explicit assembly on safe sex if the student objected on religious grounds.
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    A public university could not forbid students from living off campus in a religious community or require them to live in coed dorms contrary to their religious convictions. Public medical schools receiving Federal aid could not deny admission to an applicant because she stated her religious objections to performing abortions. The list goes on.

    Secondly, RLPA's section 3(b), which also was not discussed by Mr. Farris, would protect every church and synagogue and house of worship in the country in the area of land use; the record from the five hearings before this subcommittee are replete in describing this as a nationwide problem.

    Third, the act's Commerce Clause section would trigger and extend coverage to, as I mentioned earlier, religious schools that, for example, are denied accreditation because they refuse on religious grounds to teach some State-mandated curriculum on, for example, sex education.

    Churches (big and small) charities and religious book stores, who wish to hire employees of the same faith, would have potential coverage under the Commerce Clause. Prison inmates and ministries that minister to inmates would be able to have some kind of an argument when wardens in State prison systems bar religious literature from going to people like Pat Nolan.

    Finally, RLPA would clarify—and this also was not discussed by Mr. Farris—that every Federal employee, every Federal policy, all 2 million civilian employees of the Federal Government and a million men and women in uniform and their dependents, are all still protected by the 1993 RFRA.
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    For all of these reasons, members of the committee, we strongly support the immediate passage of this bill and thank the committee for its leadership in this regard. Thank you.

    Mr. CANADY. Thank you.

    [The prepared statement of Mr. McFarland follows:]

PREPARED STATEMENT OF STEVEN T. MCFARLAND, DIRECTOR, CENTER FOR LAW AND RELIGIOUS FREEDOM

    The Christian Legal Society (CLS)(see footnote 131) recognizes the dire need for federal legislation to restore the highest legal protection for religious freedom and urges you and the subcommittee to wield every constitutional means available to the Congress to achieve this end. CLS believes that H.R. 4019, the Religious Liberty Protection Act (RLPA), is the best vehicle for such protection at this time.

    For the following reasons, our friend, Michael Farris, is mistaken in his arguments against H.R. 4019 (''RLPA'').

1. RLPA Would Protect Individual Believers And Religious Institutions, Small Churches As Well As Large.

    The portion of RLPA based on the Commerce Clause would protect small churches and ministries, as well as large ones, because both frequently depend on purchasing and distributing goods and services across state lines. The size of the church budget or of the bookstore's inventory will not be determinative. The question will be whether the adverse impact on religious exercise at one church—when repeated on a statewide scale—will substantially affect interstate commerce. In many cases, the answer will be ''yes.''
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    If a small Baptist church (or a huge one) were forbidden by state law from requiring that its choir director be a practicing Christian, chances are good that both churches would dispense with the position. No matter how big or small the church, both buy their hymnals from Indiana, their choir robes from Missouri, and their sheet music from Tennessee. Therefore, the state law burdening their religious exercise in employment will, through repetition in numerous places of worship, substantially affect interstate commerce, thus triggering RLPA.

    If a state prison system forbids the possession of Bibles and religious literature by inmates, that statewide policy affecting thousands of prisoners would trigger RLPA; literally millions of dollars worth of religious literature crosses state lines in the U.S.

2. Using The Commerce Power Of The Congress To Protect Religious Exercise Will Not Expand Federal Power.

    RLPA would not expand Congress's power beyond its present boundaries. Its entire purpose is to constrain state governmental power with the strictest test known to the law.

    RLPA neither approves nor disapproves of the Supreme Court's decision in Lopez but simply abides by it. RLPA would appropriate the Congress' power under the Commerce Clause to the extent the Clause permits—no more, no less. By closely tracking the wording of the Clause, RLPA's Commerce Clause section will expand or contract as broadly or narrowly as the Supreme Court interprets the Clause in the future.

    The fact that RLPA would not expand federal power is further guaranteed by two explicit disclaimers. Section 5(b) states that ''(n)othing in the Act shall create any basis for regulation of religious exercise or for claims against a religious organization . . .'' And section 5(e) underscores that ''(p)roof that a religious exercise affects commerce for the purposes of the Act does not give rise to any inference or presumption that the religious exercise is subject to any other law regulating commerce.''
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    Rather than expanding federal power under the Commerce Clause, RLPA would use that Clause to restrain the federal and state governments from burdening religious Americans: from church schools to religious bookstores; from small businesses to prison inmates; from churches to day care centers to private landlords.

3. By Using Its Commerce Clause Power, Congress Would Protect, Not Denigrate, Religion.

    The presupposition for the bill is not that religion is just another commercial transaction. Rather its presupposition is that state and local regulation often places a heavy burden on religious practice, and Congress should use its powers to protect our precious religious freedom from such abuse.

    Some religious practices do affect interstate commerce—that is a fact, not an insult—and so the Congress can, and should, protect it.

    Our desire that the Congress use every arrow in its constitutional quiver presupposes not ''an insult'' but the highest reverence for religion, for its autonomy and for its free exercise.

    Congress' powers are limited under the Constitution and this is quite proper. What would be improper, in our view, would be to use these enumerated powers to legislate on all manner of issues, save protection of our religious liberty. As church-state scholar Professor Michael McConnell recently responded to Mr. Farris' criticism: ''RLPA does not purport to change the reach of federal government power, but simply to enshrine religious freedom protection within that domain.''
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4. RLPA Would Protect Much Religious Exercise

    Current court interpretation limits the scope of Congress' legislative power over state or local activity to: conditioning the ways federal money is used by states, regulating interstate commerce, or remedying proven state infringements on due process, equal protection or the privileges and immunities of citizenship. The Religious Liberty Protection Act properly uses all three of these shields to protect religious liberty uniformly for all Americans.

    The outcome in the following scenarios will turn on their own facts. But RLPA would unquestionably make it more difficult for the government to defeat the following claims.

4.1 Protection Based On The Spending Clause Against Interference By State And Local Government.

    If a state's welfare-to-work program requires that a welfare recipient attend training classes and schedules them exclusively on Sunday mornings, RLPA would enable those welfare job trainees to be able to get the training as well as attend church (by requiring that the state provide training on non-Sabbath days).

    A public school could not refuse to permit a student to make up work after missing class or an exam for a religious holiday or worship service.

    A public school would have to excuse a student from attending a sexually explicit assembly on ''safe sex'' if the student objected on religious grounds.
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    A public university could not forbid students from living off campus in a religious community or require them to live in co-ed dorms contrary to their religious convictions.

    A public medical school receiving federal aid could not deny admission to an applicant because she stated her religious objection to performing abortions.

    If RLPA were enacted, all of the beneficiaries of federal programs would have their religious exercise protected from most government interference. Beneficiaries would include: students attending public universities and receiving federal financial aid; Americans living in federal housing projects and subsidized housing; public elementary schoolchildren from low-income families participating in Title I supplemental education programs; children, parents and employees at Head Start and other government-run child care centers receiving child care block grants; those who live in government housing for the elderly or handicapped; students at public institutions in the healthcare professions receiving federal education and training assistance; and many others.

4.2 Protection From Interference By Federal Government.

    In addition to protecting the beneficiaries of all these state and local programs that are federally subsidized, RLPA would clarify that the Religious Freedom Restoration Act of 1993 applies to federal law, policies, property and employees. This would mean the highest level of legal protection for the religious expression of:

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two million federal civilian employees of the Executive Branch (from postal workers to U.S. Attorneys);

a million men and women in uniform, including their dependents, around the world;

those with public access to federal buildings, parks and monuments;

employees of, job trainees and patients in veterans programs;

the thousands of diplomatic personnel of the State Department worldwide; and

every person whose religious exercise is substantially burdened by any federal statute, regulation, Executive Order or policy.

4.3 Protection Under The Commerce Clause

    In passing RLPA, Congress also would be using its explicit constitutional power to regulate commerce between the States and would make it more difficult for the government to defeat religious liberty claims. Countless federal laws have exercised this power, including the proposed federal ban on partial birth abortion. It would be tragic if the Congress failed to use this power to help shield our First Freedom uniformly for all persons, regardless of the state in which they live.

    Religious exercise is defined in RLPA not in terms of dollars or size of budget, but as ''act or refusal to act that is substantially motivated by a religious belief. . .'' [sec. 8(1)]. Thus, RLPA defines a very broad scope of potentially protected religious activity.
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    While RLPA would have a broad scope of beneficiaries, it also respects the constitutional limits of congressional power. The Act's protection under the Commerce Clause would be triggered if a person's religious exercise were ''in or affecting commerce . . . among the several States. . .'' The Supreme Court has most recently said that a law based on the Commerce Clause ''requires an analysis of whether the regulated activity 'substantially affects' interstate commerce.'' U.S. v. Lopez (1995). In determining this, the Court asked whether the regulated activity was ''in any sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.'' Lopez affirmed the common sense proposition that power under the Commerce Clause must be based on a commercial transaction, but it cast no doubt on the Court's longstanding view that Congress may regulate many small transactions that affect commerce in the aggregate.

    If landlords are required, contrary to their religious convictions, to rent their real estate to unmarried couples engaging in what the property owners sincerely believe is sinful behavior, Congress may reasonably conclude that many landlords of conscience will take their units off the market, convert them to nonresidential uses, etc. Through repetition, these economic decisions can substantially affect the volume of commerce, the supply of housing and therefore the price of housing, and the interstate movement of potential tenants.

    If a group supporting abortion rights sues a printer under a state civil rights law for refusing to print their pro-abortion leaflets because of the printer's religious objection to abortion, the printer could invoke RLPA for protection. Forcing such businesses to close if they refuse to violate their conscience would surely affect commerce.

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    If a government denies accreditation to church schools because they refuse on religious grounds to teach state-mandated curriculum, including evolution and sex education, the schools will qualify for RLPA's shield, based on the Commerce Clause.

    A municipal ordinance forbidding employers from discriminating against job applicants because of religion could force churches, religious charities, and religious bookstores to move out of town, close their doors, or downsize their staff to eliminate the job opening. This is ''economic activity that might [indeed would] through repetition elsewhere, substantially affect'' interstate commerce and travel. Indeed, the whole body of federal labor regulation and private-sector employment discrimination law is based on the Commerce Clause; it is inconceivable that employment cases are outside the Congress' power to regulate commerce.

    Similarly, if a state agency prohibits religious schools and day care centers from requiring that their employees be of the same faith, the churches, Jewish day schools, and denominational headquarters will close many of them. This will directly affect interstate trade (from diapers to toys to antiseptic cleansers to Graham crackers), so RLPA will be available as a defense for those religious schools and childcare centers.

    RLPA will not protect every religious individual and group from every burden that government might impose on their religious exercise. The Constitution wisely withheld general police power from the federal government. But states are economically diversified and highly interdependent, so that many activities of believers, if altered by government-imposed burdens, will substantially affect commerce and travel between the States.

4.4 Protection Under the Fourteenth Amendment For Church Land Use
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    For decades the Congress has passed civil rights laws protecting the right to vote, to be free of racial discrimination in employment and housing, etc.—legislation that went beyond the minimum required by the Constitution but was deemed appropriate for the enforcement of the Fourteenth Amendment's guaranties of due process and equal protection of the laws. The Religious Freedom Restoration Act of 1993 followed in this well-worn legislative path.

    In 1997, the Supreme Court ruled that the Congress exceeded its remedial power under the Fourteenth Amendment, that it had not proven to the Court's satisfaction that RFRA was a sufficiently tailored remedy for government interference with religious exercise that permeated every level of government and every kind of law. In City of Boerne v. Flores, the high Court told the Congress that its remedial legislation must aim at a smaller target, a problem that congressional committees have scrutinized and found to be a serious, nationwide obstacle to the exercise of a fundamental constitutional right.

    Local land use regulation that discriminates against churches is that kind of a national problem. In the multiple hearings in 1997 and 1998 before this subcommittee, witness after witness testified to this growing, pervasive problem. Many cities disfavor churches and religious property uses because they cannot collect property tax from them, and minority faiths are not always welcomed by mainstream majorities.

    Consequently, many cities will permit churches to locate only in areas that are inappropriate (industrial zones, red light districts), already fully developed, and/or prohibitively expensive. Some jurisdictions make no provision for churches at all.

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    So RLPA specifically targets discriminatory land use regulation, based on the Congress' remedial power under section 5 of the Fourteenth Amendment.

    As presently worded, section 3(b) on land use is both stricter and more lenient than RLPA's general standard for all other covered burdens on religious exercise. Section 3(b) requires the local zoning board to prove that burdening the church's access to or use of land ''is the least restrictive means to prevent substantial and tangible harm to neighboring properties or to the public health or safety.'' While ''substantial and tangible harm'' may be less difficult for the government to prove than a ''compelling government interest,'' the harm that justifies the law is much more limited—it must substantially and tangibly harm neighboring properties or public health. In addition, subsections (1)(B) and (C) are outright prohibitions against two of the most common forms of zoning discrimination; they apply no matter how compelling the government's alleged interests might appear.

    Literally every church, temple and mosque, as well as every religious school and parachurch ministry, would be protected under section 3(b) of RLPA.

4.5 Protection Under the Fourteenth Amendment Generally

    RLPA also simplifies the litigation of all free exercise claims by shifting the burden of persuasion to government once the claimant shows a prima facie case. Because the Supreme Court's free exercise test has many exceptions of uncertain scope, shifting the burden of persuasion has many potential applications. Some examples:

    A local school board imposes policies that make it difficult or impossible for parents to home school their children. Religiously motivated home schoolers make a hybrid rights claim, invoking both the Free Exercise Clause and the right of parents to control the education of their children. Once the parents show a prima facie case, the school board would bear the burden of persuasion on its purpose for imposing the burdensome regulations, on the applicability of the hybrid rights doctrine, and on the existence of a compelling state interest.
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    Many laws that burden religion have exceptions for favored secular activities. Land use laws, employment laws, bankruptcy laws, and most forms of regulation have exceptions. Any such law can be challenged under the Free Exercise Clause as not being generally applicable. These cases often turn on the difficult issue of whether the burdened religious practice falls in the same regulatory category as the exempted secular activity. Under section 3(a) of RLPA, government would bear the burden of persuasion on this issue. This is another way to win in cases also covered by the spending and commerce clause sections, and it is a way to get a more complete remedy in cases against statewide agencies that are protected by special immunity rules.

    For example, a New York City school district allows community groups to rent school facilities on weekends, except for worship or religious instruction. A church that was denied access to facilities for Sunday worship services could invoke RLPA to clarify that the school district bears the burden of persuasion in justifying this favoritism for secular over religious activity. See, e.g., Bronx Household of Faith v. Community Sch. Dist. (2d Cir. 1997), cert. denied (1998).

    A prison warden permits a generic Christian worship service, or a Catholic service and a generic Protestant service, but refuses to permit a separate evangelical service. He has made some comments suggesting hostility to evangelical Christians. The burden of persuading the court that he acted for a nondiscriminatory motive would shift to the prison authorities.

5. A Federal Statute Is Presently The Most Viable And Responsible Means Of Protecting Religious Liberty.
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    Mr. Farris offers several alternatives to RLPA, all of which he admits are politically nonviable.

    Re-enacting the Religious Freedom Restoration Act of 1993 in defiance of the Supreme Court's decision striking RFRA as to the states (City of Boerne v. Flores, 1997) is not a possibility in this Congress, nor is the President likely to sign a bill that has been previously declared unconstitutional.

    Stripping the Supreme Court (or all federal courts) of jurisdiction in religious freedom cases would leave believers to the mercies of state legislative majorities and of state judges. This would foolishly deprive religious claimants of what is frequently their most important venue for vindicating their fundamental rights. Our First Amendment was intended to remove such rights from the fickle ''tyranny of the majority.''

    Impeaching the Justices on the Supreme Court who voted to strike RFRA in Boerne is not a responsible step. Mr. Farris offers it only as a means of ''getting the attention of'' (i.e., intimidating) the Court. His suggestion that Congress threaten a ''court-packing'' scheme has the same purpose and is equally doomed.

    Amending the federal Constitution may be necessary, especially if RLPA were to be enacted and then struck by the Supreme Court. But the serious step and lengthy process of amendment should only be undertaken as a last resort. The case for an amendment cannot be made as long as a federal statute like RLPA is still constitutionally and politically viable.

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Conclusion

    Like Mr. Farris, the Christian Legal Society wants religious freedom protected at the highest level. To this end, we urge you and the subcommittee to pass RLPA, and to include within it every means the Constitution affords to the Congress. Our First Freedom deserves nothing less. Through RLPA, the Congress can restore meaningful legal protection to our First Freedom using all the tools explicitly granted to it by the Constitution. While not reaching every area of government interference with religious exercise, these powers together can shield much of the sacred, and do so uniformly for all Americans of faith.

    Mr. CANADY. Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman. And I want to thank the witnesses for their testimony. I think one of the questions that we kind of went through is the effect of the Commerce Clause and who is covered and who isn't.

    Mr. Farris, do you want to respond to the comment that small churches would, in fact, be covered?

    Mr. FARRIS. Mr. Scott, I appreciate the opportunity to respond. I believe that the test will be—both for the Spending Clause and the Commerce Clause—that there must be a nexus between the activity that is being challenged and the government program that is being challenged and interstate commerce.

    So small ministries and individuals, I believe, will be left out of the majority of the cases. The question to ask the people who support this, all of whom admit that this is not a broad protection of religious liberty for all Americans, as the Justice Department said is the goal, is, who is left out? That is the question that they have to answer. Who is left out?
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    And I would submit that my friend, Mr. McFarland, is wrong when he says that the attendance makeup, a case that he projected in the public schools because that activity is not federally funded—the mere receipt of Federal funds for the school in general or for the education for special needs children, for example, should not make a difference in that makeup case or in the sex film case. If the sex education films were federally funded, then you should have an argument; but if they were purchased by local funds and State funds, you should have no argument.

    So we are leaving gaping holes in religious freedom here. RLPA supporters admit that they are leaving gaping holes. And having litigated these kind of cases myself for 22 years, particularly with home schooling, I can tell you I can't close the holes for the home schooling families under this bill. I can't use this bill to protect the religious freedom of home schoolers. And having litigated a number of cases for parents and teachers and others in public schools, I don't think you can close it in the public school cases either, because there should be a direct nexus between the Federal funding or the interstate commerce and the activity in question. It is almost never there.

    And so the small, the weak, and the individuals are left out. The big, the mighty, the rich, and the wealthy are going to have the easier time, not only in terms of the ultimate decision, but in terms of litigating the case. You add to the cost of litigating these cases substantially because every time you are going to have to hire economic experts to come in and say, ''Well the purchase of these home schooling books that are religious in character, if we repeat this a number of times, it is going to substantially affect interstate commerce.''

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    Well, you have raised——

    Mr. SCOTT. Let me kind of ask another pointed question along those lines. If you were running a restaurant that used in-state homegrown food, but it is a restaurant, and just served people within the State, could you discriminate on the basis of race?

    Mr. FARRIS. Under the current decisions, I think you could see that outcome. That is because we use the weak link of the Commerce Clause as the basis of civil rights laws, as opposed to using the 14th Amendment's power, which I think is the far greater power to protect the liberties and equal protection of all Americans. So to the extent that commerce——

    Mr. SCOTT. Wasn't there a guy with an axe or something in Georgia that tried to do that?

    Mr. FARRIS. Right. I mean, the question is, where is the law now? Katzenbach v. McClung, the Ollie's barbecue case that came in the mid-1960's, upheld the plenary authority of Congress to outlaw race discrimination on the basis of interstate commerce. I don't think that case would necessarily come out the same way today.

    I think that using the Commerce Clause is a weak link to achieve a good result. I think that we should use the 13th Amendment and the 14th Amendment as authority for passing laws against race discrimination, not the Commerce Clause. It is not wrong because it is a commercial transaction; it is wrong because it is race discrimination. And our Constitution explicitly speaks against race discrimination and explicitly gives Congress authority to enact laws that protect us against race discrimination. That is the reason that Congress has the authority to do that, not because it is a commercial transaction. I see a broader authority for Congress if we rely on the explicit grant that relates to race discrimination.
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    Mr. SCOTT. Let me ask all of the panelists to comment on the effect that this bill would have in the context of being the last bill passed on someone's ability to get around racial discrimination laws based on religious conviction.

    Mr. MCFARLAND. Mr. Scott, it is very clear, if there is anything clear in civil rights law, it is that there is a strong and compelling government interest in eradicating racial discrimination. So I can't imagine any case in which it would be—the government would be unable to justify the application of civil rights laws in that context because of a religious objection. It would—this is strictly, as you know, reasserting a standard of review, a standard of review under which eradication of racial discrimination has always been successful.

    Mr. SCOTT. So the safety and health exceptions which are explicitly listed did not need to satisfy the compelling State interest, but you think the racial discrimination would satisfy the compelling State interest?

    Mr. MCFARLAND. The Congressman is looking at the land use section in 3(b) and that health and safety——

    Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.

    Mr. SCOTT. Thank you, Mr. Chairman.

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    Mr. MCFARLAND. That applies to zoning decisions, and frankly is a standard which has been amended recently, not certainly by this subcommittee, but in discussions with the Justice Department. There are a number of us who would amend that section and suggest an amendment in that regard. But that is obviously not before this committee.

    But my point is, the general standard of compelling government interest is—has no difficulty being met in the area of racial discrimination. And the standard that you are looking at is strictly for land use decisions.

    Mr. FARRIS. Mr. Scott, if I can volunteer and perhaps shut the door on that, I agree with Mr. McFarland on race discrimination.

    Mr. SCOTT. As you answered the question, you made the comment about sexual orientation discrimination?

    Mr. FARRIS. Yes.

    Mr. SCOTT. If we were to pass legislation to expand antidiscrimination to include sexual orientation, where would that come down?

    Mr. FARRIS. With respect to race discrimination, the Supreme Court has determined that there is a compelling governmental interest, that is the highest level of government interest. So if race discrimination laws pass the highest test, the question is whether gay rights laws would also be held to be a compelling governmental interest. The fact that Congress passes such a law is evidence of the strong governmental interest. But whether the Supreme Court labels that compelling or not is undetermined.
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    Mr. SCOTT. Mr. Nolan.

    Mr. NOLAN. Mr. Scott, in answer to your earlier question about whether it would protect the small churches, most of the testimony has been from a litigation perspective, but the history with RFRA and with RLPA will be the same: It is most effective as a tool of negotiations. It gives us a seat at the table to try to see, if there is a way to advance the government interest in the least restrictive way. It sets up a discussion. And it is a powerful tool, no matter what the size of the institution.

    Our ministry ministers to the ''least of these.'' I don't think there is any class of our citizens that is more vulnerable and more unpopular than prisoners. Yet, RFRA gave us a tool to try to get access to prisoners to advance the gospel to them.

    Now, frankly, RFRA, which Mr. Farris supported, was an imperfect tool; it didn't cover everything. I have a letter here from a prisoner while RFRA was in affect. It says, ''Already in our jail, the officers are limiting what we can have in terms of any religious materials and services. One inmate got some study materials sent to him, but the mailroom said that they were more appropriate for a chaplain, so he should give them to the chaplain instead. The items were never received by the chaplain.

    The weekly services are now monthly. And the officers often ''don't get'' requests from inmates who who wish to attend. This makes the groups ''smaller and easier to watch'' according to one officer. Bibles must be requested in writing from the chaplain, but those requests, too, are often left lost in the mails. And little, if any, study material is ever available here. Bible studies mailed in are oftentimes returned to sender marked ''No longer here,'' when we are.
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    My own experience was the same. Three times, the legislative chaplain, Richard Cherry, tried to send a Bible in to me. Three times it was sent back to him saying, ''It does not comply with Federal regulations,'' even though it complied with every jot and tittle. RFRA did not give me protection there. It only gave us a lever to try to get compliance. And that is, I think, the most important tool that RLPA will give you. It the gives the poor and the vulnerable at least an argument to say, ''yes,'' you have a compelling interest to maintain order in a prison; but isn't there a way to satisfy that need in a less restrictive way?

    Mr. CANADY. The gentleman's time has expired.

    Mr. Hyde.

    Chairman HYDE. I have no questions.

    Mr. CANADY. Mr. Nadler.

    Mr. NADLER. Yes. Let me ask Mr. Farris some questions. I am a little confused.

    Let me, by the way, say, did George Will really say the reason for the establishment of this country was to establish the primacy of capitalism over religion?

    Mr. FARRIS. He certainly did. And he's no conservative when he says that.
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    Mr. NADLER. You just confirmed my lack of regard for his general opinions then.

    Of course, I think it was Oliver Wendell Holmes that said the Constitution did not establish Herbert Spencer's social contract nor George Will's capitalism nor Adam Smith's The Wealth of Nations. In any event, I am a little confused by your argument, sir.

    Mr. FARRIS. Okay.

    Mr. NADLER. Assuming the factual basis for which the other gentlemen here dissent from, isn't your argument really saying that RLPA is not perfect? It doesn't defend—it doesn't protect all religious liberty? It protects some, but not all, and therefore we shouldn't do any?

    In other words, let's assume that the Commerce Clause's reach is as limited as you think it is. What you seem to be saying is, we can't do the job that we could do in RFRA, which you supported. The Commerce Clause—the constitutional basis is more narrow. The Supreme Court has forced us to that expedient. And therefore let's not do it at all.

    I mean, the way I always look at a legislative thing, if I have a goal, which is to protect freedom in this case, and I can protect 50 percent of freedom—I would rather protect 100, but if I can protect 50 percent, it is a lot better than protecting zero.

    Mr. FARRIS. Well, I understand that argument, Mr. Nadler, and it is one that concerns me. First, though, I don't believe that this bill will be held to be constitutional. Chuck Colson, who supports this legislation, has written to me and said he believes the bill may be stricken on its face as unconstitutional.
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    Mr. NADLER. That is a different question.

    Mr. FARRIS. But the answer is, if it is unconstitutional under the Separation of Powers, we are wasting time with that legislative approach when we should be doing something else. If we are going to protect religious liberty, let's get the job done rather than spin our wheels.

    Mr. NADDLER. How would you do it?

    Mr. FARRIS. But to answer your question directly, the question is, who are we leaving out; and what will be possible for them after this bill is passed? I would submit to you that all these ministries that have pumped out all of this direct mail to their members and their supporters saying ''We are going to solve all these problems in America by passing this bill,'' when it doesn't go as broadly as they hope, we are going to leave a demoralized group, and it is going to be the small and the weak and the powerless.

    Mr. NADLER. Mr. Farris, I have heard that argument. My question again is assuming—I haven't heard a way in which we could protect everybody. Should we draft it differently? What ways do we have, given the Boerne decision of the Supreme Court? I think the Supreme Court was wrong and Smith was wrong and Boerne. A lot of good it does that I think so. Given the Supreme Court's edict, what can we do that is better than this?

    Mr. FARRIS. Well, if I can just complete the thought, then I will answer that question directly.
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    The thought is this, that if we leave the weak out today, the weak will never have the political strength to come back and ask this Congress to find another way to protect them. We have got to pass a provision——

    Mr. NADLER. But that assumes there is another way. If you have one, let me know.

    Mr. FARRIS. To me, there is no easy solution to this. But I think that you could pass—repass RFRA and strip the Supreme Court of appellate jurisdiction over it. You have that power. This House just passed a bill stripping the Federal courts of jurisdiction over a certain class of inmate lawsuits brought under cruel and the unusual punishments; 350 votes approximately passed that Tom DeLay-sponsored measure. So that is one alternative.

    I am not opposed—and I am sure I have no support on this panel or the next one—I am not opposed to the idea of impeaching the Supreme Court, because they are not tied to a criminal standard like the President. They are tied to a standard of good behavior.

    I think when you misuse the First Amendment, that is not behaving very well. I think you send a shot across the street that says, ''You guys had better interpret the First Amendment a little more generously or we are going to do something about it.'' I don't mind FDR's court-packing scheme. I think the fact of the matter is that the Supreme Court has told you, you have no legislative authority in this to redefine the Constitution.

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    What you are doing here today is trying to redefine the Constitution anyway. And you are stuck with what the Court said. You either confront it directly or you can play games. I think this is playing games.

    Mr. NADLER. Thank you.

    Let me ask Mr. McFarland a somewhat different question.

    Can I have another 2 minutes?

    Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.

    Mr. NADLER. Well, thank you.

    I would simply observe that—from Mr. Farris' answer, that this seems a more practical attempt than some of the other suggestions.

    Mr. McFarland, I have introduced, along with Chairman Goodling, legislation to protect the rights of religious individuals against employment discrimination by strengthening the requirement in Title VII by legislating for the overturning three specific Supreme Court decisions, which were statutory construction decisions, to provide a reasonable accommodation of their religious practices in the workplace. How would this legislation interrelate with other antidiscrimination legislation where either an institution or an individual claimed a right under the Religious Liberty Protection Act, should it pass, to discriminate? And how would this affect the application of those laws to both suspect and unsuspect classes of people?
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    Mr. MCFARLAND. The Workplace Religious Freedom Act, which you cosponsored, and we are grateful that you have——

    Mr. NADLER. I wrote.

    Mr. MCFARLAND. You wrote. The Christian Legal Society is very supportive of and thanks you for doing that.

    As we have been talking about this morning, there are limited spheres of influence that each of these bills can cover. The Religious Liberty Protection Act is the subject of our testimony this morning and would cover that which Federal funds affect and that which is in interstate commerce. Also, it would affect land use regulation that affects religious activity.

    That does not encompass private activity, including discrimination by private employers against employees with religious convictions. And your bill would add an additional complementary sphere of influence that would restore statutorily Congress' original intent in the 1964 Civil Rights Act that employers, public and private, be required to make reasonable efforts to accommodate the religious practices of their employees unless they can prove that doing so would create an undue hardship.

    So I believe your bill, Mr. Nadler, would be very complementary with RLPA and it is one of the highest legislative priorities for the Christian Legal Society.

    Mr. NADLER. Thank you.
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    Mr. CANADY. Now I recognize myself for 5 minutes.

    Let me explore something with you, Mr. Farris. I understand from your testimony which you provided here, as well as your written testimony, that you are concerned about the overreaching of Federal power beginning with the New Deal. You think that was kind of a watershed event in our history where the Supreme Court moved the wrong way in interpreting the Constitution.

    Now, one of the major legacies of the New Deal was Social Security. Do you believe that the Social Security system constitutes an example of the overreaching of Federal power and is an improper use of Federal power?

    Mr. FARRIS. I will touch that third rail. The answer is yes.

    Mr. CANADY. Okay.

    Mr. FARRIS. And by the way, the author, the chief legal architect of the Social Security law, says it is the worst thing he ever did in his career.

    Mr. CANADY. So you believe that Social Security is not within the proper scope of congressional power, to be clear?

    Mr. FARRIS. Sure.

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    Mr. CANADY. Okay. Let me continue on this issue about federalism. You assert that the bill puts the values of religious freedom and federalism in direct opposition. Now, I understand the point you are making there, but isn't it true that the Religious Freedom Restoration Act of which you were a vigorous, a very able proponent, was itself designed to restrict the power of the State, that is, to require that State power yield in at least some circumstances to the free exercise of religion? So isn't your concern more with how the Federal Government restricts the power of the States than with whether it restricts the power of the States?

    Mr. FARRIS. The belief that I have is not that the power of the States should be able to run free. I believe in the Constitution. And I believe that the Constitution gives this body enumerated powers, explicit enumerated powers. There is an explicit, enumerated power in section 5 of the 14th Amendment to enforce the 14th Amendment. And I agree with the jurisprudence that says that the word ''liberty'' in the 14th Amendment's first section has some content, that we are not just talking about process, but there is content to liberty that is protected as well.

    So I believe that this body has the authority to protect the content of liberty, and the free exercise of religion certainly fits in with the content of the fundamental liberties of this Nation that is within the 14th Amendment. I do not believe—as James Madison did not believe—that the Commerce Clause gives plenary authority.

    James Madison, when he was President of the United States, vetoed the bill that authorized the building of roads, bridges, and canals because there was no congressional authority to do so. He said, ''If you do that, if you allow the building of bridges, roads, and canals, then the congressional power will run amok and there is no area of life that we will be able to stop from congressional power.'' His prediction was absolutely correct.
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    Mr. CANADY. So, on that, you would also be opposed to any public works of that sort authorized by the Congress?

    Mr. FARRIS. Mr. Canady, I believe in the original intent of the Constitution. If you want to paint me as a constitutional extremist, you have done an adequate job of pointing out that I don't believe as Social Security as a commerce power. I think that is properly a State function, not a Federal function. I think that road building is properly a State function, not a Federal function. But you don't have to go all the way to Mike Farris' view of the Commerce Clause to recognize that this bill is a problem. Just take what the Supreme Court has said in Lopez.

    Mr. CANADY. Let me——

    Mr. FARRIS. And that's a more——

    Mr. CANADY. Let me reclaim my time here. I am just trying to figure out exactly what your views are on this, and you are entitled to express them. That is why we are having the hearing.

    But let me ask you, continuing on something you said, if I understood you correctly, you believe that the Civil Rights Act of 1964 is, in light of the Lopez decision, on shaky ground. Is that correct?

    Mr. FARRIS. To the extent that it relies exclusively on the Commerce Clause as its authority, I think that is correct. I prefer Justice Douglas's concurrence in the Katzenbach v. McClung case which relies on the 13th and 14th Amendments as the authority for Congress. I think that the law is completely constitutional.
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    Mr. Canady, if you are going to ask me questions that are designed to embarrass me, I am entitled to respond.

    Mr. CANADY. Please do.

    Mr. FARRIS. The answer is, I believe that the antidiscrimination laws of the 1964 Civil Rights Act are constitutional. I believe they are best defended and best understood as constitutional when they are premised on the 14th Amendment and the 13th Amendment, not on the shaky grounds of the Commerce Clause.

    Mr. CANADY. I guess the problem I have with that is squaring that with the Boerne decision. If you feel they are on shaky ground under the Commerce Clause, what ground would they stand on under the Boerne decision? I don't know. I don't think it is on shaky ground. I would disagree with you on that.

    Mr. FARRIS. The Supreme Court in Boerne said that if Congress is passing laws designed to enforce the same standard that they have announced, then fine, you have got all the power to enforce their standard. But if you are trying to enforce a different standard of constitutional rights, then you don't have that authority.

    They would say that the Civil Rights Act is trying to enforce the same standard that the Supreme Court has enacted, so you are on strong ground there. That is why Boerne will give you no problem. It is Lopez that gives you a potential problem for the Civil Rights Act in its reliance on the Commerce Clause. If Congress is passing this law which is adopting a different standard of constitutional rights, then that is where the Boerne decision gives you problems.
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    Mr. CANADY. Let me give myself 3 additional minutes.

    I was struck in your testimony by your statement that believers cannot submit to Caesar what is rightly God's. I think most believers would certainly adhere to that. One of the things that that brought to my mind is the controversy over the incorporation of churches which raged earlier in the history of our country.

    People who were antiestablishmentarianist were opposed to incorporation of churches because they felt that was kind of giving something to the churches they shouldn't get; at least some people felt that way. Others in churches felt that receiving a charter of incorporation from the State somehow compromised the religious status of the churches.

    I really see that debate as kind of a parallel to the argument you are making about the use of the commerce power in this context. What are your views on that? Do you think it is a submission to Caesar when a church receives a charter of incorporation from the State?

    Mr. FARRIS. Mr. Canady, I live in the Commonwealth of Virginia. The Commonwealth of Virginia, in its Constitution, prohibits churches from being incorporated. The State of West Virginia also, in its Constitution, prohibits the incorporation of churches. James Madison, when he was President of the United States, vetoed another bill that allowed the Episcopal church in Alexandria, when Alexandria was a part of the District of Columbia, to incorporate, because he understood it to violate the Establishment Clause of the United States Constitution.
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    My views are that for the government to give sanction to religious activity, to create the juridical person of a corporation, is unnecessary and can lead to danger. The church of which I am elder board chairman and interim pastor is not incorporated because, (A), it is unnecessary and, (B), I think it does lead to potential extra regulation of the church. Whether churches do it or not I don't think is——

    Mr. CANADY. Do you believe that that would in essence be submitting to Caesar what is rightly God's, if the church accepts a charter of incorporation from the State?

    Mr. FARRIS. That is how I interpret scripture, but that is different from interpreting the Constitution. You asked me for a scriptural interpretation at that point, and my answer is yes, as a matter of scriptural interpretation.

    Mr. CANADY. I understand that you are giving a scriptural interpretation about God and man, but I don't think there is much about that in the Constitution.

    Mr. FARRIS. Of God and Caesar.

    I agree with that. I am making an appeal that as a practical matter, there are a number of people like myself who would have a problem of conscience in coming into court and arguing that what we are really doing is a commercial transaction. Look at how we affect commerce here in our claim.

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    I think I am the only person on this panel who has spent substantial time in the courtroom, actually putting witnesses through the paces of testifying in a free exercise case. Others have written amicus briefs and so on, and appellate briefs, but I am a litigator. I go in the courtroom and have done so for 22 years. I have worked with the witness, I have worked with the pastor, I have asked them the questions that established the predicate for the case. I think I have some understanding of the kind of predicate that you are going to have to lay to get a factual basis for claiming protection under the RLPA. You are going to have to go into all the commercial things. You will commit legal malpractice if you don't try to prove how commercial this really is. I think it is an affront to my faith. I will have clients that will refuse to do it.

    It puts you in a potential quandary if you take the scripture as I do. Not everybody takes the scripture as I do, and that is fine, but there will be a substantial number of people who do, and we leave those people out. The question for all the people that supported this is, ''Who is left out and why?'' That is the question you all need to answer.

    Mr. CANADY. Thank you for your testimony. Mr. Hyde is recognized.

    Chairman HYDE. I just want to make a comment. I just want Mr. Farris to know that he is not without his admirers and supporters on this side of the bar here, because I think you have a strong view of the Constitution under the original intent. The problem is not that you are not accurate legally and historically, but the courts have so adulterated the language and the plain meaning of the Constitution that we are confronted with practical problems that I think were best expressed in Casey v. Planned Parenthood where the Court said, ''Look, we're stuck with Roe v. Wade. It may be questionable but we're living with it, people have relied on it, and so we have to proceed as though it were legitimate.''
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    I think the question of Social Security, the question of the Civil Rights Act, I think constitutionally you are probably quite right. But again, we are an amalgam of the Constitution and somebody's views of pragmatism. But I want you to know you are not viewed as off the wall at all by this Member. I am not sure—I don't take the rigorous position you do, but I think it is refreshing to hear somebody go back to the real document, the Constitution, and what our Founding Fathers meant.

    We shouldn't be here discussing this bill, because the Constitution is quite unequivocal: Congress shall make no law respecting an establishment of religion or inhibiting the free exercise thereof. That is pretty clear. But the courts have mucked it up, and I think the phrase Mr. May used said we the people; it is we the Justices who are running this country.

    The real answer is to strip the Court of this issue rather than horse around with a clever, inventive idea of using the Commerce Clause. As a practical matter, that won't fly. We have tried it before on other issues. It was good enough for the Norris-LaGuardia Act, and it is something that I think is the real answer, but it is not what——

    Mr. NADLER. Will the Chairman yield?

    Chairman HYDE. Certainly.

    Mr. NADLER. Thank you. I am just struck by the history here. I about a year ago, read a biography of Abraham Lincoln. I always wondered why he became a Whig instead of a Jacksonian Democrat, given his populist sympathies. What I found in that book was the answer to the question.
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    The answer was that in Sangamon County in Illinois where he was first getting involved as a young man in politics, they needed a canal. The Democrats, following Mr. Madison's interpretation, the Jacksonian Democrats thought it was beyond the powers of the Federal Government to have internal improvements, as they called it in those days, what we would today call public works.

    But Abraham Lincoln, admiring Henry Clay, who was in effect one of the founders of the Whig Party, the antecedents of the Republican Party, Henry Clay had his American System, the central premise of which was that the Jacksonian Democrats, Mr. Madison and Mr. Jackson, were wrong in their interpretation of the Constitution and that the Constitution had plenary power—not plenary power—enabled the Federal Government to do internal improvements, and that the Federal Government should indeed fund roads and canals, and that was the original reason Abraham Lincoln became a Whig.

    It is fascinating to me to hear a constitutional discussion today replaying the debate between the Whigs and the Democrats in the 1830's, a debate which turned Abraham Lincoln, the founder of the Republican Party or one of the founders, into a Whig. I just wanted to make that historical observation.

    Chairman HYDE. You have made my day.

    Mr. FARRIS. Mr. Hyde, I would just like to thank you for your comments.

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    Mr. CANADY. Mr. Scott is recognized for additional questions.

    Mr. SCOTT. Thank you. I wanted to ask the witnesses if they could help us a little bit. In the Boerne decision, the Court pointed out that there was an insufficient record to justify the legislation. Could you tell us what practices would be permissible under RLPA, that would be included or not included on RLPA, that would have been under RFRA, are not included, not protected now, some specific cases that this would actually affect?

    Mr. MCFARLAND. I can take a stab at that. There are four areas that RLPA, as I understand it, would address, four spheres of protection. One would be, number one, clarifying that as to the Federal Government the '93 RFRA still applies. As you know, RFRA, to answer this part of your question, RFRA applied to every State and local law and action that substantially burdened religious exercise. If that was the plumbline of the way it was from '93 to '97, then in contrast we cannot at the present time, given the jurisprudence, enact that broad a remedy. We can address land use problems which as, Mr. Scott, you know from being in all these hearings, there is a substantial amount of testimony both—and there will be more in the second panel on that issue. That is based on section 5 of the 14th Amendment.

    So you have the reaffirmation of the Federal RFRA, you have the land use areas; any action that has an impact on religious activity through land use decisions would potentially be covered. Then you have the Commerce Clause, obviously, which has been the subject of discussion as to how narrow or broadly ''in or affecting interstate commerce'' extends. And, fourthly, you would have cases involving spending, and I listed a number of those in answer to Mr. Farris's rebuttal about the abstinence or the sex education hypothetical.

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    The latter wouldn't require an economic expert. You would simply have to ask the school superintendent, the ''condom demonstration assembly which was mandatory attendance for my client, where did you get the money for that?'' Answer: ''Well, that comes from a block grant from the Federal Government.'' ''Thank you very much;'' you have just made your predicate, no economics professors necessary.

    We didn't discuss specific cases under the Commerce Clause. I would suggest, for example, if a government denied accreditation to church schools because they refused on religious grounds to teach a particular State-mandated curriculum, for example, on sex education, the schools would potentially qualify for protection there, again, if there is the adequate nexus between the curriculum and the impact on interstate activity. If a group—for example, an actual case in Vermont—supporting abortion rights sued a printer under a State civil rights act for refusing to print their pro-abortion leaflets because of the printer's religious objections to abortion, the printer would be able to potentially invoke RLPA for protection. Forcing such businesses to close if they refused to violate their conscience would surely affect interstate commerce in many cases.

    You heard from landlords who are required, contrary to their religious convictions, to rent their real estate to unmarried couples that are engaging in what they believe to be sinful behavior. Congress may reasonably conclude that some landlords of conscience will take their units off the market or convert them to nonresidential uses, again which would impact interstate travel, interstate commerce.

    These are some examples under that one of four spheres of protection that specifically would enjoy a heightened standard of scrutiny under this bill.
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    Mr. SCOTT. Mr. Nolan, does your support for the bill require the Supreme Court to disagree with itself in the Boerne decision, to overturn part of its hostility to RFRA?

    Mr. NOLAN. No, sir. I think that Congress can address the problem in a different way, as it has in the past where the Supreme Court has struck down previous acts. For instance, the original child labor laws were attempted in three diferent ways, I think. Finally, the fourth time it was phrased in such a way that it passed muster with the Court and the National Fair Labor Standards Act became law. We don't think the Court has to overturn Boerne. We think it should, but we don't think it has to do that. We think it is wise that the sponsors of the bill have chosen the Commerce Clause, clearly enumerated in the Constitution as one of Congress' powers, and the Spending Clause, to base its authority on.

    In answer to your last question, I have a couple of instances right before me where I think RLPA would be a substantial help. In Pennsylvania, as I mentioned, the day care centers were served with notice that they had to comply with city ordinances against discrimination in hiring on the basis of religion. Of course these are church-based day care centers, with religion the main curriculum to these children. They certainly couldn't have an atheist teaching there.

    Anyway, the senior assistant counsel to the Commonwealth of Pennsylvania cited the Boerne case, and this came down within a month of the Boerne decision, cited the Boerne case in his order to them, saying they had to comply with the nondiscrimination ordinance. The Aleph Institute, a Jewish group that provides services to Orthodox Jews inside prisons in preparation for the High Holy Days, was preparing to send in goods for the ceremonial meals. They were denied by many prison chaplains on the basis that Janet Reno had put out a policy saying they couldn't accept any gifts and interpreting this as a gift.
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    Mr. CANADY. The gentleman's time has expired. The gentleman will have one additional minute.

    Mr. SCOTT. If you could finish up briefly.

    Mr. NOLAN. Because RFRA was still applied at the Federal level, we along with the Aleph Institute were able to get the Bureau of Prisons to accept these goods. Without RFRA or without RLPA making the States do it, we would be powerless. They would just say no, it does not serve a penological interest, and say no.

    Lastly, as we have tried to get into Maryland prisons, the State of Maryland said that Prison Fellowship is not a religion and therefore not entitled to access to come in and preach the gospel. Now they still limit us to only Protestants. If someone lists a faith, Lutheran, Baptist, Catholic, they are not allowed to attend our Prison Fellowship seminars; only if they check the generic box, ''Protestant,'' are they allowed to attend. Someone that doesn't claim a faith isn't allowed. That prevents us from evangelizing in prisons. RLPA would give us a seat at the table to say, is that reasonable? Is there another way to serve the penological interest while still giving access to religion?

    Mr. CANADY. Thank you. Mr. Hyde. Mr. Nadler.

    I will recognize myself for hopefully not even 5 minutes. I do want to focus on the alternatives that have been suggested. I think that most of us who have been involved in this recognize that we wish that the Religious Freedom Restoration Act had been upheld. This legislation that we have before us is not our first choice, but we really have come to this because we believe it is the most likely means of providing an extra measure of protection for religious liberty in our country. We are supporting it for that reason.
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    Some alternatives have been suggested in kind of outline. One is the direct reenactment of RFRA. These are alternatives that Mr. Farris mentioned in his testimony: One, the direct reenactment of the Religious Freedom Restoration Act; two, a constitutional amendment; three, a provision restricting the jurisdiction of the Federal courts over RFRA.

    On the direct reenactment of RFRA, it is my candid judgment that that would be an exercise in futility. We would have no success at the lower court level. It would be immediately invalidated by the lower courts. It would just work its way up to the top and be struck down in record time by the Supreme Court. I think that most people would share that evaluation of what would be likely to occur.

    Constitutional amendment, it is also my view on that that we simply don't have the votes. We have had some experience with constitutional amendments in this subcommittee; quite frankly, a little more experience than I would like to have. I can tell you that I don't think that it would succeed. I will tell you that if I thought it could succeed, I would be working on that, but I really think that that would be an exercise in futility.

    The third alternative that you mention in your written testimony, Mr. Farris, was this provision restricting the jurisdiction of the Federal courts over RFRA. I am just puzzled by that, that court-stripping provision, because RFRA is something that people need to go to court to use, and if you strip the courts of jurisdiction over it, I just don't know where that gets you. I am having a conceptual problem understanding how that court-stripping suggestion helps an individual whose religious liberty has been infringed by an act of a State or local government to get some redress. Would you want to respond to that?
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    Mr. FARRIS. Sure. I agree with you that the constitutional amendment is the best alternative and if the entire RFRA coalition would support it—RFRA passed unanimously in the House and 98-2 in the Senate—if the entire RFRA coalition would support it, it would be through this Chamber in record time, and I think it would be ratified at the State level in record time.

    I have never heard an explanation of why it is not politically possible, except that most of the groups on the left don't want it, without any explanation that I have heard of except a fear of an Istook amendment being attached to it. I think that is an irrational, unreasonable fear, and I think we should get on with the business of doing what is right.

    But the other alternatives that I have suggested have basically been to answer what Justice Fellowship has been saying, that even though they recognize that this bill will be declared unconstitutional by the Supreme Court, we have got to do battle with the Supreme Court. I don't suggest that it is going to establish religious liberty for anybody, but if Congress is going to preserve its prerogatives to be able to protect the rights of the people, I agree that it is a good idea to engage the Supreme Court. If you are going to engage them, I suggest, let's engage them.

    So I am not suggesting that that alternative protects anyone's religious liberty, but I don't think this bill protects anyone's religious liberty.

    Mr. CANADY. Talk about engaging the Supreme Court. You mention impeaching the Supreme Court as one solution. Mr. Farris, I am not trying to paint you as an extremist, I want you to understand that, but that is something you said. I want to understand if you really believe that it would be productive for us to undertake to impeach Justice Scalia, Justice Rehnquist and Justice Thomas because of their decision in these cases.
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    Mr. SCOTT. Not because of their decision in this case, but maybe for some other reasons.

    Mr. FARRIS. And I will go with Mr. Scott on that, some other cases as well. With respect to my suggestion, do I think that an impeachment would pass, no, I don't think that you would get the votes to do it. Do I think you would get the Supreme Court's attention? Yes. Nothing changed in the New Deal scenario except the people across the street woke up and somebody changed their mind. I am hoping that somebody across the street will wake up and change their mind and start reading the Constitution correctly.

    It is just based on pragmatic politics, Mr. Chairman, that I make those suggestions. I think that the Supreme Court is a political branch of government, not a legal branch of government. They are engaging in wild judicial activism, making up the law, not interpreting the law, not applying the law; and since they are politicians, I say we treat them like politicians and we do things that are designed to bring political pressure on them. That is the only reason. It is the equivalent of turning on the phone calls to a Congressman. That is all I am suggesting.

    Do I think that impeachment would be successful? No. Do I think it would have much effect? No. Do I think it would get the court's attention? Yes, maybe. Maybe we could get some votes changed over there, and maybe we could get the First Amendment interpreted correctly as it should be.

    Mr. CANADY. Thank you. My time has expired. Mr. Hyde, do you have anything else?
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    Chairman HYDE. I am ready for the next panel, Mr. Chairman.

    Mr. CANADY. We will move to the next panel. I do want to thank all the members of this panel for taking time to be with us. We appreciate your perspectives on this. I appreciate the sincerity with which all of you hold to your convictions on these important issues. Thank you very much.

    Mr. NADLER. Mr. Chairman?

    Mr. CANADY. Mr. Nadler.

    Mr. NADLER. May I ask unanimous consent to read part of my opening statement, which a late plane prevented me from reading at the time, and I would ask that the rest of it be included in the record.

    Mr. CANADY. Yes, without objection, you will be recognized now for the purpose of reading part of your opening statement, as the members of the second panel prepare to come forward.

    Mr. NADLER. Thank you. Mr. Chairman, I would like to make one observation which I think goes to the heart of this issue before us today. The true disaster of the Smith decision was to invite legislatures to hold rollcall votes on the fundamental rights of individual Americans. Religion should not always trump the law where it is burdened by a law of general applicability, but neither should it always give way to the whim of every bureaucrat. How we strike that balance as a society is never easy, but the difficulty of the task is no excuse for shirking our responsibility to respond to Smith effectively and appropriately.
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    Both with RFRA and now with RLPA, the Congress is attempting to employ a standard familiar to legal scholars, and more importantly to take the case-by-case balancing of these rights out of the political process where religious minorities and other disfavored groups will receive disparate treatment. As legislators we understand all too well that this is often the case, if not out of malice or popular political sentiment, then simply due to ignorance or the absence of a group's voice in the legislative process.

    The evil of favoring one religion over another, whether in the granting of exemptions to laws of general applicability or through some other means, is still clearly in violation of the Free Exercise Clause as enunciated in Smith. Even Justice Scalia recognized that. We as legislators perhaps understand the political and legislative process better than the Justices, and understand that carving out such exemptions on an ad hoc basis will inevitably disfavor the voiceless and the unpopular, hence the need for a more general rule.

    We have already begun taking rollcall votes on the Floor of the House on whether certain religious practices will be protected, in order to protect the rights of religious tithers in bankruptcy proceedings, for example. Although we did our best, we really had no way of being sure there was not some religious minority omitted due to a lack of information. Absent the general rule of the sort proposed in RLPA, I fear that this will be the only alternative.

    I would, therefore, close with the words of Mr. Justice Jackson, who observed 55 years ago: ''The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.''
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    Unfortunately, right now our first freedom may indeed be submitted to a vote, and the question before us today is whether, based upon the guidance we have received from the Supreme Court, and any hints they may have given us as to what rule they may think up next, we can protect our first freedom from this precarious position. That is what we are attempting to do.

    I thank you, Mr. Chairman, and I look forward—I look backward to the witnesses we heard and I look forward to the witnesses we are yet to hear.

    [The prepared statement of Mr. Nadler follows:]

PREPARED STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Thank you, Mr. Chairman. Today we continue our review of the Religious Liberty Protection Act. I appreciate your having scheduled this hearing so that we can take additional testimony on some of the very difficult technical issues attending this legislation.

    I have to say that when we passed the Religious Freedom Restoration Act in 1992, the law on Congressional power to protect the fundamental rights of individual Americans against substantial burdens imposed by governmental actions appeared clear. Despite its thin protestations to the contrary, the Supreme Court has plainly abandoned earlier and well established rules of constitutional construction which invested in the Congress the power to enforce by appropriate legislation those rights.

    That's the law, and we must abide by it, even if the Supreme Court's notion of congressional authority is occasionally a moving target. We have an obligation to do everything we can to ensure that this critically necessary legislation will pass constitutional muster. In that regard, although the Justice Department was unable to testify today, I still look forward to their comments on this legislation.
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    We have also heard concerns about the impact this legislation may have on other laws designed to protect individuals rights, laws designed to protect society from criminals, preserve historic landmarks, the environment, and the ability to maintain order in prisons. We need to have a clear understanding of how this proposed legislation will be understood and interpreted. I hope that our witnesses today can help the Subcommittee focus on the standard we are restoring and how it was understood and applied by the courts both under the Free Exercise Clause and under RFRA.

    Finally, I would like to make one observation which I think goes to the heart of this issue.

    The true disaster of the Smith decision was to invite legislatures to hold roll call votes on the fundamental rights of individual Americans. Religion should not always trump the law where it is burdened by a law of general applicability, but neither should it always give way to the whim of every bureaucrat. How we strike that balance as a society is never easy, but the difficulty of the task is not excuse for shirking our responsibility to respond to Smith effectively and appropriately.

    Both with RFRA, and now with RLPA, the Congress is attempting to employ a standard familiar to legal scholars, and more importantly to take the case by case balancing of these rights out of the political process where religious minorities and other disfavored groups will receive disparate treatment. As legislators, we understand all too well that this is often the case, if not out of malice, or popular political sentiment, then simply due to ignorance, or the absence of a group's voice in the legislative process.
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    The evil of favoring one religion over another, whether in the granting of exemptions to laws of general applicability, or through some other means, is still clearly a violation of the Free Exercise Clause as enunciated in Smith. Even Justice Scalia recognized that. We, as legislators, perhaps understand the political and legislative process better than the Justices, and understand that carving out such exemptions on an ad hoc basis will inevitably disfavor the voiceless and the unpopular—hence the need for a more general rule. We have already begun taking roll call votes on the floor of the House on whether certain religious practices will be protected—in order to protect the rights of religious tithers in bankruptcy. Although we did our best, we really had no way of being sure there was not some religious minority omitted due to a lack of information. Absent a general rule of the sort proposed in RLPA, I fear that this will be the only alternative.

    I would, therefore, close with the words of Mr. Justice Jackson who observed, 55 years ago,

  The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.

    Unfortunately, right now, our first freed may be submitted to a vote, and the question before us today is whether, based upon the guidance we have received from the Supreme Court, and any hints they might have given us as to what rule they may think up next, we can protect our first freedom from this precarious position.
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    Thank you, Mr. Chairman, I look forward to today's witnesses.

    Mr. CANADY. Thank you, Mr. Nadler.

    We now will move to our second panel. The second panel, like the first, is composed of five witnesses. The first witness on our second panel will be Bruce D. Shoulson, an attorney whose practice includes land use and health care matters. Our second witness will be the Reverend Elenora Giddings Ivory, Director of the Washington office of the Presbyterian Church. Following her will be Steve Green, the Legal Director of Americans United for Separation of Church and State. Next will be Jamin Raskin, a professor at American University's Washington College of Law. And our final witness of this panel and our final witness of the day, and hopefully our final witness of a long series of hearings on this subject, will be Douglas Laycock, Associate Dean for Research at the University of Texas Law School.

    Again, I want to thank all of you for being with us. We would ask that you do your best to summarize your testimony in no more than 5 minutes, although, as you have observed, we have not been strictly enforcing the 5-minute rule. Without objection, your full written statements will of course be made a part of the permanent record of this hearing.

    We will now turn to Mr. Shoulson.

STATEMENT OF BRUCE D. SHOULSON, ATTORNEY AT LAW, LOWENSTEIN SANDLER, P.C.

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    Mr. SHOULSON. Thank you, Mr. Chairman, distinguished members of the committee, my name is Bruce Shoulson. I have practiced law in northern New Jersey for more than 30 years. My practice has included a substantial amount of work in the land use area, including presentations of applications for variances and other types of approvals to local zoning and planning boards and representation of clients on appeals from board actions to both the State and the Federal courts.

    In particular, I have presented some three dozen or more applications on behalf of religious institutions, particularly Orthodox Jewish congregations. The impact of zoning regulation is of particular concern to Orthodox Jews desirous of establishing new congregations. Orthodox Jews are prohibited from driving on the Sabbath and on specified holidays. Thus, it is necessary for Orthodox Jews to live within walking distance of their synagogues.

    In many New Jersey communities, the applicable land use ordinances mandate, for houses of worship, minimum lot sizes as well as minimum front, side and rear yard setbacks, together with limitations on building coverage and requirements for off-street parking. In communities which are already built up, when taken together, these requirements may often make it impossible for Orthodox Jews to move into a community.

    For example, if the local ordinance requires a minimum lot size of one acre for a house of worship and the residential areas are fully developed and built up, a small congregation which wishes to convert an existing residence to a house of worship may have to purchase two, three or even four or five homes to meet the minimum requirement, depending on the standard lot size in the area and whether contiguous properties are available for purchase at any reasonable price. Full compliance with the ordinance requirements will mean razing the unneeded homes and blacktopping much of the lot to provide the mandated parking, which will only be rarely used since driving is prohibited on the times of greatest use, that is, the Sabbath and holidays.
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    While one acre may seem substantial, there are municipalities which require as many as three acres, and there may be even more than three acres in some other towns. In the event the congregation converts the residence and succeeds in attracting new worshipers and requires additional space, it would likely not be able to improve its space situation materially because of the restricted building envelope resulting from the setback and coverage requirements of the parking standards.

    The irony of this situation is that in these same built-up communities there are existing houses of worship of various denominations within the same residential zones which were constructed before the adoption of the current standards, and which do not even come close to complying with the ordinance requirements. As an example, one municipal ordinance in New Jersey now requires that the exterior design of houses of worship conform to the general character of the area. In residential zones this means the surrounding residential properties. Besides being vague, the standard places an unreasonable burden on new houses of worship which is not shared by preexisting structures, and undoubtedly serves to limit their size and utility.

    It is also not uncommon to find ordinances which establish standards for houses of worship which differ from those applicable to other places of assembly. For example, in two New Jersey communities with which I am familiar, houses of worship are conditional uses and not permitted as of right in any zone. They have minimum lot size and setback requirements which are not imposed on other places of assembly.

    The result of these zoning patterns is to foreclose or limit new religious groups from moving into a municipality. Established houses of worship are protected and new houses of worship and their worshipers are effectively kept out. This has undoubtedly been the case in certain North Jersey communities where the difficulty in obtaining approvals for new synagogues and the resulting overcrowding of existing synagogues has discouraged people desirous of moving from New York City to a more suburban environment.
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    Of course there is a solution to the problem, and it is one which I have pursued more than 30 times, that is, seeking variances from the ordinance requirements. I must report to this committee that these types of proceedings are difficult and often stressful for the entire community involved.

    In preparing for this presentation, I happened to read the prior testimony of Chicago attorney John Mauck. I was struck by his description of the hearing in Chicago attended by 30 objectors, which he described as, ''the biggest crowd I have ever seen at a zoning hearing in the City of Chicago.'' Well, in many of my applications in small towns with populations of under 40,000 persons, it has been routine to have 75 to 100 in attendance, and in some cases several hundred, necessitating moving the hearing to a local school auditorium.

    If, as the late Speaker Tip O'Neill stated, all politics is local, then the political realities of zoning matters are quintessentially local. The zoning board members who pass on variance applications are local residents, and they have been appointed by local council persons who are always looking to the next election.

    The standards in our State for granting variances in these cases are far from precise. In the end, the applicant must show that the benefits of granting the variance outweigh the detriments. This is certainly a most subjective standard. On appeal to the New Jersey courts, there is no de novo hearing. Rather, the review is on the basis of the record made before the zoning board, and the board's actions must be upheld if there is substantial credible evidence in the record to support the board, even if the reviewing court would have independently come to a different conclusion based on the total record.
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    What then are the influences that may lead board members to exercise the broad discretion given to them and deny an application? General antireligious feelings? Anti-Semitism? The desire to exclude people who may be different from the community? The desire to maintain the status quo? The desire to be reappointed to the board? I leave it to the members of the committee to identify additional possibilities, but I close with three examples from my personal experience which I believe illustrate what we are often dealing with.

    One, during a hearing on an application for an Orthodox Jewish institution, an objector stood and turned to the people in the audience wearing skull caps and said, ''Hitler should have killed more of you.''

    Two, one community, in an effort to head off a zoning battle over the conversion to an ultra-Orthodox synagogue and relating Yeshiva program of buildings which had previously been used by a house of worship, instituted eminent domain proceedings with respect to the subject property on the suddenly conveniently discovered grounds that that specific property was needed for a new municipal complex. Ten years after the Orthodox group sold rather than engage in protracted litigation over the condemnation, there was still no new municipal complex located on the site.

    Three, a governing body in a small New Jersey town, considering an approval which would have had the potential of leading to the growth of its Orthodox Jewish population, made it known that it was interested in testimony as to the effect on other communities of substantial Orthodox Jewish populations.

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    While admittedly these cases are extreme, and in most cases the motivations are much more difficult to identify, the implications of these examples, which I believe are not unique, are obvious, and the need for assurances to Americans of all faiths that they will be free to exercise their religions should be equally obvious.

    Mr. CANADY. Thank you, Mr. Shoulson. Reverend Ivory.

STATEMENT OF REVEREND ELENORA GIDDINGS IVORY, DIRECTOR, WASHINGTON OFFICE, PRESBYTERIAN CHURCH (USA)

    Ms. IVORY. Thank you, Mr. Chairperson. I am Elenora Giddings Ivory. I serve as the Director of the Washington office of the Presbyterian Church, U.S.A. Our church has approximately 11,500 members. I am here today to share with you our support for H.R. 4019, the Religious Liberty Protection Act of 1998.

    We thought it would be valuable for you to hear the results of data we collected in the annual session reports regarding land use difficulties and congregations. We asked congregations to tell us things like how many new members in the past year and how many baptisms and how many deaths.

    In question number six of this particular survey we asked, ''Since January 1, 1992, has your congregation needed any form or permit from a government authority that regulates the use of land?'' The response rate to this particular survey was 90 percent.

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    Rather than just sharing dispassionate statistical information of a survey, I will share stories. We wanted to know where there had been either latent or overt hostility to religious folks.

    The first story I will share with you is Stuart Circle Parish in Richmond, Virginia. Stuart Circle Parish is a group of six churches of different denominations that have come together to provide a meal ministry. Grace Covenant Presbyterian Church is among those six. It also offers worship, hospitality, pastoral care, in addition to a healthful meal to the urban poor in Richmond. The ministry was motivated in direct response to the Biblical New Testament mandate of Matthew 25, where Jesus admonishes to feed the hungry and to clothe the naked.

    This ministry operated for almost 15 years in one of the parishes. When it grew, as the numbers of the poor grew, it was decided to move the program to another of the member churches. The parish ran up against a city zoning administrator who interpreted the program to be in violation of the city's zoning ordinance which limits feeding and housing programs for homeless provided by churches to no more than 30 homeless individuals for up to 7 days between the months of April and October.

    Since the hungry do not automatically stop getting hungry between November and March, the parish did not want to limit its Biblical calling of the meal ministry to the hungry. The zoning guidelines would force the parish to move the program around to all of its member churches, and it would still not be offering meals on anywhere near the number of days that were necessary.

    This ordinance is not a neutral and generally applicable law. It was aimed at religious organizations engaged in this clearly religious activity. The parish had to go to civil court to protect its First Amendment rights. The Religious Freedom Restoration Act was in effect in 1996. Otherwise, the feeding program would have been shut down.
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    This program was the fulfillment of a central tenet in the parish's religious beliefs and practices. Many congregations choose to stay in the cities in order to fulfill this central theological mandate of service. They do not want to abandon the poor, nor do they want the political establishment to force them to abandon the poor.

    The second story I will share with you is Palo Cristi Presbyterian Church, Paradise Valley, Arizona. It has 193 members. This church is located in the middle of the desert, but the church wanted to construct a beach volleyball court. They wanted to do this on one side of the church's property for the use of the church's youth. The church needed a volleyball net, sand, and railroad ties to surround the court and to keep the sand in place. The proposed site was near the adjoining property of a residence.

    In Paradise Valley, churches must obtain a special use permit in order to use the church grounds for means beyond that which would ordinarily be expected of a church. Palo Cristi obtained a special use permit. The resident objected. In an attempt to appease its neighbor, the church promised not to light the volleyball court and to have no games to occur after nightfall. These concessions were not sufficient. The resident owner of the adjoining property voiced his objection. In Paradise Valley, residential desire, regardless of how minimal, takes precedence over the church's desired use of its land. Palo Cristi's application for a special use permit was denied.

    In conclusion, I would like to say that the legal costs of these challenges to congregations and ministries robs a congregation of resources that might otherwise have been used for the benefit of the church or a community program. The $170,000 spent by First Presbyterian Church in Berkeley, for instance, where they had to challenge a particular landmarking designation and special permits, that money could have been used for tuition, room and board and student fees for 26 African-American students to go to Presbyterian Johnson C. Smith University in Charlotte, North Carolina.
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    The Presbyterian Church, U.S.A., is a well-established denomination with over 200 years in this country. We just had our 209th General Assembly in Charlotte, North Carolina. That is why it surprises many people that even the Presbyterian Church would experience such difficulties. It is even more surprising, given that we are perhaps overrepresented in local governments like zoning boards and city councils in comparison to our percentages in the general population. In addition, about 10 percent of the U.S. Congress is Presbyterian. I have often said that the ''P'' in Presbyterian must sometimes stand for politics.

    That being the case, the fact is that we are in so many places where decisions are being made still having trouble advancing our ministries. Even as the established church that we are seen as, we have encountered regulations that would deny the fulfillment of our ministries. This gives further credence to the complexity of these concerns and demonstrates why we need the passage of H.R. 4019. We can only surmise what must be happening to smaller denominations and minority faiths.

    In 1995 the Presbyterian Panel Survey, another information gathering instrument of the Presbyterian Church, U.S.A., found that many Presbyterians are politically involved. The survey found that over 70 percent of Presbyterian members either strongly agree or agree that it is important for Presbyterians to exercise their Christian witness in the public arena. The survey found that 64 percent of the church's members actively participate in election campaigns and 69 percent write letters to elected officials. This is a direct outgrowth of our understanding of the gospel message, to be involved with the community through our churches, through our businesses and through our political process, in order to do what needs to be done during times of societal decisionmaking and need.
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    I want to thank you all for this opportunity to share these concerns. We would be happy to provide additional information as needed. Thank you.

    [The prepared statement of Rev. Ivory follows:]

PREPARED STATEMENT OF REVEREND ELENORA GIDDINGS IVORY, DIRECTOR, WASHINGTON OFFICE, PRESBYTERIAN CHURCH (USA)

    I am Rev. Elenora Giddings Ivory. I serve as the Director of the Washington Office of the Presbyterian Church (USA). Our Church has approximately 11,500 congregations all across the United States and Puerto Rico. I am here today to share with you our support for H.R. 4019, the ''Religious Liberty Protection Act of 1998''.

    We thought it would be valuable for you to hear the results of the data we collected in the annual session reports regarding land use difficulties and PC(USA) congregations. This data was collected during our regular annual statistical gathering process where we ask the sessions of congregations to tell us things like how many new members in the past year; how many baptisms and how many deaths.

    Question number 6, of the most recent survey asked, ''Since January 1, 1992, has your congregation needed any form or permit from a government authority that regulates the use of land? These authorities include zoning boards, planning commissions, landmark commissions, and (sometimes) city/county councils?'' Our Presbyterian Church (USA) forms are suppose to be filled out by all 11,500 of our congregations. The response rate for this last session survey was almost 90% of our churches.
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    Rather than just sharing what is sometimes dispassionate statistical information of a survey, I thought I would share stories involving land use troubles experienced by congregations who responded to the survey. We wanted to know where there has been either latent or overt hostility to religious folks. Four of the stories came directly from responding congregations.

1. STUART CIRCLE PARISH-RICHMOND, VA

    The Stuart Circle Parish is a group of six churches of different denominations that have come together to provide a meal ministry. It also offers worship, hospitality, pastoral care, in addition to a healthful meal to the urban poor in Richmond. This ministry was motivated in direct response to the Biblical New Testament mandate of Matthew 25 where Jesus admonitions to feed the hungry and clothe the naked. Jesus said, ''I was hungry and you gave me something to eat. . . .'')

    This ministry operated for almost 15 years in one of the parishes. When it grew, as the numbers of the poor grew, it was decided to move the program to another of the member churches. It was at that time the Parish ran up against a City Zoning Administrator who interpreted the program to be in violation of the City's zoning ordinance which limits feeding and housing programs for homeless provided by churches to no more than 30 homeless individuals for up to seven days between the months of April and October. Since the hungry do not automatically stop being hungry between November and March, the Parish did not want to be limited in its Biblical Calling of ministry to the hungry.

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    The zoning guidelines would force the Parish to move the program around to all its member churches and it would still be not be able to offer meals on anywhere near the number of days necessary. Moving the feeding program around would also keep the hungry guessing as to were to go for food on at any given time.

    This ordinance was aimed at religious organizations engaged in this clearly religious activity. The City's justification was limited to responding to complaints about the behavior of attenders (unruly behavior, public urination, and noise in the area), although the City was unable to establish where or when these acts had taken place.

    The Parish had to go to civil court to protect its first Amendment rights. Had it not been for the Religious Freedom Restoration Act which was in effect in 1996 when this case arose, the feeding program would have been shut down. This program was the fulfilment of a central tenet in the Parish's religious belief and practice. So many of our congregations that choose to stay in the cities do so in order to fulfil this central theological mandate of service. They do not want to abandon the poor nor do they want the political establishment to force them to abandon the poor.

    Stuart Circle Parish v. Board of Zoning Appeals of the City of Richmond, No. CIV. A.3:96CV930

2. PALO CRISTI PRESBYTERIAN CHURCH; PARADISE VALLEY, ARIZONA; 193 MEMBERS.

    Palo Christi was described as a church literally located in the middle of the desert. The church wanted to construct a ''beach volleyball court'' on one side of the church's property for the use of the church's youth groups. The only materials the church needed to construct the court were a volleyball net, sand, and railroad ties to surround the court and keep the sand in place. The proposed site of the court was near the church's property line with the adjoining property being the backyard of a residence.
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    In Paradise Valley, churches must obtain a ''special use permit'' in order to use the church grounds for means beyond that which would ordinarily be expected of a church. Consequently, Palo Christi had to obtain a special use permit in order to erect its volleyball court. However, the resident whose backyard adjoined the church's property at the point closest to the proposed site of the volleyball court objected to the construction of the court. The resident was concerned that the noise coming from the volleyball court would keep him awake at night. In an attempt to appease its neighbor, the church promised to not light the volleyball court and also promised that no games would occur after nightfall. However, these concessions were not sufficient for the neighbor as he stated that he was often on call at night and thus slept during the day.

    When Palo Christi applied for the special use permit, the resident owner of the adjoining property voiced his objection. In Paradise Valley, residential desire, regardless of how minimal, takes precedent over the church's desired use of land even when the church is willing to make concessions. Thus, based on the objections of this one neighbor, Palo Christi's application for a special use permit was denied. At the present, the church still is without a volleyball court and one less ministry to the youth of that congregation and the surrounding community.

3. CHESTER PRESBYTERIAN CHURCH; CHESTER, VIRGINIA; 728 MEMBERS.

    Chester Presbyterian owns a vacant, adjoining lot which faces on a street shared by fourteen residences. The vacant lot is under a covenant agreement stating that the lot cannot be used for anything other than a house without the approval of fifty percent of the other homeowners on the street. The purpose of the covenant agreement was to prevent a business from locating in an otherwise residential area.
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    Several years ago, Chester Presbyterian needed to expand its parking lot and wanted to use the vacant lot as a part of its expansion. The church sought the approval of the homeowners to pave the lot, but less than fifty percent of the homeowners gave their approval. Despite the church's attempts to negotiate with the homeowners, the homeowners refused to relent. Chester Presbyterian did expand its parking lot to the extent that it could without infringing upon the vacant lot.

    Chester Presbyterian is presently extending its Fellowship Hall. The parking situation is as bad as it has ever been. Once again, the church contacted the homeowners about the possibility of expanding its parking lot into the vacant lot, but the majority of the homeowners again refused to give their approval. Chester Presbyterian went to court over the use of the lot and also pursued remedies with the city. However, all of the church's attempts were for naught. Presently, the lot still sits vacant, and the church's parking problems remain.

4. BAY PRESBYTERIAN CHURCH; BAY VILLAGE, OHIO; 2195 MEMBERS.

    Bay Presbyterian Church is a very large church both in terms of its membership and its church grounds. The church continues to grow and has occasionally acquired surrounding lands when necessary for the planning of future growth. Recently, Bay Presbyterian completed a 40,000 square foot, four million dollar expansion. Although several homeowners in the surrounding community protested such an expansion, the city grudgingly allowed the expansion to occur.

    A few years ago, the city debated whether or not to propose an amendment to the city's Constitution that would require a church, in addition to nursing homes and libraries, to have any proposed expansion approved by a city-wide referendum. The cost of the referendum would be borne by the group wishing to expand and would undoubtedly cost the group thousands of dollars before expansion could begin—assuming expansion was even approved. Although this debated amendment would have impacted all churches, nursing homes, and libraries, the amendment was primarily considered a way to alleviate the city's growing concern about the size and growth of Bay Presbyterian. While the amendment was never enacted or voted upon, the city is once again considering such an amendment in light of Bay Presbyterian's latest expansion and the church's growing need for another expansion project. Thus, Bay Presbyterian is deeply concerned about the impact such an amendment could have on its ability to minister to its members.
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5. FIRST PRESBYTERIAN CHURCH; BERKELEY, CALIFORNIA; 1455 MEMBERS.

    First Presbyterian Church is a relatively large church whose problem pertains to a church-owned building located on its grounds. The building was originally built in approximately 1923 to serve as a school. Over the years, the 9,400 square foot building served various purposes before ultimately being transformed into twelve individual apartments. In 1983, First Presbyterian elected to purchase the building since the church property surrounded the building on all sides. First Presbyterian continued to use the building as rental housing by making the apartments available to low-income families. However, due to the building's advanced age, its condition soon degenerated to the point that it was no longer suitable for occupation nor desirable for any other use. Consequently, First Presbyterian desired to have the building demolished.

    The City of Berkeley was upset over the church's desire to have the building demolished because the city did not want to lose any rental housing. Although Berkeley pursued some possible avenues by which it could prevent the church from eliminating the apartments, the city could not find any possibilities that would work. Thus, First Presbyterian ended its use of the building as apartments and prepared to demolish it. However, while the City of Berkeley was unable to find a means by which to prevent the church from eliminating the apartments, it was able to prevent the church from having the building demolished by having the building landmarked based upon its construction circa 1923.

    Since the building has been landmarked, First Presbyterian is unable to demolish it even though the building is an ''eyesore'' in the middle of the church's property. As the building has continued to age, it is now completely unfit for any purpose. It has all windows and doors boarded shut. It would cost approximately one million dollars to return it to a useable condition and considerably more to return it to a desirable condition.
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    The City of Berkeley has a 1994 law which states that the city cannot landmark a church building without the church's consent. The building on First Presbyterian's grounds was officially landmarked after 1994. The City has declared that its actual landmarking was effective before 1994 and that the 1994 law, requiring the church's consent to be landmarked, cannot be applied retroactively. Thus, First Presbyterian is still unable to have the building demolished despite the current law which would support its position.

    First Presbyterian ultimately sued the City of Berkeley over this dilemma in California Superior Court and was victorious. However, the City appealed to the Appellate Court which overruled the trial court and found in favor of the City. Although First Presbyterian felt confident that they had strong grounds for appeal to the California Supreme Court, the ongoing expense of the legal battle was more than the church could bear. Therefore, the church did not appeal. After approximately three years of battle, First Presbyterian estimates its direct costs at approximately $170,000 with total costs somewhere between $750,000 and $1,000,000.

    Presently, First Presbyterian is still battling with the City of Berkeley, and the unused building remains standing on the church grounds.

IN CONCLUSION

    The legal cost of these challenges to congregations and ministries, robs a congregation of resources they might otherwise have used for the benefit of church or community programs. The $170,000 spent by First Presbyterian Church in Berkeley, could have covered the tuition, room, board and student fees for 26 African American students at Johnson C. Smith University, in Charlotte, N.C.. The $170,000 could have paid for six or seven mission co-workers to go overseas were teaching or medical personnel are badly needed. It really hurts me to learn that mission money is going for legal fees and court battles.
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    The Presbyterian Church (USA) is a well established denomination with over 200 years in this country. We just had our 209th General Assembly meeting in Charlotte, North Carolina. That is why it surprises many people that even PC(USA) congregations would experience such difficulties. It is even more surprising given that we are perhaps ''over represented'' in local governments (like zoning boards and city councils) in comparison to our percentage in the general population. In addition, about 10 percent of the U.S. Congress is Presbyterian. I have often said the ''P'' in Presbyterian must stand for politics. That being the case, the fact that we are in so many places where decisions are made-we are still having trouble advancing our ministries. Even as an established Church, we have encountered regulations that would deny the fulfillment of our ministries. This gives further credence to the complexity of these concerns and demonstrates why we need passage of HR 4019. We can only surmise what must be happening to smaller denominational churches and minority faiths.

    In a 1995 Presbyterian Panel Survey, another information gathering instrument of the Presbyterian Church (USA), we found that many Presbyterians are politically involved. The survey found that over 70 percent of Presbyterian members either strongly agree or agree that ''it is important for Presbyterians to exercise their Christian witness in the public arena.'' The survey found that 64 percent of church members actively participate in election campaigns and 69 percent write letters to elected officials. This is a direct out growth of our understanding of the Gospel message, to be involved with community through our churches; through our businesses and through the political process in order to do what needs to be done during times of societal decision making and need.

    I want to thank you for this opportunity to share these concerns. We would be happy to provide additional information if needed.
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    Mr. CANADY. Thank you, Reverend Ivory.

    Mr. Green.

STATEMENT OF STEVEN K. GREEN, LEGAL DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

    Mr. GREEN. Mr. Chairman and honorable members of the committee, I am Steven K. Green. I am the legal director of Americans United for Separation of Church and State.

    Americans United was founded in 1947 by religious leaders and educators with the goal of preserving religious liberty and separation of church and State, and we have been involved in many of the significant church-State cases before the U.S. Supreme Court. We supported the Religious Freedom Restoration Act, and following the Court's decision in the City of Boerne, we have been working with the Coalition for the Free Exercise of Religion in drafting new proposed language which is being considered by this committee.

    Today I want to comment on RLPA's proposed legal standard found in section 2(b) the ''compelling interest'' or ''strict scrutiny'' test. I would like to stress why the compelling interest standard is so critical to RLPA and why it should be kept in its present form when the bill passes out of committee.

    The primary reason that RLPA is supported by the broadest range of ideological groups imaginable, and the reason it presents a viable solution for protecting the religious rights of all Americans, is that it relies on the compelling interest standard and nothing more. Much of my testimony will address the concerns that the compelling interest standard is skewed toward either religious claimants or the government; in particular, that RLPA will exempt some religious people from complying with important State laws. To be sure, the compelling interest standard is an exacting one for the government. Still, the standard is fair. In my remaining time I will briefly discuss why RLPA also does not violate the Establishment Clause.
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    Members of the Free Exercise Coalition frequently disagree on the substance of many issues that implicate free exercise concerns: the funding of religious education; student religious expression at public school events; and the application of nondiscrimination laws in employment and housing to religious claimants and institutions. Because members of the Coalition, like Members of Congress, hold divergent views on the merits of such claims, RLPA cannot seek to address or ordain those outcomes.

    The beauty of the compelling interest standard is that it does not preordain any particular outcome but merely sets up a balancing test of competing interests. The compelling interest standard was selected, first and foremost, because it was a standard the United States Supreme Court had adhered to for almost 30 years. But the compelling interest standard in its unadulterated form was also chosen because it is ideologically neutral in its application.

    Let me put to rest any concern that the compelling interest test advantages or disadvantages any group or ideological perspective. The standard is fair, but rigorous, not only for the government but also for religious claimants. It allows neither religious interests to always prevail, nor those of the government, even when those interests may be compelling.

    Because RLPA, like RFRA, does not define the various elements of the standard but relies on judicial interpretations, it is helpful to look at how the courts have defined some of those terms.

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    With substantial burden, the responsibility for demonstrating a substantial burden on religion exists with the claimant. To claim merely that government action is inconsistent with one's religious beliefs, without more, is insufficient for a showing of a substantial burden.

    The case law of the Supreme Court prior to Employment Division v. Smith and that of lower courts since RFRA clearly indicates that not all burdens on religion are unconstitutional. Merely incidental effects of government programs which may make it more difficult to practice certain religions but have no tendency to coerce individuals into acting contrary to their religious beliefs are insufficient to meet the burden standard. The burden must be one that is constitutionally significant, meaning that religiously motivated conduct is significantly or meaningfully curtailed.

    Applying that standard, the high Court has held the assessment and collection of sales taxes from a religious organization does not constitute a substantial burden on religion. Similarly, a religious organization's compliance with minimum wage requirements in its commercial operations failed to constitute a substantial burden.

    Even under RFRA, courts have found no constitutionally significant burden on religion where some churches were denied zoning variances to develop particular parcels, where parents were denied State-subsidized services for their children in religious schools, or for abortion protesters to comply with the Clinic Access Act. And in the now familiar California landlord-tenant case, the California Supreme Court held that a landlord's religion was not burdened by conforming her commercial activities to the State antidiscrimination law. Because the substantial burden test was applied in each case, RLPA would not change the outcome in any of those cases.
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    Now, this is not to suggest that the substantial burden standard is so high that legitimate claims go unrequited. Certainly, reasonable minds can and do differ on whether the standard has been applied correctly in any particular case. The point here is that the substantial burden requirement serves as an important triggering device to ensure that the government is not unnecessarily required to bring forward a compelling justification for its otherwise lawful actions when the interference with religion may only be minimal.

    Turning to the compelling interest side, as with substantial burden, RLPA does not define a compelling interest, and this is the wisest course. Any attempt to define a compelling interest would invite intensive lobbying and wrangling by groups to have their interests specially protected.

    However, one point needs emphasizing. Even though RLPA claims involve what we would consider to be a fundamental right, there is no requirement that the government come forward with an interest of constitutional magnitude before it can override a religiously based claim. In other words, a RLPA claim will not automatically trump important local interests merely because it is based on Federal law or has the aura of a constitutional right. Even a cursory review of Supreme Court holdings indicate that many nonconstitutional interests will likely prevail over a RLPA claim.

    The question on many minds is whether the enforcement of antidiscrimination laws constitutes a compelling interest. Courts have held that the government has a compelling interest in eradicating all forms of discrimination. I believe that in most conflicts involving individual religious claimants, the antidiscrimination laws will probably prevail. The government has an interest in prohibiting discrimination in housing and employment generally regardless of the particular form it takes.
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    The compelling interest test rests on the overall purposes behind the enactment of the law and in ensuring its enforceability. The parsing of a discrimination law to identify a hierarchy of rights threatens the law's integrity and subverts its goals. In other words, the compelling interest is in the eradication of discrimination generally, not in how it manifests itself.

    An additional element in the discrimination laws is the detrimental impact that discrimination may have on third persons. Most free exercise claims considered by the courts have involved laws that burden religious rituals or organizations where there was a clear line between the activity and the society at large. No one else was burdened if Captain Goldman wore his yarmulke while in uniform.

    Such cannot be said when a religious claim is used as a defense for alleged discrimination. In a related context, the Supreme Court has considered the impact a religious accommodation would have on third parties when weighing the government's interest. Although the Court's statements on accommodation of religion have not always been clear, it has consistently held that religious exemptions cannot impose substantial burdens on third persons not sharing in the accommodation.

    No doubt some people may disagree with this analysis. The point of my testimony is not that antidiscrimination laws will prevail in every case, but to set the record straight that such laws serve as important expressions of legislative authority and that by adopting the compelling interest standard in RLPA, Congress is acknowledging that courts will consider and weigh important interests behind these laws. But because each religious claimant's situation is unique, it is appropriately left to the courts in weighing the competing interests.
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    I see my time us up. I will reserve my remarks on the Establishment Clause to my written comments. Thank you.

    [The prepared statement of Mr. Green follows:]

PREPARED STATEMENT OF STEVEN K. GREEN, LEGAL DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

    Mr. Chairman and honorable members of the Committee, I am Steven K. Green, Legal Director for Americans United for Separation of Church and State (Americans United). Americans United was founded in 1947 by religious leaders and educators with the goal of preserving religious liberty and separation of church and state, and has been involved in many of the significant church-state cases decided by the U.S. Supreme Court. We were disappointed by the Court's 1990 decision in Employment Division v. Smith and joined with a coalition of religious and civil rights organizations to bring about the Religious Freedom Restoration Act, 42 U.S.C. §2000bb (RFRA). We then helped defend the constitutionality of RFRA in the courts. Since the Court's decision in City of Boerne v. Flores, we have worked with the Coalition for the Free Exercise of Religion in drafting new remediating language that serves as the basis for the Religious Liberty Protection Act (RLPA), now being considered by this Committee.

    Today, I want to comment on RLPA's proposed legal standard found in section 2(b): the ''compelling interest'' or ''strict scrutiny'' test. That standard is, of course, at the heart of RLPA and the very purpose for its being. Compelling interest was the standard the Court adhered to prior to Employment Division v. Smith and the same standard Congress incorporated into RFRA. I want to stress why the compelling interest standard is so critical to RLPA and why it should be kept in its present form when the bill passes out of committee. The primary reason that RLPA is supported by the broadest range of ideological groups imaginable and the reason it presents a viable solution for protecting the religious rights of all Americans is that it relies on the compelling interest standard, and nothing more. Much of my testimony will address concerns that the compelling interest standard is skewed towards either religious claimants or the government. To be sure, the compelling interest standard is an exacting one for the government; still, the standard is fair. In the time remaining, I will also briefly discuss why RLPA does not violate the Establishment Clause.
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THE COMPELLING INTEREST STANDARD

    The adage that politics makes strange bedfellows could easily be applied to the Free Exercise Coalition. A model for bipartisanship, the Coalition is comprised of groups from across the religious and ideological spectrum, from Americans United and ACLU to Concerned Women for America, from the Unitarian Universalists to the National Association of Evangelicals, and includes Muslims, Sikhs, Latter-day Saints, and the entire Jewish community. What has brought this wide array of groups together is their commitment to religious liberty; what has kept them working together is the understanding that RLPA will merely apply the legal standard that existed prior to 1990 and not seek to predetermine particular controversies.

    Members of the Coalition frequently disagree on the substance of many issues that implicate free exercise concerns—the funding of religious education, student religious expression at public school events, and the application of nondiscrimination laws in employment and housing to religious claimants and institutions. Because members of the Coalition, like Members of Congress, hold divergent views on the merits of such claims, RLPA cannot seek to address or ordain their outcomes. The beauty of the compelling interest standard is that it does not preordain any particular outcome but merely sets up a balancing of competing interests. The compelling interest standard was selected, first and foremost, because it was the standard the Supreme Court had adhered to for almost 30 years.(see footnote 132) But the compelling interest standard, in its unadulterated form, was also chosen because it is ideologically neutral in its application.

    Let me put to rest any concern that the compelling interest test advantages or disadvantages any group or ideological perspective. The standard is fair, but rigorous, not only for the government, but also for religious claimants.(see footnote 133) The standard neither allows religious interests always to prevail, nor those of the government, even when its interests are compelling.(see footnote 134) The standard weighs and then balances competing interests, first considering the burden on the claimant's religion and then evaluating the importance of the government's activity and the available alternatives for achieving its goals.
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    Because RLPA, like RFRA, does not define the various elements of the standard but relies on judicial interpretations of those terms, it is helpful to look at how courts have defined such terms.

    1. Substantial Burden—The responsibility for demonstrating a that substantial burden on religion exists rest with the claimant. To claim merely that a government action is inconsistent with one's religious beliefs, without more, is insufficient for showing a substantial burden.

    The case law of the Supreme Court prior to Employment Division v. Smith and that of lower courts since RFRA clearly indicates that ''[n]ot all burdens on religion are unconstitutional.''(see footnote 135) Merely ''incidental effects of government programs which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs'' are insufficient to meet the burden standard.(see footnote 136) The burden must be one that is ''constitutionally significant,''(see footnote 137) meaning that religiously motivated conduct is ''significantly or meaningfully curtained.''(see footnote 138) As the Court stated in Thomas v. Review Board:

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and violate his beliefs, a burden upon religious exists.(see footnote 139)
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    Applying this standard, the high court has held that the assessment and collection of sales taxes from a religious organization does not constitute a substantial burden on religion.(see footnote 140) Similarly, a religious organization's compliance with minimum wage requirements in its commercial operations failed to constitute a substantial burden.(see footnote 141) Even under RFRA, courts have found no constitutionally significant burden on religion where churches were denied zoning variances to develop particular parcels, where parents were denied state subsidized services for their children in religious schools, and for abortion protesters to comply with the Clinic Access Act.(see footnote 142) And in the now-familar California landlord-tenant case, the California Supreme Court held that the landord's religion was not burdened by conforming her commercial activities to the state's antidiscrimination law.(see footnote 143) Because the substantial burden test was applied in each instance, RLPA would not change the outcome in any of those cases.

    This is not to suggest that the substantial burden standard is so high that many legitimate claims go unrequited. Certainly, reasonable minds can and do differ over whether the standard has been applied correctly in a particular case. The point is that the substantial burden requirement serves as an important triggering mechanism to ensure that the government is not unnecessarily required ''to bring forward a compelling justification for its otherwise lawful actions'' when the interference with religion has been only incidental.(see footnote 144)

    In order to ensure faithfulness to the Court's Sherbert standard,(see footnote 145) RLPA importantly clarifies that the burdened religious activity need not be compulsory or central to one's religious belief system. See Section 6(1). This lessens the risk that courts will be evaluating the relative merits of differing religious claims and determining whether a particular practice is ''mandated,'' ''essential'' or ''fundamental.''(see footnote 146) Admittedly, some courts during the RFRA era used a centrality requirement to hold that the burden on religion was not substantial,(see footnote 147) and this clarification would possibly affect some of those holdings. But this clarification alone should not tip the scales one way or the other as RLPA still requires that the conduct be ''substantially motivated'' by religious belief. Moreover, the legal standard still requires that the government action be seen as placing ''substantial pressure on [the claimant] to modify his behavior and to violate his beliefs,'' clearly indicating something more than an incidental incursion upon one's faith.(see footnote 148)
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    2. Compelling Interest—As with ''substantial burden,'' RLPA does not define a ''compelling'' government interest, again relying on judicial interpretations. This is the wisest course. In that the standard is not unique to religion claims but is applied in other fundamental rights, any specific definition of compelling interest would add confusion and uncertainty to litigation. Moreover, an attempt to define ''compelling interest'' would invite intensive lobbying and wrangling by groups to have their interests specially protected.

    A compelling interest is, of course, an interest of ''the highest order.''(see footnote 149) No one benefits when courts dilute the standard by embracing garden variety interests as being of overriding importance.

    However, one point needs emphasizing. Even though RLPA claims involve what we would consider to be a fundamental right, there is no requirement that the government come forward with an interest of constitutional magnitude before it can override the religiously based claim. In other words, a RLPA claim will not automatically prevail over important local interests merely because it is a federal law or has the aura of a constitutional right. Even a cursory review of the Supreme Court's holdings indicates that many non-constitutional interests will likely prevail over a RLPA claim. The Court has held the government has a compelling interest in the allocation and collection of taxes,(see footnote 150) in maintaining the integrity of its social security system,(see footnote 151) in eradicating racial discrimination in education,(see footnote 152) in the operation of military conscription laws,(see footnote 153) in maintaining a uniform day of rest,(see footnote 154) in enforcing child labor laws,(see footnote 155) and in protecting public health and safety.(see footnote 156) Lower courts applying RFRA have found that compelling interests exist in protecting threatened and endangered species,(see footnote 157) in complying with child support,(see footnote 158) in land use regulations(see footnote 159), in complying with subpoenas,(see footnote 160) in protecting the right to collective bargaining,(see footnote 161) and in protecting public health by providing unobstructed access to reproductive health facilities.(see footnote 162)
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    This list is not comprehensive; nor is it intended to belittle the importance of any of those religious claims. Rather, its purpose is to highlight the variety of government interests that, depending on the particular context, may be considered compelling. Again, each of us may disagree with some of those decisions just as we may be able to identify other government interests we believe are compelling. The point is that while RLPA creates a federal statutory right, that right will not automatically prevail over all state and local interests.

    The question on many minds is whether enforcement of antidiscrimination laws constitutes a compelling interest. Courts have held that the government has a compelling interest in eradicating discrimination in all forms.(see footnote 163) I believe that in most conflicts involving individual religious claimants the antidiscrimination laws will prevail. The government has a interest in prohibiting discrimination in housing and employment generally, regardless of the particular form it takes. The compelling interest rests in the overall purposes behind the enactment of the law and in ensuring its enforceability. The parsing of a discrimination law to identify a hierarchy of rights threatens the law's integrity and subverts its goals.(see footnote 164) In other words, the compelling interest is in the eradication of discrimination generally, not in how it manifests itself.

    An additional element that speaks to the compelling nature of antidiscrimination laws is the detrimental impact that discrimination has on third persons. Most free exercise claims considered by courts have involved laws burdening religious rituals or organizations where there was a clear line between the activity and the society at large. No one else was burdened if Captain Goldman wore his yarmulke while in uniform.(see footnote 165) Such cannot be said when a religious claim is used as a defense for alleged discrimination. In other contexts, the Supreme Court has considered the impact an accommodation of a religious claim would have on third parties in weighing the government's interest.(see footnote 166) Although the Court's statements on accommodation of religion have not always been clear, it has consistently held that religious exemptions cannot impose substantial burdens on third persons not sharing in the accommodation.(see footnote 167) As Judge Learned Hand once wrote: ''The First Amendment . . . gives no one the right to insist that in the pursuit of their own interests others must conform their conduct to his own religious necessities.''(see footnote 168)
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    No doubt some people would disagree with this analysis. The courts that have addressed this issue have split over which interest prevails, although not on compelling interest grounds as some might assume.(see footnote 169) The point of my testimony is not that antidiscrimination laws will prevail in every case, but to set the record straight that such laws serve as important expressions of legislative authority, and that by adopting the compelling interest standard in RLPA, Congress is acknowledging that courts will consider and weigh the important interests behind these laws. Because each religious claimant's situation is unique, it is appropriately left to the courts to weigh the competing interests.

ESTABLISHMENT CLAUSE

    No doubt, as with RFRA, claims will be made that RLPA violates the Establishment Clause of the Constitution by providing preferential treatment to religion or through public funding of religious activity. With all due respect to Justice Stevens, with whom I rarely disagree on Establishment Clause issues, I do not believe this to be true. Although either of these activities would violate the Constitution, RLPA does not specially favor religion or require the government to fund religious programs or activities.

    First, as addressed above, RLPA applies when there is a substantial burden on religious exercise. The purpose of RLPA is to remove those unintended burdens that result from the application of neutral laws—burdens that are often unique to particular religions—and to put the religious claimant back into a position he would have otherwise been. In practice, RLPA should not advantage religion or provide preferential treatment but alleviate those burdens that are special to religion. For example, a rule against wearing hats in school has a disproportionate impact on Orthodox Jews; providing Jewish boys an exemption from the rule does not advantage them but merely removes a special burden not experienced by non-Jews.
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    However, in order to guard against claims that RLPA provides special treatment for religion and thus violates the Establishment Clause, it is important for Congress to indicate that the terms ''religious exercise'' and ''belief'' are to be interpreted broadly to encompass all belief systems that are comparable to traditional understandings of religion—to include those belief systems that occupy a place in a person's life that is parallel to religion. The Supreme Court intimated in the draft cases that the Free Exercise Clause would require as much.(see footnote 170) In that RLPA is a non-constitutional accommodation, the Establishment Clause would demand the same. We must remember that ''religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection.''(see footnote 171)

    Second, nothing in RLPA is intended to create a right of religious organizations to receive public funds or to change the Establishment Clause prohibition on funding religious activity.(see footnote 172) The bill guards against such interpretations in three ways. First, section 5(c) states that the Act does not create a right of any religious organization to receive public funding or for any person to receive government funding for any religious activity. Second, funding religious activity in violation of the Establishment Clause would obviously serve as a compelling interest under section 2(b).(see footnote 173) And finally, section 8 of the bill expressly declares that nothing in the Act affects the Establishment Clause. Taken together, these provisions act as an important safeguard on RLPA's constitutionality.

    I thank the Committee for its attention and welcome any questions.
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    Mr. CANADY. Thank you, Mr. Green. Professor Raskin.

STATEMENT OF JAMIN RASKIN, PROFESSOR, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY

    Mr. RASKIN. Thank you, Mr. Chairman and members of the committee, for inviting me to testify. I very much favor the purposes of this bill. I think that Oregon v. Smith is a terrible decision that created an asymmetry in approach to free speech and religious free exercise, and so I am hoping that you can come out of this with a seaworthy bill that will pass constitutional scrutiny. So I hope that my comments are taken in a spirit of constructive criticism.

    I just recently finished reading Taylor Branch's second installment in his biography of Martin Luther King called ''Pillar of Fire,'' which covers 1963 to 1965 and the events leading up to the passage of the Civil Rights Act of '64 and the Voting Rights Act of 1965. It is filled with accounts of police chiefs turning German shepherds and water hoses on children, sheriff's deputies joining KKK night riders in blowing up churches and houses, people sitting at lunch counters getting beaten over the head with billy clubs or beer bottles, and massive official interference with people's civil rights.

    This history I think influenced the Court's decision striking down RFRA in City of Boerne. The Court held that you don't enforce religious free exercise by changing its meaning, and even though Congress does have the power to pass sweeping prophylactic legislation to enforce civil rights under section 5 of the 14th Amendment, it must first make detailed legislative findings and lay a factual predicate to justify the massive intrusion on federalism that is in fact accomplished by something like the Voting Rights Act or the Civil Rights Act or RFRA.
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    Congress didn't do that in RFRA the first time. It could conceivably do it now. One way to read City of Boerne is that it is an invitation to Congress to go back and to detail the ways in which there is massive interference with the civil rights of people trying to exercise their religious freedom.

    But I think that we know, at least in the 20th century, we don't have a history of deliberate interference with religious freedom in the same way that Congress faced the deliberate interference with Civil Rights in the 1960's.

    What RFRA deals with, what RLPA deals with are incidents of incidental or accidental infringement on religious exercise. If it is deliberate, if it is purposeful, that is taken care of by the City of Hialeah case. There is nothing wrong with doing that. In fact, I think we should do it. States do it all the time. States are allowed to go beyond the Federal constitutional minimums and to grant a greater quantum of liberty, religious liberty, to their citizens than is accorded to the citizenry through the First Amendment.

    But this time I think that Congress has got to be much more careful about laying the predicate findings and respecting the independent constitutional norms and constraints that operate in the specific source of jurisdictional authority that you are invoking.

    Now there are two hooks for this legislation: the Spending Clause and the Commerce Clause. These are imperfect instruments, as you know, for accomplishing what we want to accomplish. And you haven't chosen this work for yourselves. You started with the 14th Amendment, and now you are turning to the Commerce Clause and the Spending Clause to do it. And I think that there are some problems there.
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    Let's start with the spending power. The spending power is not unlimited, the Court emphasized in South Dakota v. Dole. And Congress cannot randomly attach godfather offers to any of its money. The Court outlined several general restrictions that apply, the key one being that ''conditions on Federal grants may be illegitimate if they are unrelated to the Federal interest in particular national projects or programs.''

    I emphasize the word ''particular'' here, because it presents a real problem for this bill which applies not to particular public programs receiving Federal funds which may have some demonstrated history of entrenching on the rights of religion but all public programs generally.

    This is precisely the kind of sweeping, broad-brush approach that I think the Court condemned in the Boerne case. It would be defensible, for example, to restore the compelling interest test for infringements of religious liberty in Federal unemployment compensation programs where there is a long history of problems going back at least to Sherbert v. Verner.

    But are there similar problems in the field of administering highway funds or Pell grants or Medicaid or juvenile justice programs? I don't know the answer to that. But I think that you need to assemble some hard findings to show a general cross-programmatic problem with government stepping on religious freedom to establish the necessary means and fit to justify the very broad application of this statute.

    Furthermore, in Dole, it was clear that the provision imposed by Congress, which conditioned the States receipt of Federal highway funds on adoption of a minimum drinking age of 21 was, quote, ''directly related to one of the main purposes'' for which highway funds are expended, namely, safe interstate travel, a goal that had been frustrated by different drinking ages in the various States.
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    We cannot say whether the spending restriction offered here is ''directly related to one of the main purposes,'' for which the various programmatic funds are expended, because we are talking about every single Federal Government funding program in the country, which obviously implicates a huge variety of unrelated goals.

    It might be tempting to say, and I have thought about it, that fastidious respect for religious exercise is an implicit structural goal of all Federal legislation. But without an articulation of why a categorical across-the-board rule is necessary, based on actual problems, I am afraid that Congress is setting itself up for another judicial rebuke on the grounds that this condition is not directly related to any specific legislative goals like safe interstate travel or promoting universal access to higher education or what have you.

    I am not saying that the showing is impossible, only that it hasn't happened yet. And I detect a mood on the Court hostile to far-reaching symbolic spending restrictions that have only a random relationship to the underlying program to which they are attached.

    Can we go down the list of spending programs and show how religious liberty is practically or at least theoretically imperiled in each one? Recall that it is not enough to say that there may be religiously based discrimination going on, since the Civil Rights Act of 1964 already forbids religious discrimination. There has to be a showing of actual discouragement of or interference with religious exercise in a way that is short of religious discrimination or a Free Exercise violation.

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    The same general problem applies to RLPA's attempt to impose RFRA's standard on the States through the Commerce Clause which provides that Congress has power ''to regulate commerce among the States,'' among several States.

    In Lopez, the Court closed the door on efforts by Congress to transform the Commerce Clause into a general Federal police power over the states. The Court invalidated the Gun-free School Zones Act of 1990, ruling that the possession of a gun in a local school is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Nor was there indication that the defendant had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

    The Court concluded the law neither regulates the commercial activity nor contains a requirement that the possession of a gun in the school zone be connected in any way to interstate commerce.

    Now it is clear that religion in itself is not an economic activity within the meaning of that Commerce Clause, and I can't imagine that we would want it to be defined as one. RLPA tries to avoid the problem that the Gun-free School Zones Act encountered by explicitly stating in section 2 that ''A government shall not substantially burden a person's religious exercise in or affecting commerce with foreign nations among the several States or with the Indian tribes.''

    This phraseology seeks to obviate the constitutional problem by building the Lopez standard into the very definition of the statutory violation. Yet, given the strangeness of talking about religious exercise in or affecting commerce, the law remains ambiguous. At this level of generality, the text can mean two different things. It might mean that any plaintiff under RLPA would have to show how the government's alleged burden on his own type of religious exercise has a concrete and substantial effect on interstate commerce, or it might mean that since religious exercise as a whole in America has a general substantial effect on interstate commerce, any RLPA plaintiff can allege that any incidental government burden on his religious exercise is, by definition, actionable. I think that this latter interpretation has huge problems.
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    What the Lopez Court found was that Congress could not simply invoke the massive nexus between public education and commerce to rationalize its law. The substantial effect test requires a proof that the specific activity being regulated substantially affects interstate commerce; thus, the government had to show in Lopez not the obvious truth that public education affects interstate commerce, but that the possession of guns within a certain distance of a public school affects interstate commerce. No such finding was ever made.

    So I think it is mistaken to conclude, as I think my friend Professor Laycock did, that it is enough to show that churches in the aggregate affect commerce. It is not the churches that would be regulated by Congress here nor is it even the aggregated specific religious practices; it is, rather, the governments, that are incidentally imposing on religious exercise through their normal course of business, which are being regulated.

    Thus, in order for RLPA to withstand Lopez scrutiny, I think it has to be shown either that incidental governmental imposition on religious exercise substantially affects interstate commerce across the board or that the statute itself requires proof in each case that an incidental governmental imposition on religious exercise substantially affects interstate commerce.

    So I think you can take care of this problem simply by explicitly identifying that a plaintiff, under RLPA, needs to prove that the incidental burden on his or her religious exercise, in fact, affects, substantially affects interstate commerce.

    But, otherwise, I believe that this bill cuts against the whole spirit and substance of Lopez, whatever the merits of that case are. And I am afraid that, as presently written, this bill might be an invitation to the Court to strike down yet another act trying to vigorously defend religious free exercise on both Commerce Clause grounds and also Spending Clause grounds.
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    Mr. CANADY. Thank you, Professor Raskin.

    [The prepared statement of Mr. Raskin follows:]

PREPARED STATEMENT OF JAMIN RASKIN, PROFESSOR, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY

    In passing the Religious Freedom Restoration Act of 1993 (RFRA)(see footnote 174), Congress tried to create a national statutory right of religious liberty with more bountiful protection than exists under current First Amendment jurisprudence. In City of Boerne v. Flores,(see footnote 175) the Supreme Court struck down Congress' handiwork, restoring the legal hegemony of its controversial 1990 holding in Employment Division of Human Resources of Oregon v. Smith(see footnote 176)

    In City of Boerne, Justice Kennedy found for the Court that, with RFRA, Congress had exceeded its enforcement powers under Section 5 of the Fourteenth Amendment when it enacted RFRA. The Court emphasized that Congress' powers to defend Free Exercise in the states under Section 5 are ''remedial'' rather than ''substantive,''(see footnote 177) and that Congress ''does not enforce a constitutional right by changing what the right is.''(see footnote 178) While the majority was willing to cede wide latitude to Congress to pass ''measures that remedy or prevent unconstitutional actions,'' it held in no uncertain terms that there ''must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.''(see footnote 179)
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    The Religious Liberty Protection Act of 1998 is an effort to recover some of the ground lost when the Court discarded RFRA. Thus, Congress is trying to invoke other powers to advance what is properly understood as a civil liberties agenda for religious Americans.

    Yet, precisely because this is a civil liberties effort, the Spending Clause and Commerce Clause are imperfect—although not impossible—jurisdictional instruments to be used for this purpose. There is something of trying to fit square pegs into round holes about this work, although I understand that it is not a labor that you ever wished upon yourself. Someone might ask why you don't simply take up the Supreme Court's invitation to build an appropriate legislative history demonstrating the kind of massive deliberate rights violations that the Court seemed to demand in City of Boerne. We know that the answer to this is that a record of religious oppression cannot be shown on the magnitude of our sordid history with slavery, Jim Crow, white primaries, poll taxes, and so on. This is not to say that the religious exercise of citizens is always treated justly, but what we are talking about is restoring by statute the ''compelling interest'' test for incidental infringements of religious liberty that was jettisoned by the Court in Oregon v. Smith. This effort is about providing more religious liberty to Americans than the Supreme Court's current interpretation of the Constitution does.

    I want to emphasize that there is nothing wrong with this effort so long as other constitutional lines, like the Establishment Clause and Equal Protection, are not crossed in the process. After all, state legislatures and state supreme courts often provide Americans with more freedom than the Supreme Court does with its increasingly pinched interpretation of constitutional rights and liberties. And if the states can do it, why can't you?
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    But when you invoke other lawful powers to accomplish these civil liberties purposes, it is important for the sake of both institutional legitimacy and withstanding judicial review later that you scrupulously respect the independent norms and constraints that accompany exercise of such powers. It is critical that Congress not make the same kind of mistake it made with RFRA when, according to the Court, it used its remedial powers under Section 5 of the 14th Amendment to expand impermissibly substantive constitutional rights. The Court there objected not only to Congress' objectives and to the poor fit between the ends sought and the means chosen, but also to the sweeping and categorical nature of RFRA's coverage, pointing out that it ''intru[des] at every level of government, displacing laws and prohibiting official actions of almost every description'' by ''every agency and official of the Federal, State and local governments.''(see footnote 180)

    How well do the Spending Clause and Commerce Clause work as new pegs for the RFRA principle? They are a very blunt instrument, but with further narrowing and sharpening, I conclude that you could fashion a piece of legislation that is much more refined and exacting and passes constitutional scrutiny,

    The spending power is ''not unlimited,'' the Court emphasized in South Dakota v. Dole, and Congress may not randomly attach godfather offers to its largesse.(see footnote 181) The Court outlined several general restrictions on attaching strings to money: spending limitations must advance ''the general welfare,'' must be unambiguously stated, must be related to the federal interest in particular programs, and may not transgress other constitutional boundaries.(see footnote 182)
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    Does this proposed statute advance the general welfare? The Court has been generally deferential to the Congress on this issue since ''the concept of welfare'' itself is ''shaped by Congress,'' Helvering v. Davis, 301 U.S. 619 (1937), but we can expect a claim that the statute is designed to advance the interests of one segment of the population—the class of religious citizens—rather than the whole of it. I would therefore suggest some statement in the preamble or at least in the committee report that this bill is an effort to advance the common good and liberty of all citizens in federally financed programs.

    The more serious problem is the Court's suggestion in South Dakota v. Dole that ''conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.' ''(see footnote 183) I emphasize the word ''particular'' here, because it may present a sticky problem for this bill, which applies not to particular public programs receiving Federal funds which may have some demonstrated history of trenching on the rights of religion, but all of them. This is precisely the kind of sweeping, broad-brush legislation that the Court condemned in City of Boerne.

    Thus, it would be one thing to restore the compelling interest test for infringements of religious liberty in federal unemployment compensation programs, where there is a long history of problems going back at least to Sherbert v. Verner, and City of Boerne has thrown things into doubt. But are there similar problems in the field of administering highway funds? Pell grants? Medicaid? Juvenile justice programs? I honestly do not know, but I think that you need to assemble some hard findings to show a general cross-programmatic problem with government stepping on religious freedom to establish the necessary means-ends fit to justify the very broad application of this statute.
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    Furthermore, in Dole, it was clear that the provision imposed by Congress, which conditioned the states' receipt of federal highway funds on adoption of a minimum drinking age of 21, was ''directly related to one of the main purposes for which highway funds are expended—safe interstate travel,'' a goal that ''had been frustrated by varying drinking ages among the states.''(see footnote 184)

    We cannot say whether the spending restriction offered here is ''directly related to one of the main purposes'' for which the various programmatic funds are expended, because we are talking about every single federal government funding program, which obviously implicates a huge multiplicity of goals. It might be tempting to say that fastidious respect for religious exercise is an implicit structural goal of all federal legislation, but without an articulation of why a categorical, across-the-board rule is necessary based on real problems out there, I am afraid that you are setting yourselves up for another judicial rebuke on the grounds that this condition is not ''directly related'' to any specific legislative goals, like safe interstate travel or promoting access to higher education or securing the health of our seniors, and so on. I am not saying that the showing of a rational connection is impossible, only that it has not happened yet, and I detect a mood on the Court hostile to far-reaching symbolic spending restrictions that have only a random relationship to the underlying program. Can we go down the list of spending programs and show how religious liberty is practically or at least theoretically imperiled in each one? Recall that it is not enough to say that there may be religiously-based discrimination going on, since the Civil Rights Act of 1964 already forbids religious discrimination. No, there must be a showing of actual discouragement of, or interference with, religious exercise.
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    In Dole, the Court refused the invitation of the National Conference of State Legislatures to precisely ''define the outer bounds of the 'germaneness' or 'relatedness' limitation on the imposition of conditions under the spending power,'' id. at 209, n.3, but this law might furnish the perfect opportunity for the Court to set up new federalism-enforcing limits on Congress' powers to micromanage the states through restrictions attached to spending bills. Is that a result Congress is willing to live with here?

    Without explicit findings that governments receiving federal assistance are trampling religious freedom, without showing how the goals of all federal programs assimilate a goal of accommodating free religious exercise beyond the existing imperatives of anti-discrimination law, the original City of Boerne majority may be galvanized to invalidate the legislation as irrational and excessive under the Spending Power and clip Congress' wings once again. Thus, I would do a systematic canvass of all the programs affected and show how there are if not real, then at least hypothetical, dangers that Congress is responding to.

    The same general problem applies to the RLPA's attempt to impose a RFRA-like standard on the states through the Commerce Clause, which provides that Congress has power ''To regulate Commerce . . . among the several States.'' In United States v. Lopez,(see footnote 185) the Court firmly closed the door on efforts by Congress to transform the Commerce Clause into a general federal police power over the states and localities. The Lopez Court invalidated the Gun-Free School Zones Act of 1990, ruling that the ''possession of a gun in a local school is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.'' Nor was there any ''indication that [the student defendant] had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.''(see footnote 186) The Court concluded that the law ''neither regulates a commercial activity nor contains a requirement that the possession [of a gun in a school zone] be connected in any way to interstate commerce.''(see footnote 187)
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    Now it is clear that religion in itself is not an ''economic activity'' within the meaning of the Commerce Clause. I cannot imagine the supporters of RLPA wanting religion to be considered a commercial activity, if for no other reason than commercial activity is usually taxed by federal, state and local government. But the RLPA tries to avoid the problem that the Gun-Free School Zones Act encountered by explicitly stating, in Section 2, that ''a government shall not substantially burden a person's religious exercise . . . in or affecting commerce with foreign nations, among the several states, or with the Indian tribes.''

    This curious phraseology seeks to obviate the constitutional problem by building the Lopez standard into the very definition of the statutory violation. Yet, given the strangeness of talking about ''religious exercise in or affecting commerce,'' the law remains ambiguous and uncertain. At this level of generality, the text could mean two different things. It might mean that any plaintiff under the RLPA would have to show how the government's alleged burden on his own type of religious exercise has a concrete and substantial effect on interstate commerce, or it might mean that, since religious exercise as a whole in America has a general ''substantial effect'' on interstate commerce, an RLPA plaintiff can allege that any incidental government burden on his own religious exercise is, by definition, actionable.

    Professor Laycock sometimes seems to have something like the latter alternative in mind. In his June 16, 1998, testimony before the House Subcommittee on the Constitution, Professor Laycock refers to the Lopez Court's ''aggregation rule,'' which provides that ''in considering whether an activity substantially affects commerce, Congress may aggregate large numbers of similar transactions.'' He argues that the RLPA proceeds on a presumptive aggregation theory:
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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 practices affects commerce in the aggregate.

    But there are huge problems with this analysis. What the Lopez Court found was that Congress could not simply invoke the massive and undeniable nexus between public education and commerce to rationalize its law against gun possession within the vicinity of public schools. The ''substantial effects'' test rather requires a proof that the specific activity being regulated ''substantially affects'' interstate commerce. Thus, the Government had to show in Lopez not the obvious point that public education substantially affects interstate commerce but that the possession of guns within a certain distance of a public school ''substantially affects'' interstate commerce. No such legislative finding was ever made, as the Court emphasized, nor was there a specific jurisdictional nexus element requiring the government to prove that a particular defendant got a gun crossing state lines.

    Thus, Professor Laycock may be mistaken to conclude, in the RLPA context, that ''it is enough to show that churches in the aggregate affect commerce.'' It is not the churches that would be regulated by Congress here nor is it even the aggregated specific religious practices. It is, rather, the governments that are incidentally imposing on religious exercise through their normal course of business which are being regulated. Thus, in order for RLPA to withstand Lopez scrutiny, it must be shown either that incidental governmental imposition on religious exercise substantially affects interstate commerce across the board or that the statute itself requires proof in each case that an incidental governmental imposition on religious exercise substantially affects interstate commerce.
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    The former showing has not been made yet, and it is doubtful that it could be. It would be difficult to identify a large category of cases where otherwise neutral rules are incidentally and substantially burdening religious exercise while not violating Free Exercise or existing civil rights law. Undoubtedly some of these cases may exist, and we would probably think that the person whose religious exercise is being burdened could be exempted from the law without creating Establishment Clause problems. After all, we so have a Constitution that affirmatively endorses religious exercise.

    But this argues for a statutory jurisdictional requirement of a particular showing by an RLPA plaintiff that the kind of incidental governmental burden being placed on his or her own religious exercise, when aggregated with others like it, is ''substantially affecting'' interstate commerce. If we clarify in the law that each RLPA plaintiff must make this showing, then I think that the law could pass constitutional muster.

    Otherwise, the bill cuts against the whole spirit and substance of Lopez. Recall that the Government there argued that possession of a gun in a school zone might result in violent crime and that violent crime would affect the national economy in several ways. Id. at 563. First, large economic costs of violence are spread through the population through insurance and, second, gun violence reduces the ''willingness of individuals to travel'' across state lines to unsafe areas. Id. at 564. Third, the Government argued that guns in school areas threatened the educational process, which in turn reduces national economic productivity. Id.

    The Court held that these arguments proved far, far too much. Under the ''costs of crime'' and ''national productivity'' theories, ''Congress could regulate any activity that it found was related to the economic productivity of individual citizens,'' including family law and public school curricula. Under these theories, the majority found, ''it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where states historically have been sovereign.'' Id.
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    The Court admitted that the ''determination'' it was calling for of ''whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty,'' id. at 566. But it said that this uncertainty was inevitable and the determination needed to be made in order to uphold federalism. In our case, even if we wanted it to be, religion is not going to be defined as commercial; religion is probably the constitutional opposite of commerce.

    Thus, the only way to harmonize the statute with Lopez is to write in a specific federal jurisdictional nexus element that requires individual plaintiffs to allege that the kind of governmental infringement on religious liberty they are experiencing ''substantially affects'' interstate commerce. This is going to be a slender category of cases, making the statute a less sweeping but more constitutionally defensible one, as opposed to a categorical and symbolically grand statement that is almost certainly doomed to be rejected. Without such a requirement, the Court ''would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power,'' destroying the ''distinction between what is truly national and what is truly local.''(see footnote 188) It may be that those of us who champion religious freedom against state power, and I am one of those, want to throw caution to the winds and simply pass a piece of legislation that will allow us to go down in a blaze of glory. But RFRA already served that cathartic purpose, and I think it would be much better to come up with a bill that is more narrowly focused on real-world problems and likely to survive judicial scrutiny.

    Mr. CANADY. Professor Laycock.
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STATEMENT OF DOUGLAS LAYCOCK, PROFESSOR, ASSOCIATE DEAN FOR RESEARCH, UNIVERSITY OF TEXAS LAW SCHOOL

    Mr. LAYCOCK. Thank you, Mr. Chairman. I was asked in preparation for this hearing to summarize the record on land use. I have done that in some detail in my written statement. I want to speak about that very briefly and then respond to some of the things Professor Raskin said.

    The question with respect to land use is whether Congress believes that there is a substantial likelihood of constitutional violations under the Supreme Court's standards in many church land use cases. So fact-finding here is very important. The question is not whether the witnesses believe that there are many violations and not whether the Supreme Court believes that there are many violations. The question is whether Congress believes that there is a substantial likelihood of many violations and whether Congress' reasons for believing that are rational. So I think it is very important that the committee make careful findings.

    There is lots of information in this record. There is more that has come in. I particularly call your attention to the supplemental statements that John Mauck of Chicago submitted in the wake of the June 16th hearing. The record has always been quite strong that there is discrimination against small churches. Big denominations are treated better than small denominations and nondenominational churches, and there has been both statistical and anecdotal evidence of that. But now John Mauck has submitted statistical evidence that churches in general are treated worse than secular meeting places. He submitted 29 zoning codes from suburban Chicago. Twenty-two of these clearly, and some of the others less clearly, give much better treatment to theaters, meeting halls, lodge halls, clubs, restaurants, funeral homes, and other places where people gather in large numbers, and less favorable treatment to churches.
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    I think Congress can draw those inferences—that there is discrimination against churches and among churches. I think the record is very strong. But it is important that the inferences actually be drawn, and that Congress make a record of what facts it has found.

    We see discrimination in the places that leave a published record—in the reported cases and on the face of the zoning codes. I think it is a reasonable inference for Congress to draw that if we see discrimination there, and if we have the same vague standards in the unreported cases, which are much more numerous, or if the same forces are at work, the discrimination will be equally rampant in those unreported cases.

    Now, with respect to the Commerce Clause, I think the supporters of this bill have always intended something very close—not identical because there are really two issues run together here—but something very close to the understanding of this bill that Professor Raskin just said would be permissible. In talking about two issues at the same time, I may have created some of the misunderstanding here in my testimony on June 16th.

    I think everyone's understanding has been that the connection to commerce is open to litigation in each case. The aggregation rule must apply to the activity that is being regulated. So if the religious activity requires or produces a commercial transaction, and if burdening that religious activity will prevent that commercial transaction or make that category of religious transactions substantially more expensive, so that fewer of those transactions will occur, then we have a connection to commerce.

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    If the religious activity does not require a connection to commerce, then we can't regulate it, and we can't protect it under the Commerce Clause provisions of this bill. I think that has been everybody's understanding. So when I said on June 16 that the question is not whether this particular church affects commerce, the question is whether all churches together affect commerce, that is true; but I wasn't as precise as I should have been.

    The question is whether this type of activity, when aggregated among all churches, affects commerce. So to take the easy cases first, I think church construction cases plainly affect commerce. The question is not whether my little church in my block affects commerce but whether, if the burdensome regulation on church construction is widespread, does church construction generally affect commerce.

    In the employment cases, I think employment is plainly an activity in commerce. The Federal Government regulates employment in all sorts of ways. The question is not whether one particular employee affects Commerce but whether church employment, or religious employment generally, affects commerce.

    On the other hand, it is plain that there will be ritual activities that simply cannot be protected. There has been testimony before this committee about cases of deliberate violations of the secrecy of the confessional. As outrageous as those cases are, I think it would be a quite unusual confessional case that has any connection to commerce. Going to confession doesn't require you to buy anything. It doesn't require you to spend any money. We can't get that case under the Commerce Clause. That is unfortunate, but we can't get it.

    I have listed some other examples of things that I think will clearly be in, will probably be in, or will probably be out, in my written testimony. So I am not sure that Professor Raskin and I disagree all that much about the Commerce Clause.
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    Mike Farris on the earlier panel said that Congress can't help with the home school cases. Well, yes and no. I think there are burdensome intrusions on education inside the home school that we probably cannot reach under the Commerce Clause provision. On the other hand, a regulation that prevents the home school from happening, that says we just won't recognize you as a school, you have to send your kids to public school, I think the bill applies to that one, because the interstate market in textbooks and curriculum materials for home schools is a very large market. I think that is subject to the Commerce Clause provision.

    Now there is one point with respect to commerce that I think Professor Raskin and I disagree about, and I think it is important. He says it is not a bill about regulating religion; it is a bill about regulating government, it is a bill about regulating the burdens that government imposes on religion. That I think is not right.

    As I testified before, this is not a bill to regulate the States; this is a bill to deregulate religion. Congress' focus is on the private activity, on the religious exercise. We are deregulating religious behavior. And if the religious behavior that is being deregulated affects commerce, it is within the reach of the bill.

    When you considered the Airline Deregulation Act, and expressly pre-empted State law, you didn't ask whether State governments affected commerce; you asked whether the airline industry affected commerce. It is the same thing here. This is a bill that deregulates religion.

    With respect to the Spending Clause, I think Professor Raskin and I disagree somewhat more. Most of his analysis starts with the word ''particular,'' which appears in passing in the Dole opinion, and in a context that makes sense. The Dole opinion was about a particular spending restriction on a particular spending program. But that is not how lots of other spending provisions work.
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    Title VI on race is not a Spending Clause requirement attached to a particular program. It applies to every spending program the Federal Government operates. Similarly, every Federal spending program is subject to the Rehabilitation Act.

    Congress did not have to make findings with respect to Title VI or with respect to the Rehabilitation Act that, in every single Federal spending program, there is a substantial problem with race discrimination or disability discrimination. Congress' interest there is the same as Congress' interest here, which is that no intended beneficiary be excluded from the benefits of the Federal program because of his race, because of his disability, or because of his religious practice; and that Federal money not be spent to discriminate on the basis of race or disability or to substantially burden religious practice. That is a legitimate interest, and it is an equally legitimate interest in every spending program.

    Now I think it is almost certainly the case that there will be spending programs where we never have a RLPA case. I don't know if there are any religious burden or discrimination in road building. Maybe there is occasionally. And if there is occasionally, there will be an occasional case. But the intrusion or the regulatory burden here will be directly proportionate to a number of cases that there actually are.

    I also would like to clarify one other thing about the Spending Clause provisions that came up in the last hearing. There has to be a connection between the person whose religion is burdened and the Federal spending. But it doesn't have to be that the burden on religion is funded by the Federal Government. That is certainly not how Title VI or Title IX works. The easiest illustrations of that are the sexual harassment cases.
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    The Federal Government does not fund statutory rape of school girls by their teachers. But statutory rape of school girls by their teachers is a violation of the sex discrimination law attached to Federal aid to education; and the Supreme Court doesn't have the slightest doubt about that. The only question is whether the school is responsible for it when school officials didn't know about it. Sexual harassment is covered, even though the Federal Government doesn't fund it, because Federal money aids the school. Burdens on religion in a federally aided educational program will be covered the same way.

    Finally, one other point that came up in the last hearing. George Will is not the only person familiar to this committee who has written that the point of the Constitution was to subordinate religion to commercialism. Chris Eisgruber has also made that argument at some length, and that may be of some interest to members of the committee.

    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 once again in support of H.R. 4019, the Religious Liberty Protection Act of 1998. I teach Constitutional Law at The University of Texas, but as always, I testify in my personal capacity as a scholar, and not on behalf of the university.
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    I have been asked to respond to questions that have arisen since the hearing on June 9, and to summarize the record on church land use regulation.

I. CHURCH LAND USE REGULATION

A. Section 5 of the Fourteenth Amendment

    This Committee has heard much testimony about church land use regulation, and it will hear more today. Some of this testimony is statistical—surveys of cases, churches, zoning codes, and public attitudes. Some of it is anecdotal. Some of it is sworn statements by individuals or representatives of organizations with wide experience in this field who say that the anecdotes are representative—that similar problems recur frequently. This evidence is cumulative and mutually reinforcing; it is greater than the sum of its parts.

    Cole Durham on June 9, and Von Keetch on March 26, described the Brigham Young study that several other witnesses have mentioned. The Brigham Young study shows that small religious groups, including Jews, small Christian denominations, and nondenominational churches, are vastly over represented in reported church zoning cases. These small faiths are forced to litigate far more often; they have less ability to resolve their land use problems politically. The land use authorities are less sympathetic to their needs and react less favorably to their claims. Yet once they get to court, these small faiths win their cases at about the same rate as larger churches. It is not that small churches bring weak cases, but that small churches are more likely to be unlawfully denied land use permits. The equal win rates also tends to confirm what would be a reasonable inference in any event—that over a large number of cases, other factors balance out.
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    The over representation of small faiths is greater in location cases, where the issue is whether there can be a church on a particular site, than in accessory use cases, where the issue is whether one of the church's activities is permitted in an existing church. In my experience, the explanation for this difference is that land use authorities often have a narrow idea of what a church is and does. Churches that confine their activities to the zoning board's understanding of a basic worship service are treated differently from churches that do anything more than that. This discrimination based on the scope of the religious mission brings more mainstream churches into court in accessory use cases, but even there, the small faiths are significantly over represented.

    I would add that there is no majority religion in the United States, and that adherents of different faiths are distributed quite unevenly across the nation. Every faith is a small faith somewhere. Faiths that are small nationally are just small in more places. Even faiths that are tiny minorities in most places may be large and influential in a few places.

    Rev. Elenora Ivory will testify today to a Presbyterian study. I have testified about this study in the Senate. It shows that sixty to eighty Presbyterian churches per year experience significant conflict with land use authorities, or significant cost increases in their projects, because of the demands of land use authorities. Compare this number to the two reported cases involving Presbyterian churches in the Brigham Young study, and you get some sense of how much of the problem is unreported.

    The Presbyterians are a well-respected, mainstream faith by any definition. Yet they have significant trouble in 15% or more of their applications. Combining the Brigham Young and Presbyterian studies, it is reasonable to infer that smaller and less familiar faiths have trouble in far more than 15% of their cases. The same attitudes, rules, and procedures are at work in the reported and unreported cases, so it is reasonable to infer that there is similar discrimination against small faiths in both contexts.
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    There is also evidence of discrimination in the zoning codes themselves. Zoning attorney John Mauck, in a written statement supplementing his testimony at the June 9 hearing, describes a survey of twenty-nine zoning codes from the northern suburbs of Chicago. In twelve of these codes, there was no place where a church could locate as of right without a special use permit. In ten more, churches could locate as of right only in residential neighborhoods. But in most residential neighborhoods, a right to locate is illusory for all but the tiniest congregations. Unless your congregation can meet in a single house, the only way to build a church in a residential area is to buy several adjacent lots and tear down the houses. But several adjacent lots never come on the market at the same time, and if they did, any church pursuing this strategy would likely provoke an angry reaction from the neighborhood. It is only in commercial zones that significant tracts of land are bought and sold with any frequency. So in effect, twenty-two of these twenty-nine suburbs exclude churches except on special use permit, which means that zoning authorities hold a power to say yes or no that is almost wholly discretionary. In the free speech context, we would call this standardless licensing, and it would be unconstitutional. It should be equally unconstitutional as applied to churches.

    In fact the situation is worse than exclusion except on special use permit, because some of these codes do not permit churches even on special use permit in all or most of the city.

    Mr. Mauck's testimony also shows that places of secular assembly are often not subject to the same rules. The details vary, but uses such as banquet halls, clubs, community centers, funeral parlors, fraternal organizations, health clubs, gyms, recreation centers, lodges, libraries, museums, municipal buildings, meeting halls, and theaters are often permitted as of right in zones where churches require a special use permit, or permitted on special use permit where churches are wholly excluded. Every suburb on his list permitted at least one of these uses, and some as many as twelve of these uses, on terms more favorable than those that applied to churches. Many business uses are also generally permitted as of right without special use permits.
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    Last week, Mr. Mauck told me another fact, not included in his written statement, that tends to show discrimination between religious and secular uses. He regularly attends the meetings of the Board of Zoning Appeals in Chicago. The cases at each session are listed on a docket sheet, which he reviews. He estimates that at least 30% of the cases involve churches, although churches are no where near 30% of the land uses in the city, or even of the nonresidential land uses in the city. In Mr. Mauck's expert opinion, churches are so over represented because they are more likely than secular uses to be subject to the requirement of a special use permit, and because authorities are less likely to grant the permit when it is required.

    Numerous witnesses testified that land use regulation is administered in individualized processes. John Mauck testified to this; I testified to it; Marc Stern testified to it. John Mauck, Von Keetch, and Rabbi Chaim Rubin all described examples of individualized permit processes. The Presbyterians found that in half their cases, there was no clear rule, and I believe that if we had a more detailed report, we would find that the larger and more important the land use decision, the less likely there is to be a clear rule. Even when there is a clear rule, the rule can be changed. Steven McFarland and John Mauck testified to cases in which churches sought to locate on a site where churches were permitted as of right, and in which the land was then rezoned to exclude churches.

    These witnesses also testified that these individualized decisions are made under standards that are often vague, discretionary, or subjective. John Mauck and Von Keetch testified to permits denied for reasons such as ''the general welfare,'' the ''character of the area,'' ''aesthetics,'' and ''traffic.'' ''Traffic'' sounds more objective than the other three, but every use of land adds traffic, so the real question is how much traffic is too much. That question is as subjective as ''aesthetics'' or ''the general welfare.''
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    Mr. Mauck also testified to two other common reasons for excluding churches, reasons which in combination are universally applicable. Churches can be excluded from residential zones on the ground that they are commercial and generate traffic. They can be excluded from commercial zones on the ground that they have little activity during the week and do not generate traffic. If these reasons are legally sufficient, then any church can be excluded from any zone, and the decision whether to invoke these reasons is wholly discretionary.

    Even discretionary reasons may support a legitimate judgment in cases at the extremes, but typical proposed projects do not pose cases at the extremes. Every land use imposes some cost on its neighbors, so there is always some reason to say no. But of course, authorities do not always say no; most urban land is eventually developed. So there is a very wide range of proposed projects that impose some costs but not more than the city is willing to accept if it welcomes the use. And in this very broad range, subjective judgments about questions of degree can be consciously or unconsciously distorted by other factors, including how the neighbors or the authorities feel about the proposed use and the proposed occupant. If the neighbors or the authorities are not comfortable with a church, or with a particular church, these attitudes inevitably affect such discretionary judgment as the general welfare, the character of the neighborhood, aesthetics, and traffic. Each of these labels can readily be used to disguise a decision made for quite different reasons. And each is almost impossible to prove or disprove.

    In my letter of July 18, 1997, supplementing my testimony at a hearing last year that also occurred on July 14, I testified to Gallup poll data showing that 45% of Americans admit to ''mostly unfavorable'' or ''very unfavorable'' opinions of ''religious fundamentalists,'' and 86% admit to mostly or very unfavorable opinions of ''members of religious cults or sects.'' Thirty percent of Americans said they would not like to have ''religious fundamentalists'' as neighbors, and 62% said they would not like to have ''members of minority religious sects or cults'' as neighbors. A desire not to have members of a minority sect as neighbors is closely related to a desire not to have the minority sect's church as a neighbor.
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    I have spent more than twenty years working on these issues, and I have met with people with a vast range of perspectives on religion and religious liberty. I believe that a range of negative attitudes underlies these Gallup data. Some Americans are hostile to all religion. They believe it is irrational, superstitious, and harmful. This is the view of a small minority, but this view is over represented in elite positions. What is much more widespread is suspicion of, or hostility to, religious intensity. People who are moderately religious themselves are hostile to those who are more intensely religious. In my judgment, this is why Gallup reports such widespread negative attitude toward ''fundamentalists,'' ''cults,'' and ''minority sects.'' And as I testified in my letter of July 18, churches and believers often encounter such attitudes among persons in elite positions, and it is reasonable to infer that these views are well represented among government officials with discretionary powers.

    As I said at the beginning of this statement, these data are mutually reinforcing. Religious biases are widespread in the population. Individualized decision making and discretionary standards provide ample opportunity for any biases to operate. Legislation is necessarily political and discretionary, so any biases that may exist can also operate when the city enacts its zoning code.

    We see evidence of discrimination in the places that leave a published record. On the face of the zoning codes, churches are often treated worse than secular meeting places. In the reported cases, small and unfamiliar churches are forced to litigate far more often than large, mainstream churches. Congress can infer that these differences are not random. These patterns appear because views about churches distort discretionary decisions under vague and subjective standards. Consciously or unconsciously, land use authorities discriminate against religion and among religions.
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    Finally, we see that there are many times more unreported church land use conflicts than reported cases. We have no systematic way to study this vast number of unreported conflicts. But the same individualized processes and discretionary standards apply. The same biases are present in the population. If these factors lead to discrimination against churches and among churches in the visible parts of the process—in the zoning codes and the reported cases—Congress can infer that they also lead to discrimination against churches and among churches in the invisible part of the process, in the vast number of unreported, discretionary decisions on individual permit applications.

    The evidence based on anecdote and experience supports this inference. John Mauck described twenty-two cases of apparent discrimination in his written statement. He spends nearly all his professional time handling such cases in the Chicago area, and he gets calls about such cases from all over the country. He described several cases where churches were refused permission to meet in building had been used for secular assemblies—a Masonic temple, a VFW hall, a funeral home, a theater, an auditorium in an office building. He described cases in which cities preferred nightclubs to churches, and preferred to let an abandoned department store sit empty rather than let it be used by a church.

    Marc Stern testified that he has handled or advised on many cases of land use discrimination, and he described several examples. He described a case in Hempstead, New York, in which a synagogue was excluded because it would bring traffic on Friday nights, but an astute judge noted that it would bring no more traffic than the large parties that were already common in Hempstead on Friday nights. Unfortunately, few judges are so astute. He described an Ohio case where Jewish leaders wholly satisfied the land use officials, but their project was disapproved in a referendum in which biased views were openly expressed. On March 26, he described a case in Clifton, New Jersey, where officials said they preferred an art group to a church; on June 9, he testified that these same officials later permitted a white church where they had denied two black churches.
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    Rabbi Rubin described how the City of Los Angeles refused to let fifty elderly Jews meet for prayer in the Hancock Park neighborhood, because Hancock Park had no place of worship and the City did not want to create a precedent for one. Yet they permitted other places of assembly in Hancock Park, including schools, recreational uses, embassy parties, and a law school within walking distance of Rabbi Rubin's shul! This is a clear case of discrimination between religious and secular uses. Eighty-four thousand cars passed the building every day, and hundreds of law students came and went to both the day school and the night school. But we are supposed to believe that fifty Jews arriving on foot once a week would irrevocably change the neighborhood.

    California has responded with legislation to solve a similar land use problem, the exclusion of childcare from residential neighborhoods. Cal. Health & Safety Code §1597.40 (1990 & Supp. 1998). The legislature found that childcare in a home is an accessory use that does not change the character of the neighborhood. This statute was recently upheld against constitutional attack. Barrett v. Dawson, 71 Cal. Rptr. 3d 899 (Cal. App. 1998). So Californians now have a statutory right to assemble children for offer group childcare in their homes, despite zoning or restrictive covenants to the contrary, but no right to assemble for prayer in their homes.

    Rabbi Rubin also testified that Agudath Israel, a national organization of Orthodox Jews, tells him these conflicts over Jews meeting for prayer are common. Bruce Shoulson will testify today to similar cases. Marc Stern testified that land use authorities often refuse permits for Orthodox synagogues because they do not have enough parking spaces—even though the Orthodox walk to synagogue because as a matter of religious obligation, they cannot use motor vehicles on the Sabbath. When a religious minority is repeatedly denied permits on grounds that are wholly irrational, it is reasonable to infer that the stated ground is not the real reason, or not the whole of it.
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    Steven McFarland and John Mauck testified to rezoning to exclude churches that managed to acquire property where churches were a permitted use. Steven McFarland also testified to the case of The Refuge Pinellas in St. Petersburg, Florida, where a church has been reclassified as a social service agency, and then excluded on that basis. This case illustrates discrimination based on the scope of the religious mission; it may also involve discrimination against small faiths. A dissenting land use official said that numerous churches in St. Petersburg were social service agencies under the city's definition, but the less conventional, nondenominational example has been singled out for prosecution. Elenora Ivory will testify today to several other cases of zoning laws being invoked to confine a church's mission.

    Von Keetch testified to the case of Forest Hills, Tennessee, which permitted the Baptists, Presbyterians, Methodists, and the Church of Christ to build churches, and then declared that no other denominations could enter the city—not even at a major intersection in a building formerly used as a church. A judge found the city's reasons unconvincing, but looking at the single case in isolation, she could not infer discrimination, and she would not find that the city's rules were not generally applicable.

    I testified to a Wall Street Journal story about suburbs with fierce resistance to churches, deliberately using land use regulation to wholly exclude churches or sharply limit their number. John Mauck testified to statements such as ''Let's keep these God damned Pentecostals out of this neighborhood.'' Steven McFarland testified to a zoning official calling a church a ''stinkweed.'' Marc Stern testified to similar experiences.

    Sometimes permits for churches are denied in whole or in part for reasons of racial discrimination. John Mauck testified to several cases of racially motivated opposition to black churches, and to a case in which the mayor told his city manager that ''We don't want Spics in this town.'' The city manager was fired after he disclosed this statement. Marc Stern testified to a case in which black churches were denied permits, and in which a citizen opposed the permit on the ground that the city would soon look like Patterson, a predominantly African-American city nearby. He further testified that a white church was later permitted where the black church had been refused.
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    Multiple witnesses testified that this discrimination is very difficult to prove in any individual case. John Mauck, Marc Stern, Von Keetch, Gene Schaerr, and I all testified to this. Subjective criteria mean that any decision can be supported by a reason that sounds neutral and legitimate. Even if somebody blurts out an unambigously bigoted motive, courts are reluctant to attribute the collective decision to that motive. Marc Stern described a case holding that remarks from the crowd are not attributable to the decision maker, and another case in which the court refused discovery on issues of motive.

    Section 3(a) is intended to help with such cases. Evidence of bad motive among constituents of the land use authority is prima facie evidence of the motive for the ensuing decision. The burden of persuasion to show a legitimate nondiscriminatory motive should therefore shift to the land use authorities.

    Marc Stern, Steven McFarland, and John Mauck testified that it is difficult and expensive even to litigate these issues. The church must acquire and hold an interest in the land in order to have standing to seek zoning approval, which may be wholly discretionary. I would add that this problem is especially acute for churches, which tend to have tight operating budgets and limited capital.

    I have described the evidence and how it fits together. Congress must decide what it believes based on this evidence. Congress is the relevant fact finder—not the witnesses, and not the courts. The courts see one case at a time. Congress can cumulate evidence from around the country, and it can draw reasonable inferences from patterns in that evidence. It is up to Congress in the first instance to decide what inferences to draw from the raw facts, and the Committee should state in its report what inferences it has drawn.
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    I believe that Congress can find at least the following:

  a. That land use regulation is commonly administered through individualized processes not controlled by neutral and generally applicable rules. Presbyterian Study; Mauck; Laycock; Schaerr; McFarland; Rubin.

  b. That the standards in individualized land use decisions are often vague, discretionary, and subjective. Mauck; Keetch; Laycock.

  c. That rules restricting particular uses to particular zones may be used to entirely exclude religious organizations, or to confine them to areas where little or no land is actually available. Mauck; Keetch.

  d. That these individualized processes and vague standards provide ample opportunity for any religious bias or hostility to disguise itself in the land use process, facilitating discrimination against religion or among religions. Laycock; direct inference from underlying facts.

  e. That faiths and denominations with few adherents are discriminated against in the land use process, as shown by their gross over-representation in reported church land use cases. Brigham Young Study.

  f. That small and large faiths win their claims at the same rates once they get to court, so that the over representation of small faiths in the reported cases indicates government's discriminatory regulation of these faiths rather than their own propensity to litigate. Brigham Young Study.
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  g. That serious conflicts between religious organizations and land use authority are many times more common than reported litigation. Presbyterian Study.

  h. That the same attitudes and opportunity for discrimination are present in unreported land use conflicts and in reported cases, and it is therefore reasonable to infer that the discrimination documented in the reported cases is equally widespread in the far more numerous unreported conflicts. Direct inference from underlying facts.

  i. That these inferences from reported data are reinforced by anecdotal evidence of discrimination, and that these anecdotes come from all across the country. Stern; Mauck; McFarland; Keetch; Rubin.

  j. That these anecdotes show not just that religious institutions are often burdened, but that more popular churches, better connected churches, and older churches are often treated better than less popular, less connected, and newer churches. Brigham Young Study; Stern; Mauck; McFarland; Keetch; Rubin.

  k. That there is no majority religion in the United States, and that adherents of different faiths are distributed quite unevenly across the nation, so that every faith is a small faith somewhere in the country. Laycock; common knowledge.

  l. That in some cases, religious discrimination is joined with and reinforced by racial and ethnic discrimination. Mauck; Stern; reasonable inference from underlying facts plus general knowledge about racism.
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  m. That in a significant number of communities, it is difficult or impossible to build, buy, or rent space for a new church, whether large or small. Mauck; Laycock; Keetch; Wall Street Journal.

  n. That the problem is most severe with respect to small faiths, but it is not confined to them, and large, mainstream churches also sometimes encounter land use decisions that appear to have been influenced by hostility to the presence of a church. Presbyterian Study; Laycock; Chopko.

  o. That in many cities and towns in America, it is illegal to start a church anywhere in the community without a special use permit or similar discretionary permission from a land use authority. Mauck.

  p. That churches are many times more likely to be landmarked than any other kind of property. Laycock (7/14/97), citing New York study.

  q. That some communities have land use rules that on their face discriminate against churches. Presbyterian Study; Mauck.

  r. That churches are often refused permission to meet in buildings designed for meetings, and in which secular meetings have been permitted. Mauck.

  s. That 45% of Americans have ''mostly unfavorable'' or ''very unfavorable'' opinions of ''religious fundamentalists,'' and 86% have mostly or very unfavorable opinions of ''members of religious cults or sects.'' Gallup Poll.
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  t. That 30% of Americans would not like to have ''religious fundamentalists'' as neighbors, and 62% would not like to have ''members of minority religious sects or cults'' as neighbors. Gallup Poll.

  u. That these data on views about ''fundamentalists,'' ''cults,'' and ''sects'' indicate widespread hostility to persons whose religious beliefs are unusual or significantly more intense than the norm. Laycock; reasonable inference from underlying facts.

  v. That citizens sometimes voice explicit hostility to religion in general or the particular religion, and offer this hostility as reason to refuse needed land use permits. Mauck; Stern; McFarland; Wall Street Journal.

  w. That governmental officials, including land use officials, respond to religious hostility among their constituents as they respond to any view among their constituents, and that some land use officials probably hold such views themselves. Inference about political behavior, within the expertise of Congress.

  x. That this hostility can readily influence land use decisions about religious organizations, because of the individualized processes and vague standards. Mauck; Stern; Keetch; Laycock; direct inference from underlying facts.

  y. That even in the absence of discrimination, land use regulation has a disproportionate impact on religious organizations, because they are not-for-profit organizations, often operating on limited operational budgets and with little or no capital, and buildings designed for religious use are often difficult or impossible to convert to other uses. Laycock; reasonable inference from common knowledge and from facts found by this Committee in its report on the Religious Liberty and Charitable Donation Protection Act of 1998.
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  z. That independent of any inference about motives or the nature of the process, the raw numbers show that land use regulation has disparate impact on churches and especially on small faiths and nondenominational churches. Brigham Young Study; Mauck.

  aa. That zoning litigation is very expensive, not only because of the cost of litigation, but also because it is often necessary to pay for the land and hold the land throughout the litigation, without knowing whether it will ever be possible to use the land. Mauck; Stern.

  bb. That it is difficult to prove discrimination in any one land use proceeding, because the applicable standards are vague, the focus is on the single parcel of land, land use agencies discourage or refuse to hear evidence about other comparable parcels, and the national pattern of discrimination is not readily apparent until large numbers of cases are examined. Mauck; Stern; Keetch; Schaerr; Laycock.

    If Congress makes these findings, or several of them, it will have found a pattern of discrimination sufficient to support remedial legislation to enforce the Fourteenth Amendment. It is not necessary to find that every church land use regulation is unconstitutional; no one claims that. It is not necessary for Congress to try all the cases and determine that any particular percentage of church land use regulations is in fact unconstitutional. Rather, Boerne says the standard is ''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). Surely the findings outlined above show ''reason to believe'' that ''many'' applications of land use regulations to religious organizations ''have a significant likelihood'' of being unconstitutional.
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    At another point in the opinion, Boerne says that ''If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive.'' Boerne, 117 S.Ct. at 2171. The Brigham Young study alone shows disparate impact against small faiths, and John Mauck's data from Chicago and its suburbs show disparate impact against churches in general. The Brigham Young study shows disparate impact in a context where the inference of improper motive is strongest—not in a single statute that might have been enacted for good reasons despite its disparate impact, but in a series of individualized decisions over a large number of cases where other legitimate reasons might be expected to balance out.

    These witnesses have not claimed, and it is not necessary for Congress to find, that land use authorities in all these cases deliberately seek to exclude places of worship and consciously do so because of religion. Sometimes that happens, and sometimes there is evidence of it. But that is not the only kind of case, and Congress does not have to find the relative frequency of that kind of case.

    I believe that in many of these cases, the effects of bias may be quite unconscious. In individually assessing proposed land uses under vague and subjective standards, it is inevitable that attitudes toward the proposed use will affect judgment. Authorities may assess traffic or aesthetics or character of the neighborhood one way for a public meeting hall and the other way for a church, one way for Episcopalians and a different way for Jehovah's Witnesses. And the authorities may honestly think they are just deciding individual cases on the merits. But if the decisions are individualized and the pattern of results is discriminatory, Congress can find unequal treatment, and thus discrimination, without making any finding about motive.
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    As I testified in greater detail a year ago, the constitutional standard is whether the law is neutral and generally applicable. Individualized rules are not generally applicable, and rules that result in unequal treatment are neither neutral nor generally applicable. The law does not require religious bigotry or conscious anti-religious motive. The clearest evidence of this point is Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), where the motive part of the opinion drew only two votes. The holding was not based on motive; the holding was that secular conduct received more favorable regulatory treatment than similar religious conduct, and that the laws were therefore not neutral and not generally applicable.

    If the Committee finds that the land use process is not neutral and generally applicable, the land use provisions of RLPA will be a remedy that is proportionate and congruent to the problem. RLPA provides reasonably objective rules and a discrete range of verifiable reasons for refusing religious land use needs. It puts the burden of persuasion on land use authorities instead of on the religious organizations. These provisions accommodate legitimate reasons for land use regulation while making it much harder to refuse permits for vague reasons that disguise hostility to religion in general or to minority religions or to a particular disliked religion, or which depend on discretionary judgments that may be readily influenced by a general reluctance to permit churches or certain kinds of churches.

    RLPA would protect all religions, although the evidence shows that the problem is most severe with respect to newer and smaller religions. This does not make RLPA a disproportionate response, for at least two reasons. First, Congress could not pass a law protecting some religions and not others. ''The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.'' Larson v. Valente, 456 U.S. 228, 244 (1982) (striking down a law that distinguished religions on the basis of the source of their contributions). The only way for Congress to protect the smallest religions is to protect all religions.
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    Second, the standard pattern of discrimination laws is to protect against discrimination in a whole category, even though it is rarely the case that every subgroup within a category is discriminated against, and never the case that every subgroup is discriminated against equally. The most severe problem of racial discrimination was against African-Americans. Congress heard much less evidence of discrimination against Asians, and little or no evidence of discrimination against whites. Congress heard much more evidence of discrimination against women than of discrimination against men. There are scores of national origins about which Congress heard no evidence of discrimination. Yet Congress protected all races, both sexes, and all national origins.

    The land use provisions of RLPA are drafted on the same principle. If Congress were simply to enact a general provision prohibiting discrimination, it obviously would protect all religions and not just those that have suffered the most discrimination. But a general prohibition on discrimination would be as difficult to enforce as the existing general prohibition in the Free Exercise Clause. RLPA proposes more specific prophylactic rules to make the constitutional rule against discrimination enforceable, but the principal is the same: these rules should protect all religions, and not just those that have suffered the most.

B. The Commerce Clause.

    To the extent that Congress can protect church land use under the Commerce Clause, it is not necessary to find discrimination or lack of generally applicable rules. It is necessary only to find an aggregate effect on commerce. The record summarized above is overwhelming that churches are burdened by land use regulation. These burdens necessarily reduce the volume of building and related economic activity by churches, and thus reduce the volume of commerce, whether or not these burdens are discriminatory or imposed under laws that are not neutral and generally applicable.
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    And certainly many church land use decisions are within reach of the commerce power. Construction of a church is a major economic undertaking. Certainly the construction industry affects interstate commerce, and it is subject to federal regulation in areas such as labor and safety. Construction materials are bought and sold in interstate commerce; construction contractors operate in multiple states; and construction workers often travel across state lines to where the work is.

    If the church is denied the right to locate on a new site, the resulting commerce will not happen. If it is generally difficult to get permits for new church construction, there will be fewer new churches, with longer delays before they are built; both the volume and pace of commerce will be reduced.

    Remodeling, refurbishing, or rehabilitating a structure for church use affects commerce in the same way as building a new church. These are simply alternate forms of construction, probably smaller in amount on average, but not smaller in every case. The cost of rehabilitating a large structure can easily exceed the cost of building a smaller one.

    Rental of a building for church use may be a harder case. There is a risk that courts will hold that rental markets are local and do not necessarily affect interstate commerce. I think such a holding would be in error. There is an interstate market for investment property; investors may own properties in multiple states. Certainly the financing of these properties occurs in interstate commerce, often through federally chartered and federally insured financial institutions, and mortgages are regularly bought and sold in interstate commerce. And all of these transactions are conducted with a view to the income to be earned by renting the property. I find it impossible to say that rental markets do not affect interstate commerce.
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    But as I said, there is a risk that courts will disagree. The smaller the church and the smaller the property, the greater the risk that a court will say the proposed rental has no affect on interstate commerce. But as we have seen, the smaller the church, the greater the risk of discrimination in the land use process. Findings that land use regulation is not based on generally applicable rules, and that there is substantial discrimination against churches and among churches, will sustain the land use provisions of the bill under section 5 of the Fourteenth Amendment in those cases where there is a litigation risk under the Commerce Clause.

    Another set of cases with litigation risk are the cases of small groups meeting in homes for prayer. Some of these cases may be portrayed as involving no construction, no purchase or sale, and no rental. It may appear that the house is already owned as a residence, and that the owner merely invites a minyan of his friends to join him in prayer. This may be how the city characterizes the event when it argues the Commerce Clause issue; of course it will characterize the event very differently in the zoning board, where it may claim that the change in use will have cascading commercial consequences. But regardless of such inconsistencies, courts may hold that the mere use of the property for religious purposes does not affect commerce.

    Again, I think that such a holding would be a serious error. Bruce Shoulson will testify that Orthodox Jews simply cannot live in communities that exclude religious meetings from residential neighborhoods. Zoning rules that prohibit such meetings prevent the interstate movement and relocation of citizens, which is clearly a commerce clause concern. I think that Congress can protect religious meetings in residential neighborhoods under the commerce clause. But again, Congress can also find that there is discrimination in many of these cases, and protect religious meetings in residential neighborhoods under its power to enforce the Fourteenth Amendment.
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    The important point is that by using both the power to regulate commerce and the power to enforce the Fourteenth Amendment, Congress can reach all or nearly all of the church land use cases. The two powers depend on different theories; they require different showings; and one may reach where the other does not.

II. THE COMMERCE CLAUSE SECTIONS OF THE BILL.

    I have also been asked to give some examples of things that probably would, and probably would not, be subject to the commerce clause section of the bill.

    As I already said, I think that most church land use cases, and certainly church construction cases, will be covered by the commerce clause section of the bill.

    Employment is an activity in commerce, subject to broad federal regulation. So, for example, a wrongful discharge suit by a minister should be covered by the commerce clause section of the bill.

    Some religious exercise cannot be performed or completed without a prior or subsequent commercial transaction. Personal property used in religious exercise must be purchased, and the purchase is likely to be in the channels of interstate commerce. Regulations that substantially burdened or prevented the use of ritual foods or other ritual items, vestments or other clothing worn for religious purposes, candles, prayerbooks, or any other property used for religious purposes, should be covered by the commerce clause section of the bill. An outright prohibition on using such items obviously prevents the commercial transaction of buying the items; a substantial burden on the use of such items will reduce the volume of burdened religious exercise and reduce economic demand for the items.
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    A ban on the importation of sacramental wine into a state is excluded from commerce clause protection by the Twenty-First Amendment, but burdensome regulations that permit the wine to be imported and then restrict its use are not excluded. So an attempt to prevent children from receiving First Communion is probably within the commerce clause section of the bill.

    Regulations that prevent religious persons from engaging in economic activity should be within the commerce clause section of the bill. For example, if a person cannot carry a driver's license with a photograph, because he believes that the photograph is a forbidden graven image, that person would be effectively excluded from commerce, and the volume of commerce would be reduced accordingly. A person excluded from an occupation by some licensing requirement that violated his religious faith should also be able to bring a claim under the commerce clause section of the bill. Whether any of these claims would be successful of course depends on the respective efforts to show substantial burden and compelling interest.

    In general, if it can be said that because of the substantial burden on religious exercise, some economic or commercial transaction will not happen, or that some set of economic or commercial transactions is substantially burdened so that fewer of the transactions will be completed, the burdensome regulation should be subject to the commerce clause section of the bill.

    On the other hand, ritual acts and obligations that do not require or result in commercial or economic transactions will generally fall outside the commerce clause section of the bill. I am reluctant to say categorically that no one can ever prove a commerce clause connection under circumstances I may not be thinking of today. But I can give you some examples where it seems to me unlikely that the commerce clause connection could be shown, at least in the usual case.
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    It is hard to see how a penitent going to confession affects interstate commerce, because there is no economic exchange and no antecedent or subsequent commercial transaction. Thus, an attempt to violate the secrecy of the confessional would not normally be subject to the commerce clause section of the bill, unless the state's intended use of the confidential communication provided the necessary link to interstate commerce.

    The autopsy cases may fall outside the commerce clause section of the bill. It seems obvious that the decedent is no longer engaged in commerce. I do not know enough about the process, and the chemicals and supplies that must be purchased to complete an autopsy, to know whether the medical examiner's activity affects commerce. Unless that can be shown, these cases probably fall outside the commerce clause section of the bill.

    Sometimes the effect on commerce may depend on the seriousness of the burden. For example, prayer is not a commercial activity, and a rule that prohibits prayer is probably not within the commerce clause section of the bill. But if the rule excludes an individual from an occupation, as perhaps in the case of an observant Muslim obliged to pray at five specified times each day, that application of the rule might well be within the commerce clause section of the bill.

III. CONCLUSION.

    I remain available to answer any other questions that the Committee or its members may have. This is an important bill. In a society that is religiously diverse and pervasively regulated, religious liberty cannot be left to a mere prohibition on laws that are not neutral and generally applicable. Pervasive regulation is too easily used, both intentionally and unintentionally, to burden and suppress religious practices, and especially those that are in any way unfamiliar or unpopular. Congress cannot reach the whole problem with this bill, but it can reach much of the problem, and I urge it to do so promptly.
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    Mr. CANADY. Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Green, you have indicated that a compelling state interest is needed in the legislation. What chance is there of the Supreme Court actually agreeing to that position in light of their expressed hostility in the Boerne decision where they quoted, government's ability to enforce generally applicable prohibitions on socially harmful conduct cannot depend on measuring the effects of a government action on a religion's objective spiritual development to make an individual's obligation to obey such law contingent upon the laws coincident with his religious beliefs except where the State's interest is ''compelling'' contradicts both constitutional tradition and common sense.

    With that kind of hostility, what chance do you think that they would accept the compelling interest test?

    Mr. GREEN. Well, Congressman Scott, I don't read that statement as the Supreme Court being hostile to the compelling interest standard.

    Mr. SCOTT. Say that again.

    Mr. GREEN. I do not read Boerne—that part of Boerne—as the Supreme Court indicating hostility to the application of the compelling interest standard across the board in many areas of civil rights. I think it was made within the context of the problems that the Court saw with the Religious Freedom Restoration Act.
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    Quite clearly, courts have found that antidiscrimination laws like other important governmental interests, can constitute compelling interests. And I don't think the Court in any way is stepping back from this position or saying that when this body and other bodies enact legislation, that the interests are not sufficiently important, that they cannot be compelling interests, to override some type of constitutionally protected claim.

    Mr. SCOTT. Well, they also—another reason underlying their decision was the fact that the RFRA was not at all targeted. If you are going to develop this compelling state interest, you ought to target it where the need is. And they said the RFRA was kind of a shotgun approach and shot at everything, whether it was needed or not.

    Is this bill more targeted than RFRA?

    Mr. GREEN. Yes, it is. Now, some of Professor Raskin's concerns are well taken. But as Professor Laycock said, that is exactly what we are trying to do by establishing the record by providing testimony of specific instances where there are problems.

    Once again, I don't view the Supreme Court as necessarily stepping back from the compelling interest standard when it comes to situations where it is needed as much as in free exercise situations. The Court merely believed that there was not congressional authority to enact RFRA in the way that Congress enacted it.

    Mr. SCOTT. If we have the compelling State interest, if some courts have already said that sexual orientation, antidiscrimination does not represent a compelling State interest, how would this bill affect cities' enforcement of their antidiscrimination laws when the religious freedom claims are made?
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    Mr. GREEN. What this will do, by using the compelling interest standard as it has been used in the past, is allow the claims to be raised and allow the claims to be balanced and litigated. This is not an attempt to stack the deck one way or the other.

    Mr. SCOTT. Well, compelling State interest really does stack the deck.

    Mr. GREEN. The compelling State interest is a rigorous standard, no doubt. And some people would say that courts have interpreted the compelling State interest too weakly because courts wanted to ensure that important governmental regulations are put in place. But this is a standard that is applied to other types of fundamental rights, too. And as I said and as my written testimony indicates, there are many interests that courts have found to be compelling that fall short of a constitutionally mandated interest.

    Consequently, just because in other contexts courts have distinguished between different types of rights does not mean that the interest that this body would have, or any other legislative body, in eradicating discrimination generally would not be considered a compelling interest.

    Some of those same courts—and other courts that have dealt with this issue—have clearly ruled that way.

    Mr. SCOTT. Well, speak specifically to antidiscrimination involving sexual orientation. If it is not a compelling State interest, what happens under a RLPA claim?
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    Mr. CANADY. The gentleman's time has expired. The gentleman will have 2 additional minutes.

    Mr. SCOTT. Thank you.

    Mr. GREEN. Certainly. If the Court finds it is not a compelling interest, then the RLPA claim would likely prevail. That is not necessarily the entire analysis, though. At least in the Smith case, the Court found that there was no substantial burden on the religious claimant's claim by virtue of her involvement in the commercial enterprise.

    Courts have often looked at the substantial burden side of the equation when it comes to religious claims to see whether there is a sufficient, necessarily constitutionally significant burden.

    I don't believe that the passage of RLPA is going to necessity invite any more claims. It certainly is not going to predetermine any particular outcomes. Mr. McFarland testified earlier about whether RLPA would be applied to some of these types of cases. Yes, it may be. You cannot prevent people from raising these claims legitimately. But that does not mean that RLPA is going to predetermine how these cases are going to turn out.

    Mr. SCOTT. Well, the State is compelled—is required to show a compelling interest. If they can't show a compelling interest, then the claimant would win.

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    Mr. GREEN. That is true. And that is the same with other areas of the law, too.

    Mr. SCOTT. Professor Laycock, you don't agree with that?

    Mr. LAYCOCK. Well, I don't agree with it stated with that level of generality, Mr. Scott. Much depends on context.

    I don't know what particular cases you are thinking of. There is a California case that says a gay rights ordinance did not serve a compelling interest where it was being applied to force a church to hire a gay organist who would be participating directly in the liturgy of the church.

    There is a D.C. Court of Appeals case that says that gay rights laws are compelling interests in most of their applications to Georgetown University and higher education. I think that in the great bulk of contexts, the gay rights claim is going to prevail, but that in contexts, at the heart of the religious operation, they may not prevail and should not prevail.

    I am on record in print as supporting gay rights laws. But I think that this is a deeply felt moral conflict. And the only way to resolve it is to realize that no one in the religious community can enforce their morality on the gay community, and similarly, the gay community cannot enforce its morals at the heart of the religious community.

    In the commercial context, the civil rights claim is going to win always or nearly always. Inside the church, the religious liberty claim ought to win. And the disputed turf is precisely the cases like Mrs. Smith, cases of that kind that Congress carved out of the Fair Housing Act, with what we call the Mrs. Murphy exception for small landlords with only a few units. People disagree about that, and the courts are going to resolve that.
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    But in large commercial operations and probably in small commercial operations, the gay rights claim is going to win. When it is race or sex rather than sexual orientation, the civil rights claim is always going to win any place except the clergy. Even inside the church, the churches have most lost race and gender cases except with respect to the clergy.

    Mr. SCOTT. Thank you, Mr. Canady.

    Mr. CANADY. The gentleman's time has expired.

    Mr. Nadler.

    Mr. NADLER. Thank you. I want to continue exploring this for a moment with Professor Laycock. So if the church or, rather, if an individual—if the individual or church, for that matter, taking both cases, was the landlord of an apartment building, a 50-unit apartment building and said, I don't want to rent to gay couples, and you had an antidiscrimination ordinance, what prevails, do you think?

    Mr. LAYCOCK. My prediction would be that the gay rights ordinance prevails.

    Mr. NADLER. Because?

    Mr. LAYCOCK. Because a 50-unit building is a commercial operation. And even if it is owned by the church—we have the Tony Alamo case, a commercial operation owned by a church. The church thought of it as a mission—the church thought it was providing employment for people who might otherwise be unemployable. But once the courts characterize it as commercial, the religious liberty claim loses; and that has been the experience.
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    Mr. NADLER. And under the Mrs. Murphy exception in the Civil Rights Act, let's assume that under a local gay rights act there were no such exception, the religious—but the landlord said, my religious belief prevents me from renting to a gay person or a gay couple. If that person owned a two-family house and lived in one section, do you think the religious claim would prevail?

    Mr. LAYCOCK. The religious claimant may prevail in some courts some of the time. The religious claimant is going to lose in some courts some of the time. But that category of cases is the one set of cases where we are getting divided results in the State courts.

    Mr. NADLER. What about employment cases?

    Mr. LAYCOCK. Pardon?

    Mr. NADLER. What about employment cases?

    Mr. LAYCOCK. I think that there may be a similar area of disputed territory with respect to the employment cases. There is a Ninth Circuit case, EEOC v. Townley Manufacturing. The owner of a substantial business said that his business was dedicated to the Lord, it was part of his religious exercise, and he was going to violate Title VIII. He lost that case.

    Mr. NADLER. And you would think that would be true with respect to——
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    Mr. LAYCOCK. To lose that case under RLPA——

    Mr. NADLER. But to lose that case under RLPA with respect to a gay rights ordinance, even though the Court has never held sexual orientation to be a suspect class.

    Mr. LAYCOCK. That would certainly be my prediction. The cases that will be litigated and might produce conflicting results are the three-man office where he says, I want the other two people I am working with to share my religion because religion is a large part of what we are doing here. We do a lot of pro bono work for religious organizations.

    In those very small-scale operations, courts have disagreed about whether this is really more like the church or more like the outside world. But courts have never disagreed that in the outside-world, religiously motivated people have to comply with the civil rights law.

    Mr. NADLER. I see. Again, you would not disagree with Mr. Green that the bill does not mandate the outcome, but only the standard that this Congress intends?

    Mr. LAYCOCK. That's right. Indeed, precisely because the bill mandates only the standard, I don't think we can say it codifies the result in any particular case, unless that case has been widely accepted, and there have been a lot of similar cases. With respect to these cases about very small operations where the courts disagree, I think it is particularly clear that you are enacting a standard and not codifying a particular result.
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    Mr. NADLER. And talking about what would happen, there would be speculation?

    Mr. LAYCOCK. I am sorry, talking about what would happen with respect to what?

    Mr. NADLER. Those very small cases would be speculative?

    Mr. LAYCOCK. Yes. I think the cases I think the churches ought to win, and I hope will win under RLPA, were the cases inside the church itself. Who can be a minister, who can be a choir director, who can do the religious work of the church, the churches ought to win those cases. They will certainly win the minister cases. I am not confident that they will win all the cases about other employees in every jurisdiction.

    We heard testimony this morning about a religious day care center that was being charged with respect to hiring members of its own faith—not sexual orientation, but religious discrimination. So I am not confident they will always win those cases about non-ministerial employees. But they should win those cases where the employee is doing the work of the church.

    The cases where you might get mixed results, at least for a while, are very small operations that can be plausibly characterized as private and as operated in an intensely religious way. You might get mixed results in those cases. But without the factor of smallness and without the factor of operating in an intensely religious way, I think there is no way in the world courts are going to say that civil rights laws don't prevail. And if it is race, the civil rights law will prevail no matter how small the operation.
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    Mr. NADLER. Thank you. Let me ask you a different question.

    Mr. CANADY. The gentleman's time has expired. The gentleman will have 2 additional minutes.

    Mr. NADLER. Thank you, Mr. Chairman.

    On land use cases, we keep hearing about the zoning cases. I mean, this has been—in effect, all the testimony we have heard on land use, this and other hearings, has been on zoning. How would this affect, say, wetlands or environmental laws?

    Mr. LAYCOCK. Well, I think that most environmental laws, emission controls and the like, apply no matter what piece of land you are using. They are not site specific. I don't think they are really land use regulation. They are under the general standard of RFRA if they are Federal, or if it is State and it affects commerce, it is under the general provisions in section 2.

    Site-specific regulation like wetlands is a little different. Again, if it is Federal it is under RFRA anyway. If it is State wetlands regulation, and it is site-specific, it is under the land use section. So then the question would simply be whether the State can show substantial harm to neighboring properties or to health and safety.

    If we are talking about a mud puddle, they probably won't be able to show that. If we are talking about a marsh that extends to neighboring properties or flows to neighboring properties and will affect those other properties when it is drained, the State probably can show that.
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    Mr. NADLER. So you think the major effect, then, would be on the zoning question?

    Mr. LAYCOCK. Yes. You know, the problem the land use provisions are trying to solve is local land use regulation as that has traditionally been understood. We don't have a history of religious disputes over wetlands.

    Mr. NADLER. And that is zoning that you are talking about?

    Mr. LAYCOCK. That is zoning, and in some places landmarking; you may think that is different from zoning or a part of zoning.

    Mr. NADLER. Although landmarking in the St. Bart's case even under Sherbert was upheld, in effect, as compelling State interest, wasn't it?

    Mr. LAYCOCK. We had very mixed results in the landmarking cases. There, too, we have evidence that churches suffered either targeting or at least very dramatic disproportionate impact. In New York, churches are 42 times more likely to be landmarked than any other kind of property.

    Mr. NADLER. Thank you.

    Mr. CANADY. Mr. Scott.
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    Mr. SCOTT. Thank you, Mr. Chairman. I had, I guess, somewhat related questions.

    Is there any question on the land use in terms of jurisdiction? Are we using the Commerce Clause to get to land use? And is there a substantial nexus?

    And, Mr. Green, you wanted to, I think, say something about the Establishment Clause, whether or not in land use cases religion has a leg up which other nonprofit charitable organizations don't have, and whether or not that constitutes an establishment.

    Mr. GREEN. So far as the Establishment Clause is concerned, Professor Laycock is correct. Many of the land use problems have been disproportionate to religious institutions, and that is a concern that they have. What RLPA is trying to say that you have to consider the religious interests, vis-a-vis a land use claim, and give the religious interest the same consideration as any other interest considered by the zoning authority. In essence, the religious claim cannot be disregarded just because it is religious or in conflict with some other interest.

    Exempting churches from certain provisions of landmarking laws, especially when you are dealing with the edifice itself or the ability of the church to do its ministry, and where you are relieving a landmarking burden on that that church is not giving the church some type of advantage that results in an Establishment Clause violation. It is removing that burden on the church in order for it to go forward with its ministry.

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    It also alleviates entanglement concerns that would be present when you have governmental entities making determinations about what types of structures should be built and should not be built. So I do not see that as presenting an Establishment Clause concern.

    Mr. LAYCOCK. The other question you asked, Mr. Scott, was, what is the relationship of the land use provisions, first in section 5 of the 14th Amendment and then to the Commerce Clause. I think that over a wide range of applications, either power is sufficient to support the land use provisions.

    The section 5 power may reach a little further depending on what findings Congress makes. But certainly the church construction cases can be reached under the Commerce Clause. Congress regulates the construction industry in lots of contexts.

    Whether every single church land use dispute—whether renting a storefront, whether a residential prayer group can be reached under the Commerce Clause—I don't know. I talk about some of those difficulties in my written statement for today's hearing. But certainly the location of new churches can be reached under the Commerce Clause.

    I think that all of these cases can be reached under section 5 of the 14th Amendment if the Congress believes that land use regulation is not done through neutral and generally applicable laws and that there is substantial disparate impact on churches, or that discretion being exercised in church cases in a more hostile fashion than it has been exercised in cases of secular properties.

    Mr. SCOTT. Thank you.
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    Mr. CANADY. Mr. Nadler, do you have any additional questions?

    Mr. NADLER. No. Thank you.

    Mr. CANADY. What I would like to do is just ask if any of you have any additional comments you would like to make. You have been very patient in being with us through, not only your own panel, but the first panel of the day.

    Mr. Green, let me thank you, Mr. Green, for your perspective on some of these issues. Before you proceed, I will just say that I think that you have highlighted an important factor here; and that is that the compelling interest test is a standard that people are going to have some differing opinions on in different circumstances.

    There are some cases where some of us might think that one result would obtain and there would be others who would disagree. And then there are going to be some there in the middle, you know, that everyone would recognize as kind of questionable. But I appreciate the perspective that you gave us on that issue.

    Please proceed.

    Mr. GREEN. Thank you, Congressman. Professor Laycock is exactly right. It really depends on how close the activity looks like a church or how close it looks like a run-of-the-mill commercial activity. Of course, that is always something that is figured into the formula.
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    Try to follow up on and respond to Congressman Scott, the focus of analysis when it comes to compelling interests is on the authority of the body to enact the law itself and the vestiges of discrimination that the legislative authority is attempting to eradicate, not on a stratification of rights or to parse the rights to see whether one particular right carries some type of priority over the others.

    The authority rests with Congress and legislative entities to prevent discrimination generally. Also, because courts have looked and have found compelling interests in a host of other areas that have no constitutional mandate themselves, then there would be a finding compelling interest analysis lies here too.

    Mr. CANADY. Professor Laycock.

    Mr. LAYCOCK. I should have said this earlier when it was more immediately relevant, but just so the record is clear: Professor Raskin said the Civil Rights Act of 1964 already prohibits religious discrimination. I just want to make clear that I assume he is referring to Title VII, which forbids religious discrimination in employment. But Title VI about discrimination in Federal spending programs is confined to race, color, and national origin. There is no existing prohibition on religious discrimination in federally assisted programs. RLPA would provide that for the first time.

    Mr. CANADY. Reverend Ivory and Mr. Shoulson, I wanted to particularly thank you for your information and your testimony on the zoning issues. We haven't asked a lot of questions about it. I think the kind of information you have provided will be very helpful to us. It adds to the information that we have previously obtained about the very real problems that exist in the zoning context. I think your contribution is very significant, and we thank you for that.
 Page 449       PREV PAGE       TOP OF DOC    Segment 2 Of 2  

    Mr. NADLER. Mr. Chairman.

    Mr. CANADY. Yes, Mr. Nadler.

    Mr. NADLER. I would like to ask unanimous consent to ask one additional question despite the fact I yielded it before.

    Mr. CANADY. Without objection.

    Mr. NADLER. Thank you.

    Mr. Green, let me ask you the following question: In your analysis, let us assume that RLPA were on the books, an assumption devoutly to be wished for. Let us assume that RLPA had passed and that you have got a discrimination case by some religious person or institution or whatever as you were talking about before.

    You had said that the question is, does the State have a compelling State interest? Does it meet the compelling State interest test obviously? Would the question be, does the State have a compelling State interest in eradicating discrimination? Or would it be a separate determination as to whether the compelling—it has a compelling State interest in eradicating discrimination in housing, in employment, and, you know, different areas as opposed to discrimination in general?

    Mr. GREEN. The State has compelling interest in eradicating discrimination in all of those general categories. But the State also has a compelling interest to ensure that discrimination is eradicated generally. Discrimination takes many forms, of course, but it also has common attributes. All forms involve the stereotyping of individuals according to certain traits, and discrimination affects commerce. It affects the ability of people to achieve self-fulfillment. These are all traits and concerns that are common to all forms of discrimination. And Congress and States and locales certainly have a compelling interest in attempting to eradicate all of those concerns. And this is why courts have held in these cases is that they are not going to start dividing up and parsing out, that interest by looking at the rights concerned; rather, they are going to look at the overall authority of the State to enact the law and the overall interest in eradicating discrimination. Thus, the relevant focus for determining compelling interest is the authority of the State to enact laws to eradicate discrimination generally.
 Page 450       PREV PAGE       TOP OF DOC    Segment 2 Of 2  

    Mr. NADLER. Thank you.

    Mr. CANADY. I want to thank you again for participating in our hearing today. Your contribution has been valuable. This will conclude the hearing, and the subcommittee does stand adjourned.

    [Whereupon, at 12:15 p.m., the subcommittee was adjourned.]











(Footnote 131 return)
Disclosure: The Christian Legal Society has not received any federal grant, contract or subcontract in the current or preceding two fiscal years. CLS represents only itself at this hearing.


(Footnote 132 return)
Hernandez v. C.I.R., 490 U.S. 680, 699 (1989).


(Footnote 133 return)
See Ira Lupu, ''The Failure of RFRA,'' 20 UALR L. Rev. 1, 19–22 (1998).


(Footnote 134 return)
See Jesus Center v. Farmington Hills Zoning Board of Appeals, 544 N.W.2d 698 (Mich. App. 1996) (finding that an action of the zoning board furthered a compelling interest but was not the least restrictive means available to achieve that goal).


(Footnote 135 return)
Bowen v. Roy, 476 U.S. 693, 702 (1986); United States v. Lee, 455 U.S. 252, 257 (1982).


(Footnote 136 return)
Lyng v. Northwest Indian Cemetery Prot. Ass'n, 485 U.S. 439 (1988).


(Footnote 137 return)
Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 377 (1990).


(Footnote 138 return)
Sasnett v. Sullivan, 908 F. Supp. 1429, 1444 (W.D. Wis. 1995).


(Footnote 139 return)
450 U.S. 707, 717–18 (1981) (emphasis supplied).


(Footnote 140 return)
Jimmy Swaggart Ministries, 493 U.S. at 392.


(Footnote 141 return)
Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 304–05 (1985). See also Lyng, 485 U.S. at 447–453; Bowen v. Roy, 476 U.S. 693, 706 (1986).


(Footnote 142 return)
Daytona Rescue Mission v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fl. 1995); Goodall v. Stafford County School Board, 60 F.3d 168 (4th Cir. 1995), cert. denied, 116 S. Ct. 706 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995).


(Footnote 143 return)
Smith v. Fair Employment and Housing Comm., 913 P.2d 909 (Cal. 1996).


(Footnote 144 return)
Lyng, 485 U.S. at 450–51.


(Footnote 145 return)
Sherbert v. Verner, 374 U.S. 398, 403–404 (1963); Thomas, 450 U.S. at 715–16.


(Footnote 146 return)
''It is no more appropriate for judges to determine the 'centrality' of religious beliefs before applying a 'compelling interest' test in the free exercise field, than it would be for them to determine the 'importance' of ideas before applying the 'compelling interest' test in the free speech field. . . . Judging the centrality of different religious practices is akin to the unacceptable 'business of evaluating the relative merits of differing religious claims.' '' Employment Division v. Smith, 494 U.S. at 886 (citations omitted); accord, Mack v. O'Leary, 80 F.3d 1175, 1178–79 (7th Cir. 1996).


(Footnote 147 return)
Goodall v. Stafford County, 60 F.3d 168 (4th Cir. 1995), cert. denied, 116 S. Ct. 706 (1996); Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995); Vernon v. City of Los Angles, 27 F.3d 1385, 1393 (9th Cir. 1994).


(Footnote 148 return)
Thomas, 450 U.S. at 718.


(Footnote 149 return)
Thomas, 450 U.S. at 718.


(Footnote 150 return)
Hernandez, 490 U.S. at 699–700.


(Footnote 151 return)
Lee, 455 U.S. at 258–59.


(Footnote 152 return)
Bob Jones University v. United States, 461 U.S. 574, 604 (1983).


(Footnote 153 return)
Gilette v. United States, 401 U.S. 437, 462 (1971).


(Footnote 154 return)
Braunfeld v. Brown, 366 U.S. 599, 608 (1961).


(Footnote 155 return)
Prince v. Massachusetts, 321 U.S. 158 (1944).


(Footnote 156 return)
Jacobson v. Massachusetts, 197 U.S. 11 (1905).


(Footnote 157 return)
United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997); United States v. Gonzales, 957 F. Supp. 1225 (D.N.M. 1997).


(Footnote 158 return)
Hunt v. Hunt, 648 A.2d 843, 851 (Vt. 1994).


(Footnote 159 return)
Daytona Rescue Mission v. City of Daytona, 885 F. Supp. 1554 (M.D. Fl. 1995).


(Footnote 160 return)
Commonwealth v. Stewart, 690 A.2d 195, 202 (Pa. 1997).


(Footnote 161 return)
South Jersey Catholic School v. St. Teresa, 675 A.2d 1155, 1170–71 (N.J. Super. A.D. 1996), aff'd 696 A.2d 709 (1997).


(Footnote 162 return)
American Life League v. Reno, 47 F.3d 642, 656 (4th Cir. 1995).


(Footnote 163 return)
Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 323 (5th Cir. 1977) (en banc) (Goldberg, J., specially concurring), cert. denied, 434 U.S. 1063 (1978). See Shaw v. Reno, 509 U.S. 630, 642–43 (1993) (racial discriminaiton); Bob Jones University, 461 U.S. at 603–04 (same); EEOC v. Pacific Press Pub., 676 F.2d 1272, 1280 (9th Cir. 1982) (gender discrimination); Gallo v. Salesian Society, 676 A.2d 580, 593 (N.J. Super. A.D. 1996) (age and gender discrimination); Swanner v. Anchorage Equal Rights Comm., 874 P.2d 274, 283 (Alaska 1994) (marital status discrimination); Jasniowski v. Rushing, 678 N.E.2d 743, 751 (Ill. App. 1997), vacated, 685 N.E.2d 622 (Ill. 1997) (same).


(Footnote 164 return)
Jasniowski, 678 A.2d at 751. See also Lumpkin v. Brown, 109 F.3d 1498 (9th Cir. 1997) (finding a compelling interest in preserving the integrity of a city's antidiscrimination policies).


(Footnote 165 return)
See Goldman v. Weinberger, 475 U.S. 503 (1986).


(Footnote 166 return)
Estate of Thorton v. Caldor, 472 U.S. 703, 709–10 (1985) (noting that a statute would impose ''significant burdens on other employees required to work in place of Sabbath observers.''); Lee, 455 U.S. at 261 (''Granting an exemption from social security taxes to [a religious] employer operates to impose the employer's religious faith on the employees.''). See also Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (noting that the exemption created no harm to children).


(Footnote 167 return)
Ibid.; Texas Monthly v. Bullock, 489 U.S. 1, 18 n.8 (1989).


(Footnote 168 return)
Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61 (2d Cir. 1953), quoted in Thorton, 472 U.S. at 710.


(Footnote 169 return)
Compare Smith, 913 P.2d at 927–929 (no substantial burden); Swanner, 874 P.2d at 283 (compelling interest); Jasniowski, 678 N.E.2d at 751 (compelling interest); with Attorney General v. Desilets, 636 N.E.2d 233, 241 (Mass. 1994) (remanding for finding of compelling interest); State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990) (finding that statute does not extend to unmarried, cohabitating couples; dividing on issue of compelling interest). Only in Thomas v. Anchorage Equal Rights Commission, No. A95–0274–CV (Jan. 27, 1997), appeal pending, did the court directly find that the government lacked a compelling interest in preventing marital status discrimination in housing.


(Footnote 170 return)
Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965).


(Footnote 171 return)
Thomas, 450 U.S. at 714.


(Footnote 172 return)
See Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 842 (1995).


(Footnote 173 return)
See Widmar v. Vincent, 450 U.S. 263, 271 (1981).


(Footnote 174 return)
Pub. L. No. 103–141, 107 Stat. 1488 (codified as amended at 42 U.S.C. §2000bb to bb-4 (1993)).


(Footnote 175 return)
521 U.S. XX, 117 S. Ct. 2157 (1997).


(Footnote 176 return)
494 U.S. 872. In Smith, the Court discarded the strict scrutiny standard for testing challenges to government action that incidentally but substantially burdens religious free exercise. This libertarian standard had been enunciated by Justice Brennan in Sherbert v. Verner, 374 U.S. 398 (1963). The Smith Court, per Justice Scalia, held that burdens on religious free exercise, however substantial, do not violate the First Amendment so long as they are the ''incidental effect of a generally applicable'' law. 494 U.S. at 878. Religious advocates and civil libertarians have considered this decision a major assault on the right to practice religion, and the decision has come under withering assault by observers. See, e.g., Mark G. Yudof, Religious Liberty in the Balance, 47 SMU L. Rev. 353, 356 (1994) (stating that ''[t]he Smith formulation leaves non-mainstream or atypical religions in the most vulnerable position''); Ira C. Lupu, Employment Division v. Smith and the Decline of Supreme Court Centrism, 1993 BYU L. Rev. 259, 260 (1993) (calling the decision ''substantively wrong and institutionally irresponsible''); Douglas Laycock, The Supreme Court's Assault on Free Exercise, and the Amicus Brief that was Never Filed, 8 J.L. & Relig. 99, 102 (1990) (describing decision as ''inconsistent with the original intent, inconsistent with the constitutional text, inconsistent with doctrine under other constitutional clauses and inconsistent with precedent''); Michael W. McConnell, 57 U. Chi. L. Rev. 1109, 1120 (1990) (condemning the Court's deliberate indifference to the history of the Free Exercise Clause and stating that Smith's ''use of precedent is troubling, bordering on the shocking.'')


(Footnote 177 return)
117 S. Ct. 2158–59.


(Footnote 178 return)
Id. at 2159.


(Footnote 179 return)
Id.


(Footnote 180 return)
Id.


(Footnote 181 return)
See South Dakota v. Dole, 483 U.S. 203, 208 (1987).


(Footnote 182 return)
Id. at 208.


(Footnote 183 return)
See id. (citing Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion) (emphasis added).


(Footnote 184 return)
Id. at 208–09.


(Footnote 185 return)
514 U.S. 549 (1995).


(Footnote 186 return)
Id. at 567.


(Footnote 187 return)
Id. at 551.


(Footnote 188 return)
Lopez, 514 U.S. at 567.