TESTIMONY

OF

Steven K. Green, Legal Director

On Behalf of

Americans United for Separation

of Church and State

Before the

House Committee on the Judiciary

Subcommittee on the Constitution

July 14, 1998

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

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

The Compelling Interest Standard

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

Members of the Coalition frequently disagree on the substance of many issues that implicate free exercise concerns -- the funding of religious education, student religious expression at public school events, and the application of nondiscrimination laws in employment and housing to religious claimants and institutions. Because members of the Coalition, like Members of Congress, hold divergent views on the merits of such claims, RLPA cannot seek to address or ordain their outcomes. The beauty of the compelling interest standard is that it does not preordain any particular outcome but merely sets up a balancing of competing interests. The compelling interest standard was selected, first and foremost, because it was the standard the Supreme Court had adhered to for almost 30 years.⁽¹⁾ But the compelling interest standard, in its unadulterated form, was also chosen because it is ideologically neutral in its application.

Let me put to rest any concern that the compelling interest test advantages or disadvantages any group or ideological perspective. The standard is fair, but rigorous, not only for the government, but also for religious claimants.⁽²⁾ The standard neither allows religious interests always to prevail, nor those of the government, even when its interests are compelling.⁽³⁾ The standard weighs and then balances competing interests, first considering the burden on the claimant's religion and then evaluating the importance of the government's activity and the available alternatives for achieving its goals.

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

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

The case law of the Supreme Court prior to Employment Division v. Smith and that of lower courts since RFRA clearly indicates that "[n]ot all burdens on religion are unconstitutional."⁽⁴⁾ Merely "incidental effects of government programs which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs" are insufficient to meet the burden standard.⁽⁵⁾ The burden must be one that is "constitutionally significant,"⁽⁶⁾ meaning that religiously motivated conduct is "significantly or meaningfully curtained."⁽⁷⁾ As the Court stated in Thomas v. Review Board:

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and violate his beliefs, a burden upon religious exists.⁽⁸⁾

Applying this standard, the high court has held that the assessment and collection of sales taxes from a religious organization does not constitute a substantial burden on religion.⁽⁹⁾ Similarly, a religious organization's compliance with minimum wage requirements in its commercial operations failed to constitute a substantial burden.⁽¹⁰⁾ Even under RFRA, courts have found no constitutionally significant burden on religion where churches were denied zoning variances to develop particular parcels, where parents were denied state subsidized services for their children in religious schools, and for abortion protesters to comply with the Clinic Access Act.⁽¹¹⁾ And in the now-familar California landlord-tenant case, the California Supreme Court held that the landord's religion was not burdened by conforming her commercial activities to the state's antidiscrimination law.⁽¹²⁾ Because the substantial burden test was applied in each instance, RLPA would not change the outcome in any of those cases.

This is not to suggest that the substantial burden standard is so high that many legitimate claims go unrequited. Certainly, reasonable minds can and do differ over whether the standard has been applied correctly in a particular case. The point is that the substantial burden requirement serves as an important triggering mechanism to ensure that the government is not unnecessarily required "to bring forward a compelling justification for its otherwise lawful actions" when the interference with religion has been only incidental.⁽¹³⁾

In order to ensure faithfulness to the Court's Sherbert standard,⁽¹⁴⁾ RLPA importantly clarifies that the burdened religious activity need not be compulsory or central to one's religious belief system. See Section 6(1). This lessens the risk that courts will be evaluating the relative merits of differing religious claims and determining whether a particular practice is "mandated," "essential" or "fundamental."⁽¹⁵⁾ Admittedly, some courts during the RFRA era used a centrality requirement to hold that the burden on religion was not substantial,⁽¹⁶⁾ and this clarification would possibly affect some of those holdings. But this clarification alone should not tip the scales one way or the other as RLPA still requires that the conduct be "substantially motivated" by religious belief. Moreover, the legal standard still requires that the government action be seen as placing "substantial pressure on [the claimant] to modify his behavior and to violate his beliefs," clearly indicating something more than an incidental incursion upon one's faith.⁽¹⁷⁾

2. Compelling Interest -- As with "substantial burden," RLPA does not define a "compelling" government interest, again relying on judicial interpretations. This is the wisest course. In that the standard is not unique to religion claims but is applied in other fundamental rights, any specific definition of compelling interest would add confusion and uncertainty to litigation. Moreover, an attempt to define "compelling interest" would invite intensive lobbying and wrangling by groups to have their interests specially protected.

A compelling interest is, of course, an interest of "the highest order."⁽¹⁸⁾ No one benefits when courts dilute the standard by embracing garden variety interests as being of overriding importance.

However, one point needs emphasizing. Even though RLPA claims involve what we would consider to be a fundamental right, there is no requirement that the government come forward with an interest of constitutional magnitude before it can override the religiously based claim. In other words, a RLPA claim will not automatically prevail over important local interests merely because it is a federal law or has the aura of a constitutional right. Even a cursory review of the Supreme Court's holdings indicates that many non-constitutional interests will likely prevail over a RLPA claim. The Court has held the government has a compelling interest in the allocation and collection of taxes,⁽¹⁹⁾ in maintaining the integrity of its social security system,⁽²⁰⁾ in eradicating racial discrimination in education,⁽²¹⁾ in the operation of military conscription laws,⁽²²⁾ in maintaining a uniform day of rest,⁽²³⁾ in enforcing child labor laws,⁽²⁴⁾ and in protecting public health and safety.⁽²⁵⁾ Lower courts applying RFRA have found that compelling interests exist in protecting threatened and endangered species,⁽²⁶⁾ in complying with child support,⁽²⁷⁾ in land use regulations⁽²⁸⁾, in complying with subpoenas,⁽²⁹⁾ in protecting the right to collective bargaining,⁽³⁰⁾ and in protecting public health by providing unobstructed access to reproductive health facilities.⁽³¹⁾

This list is not comprehensive; nor is it intended to belittle the importance of any of those religious claims. Rather, its purpose is to highlight the variety of government interests that, depending on the particular context, may be considered compelling. Again, each of us may disagree with some of those decisions just as we may be able to identify other government interests we believe are compelling. The point is that while RLPA creates a federal statutory right, that right will not automatically prevail over all state and local interests.

The question on many minds is whether enforcement of antidiscrimination laws constitutes a compelling interest. Courts have held that the government has a compelling interest in eradicating discrimination in all forms.⁽³²⁾ I believe that in most conflicts involving individual religious claimants the antidiscrimination laws will prevail. The government has a interest in prohibiting discrimination in housing and employment generally, regardless of the particular form it takes. The compelling interest rests in the overall purposes behind the enactment of the law and in ensuring its enforceability. The parsing of a discrimination law to identify a hierarchy of rights threatens the law's integrity and subverts its goals.⁽³³⁾ In other words, the compelling interest is in the eradication of discrimination generally, not in how it manifests itself.

An additional element that speaks to the compelling nature of antidiscrimination laws is the detrimental impact that discrimination has on third persons. Most free exercise claims considered by courts have involved laws burdening religious rituals or organizations where there was a clear line between the activity and the society at large. No one else was burdened if Captain Goldman wore his yarmulke while in uniform.⁽³⁴⁾ Such cannot be said when a religious claim is used as a defense for alleged discrimination. In other contexts, the Supreme Court has considered the impact an accommodation of a religious claim would have on third parties in weighing the government's interest.⁽³⁵⁾ Although the Court's statements on accommodation of religion have not always been clear, it has consistently held that religious exemptions cannot impose substantial burdens on third persons not sharing in the accommodation.⁽³⁶⁾ As Judge Learned Hand once wrote: "The First Amendment . . . gives no one the right to insist that in the pursuit of their own interests others must conform their conduct to his own religious necessities."⁽³⁷⁾

No doubt some people would disagree with this analysis. The courts that have addressed this issue have split over which interest prevails, although not on compelling interest grounds as some might assume.⁽³⁸⁾ The point of my testimony is not that antidiscrimination laws will prevail in every case, but to set the record straight that such laws serve as important expressions of legislative authority, and that by adopting the compelling interest standard in RLPA, Congress is acknowledging that courts will consider and weigh the important interests behind these laws. Because each religious claimant's situation is unique, it is appropriately left to the courts to weigh the competing interests.

Establishment Clause

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

First, as addressed above, RLPA applies when there is a substantial burden on religious exercise. The purpose of RLPA is to remove those unintended burdens that result from the application of neutral laws -- burdens that are often unique to particular religions -- and to put the religious claimant back into a position he would have otherwise been. In practice, RLPA should not advantage religion or provide preferential treatment but alleviate those burdens that are special to religion. For example, a rule against wearing hats in school has a disproportionate impact on Orthodox Jews; providing Jewish boys an exemption from the rule does not advantage them but merely removes a special burden not experienced by non-Jews.

However, in order to guard against claims that RLPA provides special treatment for religion and thus violates the Establishment Clause, it is important for Congress to indicate that the terms "religious exercise" and "belief" are to be interpreted broadly to encompass all belief systems that are comparable to traditional understandings of religion -- to include those belief systems that occupy a place in a person's life that is parallel to religion. The Supreme Court intimated in the draft cases that the Free Exercise Clause would require as much.⁽³⁹⁾ In that RLPA is a non-constitutional accommodation, the Establishment Clause would demand the same. We must remember that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection."⁽⁴⁰⁾

Second, nothing in RLPA is intended to create a right of religious organizations to receive public funds or to change the Establishment Clause prohibition on funding religious activity.⁽⁴¹⁾ The bill guards against such interpretations in three ways. First, section 5(c) states that the Act does not create a right of any religious organization to receive public funding or for any person to receive government funding for any religious activity. Second, funding religious activity in violation of the Establishment Clause would obviously serve as a compelling interest under section 2(b).⁽⁴²⁾ And finally, section 8 of the bill expressly declares that nothing in the Act affects the Establishment Clause. Taken together, these provisions act as an important safeguard on RLPA's constitutionality.

I thank the Committee for its attention and welcome any questions.

Judiciary Homepage

1. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989).

2. See Ira Lupu, "The Failure of RFRA," 20 UALR L. Rev. 1, 19-22 (1998).

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

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

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

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

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

8. 450 U.S. 707, 717-18 (1981) (emphasis supplied).

9. Jimmy Swaggart Ministries, 493 U.S. at 392.

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

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

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

13. Lyng, 485 U.S. at 450-51.

14. Sherbert v. Verner, 374 U.S. 398, 403-404 (1963); Thomas, 450 U.S. at 715-16.

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

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

17. Thomas, 450 U.S. at 718.

18. Thomas, 450 U.S. at 718.

19. Hernandez, 490 U.S. at 699-700.

20. Lee, 455 U.S. at 258-59.

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

22. Gilette v. United States, 401 U.S. 437, 462 (1971).

23. Braunfeld v. Brown, 366 U.S. 599, 608 (1961).

24. Prince v. Massachusetts, 321 U.S. 158 (1944).

25. Jacobson v. Massachusetts, 197 U.S. 11 (1905).

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

27. Hunt v. Hunt, 648 A.2d 843, 851 (Vt. 1994).

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

29. Commonwealth v. Stewart, 690 A.2d 195, 202 (Pa. 1997).

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

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

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

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

34. See Goldman v. Weinberger, 475 U.S. 503 (1986).

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

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

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

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

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

40. Thomas, 450 U.S. at 714.

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

42. See Widmar v. Vincent, 450 U.S. 263, 271 (1981).