STATEMENT OF:

Professor W. Cole Durham, Jr.

J. Reuben Clark Law School

Brigham Young University

Provo, Utah 84602

Phone: (801) 378-2281

Fax: (801) 378-5698

Email: durhamc@lawgate.byu.edu

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

HOUSE COMMITTEE ON THE JUDICIARY

HEARING ON HOUSE BILL 4019/1308:

THE RELIGIOUS LIBERTY PROTECTION ACT OF 1998

June 16, 1998

Statement of Professor W. Cole Durham, Jr.

Before the Subcommittee on the Constitution of the

House Committee on the Judiciary Committee at Its June 16, 1998

Hearing on

The Religious Liberty Protection Act of 1998

It is a great honor for me to address this body today on legislation vital to protecting one of our preeminent liberties: religious freedom. I have spent much of the past decade working in support of this great principle: in my home state of Utah, at the federal level, and as a comparative law expert in many of the countries emerging from the yoke of communism. Experience in all these contexts has reaffirmed my conviction, in setting after setting, that religious freedom is one of the bedrock principles of any just human society. As Madison rightly argued over two centuries ago in his famous Memorial and Remonstrance, religious freedom "is in its nature an unalienable right" because it relates to duties that are "precedent, both in order of time and in degree of obligation, to the claims of Civil Society."⁽¹⁾

While this hearing rightly focuses on issues of United States constitutional law, it is worth remembering that the principle of religious freedom is deeper and more absolute than any constitution. The Universal Declaration of Human Rights, whose fiftieth anniversary is celebrated this year, clearly recognized (as did our founding fathers) that religious freedom is not a right conferred on individuals by states; it is a right possessed by everyone simply by virtue of being human. Our Constitution is hallowed in no small part because it was one of the first great charters of human history to protect the deeper principle of religious freedom. Moreover, our constitutional history as a people remains impressive because of ongoing efforts to protect this cherished liberty. The legislation we are discussing today, if enacted, will be part of our generation's elaboration of the American heritage of religious freedom.

I. General Considerations Calling for Adoption of the Religious Liberty Protection Act

Congressional action is vital because religious freedom faces unique challenges at this juncture in our history. These challenges are not limited to the fact that the United States Supreme Court has radically and unnecessarily narrowed the scope of religious freedom protections as traditionally understood in this country.⁽²⁾ They flow from the pervasiveness of the modern state, the increasing pluralization of culture, and powerful forces of secularization. Each of these three factors intensifies the need for added protection of religious freedom.

This is most obvious as one considers the massiveness of the modern state. The seemingly inexorable expansion of state activity into more and more sectors of life increases the number of areas in which state and religious activity can come into conflict, and where religious freedom protections are vital to protect individual and collective religious activity. This Hearing, previous hearings on the legislation in question, and all the hearings on the earlier Religious Liberty Protection Act, were replete with evidence of the many areas in which religious freedom is threatened if encroaching governmental action is not strictly scrutinized.

The increasing pluralism of contemporary society further compounds the potential friction points between religious activity and the state. Some, including Justice Scalia in the Smith decision, have cited this factor as an argument against accommodation of religious difference. But this runs counter to our historical experience. What the American experiment has shown, and shown stunningly (if not always perfectly), is that accommodation and toleration are much more effective in promoting social stability and flourishing than insistence on homogeneity and standardization. Increasing pluralism calls for more, not less religious freedom, because in addition to being right, respect for difference pays richer social dividends than wooden insistence on conformity.

Less obvious, perhaps, is the challenge posed by progressive secularization, which is particularly evident among our intellectual elites. Secularization is gradually dulling our sensitivities to the vital importance of religion and religious freedom to the strength of our republic. The importance of religion to society was obvious to the founders and to many of the greatest commentators on American life, such as Alexis de Tocqueville. But in secularized minds, the legitimate interests and claims of religion seem to fade in importance or to be marginalized when balanced against the secular interests that are the focus of most governmental programs. Secular purposes look neutral, even when they have severe ramifications for religious life, whereas religious beliefs are suspect. What results is a kind of secular blindness, or at least myopia, that results in progressive underprotection of religious rights.

This trend is compounded by those thinkers about religious rights, including some at this hearing today, who advocate various versions of what might be called "secular reductionism." Some contend that religious rights can simply be reduced to other more secular rights, such as freedom of speech, or association, or the right to equal protection. Others view religious freedom through a paradigm of equality, in which the idea of religious freedom is reduced to a mere non-discrimination norm. Too often, even the residual equality norm to which religious freedom is reduced grows insensitive to the value of religious difference. It is axiomatic in dealing with equality norms that substantive equality cannot be achieved without taking relevant differences into account. But secularized equalitarians are all too prone to forget that religion and the right to religious freedom constitute relevant differences that need to be taken into account in order to provide genuine substantive equality. Whatever one ultimately thinks about the balance of liberty and equality, it is fair to say that the greatness of our tradition in religious liberty will be impoverished if we do not understand that at its core it is about the protection of religious differences, religious pluralism, and religious conscience, and that sometimes these values are so strong that they even override otherwise relevant equality claims.

The Religious Liberty Protection Act helps remedy the foregoing problems by insisting, at least in those areas where Congress has continuing power after Boerne, that governmental incursions on religiously motivated conduct shall be strictly scrutinized. This does not mean that all state action and state norms thus scrutinized will be invalidated. No one has ever claimed that the right to engage in religiously motivated conduct is absolute. But it does assure that government officials cannot ride roughshod over religious claims, that they will need to bear the burden of proving that state action they implement complies with constitutional requirements, and that they need to consider carefully whether they can structure their programs in ways that are less burdensome to religious believers and organizations. Only when they have strong justification will they be allowed to override religious concerns. Insisting on such justification does not constitute an unfair privileging of religion. To the contrary, it simply recognizes the distinctive protections afforded by the First Amendment. Religious differences need to be taken into account to avoid unfair disadvantaging of individuals and groups bound by conscientious obligations. Requiring special sensitivity affirms the distinct and sensitive role that religion plays in social life; state action that fails to respect its distinctive character is unjust.

II. The Need for Special Protection of Religious Freedom in the Field of Land Use Planning

When I was invited to appear at this Hearing, I was asked to focus in particular on religious freedom issues that arise in the area of land use. In the balance of my remarks, I will turn to this area. In my view, the problems encountered by religious organizations in the area of land use are symptomatic of a larger set of problems that religious organizations face in the modern regulatory state. Thus, I hope my remarks in what follows will be understood both as documentation of concerns in the land use area in particular and at the same time as a case study providing evidence more generally of the need for the Religious Liberty Protection Act.

Conflicts between free exercise of religion and land use date back to the earliest days of the American colonial period. One of the most famous early cases of religious persecution in America involves the expulsion of Anne Hutchinson from Massachusetts Bay. While the case obviously antedates modern land use statutes, many of the elements are familiar. Apparently, Ms. Hutchinson attracted the disfavor of the establishment because she started holding regular sessions in her home to discuss (and criticize) sermons held in the dominant church. She started a women's club in her home to discuss the sermon and the Bible each week. The attendance at these meetings increased with the controversy over the banishment of Roger Williams. Women were attracted to Anne and wanted to hear her opinions. The first formal action taken against her was a resolution of the assembly in 1637, which, as reported by her principal antagonist, John Winthrop, read as follows:

That though women might meet (some few together) to pray and edify one another; yet such an assembly, (as was then the practice in Boston), where sixty or more did meet every week, and one woman (in a prophetical way, by resolving questions of doctrine, and expounding the scripture) took upon her the whole exercise, was agreed to be disorderly, and without rule.⁽³⁾

In a modern setting, planning authorities would have complained of inadequate parking, traffic problems, and other signs of "intensive" land use. A sanction as austere as formal banishment in seventeenth-century New England would have been an unlikely, but modern authorities might have proven just as adept at finding a neutral rubric (here, "disorderly conduct") to exclude an unpopular religious activity.

The field of land use is particularly vital for the simple reason that religious activity, particularly the communal life of a religious group, necessarily involves using land. To some extent, this simply states the obvious, but some detail about the nature of religious land use in the United States may be helpful. The 1994 Report on the Survey of Religious Organizations at the National Level (the "Survey"), conducted by the Northwestern University Survey Laboratory and the DePaul Law School's Center for Church/State Studies (with which I am involved), surveyed approximately 300 religious denominations in the United States, including virtually all major denominations.⁽⁴⁾ It found that nearly all religious organizations hold religious gatherings at least once a week. Not surprisingly, 96% of the respondents indicated that religious gatherings are held at a single permanent location. 89% of those utilizing such structures own them outright; 11% of respondents indicated that structures are leased.⁽⁵⁾ In addition, "approximately two-thirds . . . engage in social service or welfare activities; over 80% are involved in education;⁽⁶⁾ nearly 60% provide recreation or social activities;⁽⁷⁾ 85% are involved in communications;⁽⁸⁾ one-third have retreat centers; and 40% have cemeteries."⁽⁹⁾ These figures do not reflect the number of religious associations that operate hospitals or other health care facilities, nor do they reflect a variety of other programs carried out by religious social services agencies. 54% of the respondents indicate that their national bodies own real property that is not used for worship purposes, as do the local units of 54% of the respondents.⁽¹⁰⁾ Educational facilities and clergy housing are the most commonly held non-worship properties.⁽¹¹⁾ In addition, approximately one-fifth of the organizations surveyed indicate that they invest in real estate to raise funds.⁽¹²⁾

For the most part, the government officials dealing with land use issues in the nearly 70,000 local government entities of the United States are tolerant and respectful of religious rights. Nonetheless, particularly when community opposition is strong, or when the fashionable orthodoxies of the planning or historic preservation worlds are challenged, problematic instances occur.

It is difficult to measure with precision the extent to which intentional religious discrimination plays a role in the problematic cases. As noted in In re American Friends of the Society of St. Pius v. Schwab, 417 N.Y.S.2d 991, 993 (N.Y. App. Div. 1979),

Human experience teaches us that public officials, when faced with pressure to bar church uses by those residing in a residential neighborhood, tend to avoid any appearance of an antireligious stance and temper their decision by carefully couching their grounds for refusal to permit such use in terms of traffic dangers, fire hazards and noise and disturbance, rather than on such crasser grounds as lessening of property values or loss of open space or entry of strangers into the neighborhood or undue crowding of the area. Under such circumstances it is necessary to most carefully scrutinize the reasons advanced for a denial to insure that they are real and not merely pretexts used to preclude the exercise of constitutionally protected privileges.

Despite such instinctive efforts on the parts of governing bodies to avoid the appearance of intolerance, I have absolutely no doubt that prejudice is a substantial factor in a large number of cases, particularly where smaller or less popular groups are involved.

Strong evidence for this conclusion is provided by a study I prepared with colleagues from the B.Y.U. Law School and at the law firm of Mayer, Brown & Platt in January, 1997. A copy of the study is attached as an appendix to my statement. Essentially, the study reviewed all the reported cases we were able to identify involving free exercise challenges to land use regulation. If anything, it seems reasonable to assume that these cases significantly understate the number of situations in which religious groups believe that their religious rights are being violated. A variety of practical disincentives-- ranging from the need to have good working relationships with local officials and neighbors, to religiously based impulses to go the second mile, to the sheer cost of litigation, to the availability of other sites and the unattractiveness of settling among manifestly prejudiced neighbors--all operate to deter religious groups from over-litigating their claims.

Cases were classified into two broad categories, essentially to see if there are significant differences between new construction situations ("location cases") and cases dealing with whether an accessory use (such as a homeless shelter or soup kitchen) may be allowed at the site of an existing church ("accessory use cases"). The cases were also classified by denomination, to the extent that is possible based on case name or other information in the body of the decision. Information on size of denomination was based on data from a massive study that provides the best available estimates of church affiliation based on self-described affiliation.

With this data in hand, we proceeded to compare the treatment received by smaller religious groups (those with 1.5% of the population or less) with that received by larger groups.⁽¹³⁾ If land use laws were being applied in a neutral fashion, one would expect roughly equal treatment. But in fact, the situation is quite different. Minority religions representing less than 9% of the population were involved in over 49% of the cases regarding the right to locate religious buildings at a particular site, and in over 33% of the cases seeking approval of accessory uses. The disproportionate burden becomes even more distressing if one takes into account smaller non-denominational or other unclassified groups. If these are counted, over 68% of reported location cases, and over 50% of accessory use cases, involve smaller religious groups.

While a study of this type can at best give a rough picture of what is happening, the conclusion seems inescapable that illicit motivationis affecting disputes in the land use area. Such illicit motivation may be present either in the form of prejudice against unpopular or less known groups, or in the form of undue favoring of more powerful groups, or most likely, both. There may of course be other factors that explain some of the disparity, but the differences are so staggering that it is virtually impossible to imagine that religious discrimination is not playing a significant role.

Significantly, the judicial success rate for small religious groups and larger groups is essentially the same. The smaller groups won approximately 66% of the cases in which they were involved, whereas larger religious groups won approximately 65% of the cases in which they figured. These figures suggest that judicial review has on balance tended to help smaller religious groups. At the same time, they indicate that judicial decisions tend to be more impartial across groups, and that there is no reason to think the high proportion of disputes involving smaller religious groups reflects higher levels of ungrounded claims.

The magnitude of the problem is reinforced when one considers that the reported cases are only the tip of the iceberg, since for the reasons discussed above, most religious groups bend over backwards to avoid conflicts with future neighbors and city officials they must deal with on a continuing basis. That is, religious groups are much more likely to give up on claims they may believe are valid in the interest of social peace than they are to litigate questionable claims aggressively. If anything, then, the study, with whatever unavoidable imperfections it may have, significantly understates the problems religious groups face.

Note that while the problems for smaller religious groups are particularly acute, the burdens faced by larger groups are not insignificant. A recent survey commissioned by the Presbyterian Church USA--a mainline denomination by anyone's definition--noted that 23% of its congregations had needed to obtain some sort of land use permit since January 1, 1992. Significant conflicts with city/county staff, neighbors, commission members, or others were encountered with respect to 10% of the land use approvals thus needed, although only 1% of the approvals needed have thus far been denied (with 4% remaining unresolved).⁽¹⁴⁾

The patterns of discrimination suggested by the foregoing statistics are all too familiar to those working in the religious land use area. In case after case, the plaintiff is a religious group that has obtained options on lot after lot, or has actually purchased a succession of lots, often after preliminary consultations with city officials, only to have a zoning request, a conditional use permit, a variance, or some other land use approval denied as opposition from local citizens climbs. Such denials are often issued even though similar religious uses from larger religious groups have been approved. This is exactly what happened when The Church of Jesus Christ of Latter-day Saints sought a zoning change for a temple site in Forest Hills Tennessee, as described in detail by Von Keetch in an earlier Congressional hearing held on March 26, 1998.⁽¹⁵⁾ Such denials are also a familiar litany in many cases involving Jehovah's Witnesses. And they are an even greater problem for newer or non-Christian religious groups.

The facts of discrimination were particularly blatant in Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988). A Muslim group that served primarily students at the University of Mississippi in Starkville sought necessary approvals for a place of worship near campus. Unfortunately, Starkville's zoning ordinance prohibited the use of buildings as churches in all the areas within the city limits that were near campus, and there was no place in the city in which worship facilities were permitted as of right. The Islamic Center considered three successive lots as possible worship sites, but each time was told by the City's building codes official that the sites could not be approved, either because of inadequate parking, heavy traffic on an adjacent street, or the risk of traffic congestion. The leaders then met with the building code official, and asked "exactly where we can locate," and were told that a fourth location would be excellent, if sufficient parking was provided. The representatives of the Center then bought the property, and provided 18 on-site parking spaces. The planning commission recommended approval. Ultimately, however, the use had to be approved by the Board of Aldermen, and despite recommendations of approval from staff, the Board denied the approval when a neighbor claimed that the use would cause "congestion, parking, and traffic problems." The Board thereupon denied the exception to the zoning ordinance that was sought. Subsequently some city officials inspected the building for conformity with fire and electrical requirements, and approved its conformity for worship. But several months later, in response to complaints about worship activities, the City ordered the Islamic Center to stop holding worship services at its building. What made this whole course of action particularly galling was that there was a residence next door that was used as a worship center for Pentecostal Christians. This group caused more noise, provided less parking and in general seemed less deserving of a zoning exception than Islamic Center. Five more churches were located within a quarter mile of the Center. The District Court, after holding that "congregational prayer for Muslims is desirable, but not mandatory," and that the "Starkville city ordinance does not preclude students from purchasing cars and driving to a worship site located [outside Starkville's city limits]," concluded that

[s]tanding alone, the denial of the . . . [Center's] zoning application is not enough upon which to base an inference of discrimination . . . . The actions of the Board were supported by valid traffic considerations, and there is no evidence to suggest that it improperly considered plaintiffs' religion in reaching its decision.

Therefore, it held, the zoning ordinance did not violate the Islamic student's rights to free exercise of religion or substantive due process.⁽¹⁶⁾

Fortunately, the Circuit Court reversed, applying a heightened scrutiny test to reject the District Court's wooden deference to blatantly discriminatory state action and its decision that Starkville's zoning ordinance did not burden the Islamic students' free exercise rights. The Fifth Circuit Court rightly compared the comments about how poor Islamic students could simply buy cars to drive to church across town or outside the city limits to "Anatole France's comment on the majestic equality of the law that forbids all men, the rich as well as the poor, to sleep under bridges . . . ."⁽¹⁷⁾

The difficulty is that in far too many cases, as noted in the Schwab case quoted above, land use decisions are wrapped in neutral sounding language about parking, setbacks, traffic impacts, and the like, which may constitute substantial and tangible harm to surrounding property owners, but in too many cases merely serves as an empty verbal mask hiding illicit discriminatory conduct aimed at the exercise of religion. Thus, lack of parking facilities that results in constant overparking of a narrow street, disrupting traffic and blocking neighboring driveways may constitute a genuine problem, but it does not justify excluding a religious use from an area if adequate on-site parking is provided (as was the case in Islamic Center) or if the religious use is needed at the location in question precisely because of religious requirements that participants must walk to the service.⁽¹⁸⁾ References to increased traffic flows may constitute a genuine risk to safety, or they may simply reflect moderate increases as likely to result without the religious use. Rigid insistence on setback or bulk requirements may be unnecessary, or may reflect an aesthetic concern that should give way to weightier religious freedom concerns. Building code problems may constitute substantial health and safety risks, or they may relate to matters that are routinely waived in a community.

The point is that land use provisions, while often assumed to be part of general and neutral regulatory schemes, characteristically involve permit schemes analogous to those struck down in Cantwell v. Connecticut,⁽¹⁹⁾ which granted local officials essentially standardless discretion to determine whether religious practices may go forward. Land use decisions are often delivered in conclusory language that can mask behind-the-scenes prejudice. Constitutional rights to the free exercise of religion are of little practical value if they permit control of the meeting place of a church to pass from its members to government outsiders without any examination of the government's asserted need for such control. Yet unless the goals of land use authorities are tested against more searching scrutiny than that provided by standards of neutrality and general applicability, agency officials have no occasion and no motivation to consider and weigh their regulatory objectives against the substantial burdens these may impose on the free exercise of religion. As the Supreme Court noted in Church of Lukumi Babalu Aye v. City of Hialeah,⁽²⁰⁾ "The Free Exercise Clause protects against governmental hostility which is masked as well as overt. 'The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.'"

Significantly, the Supreme Court's decision in Smith jettisons strict scrutiny only as to neutral and generally applicable laws. As was clear even before Smith made the fact relevant, "[z]oning laws are peculiar in that they are not really laws of general applicability but are, rather, linked to individual properties."⁽²¹⁾ Some courts have built on this fact to hold that strict scrutiny continues to apply in the land use area as a reasonable construction of language in the Smith decision explicitly designed to avoid overturning Sherbert and its progeny. Thus, in First Covenant Church v. Seattle,⁽²²⁾ the Washington Supreme Court found that a landmark designating ordinance was not general, because its criteria for application necessitated individual evaluations of each potential landmark property and was not neutral because of an exception for liturgy-based structural changes,⁽²³⁾ and hence that the challenged ordinance failed under strict scrutiny. The court in First United Methodist Church of Seattle v. Seattle Landmarks Preservation Board,⁽²⁴⁾ reached a similar conclusion, holding that while a particular church could be landmarked, it would violate the free exercise clause to allow restrictive features of the landmarking ordinance to be enforced so long as the building remained devoted to religious uses. While all courts have not reached the same conclusion,⁽²⁵⁾ Congress may legitimately exercise its power under Section 5 of the 14th Amendment to remedy violations and to assure protection of free exercise values that remain protected under the reasonable interpretation of Smith advanced by the Washington cases.

One of the major problems in the land use area is that the public officials charged with enforcing them are all too prone to undervalue the concrete needs of religious activity as opposed to the other planning and preservation values. In part this is a reflection of what I called "secular blindness" or "secular myopia" above, and in part, it is a natural corollary of the commitment of such officials to planning and preservation values that motivated them to assume planning or preservation responsibilities in their communities in the first place. In the preservation context, the historical value of churches is sometimes given priority over the practical needs of living religion. In the planning context, idealized notions of the aesthetics and logic of urban layout are given greater credence than the need to allow land uses that can accommodate the needs of religious groups who desire to locate in a community and that will be as workable for the religious community as for residential neighborhoods and other more powerful blocs of the citizenry. The underlying values involved cannot be adequately balanced if any land use regulations the relevant authorities happen to prefer are determined to be "neutral and general" laws virtually immune to any religious freedom challenge.

If courts are not authorized to invoke the kind of heightened scrutiny called for by the Religious Liberty Protection Act, it seems highly plausible to expect that the plight of minority religious groups documented above will further deteriorate, because courts will not be able to be as effective in rectifying the problems encountered by smaller groups as they have been in the past. In the absence of such heightened scrutiny, courts will have a much more difficult time unmasking discriminatory conduct and a much stricter obligation to be deferential to land use authorities. Ironically, this could lead to a situation in the future in which the disparity between reported land use cases of larger and smaller groups is reduced, not because the smaller groups believe their rights are being vindicated, but because they perceive the prospects of vindicating those claims in court are hopeless, and therefore cease bringing cases in the future that they might have pursued in the past.

The Religious Liberty Protection Act is well designed to remedy the types of problems identified by the analysis of reported land use cases submitted herewith, and made more concrete by consideration of the various cases discussed above. By focusing on laws which "substantially burden religious exercise", the Act avoids the risk of imposing unreasonable constraints on governmental action that might result if every type of state action that incidentally burdens religion could be challenged under the Act. At the same time, because "religious exercise" is defined to mean "an act or refusal to act that is substantially motivated by a religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief," it follows Smith in insisting that state agencies should not get into the business of assessing what is central to a religion. The insistence that land use authorities use the "least restrictive means" available to promote their policies is only reasonable: continuing to insist on a more burdensome course of action when a reasonable alternative is available transforms what may initially have been inadvertent discrimination into knowing and thus intentional imposition of an injury to religious sensitivities. Finally, the insistence on "substantial and tangible harm" provides a meaningful standard (and one that is as precise as the subject matter allows) for assuring that only genuinely significant land use concerns will be able to override religious liberty claims. Significantly, this standard does recognize that there are circumstances where land use regulations will be sufficiently significant to override religious concerns. Where a community can demonstrate "substantial and tangible harm," a community may enforce land use regulations that will substantially burden religious exercise. However, in accordance with prior law, a community may not totally deprive a religious community of "a reasonable location in the jurisdiction," and it may not deprive religious assemblies of equal access to areas where non-religious assemblies are permitted.

The highly individualized processes of land use regulation readily lend themselves to discrimination that is difficult or impossible to prove in individual cases, but which is in fact pervasive, as the study submitted herewith demonstrates. RLPA will help remedy this problem in part by adjusting burdens of proof. Moreover, the heightened scrutiny of land use regulation called for in the Act will be an important tool in helping to root out such discrimination. Congress has power under Section 5 of the Fourteenth Amendment to support remedial legislation of this type. Significantly, Sections 3(b)(1)(B) and (C) are sustainable for independent reasons. Section 3(b)(1)(B) codifies the rule that it is unconstitutional wholly to exclude First Amendment activity from a jurisdiction.⁽²⁶⁾ If this principle were not sound, religious communities would be afforded less protection against land use authorities than adult theaters, bookstores, and other similar businesses. Section 3(b)(1)(C) codifies the rule that discrimination between different categories of speech, and particularly between differing viewpoints, and applies it to disallow land use regulations that might otherwise permit secular assemblies while excluding religious assemblies.

Of course, religious discrimination does not lurk behind every land use decision, but this is not the requirement. Boerne allows assertion of Congressional power in contexts where "there is reason to believe that many of the laws affected by the Congressional enactment have a significant likelihood of being unconstitutional."⁽²⁷⁾ Without remedial action, the pattern of discrimination evidenced by the study submitted herewith is all too likely to continue. Thus, Congress has power to enact the land use provisions of the Religious Liberty Protection Act.

III. Commerce Power Provides Independent Grounds for Enacting RLPA.

Before concluding, let me make a few final remarks regarding Commerce Power. At the outset, I wish to emphasize that in what follows I do not maintain that religious activity and commercial activity should be confused. Religious activity is not commerce, and even in the absence of First Amendment constraints, would not be regulable as commerce.

Having said this, however, no one can doubt that religious activity substantially affects interstate commerce. Much more extensive documentation of this fact has been provided in particular by the Statement of Marc Stern at this Hearing. My aim is merely to note a few examples that suggest the extraordinary range of effects that religious activity in the land use area has on commerce.

Land use regulations affect whether or not new religious buildings can be constructed. Religious institutions spend large amounts to build and maintain facilities for worship and for a variety of religiously motivated collateral activities, such as the provision of education, health care, recreational facilities and so forth. Many religious organizations are interstate and indeed international organizations. The DePaul Survey cited above indicates that while approximately 60% of the denominational respondents indicate that final decisions as to location and property acquisition are made at the local level, nearly 20% indicated that such decisions are made by state, regional, or national bodies.⁽²⁸⁾ This means that for a substantial number of religious organizations, decisions regarding church building and expansion are made in one state and implemented in another. Funds typically flow in interstate commerce from one location to another in support of these objectives.

In some ecclesiastical polities, funds are collected and retained at the local level, but in others, they are gathered, transferred electronically to a central location, and then distributed back out nationally or internationally in accordance with the needs of various congregations. Charitable aid flowing through these channels depends to some extent on where congregations are ultimately located. Even where facilities are leased, the funds involved often flow in interstate commerce. Local as well as national organizations often own retreat facilities which may be located at a distance, even in a different state. Many religious organizations undertake humanitarian aid projects that involve sending goods (e.g., clothing) and services (e.g., medical aid) across state and international boundaries. Land use regulations impeding such uses obviously regulate activity that substantially affects interstate commerce.

City regulation of religious land use has the potential to divert the flow of commerce from one state to another. Certainly, it often impedes the flow, for substantial periods, while churches administered nationally look for alternative sites. The L.D.S. Church currently builds 300-400churches annually. The cost of such buildings typically runs into the multimillion dollar range. Approximately half of these are built in various states of the United States, and the remainder are located internationally. This experience must be multiplied by that of hundreds of other denominations in the United States. Land-use regulations unquestionably delay or block such religious activity, with direct negative impacts on commerce that would otherwise occur.

Some religious facilities may attract believers to travel across state lines to regional retreat or worship facilities. Temples have this characteristic for believing Mormons; countless other churches have similar structures. Retreat, camp, or recreational facilities may lie across state lines. The location of a new church building in a municipality will typically result in a new flow of literature, media items, computers, and other such matters, as well as the installation of new interstate telephone lines and other means of communication. Often, supervisory personnel will need to travel to assure that new construction is handled properly and that existing facilities are properly maintained. These are precisely the types of activity that have justified Congressional regulation in the interest of civil rights in other contexts.⁽²⁹⁾

All too frequently, the current land use regime operates as a kind of non-tariff trade barrier against new and less popular religious groups, with ripple impacts on all the other types of commerce that the new religious activity would otherwise stimulate. Moreover, as noted above, current administration of land use rules creates in effect an unfairly burdensome excessive market for real estate options, as the sorry experience of numerous religious groups in proffering site after site to local planning authorities confirms. Congress can legitimately determine that it will regulate a field (or occupy a field with non-regulation) where it desires to assure that activities substantially affecting commerce (here: religious activities) should not be burdened, or should be burdened only where there are strong and non-discriminatory grounds for the burden.

Examples could be multiplied, but what has been said amply supports the truly massive impact religious activity in general, and more particularly, religious activity directly impacted by land use regulation, has on interstate commerce. Particularly when replicated across denominations and across the thousands of municipalities in the United States, the substantial effect on commerce is undeniable. Eliminating unjustified burdens on religious exercise will promote commerce, and justifies Congressional intervention to assure that religious activity and its substantial affects on commerce is not unfairly burdened by differential land use regimes around the country.

Judiciary Homepage

1. James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in The Mind of the Founder: Sources of the Political Thought of James Madison, Marvin Meyers, ed. (rev. ed. 1981). The Memorial and Remonstrance is also reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63 (1947).

2. City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Employment Division v. Smith, 494 U.S. 872 (1990).

3. Quoted in Carl Holliday, Woman's Life in Colonial Days 40 (Boston: Cornhill Publishing Company, 1992).

4. My summary of the Survey draws on a summary prepared by Professor Angela Carmella in a chapter entitled "Land Use Regulation of Churches" that will appear in The Structure of American Churches: An Inquiry into the Impact of Legal Structures on Religious Freedom, which is to be published under the auspices of the DePaul Center for Church/State Studies. (I am an Associate Editor of this volume.)

5. Survey, MQ41.

6. 44% of the organizations surveyed indicated owning one or more educational facilities. Survey, MQ14.

7. Of these, 54% provide recreation centers, and 80% have campgrounds. Survey, MQ58 D and G.

8. 10% of these have a television station; 24% have a radio station.

9. Id.

10. Survey, MQ10, MQ42.

11. Nearly one-third reported owning clergy housing or other real estate.

12. Survey, MQ30.

13. Technically, all religions in the United States are "minority religions" in the sense that their members constitute less than 50% of the population. It turns out that those with 1.5% of the population or more tend to include "mainline" groups, and that the less popular groups all fall below the 1.5% line.

14. Supplement to the Session Annual Statistical Report: End of Year 1997, Question 7-8.

15. See Statement of Von G. Keetch, pp. 11-17.

16. Id. at 298 (citing District Court opinion).

17. Id. at 298-99.

18. Orthodox Minyan of Elkins Park v. Cheltenham Township Zoning Hearing Bd., 552 A.2d 772, 773 (Pa. Cmwlth. 1989)("It is ironic that the Board denied a special exception to convert a property to religious use on the grounds of increasd traffic flow to a group whose religion prohibits them from driving automobiles during their day of worship").

19. 310 U.S. 296, 304-307 (1940).

20. 508 U.S. 520, 534 (1993)(quoting Walz v. Tax Comm'n, 397 U.S. 664, 696 (1970)(Harlan, J. concurring)).

21. See Kenneth Pearlman, Zoning and the Location of Religioius Establishments, 31 Cath. Law. 314, 335 (1988).

22. 120 Wash. 2d 203, 840 P.2d 174 (1992).

23. 120 Wash. 2d at 214-15, 840 P.2d 174.

24. 76 Wash. App. 572, 887 P.2d 473 (1995).

25. See, e.g., St. Bartholomew's Church v. New York, 914 F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991)(sustaining a landmarking statute as a neutral and general law).

26. Schad v. Bourough of Mt. Ephraim, 452 U.S. 61 (1981).

27. 117 S. Ct. at 2170.

28. DePaul Survey, MQ43.

29. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (allowing Congress to impose

anti-segregation laws on restaurant whose food came 46% from out-of-state); Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964) (allowing Congress to impose anti-segregation law on motel that had substantial out-of-state guests because racial discrimination in the aggregate discouraged many blacks from traveling).