Subcommittee Hearing on "Protecting Religious Freedom after Boerne v.
Flores"
Monday, July 14, 1997
2141 Rayburn House Office Building
10:00 a.m.
Good morning Mr. Chairman and members of the committee. My name is Jeffrey Sutton and I am the Solicitor for the State of Ohio and am appearing on behalf of Betty D. Montgomery, the Attorney General of Ohio. On behalf of Attorney General Montgomery I want to thank you for the opportunity to express the concerns that prompted Ohio and many of its sister states to challenge the validity of the Religious Freedom Restoration Act of 1993 (RFRA).
My testimony this morning will focus on three major points. First, I would like to explain our view of the holding in City of Boerne v. Flores, 65 U.S.L.W. 4612 (1997). Second, I would like to explain the very significant problems that RFRA posed to state and local governments in the performance of their duties to maintain public safety and welfare and to operate state prisons and locals jails in a safe and secure manner. Finally, I would like to discuss the efforts that Ohio and other states are undertaking to supplement the already substantial body of law guaranteeing religious liberty separate and apart from RFRA.
I The Impact Of City Of Boerne
First and foremost, City of Boerne caps the scope of Congress' power under 5 of the Fourteenth Amendment to legislate in areas traditionally regulated by the states. The decision makes it clear that 5 establishes a power to remedy constitutional civil rights violations, not to regulate civil rights generally. It authorizes Congress only to enforce existing constitutional guarantees, as determined by the Supreme Court, not to alter those guarantees. Any power to expand those guarantees for remedial purposes exists only when Congress has established the requisite predicate for doing so - a pattern and practice of State failure to honor their constitutional duties. Finally, any such legislation must be proportional to the underlying violation.
Because the Court relied on the Fourteenth Amendment in reaching its decision, we do not think it limits Congress' authority to enact a new RFRA that applies only to Federal laws, regulations and practices. Nor do we think the decision prevents States from providing greater protection for religious liberties than the Free Exercise Clause already provides.
II. The Problems Caused By RFRA
Ohio wrote an amicus brief on behalf of itself and 15 other states and territories challenging the validity of RFRA in the City of Boerne case. One primary concern motivated our participation: A proliferation of inmate lawsuits under the law. In the three and one-half years that RFRA was on the books, 254 inmate RFRA cases reached the LEXIS legal database. They represented almost 60% of all suits involving RFRA in that database. Moreover, those figures probably understate the extent of the prisoner litigation caused by RFRA as most cases were never reported and some involved class actions.
The cases included such bizarre claims as demands for recognition of the right to burn bibles, the right to possess and distribute racist literature, the right to engage in animal sacrifices and the right to group martial arts classes. In addition, RFRA forced the re-litigation of many issues previously settled under pre-RFRA standards. RFRA cases were particularly time consuming due to the law's application whenever prison security regulations "substantially burdened" any and all religious practices. Consequently, corrections officials had to spend an inordinate amount of time on discovery and trial related matters.
However visible they were, the lawsuits were only the tip of the iceberg. RFRA's greatest harm was that it greatly disrupted corrections officials' ability to maintain safety and security inside the nation's prisons and jails. The sheer volume of litigation greatly exacerbated the existing problems caused by the activity of jailhouse lawyers such as diversion of staff from operational tasks, increased tension between inmates and staff, deterioration of staff morale, and an overall erosion of discipline. In addition, prison officials experienced an exponential growth in both the number and nature of requests for alterations of normal prison routine based upon RFRA, which resulted in the diversion of substantial amounts of staff time to analyze each of those requests under RFRA's stringent least restrictive means test.
More ominously, inmates exploited the fact that RFRA both shifted and enhanced the burden of proof regarding the validity of prison regulations and practices to insulate illicit, even dangerous, activities from official scrutiny. Corrections officials across the country noticed that white supremacist inmates suddenly converted to obscure or eccentric religions, then demanded that officials recognize their religious gatherings and practices under RFRA. Here in the District of Columbia inmates recruited "religious volunteers" to bring drugs and prostitutes into Lorton prison, intimidating the staff with threats of lawsuits under RFRA. Luciferian inmates in Wyoming invoked RFRA to demand, and receive, the right to unsupervised group services and then burned Christian bibles and hymnals in those serves, creating not only a fire safety threat but also causing significant smoke damage to prison facilities. Although most abuses were detected and dealt with eventually, they resulted in tremendous diversions of staff time from other pressing tasks, such as gang suppression and contraband control. In addition to these specific problems, RFRA also provided an effective mechanism for inmates to challenge the general authority of prison officials, authority which must be maintained both to protect weaker inmates from their stronger, predatory counterparts and to facilitate rehabilitation.
Finally, RFRA actually impeded the delivery of religious services to inmates adhering to non-disruptive, mainstream religions. It did so in two ways. Quantitatively, religious services personnel spent so much time dealing with the increased volume of increasingly belligerent demands and lawsuits that they had little time to facilitate the delivery of religious services to sincere, non-disruptive inmates of faith. Qualitatively, the need to constantly investigate and frequently turn down requests under RFRA led inmates to view chaplains more as enforcers than pastors, and chaplains to become increasingly skeptical of inmates' sincerity, thereby undermining the relationship of mutual respect that is essential to the effective delivery of religious services.
The foregoing is just a summary of the problems caused by RFRA in the prison setting. Time does not permit a more thorough discussion that those problems demand. Summaries of the initial and final results of a survey of the impact of RFRA on state prisons conducted by the Florida Attorney General's Office and of a letter from the two chief religious services administrators of the Ohio Department of Rehabilitation and Correction are attached.
II. STATE LAW PROTECTIONS OF RELIGIOUS EXPRESSION
In his opinion for the Court, Justice Kennedy noted-that there is little evidence of a wide-spread violation of religious rights in the United States:
In contrast to the record which confronted Congress and the judiciary in the voting rights cases, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years. See, e.g., Religious Freedom Restoration Act of 1991, Hearings on H.R. 2797 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 102d Cong., 2d Sess., 331-334 (1993) (statement of Douglas Laycock) (House Hearings); The Religious Freedom Restoration Act, Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31 (1993) (statement of Dallin H. Oaks) (Senate Hearing); Senate Hearing 68-76 (statement of Douglas Laycock); Religious Freedom Restoration Act of 1990, Hearing on H.R. 5377 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 1 01 st Cong., 2d Sess., 49 (1991) (statement of John H. Buchanan, Jr.) (1 990 House Hearing). The absence of more recent episodes stems from the fact that, as one witness testified. "deliberate persecution is not the usual problem in this country." House Hearings 334 (statement of Douglas Laycock). See also House Report 2 ("[L]aws directly targeting religious practices have become increasingly rare"). Rather, the emphasis of the hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs, see e.g., House Hearings 81 (statement of Nadine Strossen); id., at 107-110 (statement of William Yang); id., at 27-28 (statement of Hmong-Lao Unity Assn., Inc.); id., at 50 (statement of Baptist Joint Committee); see also Senate Report 8; House Report 5-6, and n. 14, and on zoning regulations and historic preservation laws (like the one at issue here), which as an incident of their normal operation, have adverse effects on churches and synagogues. See, e.g., House Hearings 17, 57 (statement of Nadine Strossen); id., at 157 (statement of Edward M. Gaffney, Jr.); id., at 327 (statement of Douglas Laycock); Senate Hearing 143-144 (statement of Robert P. Dugan, Jr.); see also Senate Report 8; House Report 5-6, and n. 14. It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.
(Emphasis added).
One reason for the general tolerance of different religious
beliefs is the widespread presence of state and local laws
protecting against the infringement of religious liberty. In
the wake of the City of Boerne decision, the states
are acting to fill any gap that may have resulted from the
invalidation of RFRA. Ohio Attorney General Betty
Montgomery is working with the leaders of the Ohio General
Assembly, and other State Attorneys General, to develop a
state counterpart to RFRA. In most respects, the proposed
law parallels RFRA, except that it applies only at the State
level, invokes intermediate and not strict scrutiny and
exempts prisoners. A draft is attached.
Judiciary
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