Good afternoon. My name is Chai Feldblum and I am a law professor at the Georgetown University Law Center in Washington, D.C.⁽¹⁾ I both teach courses in civil rights law, constitutional law, and the legislative process at the Law Center, and direct a Federal Legislation Clinic. I am testifying today in my personal capacity as a law school professor.⁽²⁾

I am pleased to offer to the Committee some observations on H.R. 1691, the Religious Liberty Protection Act of 1999 (RLPA). The current legal situation facing Congress is not an easy one. The Supreme Court, in Employment Division v. Smith, 494 U.S. 872 (1990), has made it clear that government is not constitutionally required to justify a neutral law of general applicability, even if such a law might burden an individual's free exercise of religion. As Justice Scalia pronounced for the Supreme Court: "To make an individual's obligation to obey such a law [a generally applicable prohibition of socially harmful conduct] contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' -- permitting him, by virtue of his beliefs, 'to become a law unto himself,' -- contradicts both constitutional tradition and common sense."⁽³⁾

The reason Justice Scalia believed such a rule would contradict common sense was apparent when he set forth what he perceived as the absurd result of requiring government to justify every neutral law that might burden religious belief or conduct. As Justice Scalia explained:

[I]f "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. . . . The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination, [and] drug laws, to social welfare legislation such as minimum wage laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."⁽⁴⁾

Justice Scalia recognized, of course, that courts would not necessarily grant the religious exemption in each of these circumstances. Nevertheless, he found it "horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice."⁽⁵⁾

Despite Justice Scalia's concerns, Congress decided in 1993 that appropriate public policy, and appropriate concern for the tradition of religious liberty in this country, dictated that individuals be given the opportunity to challenge neutral laws of general applicability when those laws burdened their free exercise of religion. That policy, embodied in the Religious Freedom Restoration Act (RFRA) of 1993, was -- as we all know -- invalidated in part by the Supreme Court in 1997 in City of Boerne v. Flores, 117 S.Ct. 2157. Justice Kennedy, writing on behalf of himself and Justices Rehnquist, Stevens, Thomas, Ginsburg, and Scalia, observed that Congress' power under Section 5 of the Fourteenth Amendment was limited to "enforc[ing]" the provisions of that Amendment, and that RFRA went beyond that authority. As Justice Kennedy observed: "Laws valid under Smith would fall under RFRA, without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA."⁽⁶⁾ Moreover, the Court failed to see how RFRA could be considered "remedial, preventive legislation," since -- as the Court observed -- the law's "[s]weeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter."⁽⁷⁾

Hence the legal and prudential challenge before Congress today. There is still, I believe, widespread substantive agreement across broad spectrums of society that -- as a matter of public policy, and as a matter of respect for the tradition of religious liberty in this country -- greater protection should be available to individuals who may be subject to a law that requires them to engage in some action their religion prohibits, or that prohibits them from engaging in some action their religion requires or encourages. Moreover, as a matter of policy, I believe there is also widespread agreement that, while there should not be absolute protection of religious liberty in such circumstances, the government should generally be required to demonstrate that the law at issue is narrowly tailored to a compelling government interest.

The question, however, is how to implement such a policy in a judicious and thoughtful manner. RLPA, as currently drafted, fails this standard in several respects. First, as you have already heard, there is significant concern regarding the impact RLPA will have on the effective enforcement of state and local civil rights laws. It is not sufficient to say there must be a uniform standard to which government must adhere with regard to any neutral law it passes, and that civil rights laws must simply take their place alongside zoning laws and laws governing autopsies. Making that choice -- that is, adding civil rights laws to the coverage of RLPA -- reflects a substantive position on civil rights law generally. The substantive position is that civil rights laws may, indeed, not reflect a compelling government interest, and hence, it is legitimate to subject those laws to a case-by-case individual religious defense in the courts. Such a result would not only be harmful, as a practical matter, to a range of individuals across this country who are currently protected by state and local civil rights, but would also send an unfortunate and destructive message about the importance of state and local civil rights laws from the United States Congress.

Second, the concern about RLPA's effect on civil rights laws is simply a reflection of a larger, more basic, concern. While I do not personally ascribe to every aspect of the "parade of horribles" presented by Justice Scalia in his opinion in Smith, I do believe he had a valid point in admonishing us regarding the practical effects of requiring a "narrowly tailored to a compelling government interest" test to be met with regard to each and every neutral law that may be passed. As Congress decides how to approach this issue in a judicious manner, it may well be worth its while to revisit that portion of Justice Scalia's opinion.

There are several areas in which Congress has been sufficiently informed that potential difficulties exist for religious individuals or organizations who may be burdened by neutral laws of general applicability. As someone who grew up in an Orthodox Jewish community (and who comes from a long line of Orthodox Jewish rabbis), I am personally aware of the unfairness and damage that can be inflicted by a range of local and state laws -- including laws that mandate autopsies, or that prohibit the placement of "eruvs" (a symbolic "four walls" that allow Orthodox Jews to carry items on the Sabbath within a particular geographic area), or that require Orthodox synagogues to have parking lots, or that deny prisoners the ability to pray, or that prohibit students from wearing yamulkes. In each of these areas -- zoning laws, laws regulating bodily integrity post-death, religious practice within prisons, religious garb rules, and rules governing transportation (e.g., requiring Amish buggies to display certain signs) -- it appears there is a basis to believe that a potential burden on free exercise exists, as well as a basis to believe the government's rule may not, in fact, be narrowly tailored to a compelling government interest.

But RLPA, as currently drafted, does not apply solely to specific areas in which Congress has been presented with information that potential problems may exist, and in which it may be fair to say the government does not have a compelling interest in burdening the religious belief or conduct. Rather, as currently drafted, the bill allows an individual religious defense to be put forward in any situation in which some program or activity, operated by the government, receives federal financial assistance, or in any situation in which the substantial burden on the person's free exercise of religion affects interstate commerce. A bill drafted this broadly presents the specter of unintended, adverse consequences for public policy, and is not firmly grounded in Congressional findings of fact.

As I noted at the outset, Congress is faced with a difficult legal and prudential challenge if it wishes to craft legislation that will provide religious individuals and entities with a defense against neutral laws of general applicability. I personally believe this challenge is worth rising to and that Congress is acting appropriately when it engages with this issue. With all due respect, however, I do not believe RLPA, as currently drafted, is a worthy example of rising to that challenge. The breadth of the law, with its potential adverse consequences, is unfortunate and unnecessary. It is possible to craft a more narrowly targeted piece of legislation that would appropriately provide religious individuals and entities with the protection they need and deserve in a selected number of areas, but would not run the risk of causing significant, adverse consequences in other important areas.

Thank you for inviting me to testify today. I would be happy to work with the Committee in drafting a narrower version of RLPA, if the interest in doing so exists.

1. In accordance with House Rule XI, clause 2(g)(4), I state that I have not received any federal grant, contract, or subcontract during the current or preceding two fiscal years. I am not representing any entity or individual, other than myself, in this testimony.

2. The Federal Legislation Clinic, which I direct, represents several organizational clients. In addition, outside of my academic work, I serve as a legal consultant to the National Gay and Lesbian Task Force (NGLTF). The views I present here today should not be attributed to any of the Clinic's clients. These views are consistent with those of NGLTF.

3. Employment Division v. Smith, 494 U.S. 872, 884 (1990) (internal case citation deleted).

4. Id. at 888-89 (internal case citations omitted).

5. Id. at 889, n. 5.

6. City of Boerne v. Flores, 117 S.Ct. 2157, 2171 (1997).

7. Id. at 2169.