SPEAKERS CONTENTS INSERTS Tables
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62–491
2000
RELIGIOUS LIBERTY PROTECTION ACT OF 1999
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
H.R. 1691
MAY 12, 1999
Serial No. 73
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
May 12, 1999
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TEXT OF BILL
H.R. 1691
OPENING STATEMENT
Canady, Hon. Charles, a Representative in Congress from the State of Florida, chariman, Subcommittee on the Constitution
WITNESSES
Anders, Christopher E., Legislative Counsel, American Civil Liberties Union
Feldblum, Chai, Professor of Law and Director, Federal Legislation Clinic, Georgetown University Law Center
Hamilton, Marci, Professor of Law, Benjamin N. Cardozo School of Law
Hodges, Clarence E., Vice President, Seventh Day Adventist Church of North America
Jacob, Bradley, Provost and Dean of the College, Patrick Henry College
Keetch, Von G., Counsel, The Church of Jesus Christ of Latter-Day Saints
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Land, Richard, President, Ethics and Religious Liberty Commission of the Southern Baptist Convention
Laycock, Douglas, Associate Dean for Research, University of Texas Law School
Malloy, Reverend C.J., Jr., First Baptist Church of Georgetown
McFarland, Steven T., Director, Center for Law and Religious Freedom, Christian Legal Society
Sager, Lawrence G., Robert B. McKay Professor of Law, New York University School of Law
Saperstein, Rabbi David, Director and Counsel, Religious Action Center of Reform Judaism
Thomas, Oliver S., Special Counsel for Religious and Civil Liberties, National Council of Churches
Walker, J. Brent, General Counsel, Baptist Joint Committee on Public Affairs
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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Anders, Christopher E., Legislative Counsel, American Civil Liberties Union: Prepared statement
Eisgruber, Christopher L., Professor of Law: Letter to Hon. Canady dated May 17, 1999
Farris, Michael P.: Prepared statement
Feldblum, Chai, Professor of Law and Director, Federal Legislation Clinic, Georgetown University Law Center: Prepared statement
Hamilton, Marci, Professor of Law, Benjamin N. Cardozo School of Law: Prepared statement
Hodges, Clarence E., Vice President, Seventh Day Adventist Church of North America: Prepared statement
Keetch, Von G., Counsel, The Church of Jesus Christ of Latter-Day Saints: Prepared statement
Land, Richard, President, Ethics and Religious Liberty Commission of the Southern Baptist Convention: Prepared statement
Laycock, Douglas, Associate Dean for Research, University of Texas Law School: Prepared statement
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Malloy, Reverend C.J., Jr., First Baptist Church of Georgetown: Prepared statement
McFarland, Steven T., Director, Center for Law and Religious Freedom, Christian Legal Society: Prepared statement
Nadler, Hon. Jerrold, a Representative in Congress from the State of New York: Prepared statement
Sager, Lawrence G., Robert B. McKay Professor of Law, New York University School of Law: Prepared statement
Letter to Hon. Canady dated May 17, 1999
Saperstein, Rabbi David, Director and Counsel, Religious Action Center of Reform Judaism: Prepared statement
Thomas, Oliver S., Special Counsel for Religious and Civil Liberties, National Council of Churches: Prepared statement
Walker, J. Brent, General Counsel, Baptist Joint Committee on Public Affairs: Prepared statement
RELIGIOUS LIBERTY PROTECTION ACT OF 1999
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WEDNESDAY, MAY 12, 1999
House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:10 p.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles Canady, Asa Hutchinson, Bob Barr, Melvin L. Watt, Barney Frank, Lindsey O. Graham, and Jerrold Nadler.
Staff present: Cathleen Cleaver, Chief Counsel, Subcommittee on the Constitution; Bradley S. Clanton, Counsel, Subcommittee on the Constitution; Susana Gutierrez, Clerk, Subcommittee on the Constitution; Anthony Foxx, Minority Counsel, Subcommittee on the Constitution, and David Lachmann, Minority Counsel, Committee on the Judiciary.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY [presiding]. The Subcommittee on the Constitution convenes today to consider the Religious Liberty Protection Act, which is a bipartisan bill that protects the free exercise of religion against burdensome State and local laws and regulations by putting them to the most rigorous legal test.
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The Religious Liberty Protection Act will help people, like the adult children in New York who have been prevented by health regulations from volunteering to care for their elderly parents in government-run nursing homes despite the fact that their desired service was to fulfill their Fifth Commandment obligation to honor one's father and mother. They have been forced to choose between practicing their faith and obeying the restrictive regulations of the law. Sadly, their case is just one of a growing number of instances in which the religious freedom of Americans is not respected.
I will mention two other examples which illustrate the nature of the problem. In recent years, Catholic churches have had to go to court to protect the right of prisoners to practice the sacrament of confession without fear of their confidential testimony being turned over to police. And churches in Chicago with permits pending for commercial buildings have found the land under the building reclassified as a manufacturing zone by aldermen who wanted to keep them out of the neighborhood.
Traditionally, the courts protected this type of free exercise from far-reaching government intrusion, but in 1990, the Supreme Court jeopardized the religious practices of people of all faiths by ruling that only intentional violations of free exercise were of constitutional concern.
As we know, Congress responded to that decision of the Supreme Court by passing in 1993 the Religious Freedom Restoration Act, also known as RFRA, but in 1997, the Supreme Court dealt its second blow to religious liberty by ruling that the Religious Freedom Restoration Act could not be applied against State or local law on the grounds that the statute exceeded the constitutional authority of the Congress.
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I believe that it is time for Congress to once more act to protect religious liberty. H.R. 1691 addresses this serious situation by restoring the general rule that State or local officials may not substantially burden religious exercise without demonstrating a compelling interest in doing so. Where a religious activity or—excuse me, where a religious activity affects interstate commerce, the religious activity will be protected by the bill as will the religious exercise of participants in State or local programs receiving Federal financial assistance.
H.R. 1691 will also protect religious gatherings and institutions against unjustified actions by zoning boards and includes procedural help for religiously motivated people so that they will have their day in court if they can show their religious freedom has suffered at the hands of State or local government.
Americans deserve to have their religious beliefs and practices respected and protected. Religious freedom is too important to be trampled by the unthinking and insensitive actions of bureaucracy or as a consequence of bad public policy. That is why we are here today, and I want to thank all the witnesses that we are going to hear from for being here. We have a long list of witnesses, but this is an important issue that deserves serious consideration and reflection in the committee process, so I want to express my gratitude to all of the members of the three panels we will be hearing from for their assistance to the subcommittee in this important legislative undertaking.
[The bill, H.R. 1691, follows:]
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106TH CONGRESS
1ST SESSION
H. R. 1691
To protect religious liberty.
IN THE HOUSE OF REPRESENTATIVES
MAY 5, 1999
Mr. CANADY of Florida (for himself, Mr. EDWARDS, Mr. HYDE, Mr. WEINER, Mr. SENSENBRENNER, Mr. HUTCHINSON, Mr. GREEN of Texas, Mr. SMITH of Texas, Mr. ROGAN, Mr. PETERSON of Minnesota, and Mr. CANNON) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To protect religious liberty.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Religious Liberty Protection Act of 1999''.
SEC. 2. PROTECTION OF RELIGIOUS EXERCISE.
(a) GENERAL RULE.—Except as provided in subsection (b), a government shall not substantially burden a person's religious exercise—
(1) in a program or activity, operated by a government, that receives Federal financial assistance; or
(2) in any case in which the substantial burden on the person's religious exercise affects, or in which a removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes;
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even if the burden results from a rule of general applicability.
(b) EXCEPTION.—A government may substantially burden a person's religious exercise if the government demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) REMEDIES OF THE UNITED STATES.—Nothing in this section shall be construed to authorize the United States to deny or withhold Federal financial assistance as a remedy for a violation of this Act. However, nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General or the United States or any agency, officer, or employee thereof under other law, including section 4(d) of this Act, to institute or intervene in any action or proceeding.
SEC. 3. ENFORCEMENT OF CONSTITUTIONAL RIGHTS.
(a) PROCEDURE.—If a claimant produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of a provision of this Act enforcing that clause, the government shall bear the burden of persuasion on any element of the claim; however, the claimant shall bear the burden of persuasion on whether the challenged government practice, law, or regulation burdens or substantially burdens the claimant's exercise of religion.
(b) LAND USE REGULATION.—
(1) LIMITATION ON LAND USE REGULATION.—
(A) Where, in applying or implementing any land use regulation or exemption, or system of land use regulations or exemptions, a government has the authority to make individualized assessments of the proposed uses to which real property would be put, the government may not impose a substantial burden on a person's religious exercise, unless the government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
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(B) No government shall impose or implement a land use regulation in a manner that does not treat religious assemblies or institutions on equal terms with nonreligious assemblies or institutions.
(C) No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(D) No government with zoning authority shall unreasonably exclude from the jurisdiction over which it has authority, or unreasonably limit within that jurisdiction, assemblies or institutions principally devoted to religious exercise.
(2) FULL FAITH AND CREDIT.—Adjudication of a claim of a violation of the Free Exercise Clause or this subsection in a non-Federal forum shall be entitled to full faith and credit in a Federal court only
if the claimant had a full and fair adjudication of that claim in the non-Federal forum.
(3) NONPREEMPTION.—Nothing in this subsection shall preempt State law that is equally or more protective of religious exercise.
SEC. 4. JUDICIAL RELIEF.
(a) CAUSE OF ACTION.—A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
(b) ATTORNEYS' FEES.—Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended—
(1) by inserting ''the Religious Liberty Protection Act of 1998,'' after ''Religious Freedom Restoration Act of 1993,''; and
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(2) by striking the comma that follows a comma.
(c) PRISONERS.—Any litigation under this Act in which the claimant is a prisoner shall be subject to the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).
(d) AUTHORITY OF UNITED STATES TO ENFORCE THIS ACT.—The United States may sue for injunctive or declaratory relief to enforce compliance with this Act.
SEC. 5. RULES OF CONSTRUCTION.
(a) RELIGIOUS BELIEF UNAFFECTED.—Nothing in this Act shall be construed to authorize any government to burden any religious belief.
(b) RELIGIOUS EXERCISE NOT REGULATED.—Nothing in this Act shall create any basis for restricting or burdening religious exercise or for claims against a religious organization, including any religiously affiliated school or university, not acting under color of law.
(c) CLAIMS TO FUNDING UNAFFECTED.—Nothing in this Act shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this Act may require government to incur expenses in its own operations to avoid imposing a burden or a substantial burden on religious exercise.
(d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON FUNDING UNAFFECTED.—Nothing in this Act shall—
(1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a government as a condition of receiving funding or other assistance; or
(2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this Act.
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(e) GOVERNMENTAL DISCRETION IN ALLEVIATING BURDENS ON RELIGIOUS EXERCISE.—A government may avoid the preemptive force of any provision of this Act by changing the policy that results in the substantial burden on religious exercise, by retaining the policy and exempting the burdened religious exercise, by providing exemptions from the policy for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.
(f) EFFECT ON OTHER LAW.—In a claim under section 2(a)(2) of this Act, proof that a substantial burden on a person's religious exercise, or removal of that burden, affects or would affect commerce, shall not establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any other law.
(g) BROAD CONSTRUCTION.—This Act should be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by its terms and the Constitution.
(h) SEVERABILITY.—If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected.
SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.
Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the first amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the ''Establishment Clause''). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. As used in this section, the term ''granting'', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.
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SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.
(a) DEFINITIONS.—Section 5 of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb–2) is amended—
(1) in paragraph (1), by striking ''a State, or subdivision of a State'' and inserting ''a covered entity or a subdivision of such an entity'';
(2) in paragraph (2), by striking ''term'' and all that follows through ''includes'' and inserting ''term 'covered entity' means''; and
(3) in paragraph (4), by striking all after ''means,'' and inserting ''conduct that constitutes the exercise of religion under the first amendment to the Constitution; however, such conduct need not be compelled by, or central to, a system of religious belief; the use, building, or converting of real property for religious exercise shall itself be considered religious exercise of the person or entities that use or intend to use the property for religious exercise.''.
(b) CONFORMING AMENDMENT.—Section 6(a) of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb–3(a)) is amended by striking ''and State''.
SEC. 8. DEFINITIONS.
As used in this Act—
(1) the term ''religious exercise'' means conduct that constitutes the exercise of religion under the first amendment to the Constitution; however, such conduct need not be compelled by, or central to, a system of religious belief; the use, building, or converting of real property for religious exercise shall itself be considered religious exercise of the person or entities that use or intend to use the property for religious exercise;
(2) the term ''Free Exercise Clause'' means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion and includes the application of that proscription under the 14th amendment to the Constitution;
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(3) the term ''land use regulation'' means a law or decision by a government that limits or restricts a private person's uses or development of land, or of structures affixed to land, where the law or decision applies to one or more particular parcels of land or to land within one or more designated geographical zones, and where the private person has an ownership, leasehold, easement, servitude, or other property interest in the regulated land, or a contract or option to acquire such an interest;
(4) the term ''program or activity'' means a program or activity as defined in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a);
(5) the term ''demonstrates'' means meets the burdens of going forward with the evidence and of persuasion; and
(6) the term ''government''—
(A) means—
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, subdivision, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 3(a) and 5, includes the United States, a branch, department, agency, instrumentality or official of the United States, and any person acting under color of Federal law.
Mr. CANADY Mr. Graham is recognized if you would like to make any comments.
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Mr. GRAHAM. Thank you, Mr. Chairman. Let us proceed on. I waive any right I would have to speak.
Mr. CANADY. Okay, thank you. Mr. Watt.
Mr. WATT. I pass.
Mr. CANADY. Oh, okay. Thank you, Mr. Watt.
We will now proceed to our first panel which has been patiently waiting, and, as I indicated, will be the first of three panels of the afternoon. Our first speaker this afternoon will be Dr. Richard Land of the Southern Baptist Convention. Dr. Land is president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and he is also an ordained Baptist minister.
Following Dr. Land, will be Professor Lawrence G. Sager. Professor Sager is the Robert B. McKay professor of law at the New York University. Professor Sager has litigated before a number of State and Federal tribunals and has appeared before the United States Supreme Court.
Our next witness on this panel will be Von G. Keetch, counsel to the Church of Jesus Christ of Latter-Day Saints. Mr. Keetch has clerked on the United States Supreme Court for Chief Justice Warren Berger and Associate Justice Scalia. His present practice includes the first amendment and church law.
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Our final speaker on this first panel will be J. Brent Walker of the Baptist Joint Committee. Mr. Walker is general counsel of the Baptist Joint Committee on Public Affairs. Mr. Walker is an adjunct professor of law at the Georgetown University Law Center where he teaches an advanced seminar in church State law. Additionally, Mr. Walker is an ordained Baptist minister.
I want to thank all of you for being here, and we will recognize Dr. Land to begin. As you know, we have the 5 minute rule, and so I will encourage you to do everything you can to confine your spoken comments to the 5 minutes allotted. Of course, without objection, your full written statements will be made a part of the permanent record. We don't strictly enforce the 5-minute rule against witnesses, but I would encourage you to do your best, because we do have a very long afternoon ahead of us, and with the interruptions that we may get from votes and so on, we are going to be—we need to move as expeditiously as possible.
Dr. Land.
STATEMENT OF RICHARD LAND, PRESIDENT, ETHICS AND RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
Mr. LAND. Thank you for the opportunity to testify on this issue of critical important to all of us who cherish religious liberty. As president of the Ethics and Religious Liberty Commission, I am frequently in the position to hear from people across the America about their religious concerns. These individuals are not legal scholars. They do not spend their spare moments perusing legal opinions published by our judicial system. They are not familiar with the meaning behind legal terms. They do not talk about strict scrutiny or compelling interests or a least restrictive means. But despite their unfamiliarity with the nuances of specialized areas of the law, they sense that something is fundamentally wrong with the status of religious liberty in our country particularly when it clashes with the secular interests of government.
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As government's pervasive influence increases, so does the concern of millions of Americans who sense that their fundamental right to the free exercise of religion is being made subordinate to the current whims of fancy of those who control the power levers of government. Their feelings are neatly summed up, I believe, by the comments that Professor Douglas Laycock of the University of Texas Law School, who is going to be testifying later today, said to me—he summed it up this way, ''It seems that at the local and State level now, the motto is render unto Caesar that which he asks and render unto God whatever is leftover.''
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.
The Religious Freedom Restoration Act was a courageous attempt to rectify an egregious decision by the U.S. Supreme Court in the Smith case. The Smith decision was the worst religious liberty decision handed down by the Supreme Court in my lifetime, and I am 52 years old. Given the fact that the Court's decision strikes down attempts by the Congress, through RFRA, to rectify the Court's significant restriction of religious liberty in Smith, the Boerne decision has now dethroned Smith as the worst religious liberty decision in my lifetime.
As Justice O'Connor says in her eloquent dissent, the first amendment Free Exercise Clause, and I quote, ''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.'' And Justice O'Connor continues, ''Before Smith, our Free Exercise cases were generally in keeping with this idea. For a law substantially burdened religiously motivated conduct, we require 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,'' she concluded, and then she added, ''The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more 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.''
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It is difficult to improve on such straight-forward and trenchant prose, although I think Justice Blackman may have in his own dissenting opinion when he said, ''The distorted view of our precedence leads the majority to conclude that the strict scrutiny of a State law burdening the free exercise religion is a luxury that a well-ordered society cannot afford and that the repression of minority religions is an unavoidable consequence of Democratic government.'' Justice Blackman responded, ''I do not believe the Founders thought their dearly bought freedom from religious persecution a luxury but an essential element of liberty, and they could not have thought religious intolerance unavoidable for they drafted the religion clauses precisely in order to avoid that intolerance.''
Our free exercise rights as American citizens, I believe, are in peril. The first amendment's Free Exercise Clause is there to protect all people's religious liberty particularly those who are in a minority or in a vulnerable position. As U.S. Solicitor General Walter Dellinger told this court during oral arguments, minority religious groups will be discriminated against pervasively and consistently without RFRA protection.
As a result of the Smith decision, the free exercise of religion must defer to the interest of the government where any ''rational basis'' is shown. The practical effect of this is that there is barely any constitutional safeguard against governmental interference in the free exercise of religion.
RFRA was based upon the simple premise that Congress had every right to afford religious liberty greater protection than what the Constitution provides as interpreted by this Supreme Court. If the Supreme Court had reviewed it properly, it simply would have asked itself whether RFRA was constitutional. In other words, it would have asked itself whether RFRA was in any contrary to the first amendment's provisions on religion? Had they asked themselves the proper question, they would have reached an entirely different result than they reached in the Boerne case.
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The Supreme Court incorrectly focused on the issue of who's right it is to interpret the Constitution. From the Supreme Court's perspective, it was turf war. It is important to note, this is genuinely not an issue of who may interpret the Constitution. The real issue is whether or not it is constitutional for Congress to give greater protection to religious liberty than is provided for in the Constitution as interpreted by this Supreme Court.
The Boerne decision was wrong. In effect, Bishop Flores argued that a church has inviolate first amendment religious protections that cannot be abrogated by the whims and dictates of a municipal government's historic preservation desires. In other words, you can't treat a church or a mosque or a synagogue the same way you treat a bowling alley or a used car dealership. This Supreme Court, despite eloquent dissent from Justices O'Connor and Blackman, said ''Yes, you can.'' This is outrageous, and it is dangerous, and I encourage the Congress to continue forward with at least a partial answer in the Religious Liberty Protection Act. It is a good faith and magnanimous effort at legislation which conforms to the ruling in Boerne.
I am convinced that one of the greatest threats that we face as Americans is the suppression and the restriction of our free exercise rights in the area of religious conviction in the United States, and I believe that H.R. 1691 is a very significant and important first step to rectify that danger and abuse by local and State government.
[The prepared statement of Mr. Land follows:]
PREPARED STATEMENT OF RICHARD LAND, PRESIDENT, ETHICS AND RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
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Thank you for the opportunity to testify on this issue of critical importance to all who cherish religious liberty. As president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, I am frequently in a position to hear from people across America about their religious liberty concerns. These individuals are not legal scholars. They do not spend their spare moments perusing legal opinions published by our judicial system. They are not familiar with the meaning behind technical legal terms. They do not talk about ''strict scrutiny'' or ''compelling interests'' or ''least restrictive means.'' Yet, despite their unfamiliarity with the nuances of a specialized area of the law, they sense that something is fundamentally wrong with the status of religious liberty in our country, particularly when it clashes with the secular interests of government. As government's pervasive influence increases, so does the concern of millions of Americans who sense that their fundamental right to the free exercise of religion is being made subordinate to the current whims of fancy of those who control the powers of government.
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. The Religious Freedom Restoration Act (RFRA) was a courageous attempt to rectify an egregious decision by the U. S. Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith (1990). The Smith decision was the worst religious liberty decision handed down by the Supreme Court in my lifetime. Given the fact that the court's decision strikes down attempts by the Congress (through RFRA) to rectify the court's significant restriction of religious liberty in Smith, the Boerne decision has now dethroned Smith as the worst religious, liberty decision in my lifetime (51 years).
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As Justice O'Connor says in her eloquent dissent, 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 religiously 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 casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more 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 and trenchant prose. The Supreme Court dealt an extremely damaging blow to free-exercise, religious-liberty rights in Smith. When the Congress rectified the Supreme Court's terrible mistake, the Supreme Court surveyed the situation and, having painted the American people into a religious liberty corner in Smith, promptly applied a second coat of paint in striking down RFRA in the Boerne decision.
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Our free-exercise rights as American citizens are in peril. The First Amendment's Free- exercise Clause is there to protect all people's religious liberty, particularly those in a minority or vulnerable position. As U. S. Solicitor General Walter Dellinger told this court during oral arguments, minority religious groups will be discriminated against pervasively and consistently without RFRA protection.
As a result of the Smith decision in 1990, the free exercise of religion must defer to the interests of the government where any ''rational basis'' is shown. The practical effect of this is that there is barely any constitutional safeguard against government interference in the free exercise of religion. As the members of this committee are well aware, RFRA passed through Congress and was signed into law with strong bipartisan support. RFRA was based upon the simple premise that Congress had every right to afford religious liberty greater protection than what the Constitution provides, as interpreted by this Supreme Court. If the Supreme Court had reviewed RFRA properly, it would simply have asked itself whether RFRA was constitutional. In other words, it would have asked itself whether RFRA was in any way contrary to the First Amendment's provisions on religion. Had they asked themselves the proper question, they would have reached an entirely different result than they did reach in the Boerne case. The Supreme Court incorrectly focused on the issue of whose right it is to interpret the Constitution. From the Supreme Court's perspective, it was a turf war. However, it is important to note, that this is genuinely not an issue of who may interpret the Constitution. The real issue is whether or not it is constitutional for Congress to give greater protection to religious liberty than is provided for in the Constitution, as interpreted by this Supreme Court.
The Boerne decision was wrong. In effect, Bishop Flores argued that a church has inviolate First Amendment religious protections that cannot be abrogated by the whims and dictates of a municipal government's historic preservation desires. In other words, you cannot treat a church or a mosque or a synagogue the same way you treat a bowling alley or a used car dealership. This Supreme Court, despite eloquent dissent from Justice O'Connor, said, ''Yes, you can.'' That is outrageous and dangerous.
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Congress must respond. The Religious Liberty Protection Act (RLPA) is a good faith and magnanimous effort at legislation which conforms to the ruling in Boerne. RLPA is an attempt to give religious liberty the greatest protection possible, given the framework within which the Supreme Court has given to make that happen. For some, RLPA is more controversial than RFRA because of its use of the ''commerce'' and ''spending'' clauses to extend greater protection to religious liberty. Let me be clear, that while I may be sympathetic to the concerns of those who object to this legislation on the grounds of anti-federalism, I think that their concerns are misguided in this instance. The purpose of this legislation is not to empower the federal government. The purpose of this legislation is to restrain the use of power of any government which interferes with religious liberty. Admittedly, the act invokes the power of the federal government to extend this protection. However, this is no less true when speaking of invoking the powers of the federal government on the basis of the First Amendment. In other words, we should be less concerned about where the federal government finds its authority to act, than we are concerned with what will result if the federal government fails to act. We believe that the anti-federalist argument is not only misguided, but it also places a higher value upon governmental process than it does upon religious liberty. Greater weight must be given to the precious value of religious liberty than to the value of strictly adhering to a political theory to which no one is bound.
I will not attempt to review RLPA. Others will be doing that. I want to close my testimony by again emphasizing how important it is that Congress do everything within its power to respond to the U. S. Supreme Court's decision in Boerne. Let me be even more blunt than I have been to this point, and state that I believe that the Boerne decision is one of the worst decisions rendered by the Supreme Court in its long history. It is consistent with a pattern on the part of this Court to restructure the basic values of our society in a manner consistent with its own set of values and not those prescribed by the Constitution to which it should be bound. The people I talk to are increasingly aware, and increasingly concerned about, the scope and power of a court which is barely accountable to ''the people.'' There is a growing sense of frustration over the feeling of powerlessness to respond to a court which is supposed to understand that it is covenant bound to protect the original meaning of the original parties to the Constitution of the United States. Failure to respond is to concede to the Supreme Court that any legislation which this Congress passes must not only be consistent with the Court's interpretation of the Constitution, but must also be consistent with the Court's own narrow way of protecting the liberties secured by the Bill of Rights.
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*The Ethics & Religious Liberty Commission is the public policy and religious liberty agency for the Southern Baptist Convention. The Southern Baptist Convention is the nation's largest non-Catholic denomination, with over 40,000 local churches and 15.9 million members. Dr. Richard D. Land has served as the president of the agency since 1988.
Mr. CANADY. Thank you, Dr. Land.
Professor Sager.
STATEMENT OF LAWRENCE G. SAGER, ROBERT B. MCKAY PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. SAGER. Thank you, Mr. Chairman and members of the subcommittee. My written testimony, today, is submitted not just on my own behalf of my colleague and co-author Professor Christopher Eisgruber, and the remarks I will make today I think that reflect that, but any mistakes I make aren't attributed to him, I suppose.
I want to say at the outset, in light of the position that I plan to take about H.R. 1691, that Professor Eisgruber and I regard religious liberty as a core value of the Constitution of the highest order and have spent a significant segment of our careers addressing and defending that liberty. In addition, Congress clearly has a crucial role to play in protecting religious liberty; the Court could not do without Congress' steady assistance in this area, and, finally, the Congress, in general, has done a nuance, vigilant, and superb job as the partner of the Court.
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I say all of this because I regard RFRA to have been a serious mistake by Congress and RLPA to be, in anything, worse. RLPA is unnecessary, unwise, and unconstitutional. In our written remarks, we defend that—those strong statements by addressing Establishment Cause issues, Enumerated Powers or federalism issues, and, finally, Separation of Powers issues.
But in the brief time I have to speak to you today, I plan to just single out two propositions and emphasize them. The first is that RLPA undermines rather than protects religious liberty—and I am using RLPA to refer to the Religious Liberty Protection Act. And the second is, I would like to focus the subcommittee's attention particularly on section 3(b)(1)(a), the most robust of the land use protections in the act, because that provision, we believe, is particularly unwise and flatly inconsistent in light of the Supreme Court's decision in the Flores case.
So, to begin with, I would like the subcommittee to consider three groups of people; two sets of parents, first. Each of set of parents wish to educate their child at home or, perhaps, to send their child to public school but to exempt that child from sex education. That is one pair; a group of two sets of parents who have this view. The second is two charitable groups who wish to enlarge their non-residential facility in a residential neighborhood and feed the homeless and house the homeless in a shelter facility but find themselves blocked by zoning laws. And, finally, two landlords, each of which wishes to refuse occupancy to tenants on the basis of their sexual relationship which they find—they, the landlord, find repellent.
Now, these are not easy questions about the clash of personal liberty and public policy, and I don't mean to suggest that they are, and they are not necessarily questions that ought to come out the same way. We may very well discriminate among these cases. But what I want to emphasize is the core vice of RLPA is that RLPA makes the opportunity of these two sets of parents, these two charitable groups, or these two landlords turn on the deep structure of their moral commitments. If one set of parents is recognizably religious and the other set of parents merely have strong moral views about how children should be raised in America, RLPA gives the religiously-motivated parents almost certain assurance to be able to home school their children or very strong arguments to exempt their children from sex education. But the non-religiously-motivated parents, the parents whose sole concern is the sound raising of their children and the moral commitment to that raising, they have no benefits from RLPA. They are at a loss under this provision.
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So, too, the two charitable groups. If there is a church group which wishes to add a third story to a facility of an extant church facility in a residential neighborhood under RLPA, wishes to have a homeless shelter and a food kitchen in that neighborhood in contravention of local zoning laws, it is given a presumptive right to do so under RLPA, but if it is merely a group which has spent 25 years deeply committed to the plight of the homeless and the hungry in their community, that group has no claim under RLPA. The church group could be experimenting for the first time with one aspect of its commitment to good works. It could be a flyer for the church group. The non-church group could be fulfilling 40 years of commitment to its community of feeding and housing the homeless and the hungry, and, nevertheless, have no such opportunity.
Likewise, the two landlords. Mere repulsion isn't enough; mere deep moral repulsion isn't enough. It is recognizably religious motivation that signifies.
Now, if there is one value that is at the absolute core of religious liberty in the United States, it is this: one's deep, personal, and abiding moral commitments ought not—and beliefs—ought not be the basis of strong advantage or disadvantage. My complaint about RLPA is not that it extends liberty; it is that it extends liberty selectively and makes recognizable religious motivation a talisman of advantage. That is a flat contradiction of religious liberty at its essence, and the Supreme Court would say so pursuant to the Establishment Clause of the first amendment.
Now, as to the second point that I wish to make which concerns the particular provision of section 3(b)(1)(a) of RLPA, which is the most robust of the land use provisions, I want to go back to the church in a residential neighborhood. This church wants to add a floor or two to an extant building. It wishes to house the homeless, and it wishes to feed the hungry, and it finds that some aspect of its desires are blocked by residential zoning restraints on the height of building, on the persons in attendance, on the residential versus non-residential activities that take place. RLPA, in section 3(b)(1)(a) gives that church group an almost irrebuttable presumption of liberty to disregard local zoning procedures. It is a remarkable intrusion by the United States Congress on local zoning autonomy. It federalizes every land use controversy between a church and a municipality literally making a Federal case out of it, and it does so in terms that don't involve the centrality of this to the religious group's activities; does not seriously question whether the church group has other places and other ways in which to facilitate its strong commitment to good works. Without any other justification than the fact that this associates with a religious group's general motivation to do good works in society, RLPA creates an almost irresistible presumption that local zoning ordinances must yield, whatever the circumstances, however minor the religious impulse. RLPA specifically pulls back from any test of centrality or any test of religious compulsion and does so particularly in the context of land use in section 8 of the act.
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Now, this is not only unwarranted by the first amendment of the Constitution, this free pass from the local zoning ordinances. It is, I believe, flatly and correctly and unconstitutional under the Flores decision. This is exactly what the Flores court was objecting to when it objected to the lack of proportionality in RFRA. Clearly, churches should be protected against discriminatory, insensitive, and hostile land use decisions, but the radical presumption of section 3(b)(1)(a), as the distinguished chairman of this committee said, by applying the strongest legal test the Constitution knows, the compelling State interest test, that is out of all proportion and congruence to the underlying concern with protecting religious groups against hostility, insensitivity or discrimination. That is exactly what the court objected to in Flores, and 3(b)(1)(a) portrays exactly that vice and does so, perhaps, even more pointedly than RFRA because of section a's insistence that centrality or religious commandment is not—or compulsion is not at stake. These are two instances of the strong feelings that Professor Eisgruber—and arguments I hope that Professor Eisgruber and I bring to bear on this act.
I want to close by emphasizing that this subcommittee is part of the United States Congress which has consistently and vigilantly protected religious liberty by individual nuance acts, and I wish this committee and this body would return to that role and abandon the mistake of RFRA and abandon RLPA.
[The prepared statement of Mr. Sager follows:]
PREPARED STATEMENT OF LAWRENCE G. SAGER, ROBERT B. MCKAY PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW
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We thank the Chair and the Committee for providing us with the opportunity to submit our views regarding the the ''Religious Liberty Protection Act'' (H.R.1691) (hereafter, ''RLPA'').
RLPA is a response to the Supreme Court's decision in City of Boerne v. Flores, 117 S.Ct. 2157 (1997). There, the Supreme Court held that the Religious Freedom Restoration Act (''RFRA''), was unconstitutional, at least as applied to the conduct of state and local governmental entities.(see footnote 1) RLPA tries to replicate many of the results that RFRA would have secured; indeed, RLPA is in some key respects more sweeping than RFRA. We think that RLPA is unnecessary, unwise, and unconstitutional—indeed, in some respects, we think it is more blatantly unconstitutional than was RFRA. We strongly encourage the Members of the House of Representatives to abandon RLPA, and return to more conventional, efficacious and constitutional means of protecting religious liberty.
I. CONGRESS, RELIGIOUS LIBERTY AND THE MISTAKEN TURN TO RFRA AND RLPA.
Religious liberty is a constitutional value of the highest order. Many of the members of the generation that founded the Constitution were deeply aware of the vulnerability of religious believers to persecution and denigration targeted at the very fact of their belief and its nonconformity with other more widely-held beliefs. Today, the threat of religious persecution is far less great; in general, public officials in the United States are sensitive to religious interests, and they often make attractive and successful efforts to accommodate the needs of religious persons and practices. But in one sense, the need for vigilance in protecting members of our political community from thoughtless, insensitive or discriminatory behavior with regard to their deep religious commitments has grown: In the United States today, there is a vast range of spiritual and moral commitment. Some of these commitments are widely-shared and broadly familiar; but others are less widely-shared, somewhat exotic or even personally idiosyncratic.
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Congress has played a commendable role in protecting these more vulnerable commitments. Thus for example: Congress directed the armed forces to make reasonable accommodation for the wearing of religiously mandated apparel (see 10 U.S.C. §774); and thus, Congress withdrew funding for a Forest Service road that would have harmed a sacred Native American site (see House Committee on Appropriations, Dept. of the Interior and Related Agencies Appropriations Bill, 1989, H.R. Rep. No. 713, 100th Congress, 2d Sess. 72 (1988)); and thus, Congress has provided church employers with exemptions from certain tax obligations that are inconsistent with their religious beliefs (see 26 U.S.C. §3121(w)(1)); and thus, Congress acted to specifically make it possible for members of the Native American Church to use Peyote as part of their sacrament of worship (see 42 U.S.C. §1996). In each of these cases, Congress had reason to believe that the concerns of minority religious believers were being slighted; and in each, Congress moved to accommodate those concerns in a way that was entirely consistent with the general capacity of state, local and federal governmental entities to govern fairly and well.
But RFRA and now RLPA represent a sharp and mistaken turning away from this traditional congressional role of vigilant and nuanced oversight. They both involve a radical, sweeping and dangerous invocation of the ''compelling state interest test'' whenever religiously-motivated persons find their projects blocked or substantially burdened by perfectly legitimate, thoroughly even-handed, entirely reasonable laws. RLPA goes even further—and in the process amends whatever survives of RFRA in this regard as well—by insisting that the projects of religiously-motivated persons need not be compelled by or central to the beliefs of those persons in order to qualify for protection under the act.
If enacted, the effects of RLPA would be harrowing. The objections to RLPA are substantial, and easily rise to the level of constitutional complaint. RLPA—a constitutional difficulties fall into three broad categories:
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RLPA would create two classes of citizens: those who have religious reasons of just the right sort for their actions and those whose reasons for acting—however laudable and heartfelt—do not so qualify. The former would be entitled by RLPA to defy otherwise perfectly valid governmental regulations which the latter would be required to obey. In some cases the selective conferral of this privilege to defy the law would be especially inequitable: RLPA could, for example, be invoked by landlords who would justify their violation of some anti-discrimination laws on the basis of their religiously-inspired objections to would-be tenants, even when those objections were neither compelled by nor central to their religious beliefs. RLPA would undermine the capacity of governmental entities at every level to pursue perfectly legitimate, democratically-endorsed goals; and RLPA would do so on behalf of persons privileged by virtue of the content of their systems of belief. This would be in stark violation of the establishment clause of the First Amendment.
RLPA reaches in desperation for a source of congressional authority to replace section 5 of the Fourteenth Amendment; it would surely be struck down by the Supreme Court on enumerated powers grounds, and would invite the Supreme Court to place new inhibitions on the capacity of Congress to act as the Court's partner in addressing questions of constitutional justice. No one believes that RLPA is addressed to increasing interstate commerce, to the control of interstate commerce, or to the benefit of the economy generally. RLPA seizes on the entirely coincidental fact that some laws which regulate religiously motivated conduct will thereby have some effect on interstate commerce in order to find a commerce clause rationale for the blanket exemption from the force of such laws that it grants religiously-motivated persons. This flies in the face of the Supreme Court's decision in United States v. Lopez, 115 S.Ct. 1624 (1995). Alternately, RLPA restricts itself to programs or activities that receive Federal monies, and relies on Congress's broad spending power authority. But even the spending power requires a nexus between Federal restrictions and the goals of any particular spending program, and RLPA is unsupported by any such connection. Finally in what are likely its most important provisions, involving land use regulation, RLPA, like RFRA before it, depends upon section 5 of the Fourteenth Amendment. Especially given RLPA's insistence that religiously-motivated behavior need not be central to or required by an individual or group's religious commitments, the land use provisions are plainly and flagrantly in violation of the Supreme Court's ruling in the Flores case.
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RLPA tells the federal judiciary how it is to proceed in hearing claims that arise directly under the free exercise provisions of the Constitution, as well as those that arise under RLPA itself. RLPA's effort to choreograph constitutional adjudication is an obvious, back-door attempt to accomplish precisely what the Flores decision prohibits, and would violate settled principles of separation of powers.
In the discussion which follows, we will elaborate upon each of these observations.
II. RLPA'S CREATION OF TWO CLASSES OF PERSONS DISTINGUISHED ONLY BY THE DEEP STRUCTURE OF THEIR PERSONAL BELIEFS VIOLATES THE ESTABLISHMENT CLAUSE
RLPA, even more so than RFRA, indefensibly favors religious commitments over the other deep concerns and interests of member of our society—concerns and interests like the welfare and integrity of one's family, deep moral and political commitments not recognizably grounded in religious beliefs, and a myriad of human projects to which individuals may be deeply and passionately committed. Imagine two sets of parents, both of whom have deep and conscientious reasons for wanting to exempt their children from sex education classes; or two groups of people who are profoundly upset by the thought of the homeless and the hungry, and who wish to open shelters and food kitchens in residential neighborhoods but are barred by zoning law from so doing; or two landlords, each of whom is deeply offended by the sexual relationship between two unmarried persons who wish to share an apartment; or two persons on the brink of bankruptcy, each of whom badly wishes to contribute what remains of their resources to charitable causes that occupy a central place in their life.
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None of these is an easy case. But what seems clear about them is this: It is profoundly wrong to treat one set of parents, one group that wishes to feed and house the homeless, one landlord, or one debtor, more favorably than the other and to make the gravamen of the preference turn upon the deep structure of the belief systems of the implicated persons or groups. But RLPA makes it matter and matter crucially whether the parents, the person running the soup kitchen, the landlord, or the soon-to-be-bankrupt person are motivated to act by what we recognize to be religious principles. RLPA selectively distributes liberty between the recognizably religious and those whose are merely motivated by their abiding passion for and commitment to good works, sound parenting, or what they deem to be moral behavior.
The idea that some persons are entitled to ignore the laws that others are required to obey, and that this privilege depends upon the actor's system of beliefs, is both extraordinary and transparently inconsistent with our constitutional values. Indeed, in two cases, the Supreme Court has held laws unconstitutional precisely because they granted special privileges to religiously-motivated persons. In Texas Monthly, inc. v. Bullock,(see footnote 2) the Court struck down a Texas law that exempted religious publications from a sales tax applicable to other publications; and in Thorton v Caldor,(see footnote 3) the Court held unconstitutional a Connecticut law which gave all religious employees the right not to work on their Sabbath.
Of course, Congress and state legislatures have the authority to see that religiously-motivated persons and groups are dealt with fairly and reasonably. Congress may—and as we observed at the outset of this testimony, often has—act to ''accommodate religious needs by alleviating special burdens''(see footnote 4) occasioned by religious belief. When doing so, however, legislators must respect the ''neutrality'' commanded by the Religion Clauses.(see footnote 5) Often, the appropriate form of accommodation will benefit religious and comparable non-religious interests alike—as is the case, for example, with tax exemptions that extend to both religious and non-religious non-profit organizations. On rare occasions, religious organizations and persons may be uniquely burdened, or uniquely susceptible to prejudice or insensitivity; then and only then may legislatures craft exemptions that are specific to religious motivation.(see footnote 6)
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But RLPA's blunt invocation of the compelling state interest test fits neither of these constitutionally permissible models. RLPA sharply discriminates between religious and non-religious behavior. And RLPA applies indiscriminately to all of the objects of governmental regulation, making no effort at all to confine its reach to those few cases where religious persons and institutions may have genuinely special needs.
In this regard, RLPA perpetuates the mistaken understanding of RFRA as to the state of religious liberty jurisprudence prior to the Supreme Court's decision in Department of Employment Services v. Smith, 474 U.S. 872 (1990). In the three decades of religious liberty jurisprudence prior to Smith, the Court paid lip-service to the proposition that government behavior that penalized persons for doing that which was essential to their religious commitments should be measured against the rigors of the compelling state interest test. But while the Court spoke broadly, it acted extremely narrowly. Only one isolated group was ever permitted to defy a general legal rule on the basis of the compelling interest test. That was the Amish, who were permitted to direct the development of their teenage children outside the framework of what the State of Wisconsin recognized as a school. One other group prevailed in the Court's many pre-Smith exemptions cases. The Court protected people who were presumptively entitled to claim unemployment insurance benefits; who had deep religious reasons for refusing an available job; and who faced a serious danger that those reasons might be treated with hostility by state bureaucrats. Outside of these two small groups, every other attempt by any religious person or group to invoke the compelling state interest test failed. In every other branch of constitutional jurisprudence, the compelling state interest test was strict in theory, but fatal in fact; here it was strict in theory but notoriously feeble in fact. The Smith Court did not cause or even precipitate the compelling state interest test's demise in the area of religious liberty. The Smith Court merely announced what had always been true.
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And true for good reason. If honestly applied, the ''compelling state interest test'' is the most demanding standard known to constitutional law. Accordingly, the test is suitable only where it is appropriate to entertain a broad presumption of unconstitutionality—where, in other words, almost all of the cases that trigger the test will be abhorrent to the best standards of government behavior. Such a presumption rightly applies, for example, to laws intended to censor speech or to discriminate against racial or religious minorities. This presumption is badly suited to religious exemption cases, however. Many perfectly sound, even-handed laws will impose incidental burdens on some religious practices. The breadth and variety of religious belief make such collisions inevitable; but this does not offer a reason for depriving ourselves of the capacity to govern. Nor does the mere fact that a person's conduct is motivated by religious belief offer a good reason for permitting that person to defy reasonable, even-handed laws. The broad dictum of Sherbert would have created an unrecognizable, unmanageable and unjust world. The Court had the best of reasons for treating that dictum as rhetorical rather than operational.
For the Court in the Flores case it was precisely the use of the compelling state interest test which made RFRA so poorly suited to the enterprise of protecting religious liberty test. The blunt, extreme and unfocused demands of that test created, in the words of the Court, ''a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved.''(see footnote 7)
RLPA exacerbates RFRA's Establishment Clause problems. Section 8(1) of RLPA insists that ''religious exercise . . . need not be compelled by, or central to a system of religious belief'' in order to enjoy protection under its provisions. RLPA also amends RFRA to incorporate this new language. Section 7(a)(3). Even in its strongest, most rhetorically-heated form, the Supreme Court's pre-Smith jurisprudence was keyed to cases in which the religiously-motivated claimant was compelled by the dictates of her belief to act in the manner for which she sought the protection of the Court. And, while, under RFRA, few courts had insisted that religious exercise be ''compulsory'' in order to trigger the statute's provisions, most courts held, in effect, that RFRA applied only to ''substantial burdens'' upon beliefs which were in some significant way and to some significant degree ''important'' to religious believers.(see footnote 8)
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RLPA's definition of religious exercise threatens to increase the extent to which RFRA favored religion over non-religion. Under RFRA, it was possible to argue that a burden upon religious exercise was not ''substantial'' if it affected only optional practices for which adequate substitutes were available. For example, under RFRA, several churches running soup-kitchens in residential neighborhoods sought zoning exemptions which, they conceded, were unavailable to comparably situated secular charities. In these cases, it was possible to argue that no ''substantial burden'' upon religious practice existed: the churches were free to run soup-kitchens in other locations, and they were free to engage in other charitable practices which, as a matter of their own religious doctrine, were equally worthy. See, e.g., Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554, 1560 (MD Fla. 1995). When successful, arguments of this kind mitigated the RFRA's favoritism for religion.
It is unlikely that these arguments would remain available under RLPA. To be sure, Sections 8(1) and 7(a)(3) define ''religious exercise,'' not ''substantial burden.'' Courts might find burdens upon religious exercise insubstantial if they affected only unimportant practices or if they left religious believers other, equally acceptable means by which to pursue their religious convictions. That construction of the ''substantial burden'' test, however, would render both provision—especially Section 7(a)(3)—essentially meaningless. If, as appears to be the case, RLPA makes the invocation of religious motivation talismanic, and directs attention away from the particularized and extreme burdens on religious believers, RLPA exacerbates RFRA's already troubling disparity between the treatment of religious and non-religious commitments and concerns. RLPA would violate the establishment clause even on the hypothesis that RFRA does not.
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III. RLPA EXCEEDED CONGRESS'S ENUMERATED POWERS AND IN SO DOING VIOLATES SOUND PRINCIPLES OF FEDERALISM.
Not surprisingly, Congress has no power to create the kind of special and arbitrary privileges that would result if RLPA were to become law. RLPA's peculiar statutory architecture amounts to a tacit admission of this problem: Congress has broad license to act under its commerce clause and spending powers; but RLPA stands out as depending upon a tenuous and improbable connection between those powers and the subject of religious liberty. Congress has an important and generous role to play as the Court's partner in enforcing the rights and liberties of members of our political community, but RLPA plainly lies outside the scope of that authority as well. Far from curing the constitutional vices of RFRA, RLPA's somewhat desperate hunt for constitutional authority proliferates such difficulties.
Spending Power Issues. Section 2(a)(1) of RLPA attempts to regulate the ability of state and local governments to ''substantially burden . . . religious exercise . . . in a program or activity . . . that receives federal financial assistance.'' That Section is an effort to draw upon Congress' spending power. The Supreme Court has held that Congress has broad discretion to impose conditions upon the use of federal money by state and local governments. The leading case is South Dakota v. Dole, 483 U.S. 203 (1987). In Dole, the Court upheld a statute which provided that states would lose federal highway funds if they did not raise the drinking age to 21. South Dakota objected to the statute on the ground that, under the Twenty-First Amendment, liquor laws were a matter of state rather than national control. The Supreme Court rejected this argument, reasoning that states could retain control over their drinking ages if they were willing to reject the offer of federal funds.
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The Court's construction of the spending power in Dole was generous, but it was not unlimited. The Court emphasized that ''our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.' '' In Dole, the Court reasoned that ''the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended—safe interstate travel.'' By raising the drinking age, the Court suggested, states would further the purposes of federal transportation law. Yet, unless Dole's nexus requirement is entirely meaningless, RLPA cannot possibly satisfy it. RLPA applies to all religious conduct and it applies to all federal spending programs. It defies belief to think that accommodating religious conduct, regardless of its nature, supports the goals of every federal expenditure, regardless of its purpose. Indeed, RLPA's compelling state interest test is blatantly inconsistent with that idea: it would require states to accommodate religious conduct even at the expense of the core goals of any given program unless those goals rose to the level of a ''compelling state interest.''
In effect, RLPA assumes that once federal dollars touch some activity or program, the activity or program is federalized top-to-bottom: it then becomes fair game for congressional regulation regardless of whether the regulation has anything to do with the federal government's initial spending program. That is not what the Supreme Court said in Dole, and it is not a sensible reading of the Constitution.
These considerations are sufficient to scuttle Section 2(a)(1) of RLPA, but it suffers from an additional constitutional defect. In Dole, states remained free to legislate whatever drinking age they preferred. If they departed from the federal standard, the penalty was forfeiture of federal funding. RLPA is not written that way. It does not provide that states will forfeit federal funds unless they enact state-law versions of RFRA or RLPA; instead, it subjects the states directly to private rights of action under federal law. This objection is somewhat technical in character, and there are ways around it. For example, the Court might construe RFRA as imposing conditions on every offer of funding which the national government makes to the states; on this theory, RLPA's regulation would effectively result from a ''contract'' between the states and the federal government, rather than from direct regulation by the federal government. It is not obvious, however, that this theory would or should succeed.(see footnote 9)
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Supporters of RLPA point to the example of Title VI, which stipulates in effect that no program receiving federal funds may engage in racial discrimination. But RLPA differs from Title VI in two crucial respects. First, under South Dakota v. Dole, 483 U.S. 203 (1987), Congress may impose conditions upon the receipt of federal funds only if those conditions are related ''to the federal interest in particular national projects or programs.'' (internal quotations omitted). Because Title VI is an anti-discrimination measure, it bears an obvious relationship to the goals of every federal spending program. Congress has an interest in seeing that all persons are able to participate fairly and equally in federal programs. Title VI facilitates that goal. Title VI therefore satisfies Dole's nexus requirement: it bears a relationship to the federal interest in national projects and programs.
No comparable claim can be made on behalf of RLPA. RLPA is not an anti-discrimination statute. It does not ensure that all Americans will be able to participate in federally funded programs on equal terms; on the contrary, it creates special privileges for some religiously motivated participants and denies those privileges to participants with interests that are non-religious but equally dignified and important.
Second, precisely because Title VI is an anti-discrimination statute, it does not tell us anything about the scope of congressional power under the Spending Clause. Title VI is fully defensible as an exercise of the power granted Congress by Section Five of the Fourteenth Amendment. Title VI would therefore remain constitutional even under very restrictive readings of the Spending Clause (readings much more restrictive, for example, than the Supreme Court's decision in South Dakota v. Dole). The fact that Congress has the power to enact Title VI does not permit one to draw any conclusions about the scope of congressional power under the Spending Clause.
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Commerce Clause Issues. Section 2(a)(2) of RLPA attempts to substantially limit the ability of state and local governments to regulate religious exercise in any case where the presence or absence of such regulation ''would affect'' interstate commerce. That Section is an effort to draw upon Congress' commerce power. The Court has construed the commerce power generously including, of course, in connection with congressional efforts to prohibit discrimination. The case most often cited in this connection is Katzenbach v. McClung, 379 U.S. 294 (1964). In McClung, the Court upheld application of Title II of the Civil Rights Act of 1964 to Ollie's Barbecue, a restaurant in Birmingham, Alabama. The Court said Congress had power to prohibit race discrimination by Ollie's Barbecue on the following theory: by refusing to serve African-Americans, Ollie's Barbecue diminished the volume of business it did, and it thereby diminished demand for food products that moved in interstate commerce. The effect of one restaurant's actions might be small, but Congress was entitled to consider the aggregate effects of all restaurants similarly situated.
McClung grants Congress expansive authority, but that authority is not unlimited. Even in McClung, the Court insisted that Congress must identify some ''connection between discrimination and the movement of interstate commerce.'' The Court upheld Title II only because the legislative record included ''ample basis for the conclusion that . . . restaurants . . . sold less interstate goods because of . . . discrimination.'' It is impossible to imagine, much less substantiate, any such basis for RLPA. Religious conduct varies tremendously and unpredictably. From the standpoint of interstate commerce, religious activity is a random vector. There is no reason to believe that it promotes, diminishes, obstructs, or facilitates interstate commerce. Nor is there any reason to think that requiring government to accommodate religion would have any predictable effect whatsoever upon interstate commerce.
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The theory of Section 2(a)(2) of RLPA is largely parallel to the theory of Section 2(a)(1): it presupposes that once the congressional commerce power touches some activity or practice, that activity or practice becomes federalized top-to-bottom: it becomes fair game for congressional regulation regardless of whether the regulation has anything to do with promoting interstate commerce. That is not what the Supreme Court said in McClung.
RLPA is flatly inconsistent with the Supreme Court's recent decision in United States v. Lopez, 115 S.Ct. 1624 (1995), which held, inter alia, that Congress cannot regulate guns simply because they at one time entered the stream of interstate commerce. In Lopez, the Court emphasized that a '' 'general regulatory statute' '' is defensible under the Commerce Clause only if it '''bears a substantial relation to commerce. . . .' '' Id. at 1629, quoting Maryland v. Wirtz, 392 U.S. 183, 197, n. 27). To make this principle concrete, the Court identified ''three broad categories of activity that Congress may regulate under its commerce power.'' The first two categories cover only laws with either ''regulate the use of the channels of interstate commerce,'' or ''regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.'' Ibid. These categories apply to laws which regulate (for example) highways, interstate telecommunications, shipping companies, interstate packages and interstate travelers. RLPA sweeps too broadly to fit within either of these categories.
RLPA's constitutionality therefore depends upon the third and final category identified by the Lopez Court. The Court described that category as follows: ''Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.'' 115 S. Ct. at 1629–30. This is the broadest of the three headings of congressional power under the Commerce Clause. As the Lopez Court acknowledged, '' 'the de minimis character of individual instances arising under the statute is of no consequence' '' provided that the sum of all such instances, considered in the aggregate, has a substantial effect upon interstate commerce. 115 S. Ct. at 1629, citing Wirtz, 392 U.S. at 197, n. 27. The Court has accordingly upheld a wide range of statutes that regulate, among other things, ''intrastate coal mining; . . . intrastate extortionate credit transactions; . . . restaurants utilizing substantial interstate supplies; . . . inns and hotels catering to interstate guests; and production and consumption of home-grown wheat.'' 115 S. Ct. at 1630.
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The Lopez Court made clear that this category of congressional authority, although broad, is not unlimited. Lopez involved the constitutionality of the Gun Free School Zones Act of 1990. That Act made it a crime for individuals to possess a firearm within 1000 feet of a school. The Justice Department defended the Act on the ground that the possession of guns near schools substantially affected interstate commerce. The Department argued, for example, that the possession of guns near schools would interfere with education, and that poorly educated students would be less likely to make valuable contributions to the interstate economy. The Lopez Court rejected this rationale, and others like it, on the ground that they piled ''inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.'' Id. at 1634.
RLPA is a far more extreme example of what worried the Court in Lopez. RLPA does not emerge from or reflect any honest concern with interstate commerce. Congress' purpose is not, for example, to encourage churches and religious persons to participate more extensively in interstate commerce. Nor is Congress concerned that churches are harmed by the effects of interstate commerce. Nor has anybody suggested any reason to believe that states are trying to exclude churches from commercial intercourse, or that states are more likely to discriminate against those churches that happen to be involved in commercial activities. Nor, finally, is RLPA comprehensible as an effort to promote interstate commerce; RLPA addresses any regulation of religious conduct that affects interstate commerce, whether it affects such commerce beneficially, adversely, or in some random, oscillating way.
In sum, the point of RLPA is to promote religious conduct, and to do so regardless of what effect that conduct has upon commerce, or commerce upon it. The connection between religious activity and commerce is being used as a constitutional excuse for a regulatory program which Congress wishes to enact for reasons having nothing at all to do with commerce. The nexus between RLPA and legitimate Commerce Clause goals is thus weaker than the nexus between the Gun Free School Zones Act and legitimate Commerce Clause goals.
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Moreover, RLPA's Commerce Clause provisions sweep much more broadly than did the Gun Free School Zones Act. Those provisions have the potential to invade nearly every imaginable domain of local government. For example, the law would affect zoning (insofar as church activities substantially affect interstate commerce), education (insofar as public and private schools substantially affect interstate commerce), and family law (insofar as separation decrees and child support orders substantially affect interstate commerce). To the extent that the Court is worried about ''convert[ing] congressional authority under the Commerce Clause to a general police power of the sort retained by the States,'' Id. at 1634, RLPA poses this threat much more vividly than did the Gun Free Schools Zone Act.
RLPA's defenders do not really claim that its goals have anything to do with commerce. Nor do they deny that RLPA amounts to a sweeping invasion of traditionally local domains. Instead, they suggest that RLPA's jurisdictional proviso will save the statute. Section 2(a)(2) limits RLPA's application to regulations of religious exercise whose presence or removal would ''affect'' interstate commerce. The Gun Free Schools Zone contained no comparable stipulation. The Lopez Court drew attention to this fact; the Court pointed out that the Act ''contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.'' 115 S. Ct. at 1631.
Surely, though, the requirements imposed by Lopez are not so formal and hollow as to be circumvented in this way. Suppose, for example, that the Gun Free School Zones Act had applied only to possession of a gun within 1000 feet of a school ''substantially affecting interstate commerce.'' Would that have been sufficient to save the Act? It seems unlikely, to say the least. A jurisdictional proviso will bring a statute within the scope of the Commerce Power only if it creates a reasonable relationship between the goals of the statute and the goals of the Commerce Clause. The statute in Lopez contained no jurisdictional proviso whatsoever; the Court accordingly had no occasion to analyze which provisos would create an adequate nexus between a challenged statute and the goals of the Commerce Clause. It would be a mistake to think that boilerplate references to commerce give Congress a free hand to regulate can save an otherwise unconstitutional statute.
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In the scramble to find some jurisdictional base, however improbable, RLPA's supporters have ignored the unintended, undesireable, but quite probable by-products of the Commerce Clause approach. First, RLPA invites religious groups and religious persons who wish to duck the burdens of otherwise valid and reasonable regulations to distort their conduct in order to qualify for attention under Section 2(a)(1). No law which distorts the focus of religious efforts in this way should be welcome.
Second, by flying in the face of the Supreme Court's concerns in Lopez, RLPA could well provoke the Court to attempt the creation of clearer boundaries on Congress's Commerce Clause authority. Lopez was viewed by many commentators as a ''shot across bow'', which was intended to remind Congress that the Commerce is not infinitely elastic, but which was intended to leave the superintendence of the Commerce Clause in Congress's hands, where it belongs. The rather stark manipulation of the Commerce Clause threatened by RLPA could easily undo what is an entirely desirable posture of restraint by the Supreme Court in this area.
Issues Pertaining to Section Five of the Fourteenth Amendment. In Section 3(b), RLPA purports to limit the zoning authority of state and local governments. This provision is freestanding, proceeds under the general heading in Section 3 of ''Enforcement of Constitutional Rights'', and is not limited to programs which receive federal monies or to regulations that affect interstate commerce. Apparently, Section 3(b), like RFRA before it, depends for its validity on Congress' power to enforce the Fourteenth Amendment. That power was, of course, the focus of the Supreme Court's decision in Flores. There, the Court emphasized that Section Five does not permit Congress to displace the Court's judgments about the content of constitutional rights. Exercises of power under Section Five are valid only so long as they serve to put in place a scheme of remedies for rights which the Court itself is willing to recognize. Flores, 117 S. Ct. at 2163–64, 2171–72.
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In Flores, the Court emphasized that ''Congress must have wide latitude in determining'' what measures are well-suited to remedy constitutional violations. Id., at 2164. Nevertheless, Section 3(b)(1)(A) of RLPA unquestionably repeats the vices that proved fatal to RFRA. Section 3(b)(1)(A) involves a sweeping and unwarranted federalization of local decision-making. It is no exaggeration to say that, under this provision, any contentious encounter between a religious organization and a local zoning authority would become a matter for federal adjudication. This remarkable preemption of local authority cannot be defended as a reasonable mechanism to remedy or prevent discrimination against religious interests. No doubt zoning administrators sometimes abuse their authority to harm unpopular churches. But that problem is not reasonably attacked by extending all churches—no matter how rich, how powerful, or how favored in law—a blanket writ to challenge the zoning ordinances which every other citizen and institution must respect. What the Court said about RFRA is equally true of Section 3(b)(1)(A) of RLPA: ''The stringent test [it] demands of state law reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved.'' 117 S. Ct. at 2171. Section 3(b)(1)(A) of RLPA is therefore clearly unconstitutional under Flores.
Supporters of RLPA might respond by invoking the example of the four Supreme Court decisions which applied the compelling state interest test to the decisions of state administrative tribunals. In each of the cases in the ''Sherbert quartet'', the claimant was an individual who fully qualified for unemployment insurance save only that he or she was required by the tenets of his or her faith to refuse to work in particular, narrowly-defined conditions (the claimant could not work on Saturdays, or could not participate directly in the manufacture of weapons of war). And in each case, a state administrative tribunal ruled that the observation of the applicable religious commandment did not constitute ''good cause'' for refusing to accept or for leaving particular employment. Some commentators, ourselves included, are inclined to understand these cases—which are unique in free exercise clause jurisprudence—as plausible efforts by the Supreme Court to protect against the very high risk that the tribunals in question were indifferent or insensitive to the powerful commands of religious belief under which the claimants were acting. Supporters of Section 3(b)(1)(A) might be tempted to invoke the principle of the Shebert Quartet on behalf of that provision.
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But there are two radical differences between Section 3(b)(1)(A) and the circumstances of each of these four unemployment insurance cases. First, in each of these cases, the claimant fully satisfied the requirements for insurance eligibility, save only a narrow inability to accept or maintain a limited group of job opportunities—an inability that in no way threatened the integrity or purpose of the eligibility standards. And second, in each of these cases, the claimant was unable to take advantage of this limited group of opportunities because of a sharp and nonnegotiable demand of their religious faith. Under these circumstances, it was perfectly reasonable to presume that a refusal to find ''good cause'' was the product of indifference, insensitivity or bald discrimination. But Section 3(b)(1)(A) is not limited to claimants who fully satisfy the purposes and requirements of the land use regime they are contesting, save only some limited circumstance that does not threaten the integrity or purpose of the zoning requirement at issue. And Section 3(b)(1)(A) is not limited to circumstances in which the claimant is operating under the compulsion of a religious command; on the contrary, Section 8(1) refers specifically to land use cases in the course of disavowing that conduct need be compelled by, or central to a system of religious belief in order to qualify as ''religious exercise'' under RLPA.
What was a reasonable prophylaxis in the four unemployment insurance cases thus becomes an entirely indefensible privilege to disregard all but the most critical of land use restraints in RLPA. This is precisely what the Court in Flores decried as a lack of proportionality.
IV. RLPA IS AN UNCONSTITUTIONAL ASSUALT ON THE INDEPENDENCE OF THE JUDICIARY.
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Section 3(a) contains a remarkable assault on the judiciary's authority to make independent judgments about the meaning of the Constitution. It presumes, under the guise of enforcing the Fourteenth Amendment, to articulate ''presumptions'' which courts must respect when applying its First Amendment jurisprudence. In particular, the Section purports to increase the government's burden of persuasion in Free Exercise Clause cases. Because Section 3(a) attempts to deprive the courts of the authority to interpret the Constitution, it is patently unconstitutional. There are two doctrinal paths to that conclusion. The simplest runs through Flores. The Court said clearly in Flores that Congress may not use its Fourteenth Amendment powers to alter the substance of the Court's interpretations of the Fourteenth Amendment. Section 3(a) of RLPA offends this conclusion more blatantly than RFRA did, and the Court would undoubtedly find it unconstitutional.
There is, however, an even more fundamental doctrinal objection to Section 3(a). In United States v. Klein, 80 U.S. (3 Wall.) 128 (1871), the Supreme Court held that Congress may not specify a ''rule of decision'' for courts. Courts must be able to decide for themselves how to apply statutes or the Constitution. In the realm of statutory interpretation, Klein is difficult to apply: in some sense, of course, Congress specifies a ''rule of decision'' for courts every time it writes a statute. Christopher L. Eisgruber and Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437, 470 (1994). RLPA, however, is a text-book violation of Klein. See Klein's First Principle: A Proposed Solution, 86 Georgetown L.J. 2525 (1998). It attempts to compel judges to respect Congress' judgment, rather than their own, when interpreting the Constitution. And it forces judges to act as though they and adopted Congress' constitutional judgment as their own. Congress has the power and responsibility to arrive at its own view of constitutional substance, of course. But Congress is obliged to permit the Court this same independence of judgment.
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CONCLUSION
RLPA's constitutional defects are not technicalities. On the contrary, they all reflect strong claims on the judgment of the members of Congress who wish to act on behalf of religious liberty. Congress may well want to assure that religiously-motivated persons are treated fairly and that their interests are reasonably accommodated. But Congress surely does not want to sweepingly favor religiously-motivated persons over the vast majority of citizens conscientiously leading their lives, and to do so at the expense of the democratically-shaped rule of law. Likewise, Congress surely does not want to generate what Justice Kennedy in Flores correctly characterized as ''. . . a considerable intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.'' And finally, Congress should want to act as the Supreme Court's partner in the pursuit of political justice for American citizens, not as its adversary. That is the admirable tradition into which, for example, Title VII and the Voting Rights Act fall. RFRA was a false start, and Congress need not and should not perpetuate RFRA's mistakes.
Of course, RFRA was motivated by a legitimate and important goal: the goal of assuring that religiously-motivated conduct is reasonably accommodated, that governmental actors are not insensitive or hostile to religious beliefs and commitments. Congress has an extremely important role to play in pursuing that goal. It can play that role in two different ways.
First, Congress can continue to police state and federal conduct for egregious failures of the duty of reasonable accommodation and correct those failures. This is a role that Congress has traditionally played to the great benefit of constitutional justice in the United States. This effort requires ongoing vigilance and nuance of legislative response, and Congress' performance in this context has been superb.
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Second, Congress can enact more general legislation that offers broad protection to religiously-motivated persons against the possibility that their beliefs and commitments will be treated with insensitivity or hostility. This memorandum is not a good setting in which to explore the content of such legislation, but we would be glad to pursue the question with the Committee or any of its members.
What is critical to recognize for the moment is that RLPA is not such legislation. RLPA offers a distorted and untenable view of what religious liberty is, a view that Congress on reflection should not endorse; and RLPA streches notions of congressional authority to their breaking point, inviting the judicial articulation of constitutional limitations that Congress should not welcome. RLPA is unconstitutional, and if it were enacted, the Court would find it so to be. Congress has good reasons at the outset to choose a different vehicle to realize its altogether laudable concern for religious liberty.
Mr. CANADY. Thank you, Professor Sager.
Mr. Keetch.
STATEMENT OF VON G. KEETCH, COUNSEL, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
Mr. KEETCH. Thank you, and good afternoon, Mr. Chairman and members of the subcommittee. I greatly appreciate the opportunity to represent the LDS Church here today and on its behalf to strongly endorse H.R. 1691.
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When I testified here about 14 months ago, I provided to this committee a religious land use study undertaken by a group of law professors at Brigham Young University and attorneys from a prestigious law firm in Chicago. That study shows a very troubling trend in purported generally applicable neutral ordinances as they are applied to minority religions. In my written testimony, I reintroduce that study to this subcommittee today and reemphasize its central conclusion; that there is a huge disparity in the outcome when these ordinances and local regulations are applied to majority or so-called mainstream religions as compared to when they are applied to minority religions.
The conclusions of the study, in my view, leave little doubt that minority religions carry a much heavier load as they deal with so-called generally applicable and neutral laws. That is of special concern to all of us, Mr. Chairman, because throughout this great Nation of religious diversity, in one place or another, every religious body is a minority.
During my testimony last year, I also told you about the LDS Church's attempt to build a house of worship in the City of Forest Hills, Tennessee. A full recount of the circumstances surrounding the church's experience is included in my written testimony. Sufficed to say that applying purported generally applicable and neutral laws and grandfathering all of the existing majority religions, city officials were able to totally close the city's doors to any new church buildings, including the building that the LDS Church sought to locate there.
In the resulting litigation in Tennessee—that is also detailed in my written testimony—a State court judge upheld the city's actions under Smith, finding that the city's anti-development ordinance was generally applicable and neutral. The judge concluded that even though the city had absolutely prevented the LDS Church from constructing a church building anywhere within the boundaries of the city, the ordinance satisfied the rational basis test simply because it preserved the, and I quote the judge's words, ''aesthetics and suburban estate character'' of the city. I submit, Mr. Chairman, that when such peripheral interests are allowed to trump a sincerely held devotion to attend a house of worship in one's community, the test protecting minority religion is really no test at all.
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In addition to land use difficulties, the Church of Jesus Christ of Latter-Day Saints has experienced a wide range of other problems. For instance, local governments have attempted to impair or altogether eliminate proselyting of Church missionaries by passing so-called generally applicable and neutral ordinances placing severe restrictions on the times and places that missionaries may contact door-to-door. One city, for example, requires our LDS missionaries to obtain door-to-door proselyting permits 30 days in advance; to limit proselyting by these missionaries to 7 work days per year, and to limit all door-to-door contacting in the city to only one charitable, religious, or other commercial group per week.
Our local communities and neighborhoods are currently attempting to utilize generally applicable and neutral restrictions on the residential use of property to prohibit religious families, even, from organizing and holding religious study groups in their own home to which young people living in and around the community are invited. They are using so-called generally and applicable and neutral ordinances which limit the number of commercial or other gatherings one may have in his or her own home in a single period of time.
Mr. Chairman, Professor Michael McConnell has concluded some time ago that in the wake of Smith, ''Religious exercise is no longer to be treated as a preferred freedom. So long as it is treated no worse than commercial or other secular activity, religion can ask no more.'' That is essentially what I hear Professor Sager saying today. That has certainly been our experience since Smith. In navigating the generally applicable and neutral regulations enacted by local governments, our proselyting missionaries who believe that they have a sacred obligation to spread the word of God person-to-person across the Nation, find themselves on the same footing and with the same minimal protections against government intrusion as those applicable to brush salesmen who go door-to-door.
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Our congregations who desire nothing more than to build religious facilities where they can gather to worship God, find themselves with no greater protection for their devoutly held beliefs than those provided to commercial developers who want to build a grocery store or a gas station or a strip mall.
And even our member families who desire nothing more than to invite young people to bible study class in their own homes are subjected to local ordinances and restrictions which treat them the same as those individuals who seek to operate full-fledged businesses out of their homes.
Under Smith, religious belief and free exercise no longer occupy a pedestal; they instead are simply viewed as a part of the marketplace subject to the same rules and regulations and subject to the same infringements and governmental intrusions as any commercial concern.
To conclude, Mr. Chairman, religious freedom has long been recognized as one of the first freedoms of our Republic. The right to religious liberty applies to all, from border to border, in every State across this great Nation. Such freedom should never be diluted by a lowest common denominator type of analysis by providing only the minimal protections to religion as those provided to purely commercial concerns. I urge speedy passage of H.R. 1691 to protect the religious liberty of all. I thank the Chair.
[The prepared statement of Mr. Keetch follows:]
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PREPARED STATEMENT OF VON G. KEETCH, COUNSEL, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
Good morning Mr. Chairman and members of the Committee. I am very honored to appear before this Committee and to sit at this table with colleagues for whom I have the greatest respect and who have long provided excellent leadership in the protection of religious liberty. I especially appreciate the opportunity to share my views and insights on one of the most important topics facing Congress today: passage of legislation ensuring religious liberty throughout the United States.
For almost a decade, as an attorney in the law firm of Kirton & McConkie in Salt Lake City, I have served as counsel to The Church of Jesus Christ of Latter-day Saints (sometimes referred to as the ''LDS Church'' or ''Mormon Church''). With almost 11 million members worldwide, and with over 5 million of those members in the United States, the Church has a significant presence in every State of the Union, with active members in almost every city and town.
At different times over the past 175 years, the Church and its members have faced numerous assaults on their religious liberty. Some of those assaults have been stark and violent; others have been much more subtle and difficult to discern. I will provide a more general discussion of some of these modern-day difficulties towards the end of my testimony. However, at the outset, I desire to focus on one of today's most important—and sometimes overlooked—issues of religious liberty: The right of individual members to gather together in a place of worship, where they may learn from one another, edify each other, instruct one another, and receive important ordinances and blessings.
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As eloquently expressed in The Williamsburg Charter, ''Religious liberty in a democracy is a right that may not be submitted to vote and depends on the outcome of no election. A society is only as just and as free as it is respectful of this right, especially toward the beliefs of its smallest minorities and least popular [religious] communities.''(see footnote 10) Rather than existing at the whim of the majority, the Charter continues, this right ''is premised upon the inviolable dignity of the human person.''
These provisions reflect a deep commitment—a ''social compact''—to respect and accommodate the religious sentiments, practices, and needs of the many and diverse religions in this nation, even when to do so is inconvenient or annoying. Our history affirms that such constitutional provisions and the commitment they represent also constitute ''articles of peace'' among our nation's numerous religious denominations, allowing them to live together tranquilly despite at times profound theological differences. As such, they constitute an indispensable ingredient of America's relatively peaceful pluralistic society.
From its very inception, The Church of Jesus Christ of Latter-day Saints has recognized and strongly supported this concept. The Church's Eleventh Article of Faith states: ''We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.''
For tens of millions of Americans, ''worship'' means worship in community—in chapels, synagogues, and temples, in the communion and strength of fellow believers. Community faith and the prayers of co-believers are often essential to the deeply personal meaning of religion. Indeed, entire modes of worship—the sermon and the mass, for instance—can only be experienced in community. The right to erect buildings where communities of faith may gather is therefore a fundamental and indispensable aspect of the indefeasible right to worship.
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This is especially true in the LDS faith. In order to gain eternal exaltation—which for LDS believers means the ultimate spiritual glory—members of the Church strongly believe that they must receive specific ordinances through the authority and power of God. According to central Church doctrine, the highest of these ordinances can only be performed in the most sacred and hallowed of LDS buildings: the temple. Thus, for members of The Church of Jesus Christ of Latter-day Saints, the right to erect buildings (especially temples) lies at the core of their religious practice. Without these buildings, certain ordinances cannot be performed. And without these ordinances, exaltation is not possible.
As a result of these strongly held beliefs, and because The Church of Jesus Christ of Latter-day Saints is one of the fastest growing religious organizations in America, the Church by necessity is constantly engaged in the building of temples and other church buildings. It therefore finds itself continuously before planning commissions, city councils, boards of commissioners and other local governmental entities that control land-use and planning within the community. While an overwhelming majority of these government officials work with the Church in good faith, I fear that ignorance and even hostility toward religion do sometimes operate behind the facade of ostensibly neutral land use regulations. In these instances, local communities—most times just ignorant of religious beliefs, but at times antagonistic towards them—set broad ''generally applicable'' and ''neutral'' policies and development plans without any attempt to understand the religious beliefs affected thereby, and without any attempt to craft what can often times be a very minimal exception which will allow full religious liberty.
The growth of government at all levels, combined with government's tendency to over-regulate, demand additional protection for religious practice if a full measure of religious liberty is to be realized. Land use provisions in particular characteristically involve permit schemes which grant local officials virtually unlimited discretion to determine whether religious practices may go forward. Free exercise rights are of little practical value if we permit control of the meeting place of a church to pass from its members to government outsiders without any real examination of the government's asserted need for such control. Yet, unless the goals of regulatory agencies are tested against more searching scrutiny than ''neutrality'' and ''general applicability'', agency officials have no occasion and no motivation to weigh the value of pursuing their regulatory goals against the substantial burdens this pursuit may impose on the free exercise of religion.
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Under the current application of free exercise law, a claimant whose religious practice is burdened by an otherwise ''generally applicable'' and ''neutral'' law can obtain relief only by carrying the heavy burden of proving that there is an unconstitutional motivation behind a law, and thus, that it is not truly neutral or generally applicable.(see footnote 11) The difficulties in doing so are considerable. Assuming that government decision makers intend the reasonably foreseeable consequences of their lawmaking actions, judges can of course make responsible judgments about the purpose of a law based on its language and effect. Once the inquiry ventures past these external indications of purpose to the subjective intentions of members of the lawmaking body, however, reliable conclusions about government motivations are nearly impossible to reach. Although statements of intention by individual decision makers can sometimes be found in legislative histories, such histories are not always compiled, particularly in cases involving state and local legislation or discretionary administrative action, and are in any event subject to manipulation. Even when they exist, statements of individual decision makers, while highly probative of the intentions of those who make them, are only circumstantial evidence of the motivation of the decision making body as a whole. Finally, courts are understandably reluctant to find unconstitutional motivations because of the implicit insult such a finding directs at members of the decision making body.(see footnote 12) This is especially true when, as is almost always the case, direct evidence of unconstitutional motivation is totally lacking.(see footnote 13)
The virtual impossibility of adducing strong evidence of illicit motivation, combined with the reticence of judges to find such motivation on anything but the strongest evidentiary record, suggest that deserving religious claimants will frequently be unable to show the impermissible motivation behind facially neutral and general laws, even in situations in which the government decision making body in fact intended to restrict their religious practice, or consciously valued secular interests over religious ones. That suggestion is born out strongly in the land use area, where discretion of local government entities—and the reluctance of courts to second guess the motives of those entities—are at their strongest.
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Given the difficulties described above, there is certainly no exact way to measure religious animus or anti-religious motivation within the land use context. However, in an effort to provide some basic guidance and understanding in this area, a group of highly regarded law professors at Brigham Young University joined together with attorneys at the prestigious law firm of Mayer, Brown & Platt in Chicago to conduct a study of religious liberty in the land use arena. The full study, completed in 1997, is attached as Appendix A to my testimony. I urge the Committee to review it in depth. In the interests of brevity, I shall provide you only with some highlights.
The study starts from the basic proposition that ''generally applicable'' and ''neutral'' land use decisions and policies should impact all religions (and other land use applicants as well) in a consistent way. The joint study not only failed to find this consistency, it found a huge disparity. Most striking is that, while minority religions represent just less than 9% of the general population, they were involved in over 49% of the cases regarding the right to locate a religious building at a particular site, and in over 33% of the cases seeking approval