TESTIMONY

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

SUBCOMMITTEE ON THE CONSTITUTION

H.R. 1691: The "Religious Liberty Protection Act of 1999"

Marci A. Hamilton

Professor of Law

Benjamin N. Cardozo School of Law, Yeshiva University

55 Fifth Avenue

New York, NY 10003

May 12, 1999

Thank you, Mr. Chairman, for inviting me to speak today on this important topic. I am a Professor of Law at Benjamin N. Cardozo School of Law, Yeshiva University, where I specialize in constitutional law, especially church-state issues. I also served as lead counsel for the City of Boerne, Texas in the case that ultimately invalidated the Religious Freedom Restoration Act (RFRA). See Boerne v. Flores, 117 S. Ct. 2157 (1997). I have devoted the last six years to writing, testifying, lecturing, and litigating on the Religious Freedom Restoration Act and similar religious liberty legislation in the states. For the record, I am a religious believer.

INTRODUCTION

The question this bill addresses is the following: When is a government restrained from enforcing neutral, generally applicable laws that have been violated by religious individuals and institutions? This bill is an unvarnished request from religious lobbyists to permit religious individuals and institutions to break a wide variety of laws. H.R.1691 forces governments to permit religious individuals and institutions to break the law unless the government can prove that it has a compelling interest and employed the least restrictive means to reach that interest, the highest level of scrutiny known in constitutional law.

Because the bill originates from religious entities, its focus is on providing as much protection for religious conduct that violates the law as is humanly imaginable. The more appropriate focus for this body, as a legislature representing the entirety of the polity, is to ask which laws religious individuals and institutions may violate.

Letter to House Subcommittee on the Constitution

May 12, 1999

Page 2

Here are some choices for Congress. These are a few of the laws with which religious entities and institutions have come into conflict:

1. Child abuse, endangerment, and neglect laws, including laws that require medical treatment to prevent death or permanent disability.

2. Civil rights laws, including fair housing laws.⁽¹⁾

3. Domestic violence laws.

4. Prison regulations.

5. Land use laws:

a. On- and off-street parking, especially in residential neighborhoods.

b. Lot and building size regulations, especially in circumstances where the religious institution wishes to build a "megachurch" or construct several buildings in one location, including movie theaters, coffee houses, fitness centers, gymnasiums, schools, and child or senior day care centers.

c. Health and safety code regulations, including fire prevention and occupant capacity in residential and child care facilities.

d. Zoning regulations.

e. Historical and cultural preservation.

6. Public school order and safety regulations, including weapons bans.

7. Fiduciary duty laws applicable in cases of clergy misconduct (typically for abuse of children or impaired adults).

8. Child custody and support laws.

9. Anti-polygamy laws.

In sum, HR 1691 asks Congress to make simultaneous policy judgments regarding a vast array of crucial federal and state legal schemes.

RLPA is a blank check for religion. It took the ACLU approximately five years to fathom that RFRA (and now RLPA) is a threat to the civil rights laws. What other hidden agendas lie in this across-the-board preference for religion? For example, there are religions that hope to run day care centers without having to satisfy the onerous health and safety regulations under which secular day care centers operate. RLPA will make that easier. Others hope to operate soup kitchens or hold worship services in residential neighborhoods without having to abide by certain zoning and land use regulations.

Letter to House Subcommittee on the Constitution

May 12, 1999

Page 3

The Constitution counsels against handing power blindly to any social entity, even religion. See generally Marci A. Hamilton, The Constitution's Pragmatic Balance of Power Between Church and State, 2 Nexus: A J. of Opinion 33, 34-36 (1997). Instead of RLPA, Congress would do far better to focus on individual arenas within which actual and substantial burdens on religious conduct exist and where accommodation is likely to be consistent with the public good. By concentrating on those specific instances, Congress could investigate whether such exemptions are consistent with the public good and therefore fulfill its constitutional duty to serve the entire polity.

CONSTITUTIONAL DEFECTS

The Religious Liberty Protection Act of 1999 is ultra vires. It ostensibly rests on three powers of Congress: the Commerce Clause Power, the Spending Power, and Section 5 of the Fourteenth Amendment. Instead, it attempts to stretch each of these powers beyond their proper boundaries.

1. RLPA Is Not a Valid Exercise of Congress's Commerce Power. The test to be applied in Commerce Clause cases is two-fold. First, the courts must ask whether the law regulates activities that "substantially affect" interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). Second, the courts must consider the inherent limits of federalism on the exercise of the Commerce Clause. The Constitution "withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation." 514 U.S. at 566.

Prong One: Substantially Affects Commerce. RLPA would subject state and local government actions to strict scrutiny whenever a "substantial burden on the person's religious exercise affects" commerce. See Sec. 2(a)(2). There are two problems with RLPA's formulation. In Lopez, the Court explicitly rejected the simple "affects" test and embraced the requirement that the subject of the law must "substantially affect" interstate commerce. 514 U. S. at 559. RLPA is not limited to activities that substantially affect interstate commerce and therefore exceeds Congress's power under the Commerce Clause.

Second, the connection between religious practices and interstate commerce is tenuous at best. It should go without saying that the vast majority of religious conduct has nothing to do with commerce. Hair length, the decision to wear a particular religious symbol, the wearing of yarmulkes, the laying on of hands, or the construction of a sweat lodge are actions that do not have substantial impact on interstate commerce.

Prong Two: Federalism. Congress may not employ its Commerce Clause power in a way that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." 514 U.S. at 567. This bill would seem to intervene in every situation where a local or state government attempts to enforce its generally

Letter to House Subcommittee on the Constitution

May 12, 1999

Page 4

applicable, neutral laws that incidentally substantially burden religious conduct. This is a new federalization of local autonomy.

This bill is not about regulating commerce, but rather is a handout for religion. It is a bald-faced attempt to transform a subject matter of the First Amendment (the free exercise of religion), which is a limitation on the Congress, into an enumerated power.

2. RLPA Is Not a Valid Exercise of Congress's Spending Power. RLPA applies to every arena that receives any federal financial assistance. The only way for state and local governments to avoid RLPA's burdens is for them to forego all federal financial assistance.

Under South Dakota v. Dole, 483 U.S. 203 (1987), a federal law is a valid exercise of Congress's power under the Spending Clause if there is a nexus between the spending and the condition attached to the spending. See 483 U.S. at 207 ("[C]onditions on federal grants might be illegitimate if they are unrelated to 'the federal interest in particular national projects or programs."). The condition attached to spending under RLPA is that the government or governmental entity receiving federal financial assistance will subject itself to suits (including the cost of attorneys' fees, see Sec. 4(b)) whenever its generally applicable, neutral laws substantially burden any religious claimant's conduct within the context of any state or local program that receives any federal funds.

The only way to avoid such liability under RLPA is to refuse the federal financial assistance. On the current state of the record, Congress has not begun to ask what the nexus is between its national interest in any spending and burdens on religious conduct. Neither House of Congress has even attempted to survey the vast sweep of spending programs implicated by this bill. Where the constitutional basis for congressional action is not "visible to the naked eye" and Congress provides no "particularized findings" to support the law, the courts invalidate the law rather than provide the factual predicate that they are ill-equipped to provide. See, e.g., Lopez, 514 U.S. at 563.

Second, the "financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion'" and therefore exceed Congress's power under the Spending Clause. 483 U.S. at 211. RLPA is as coercive as it gets. It is mandatory for all those government entities take any federal financial assistance. The states and local governments must choose between taking the funds with the liability or taking no funds. RLPA is unlike the highway bill upheld in South Dakota v. Dole, which penalized states who did not set the state's drinking age to a minimum of 21 only by taking a small percentage of the federal highway funds provided.

Letter to House Subcommittee on the Constitution

May 12, 1999

Page 5

3. RLPA Is Not a Valid Exercise of Congress's Power to Enforce Constitutional Rights Under Section 5 of the Fourteenth Amendment. Section 3(b) of RLPA federalizes local land use in every scenario where the land use authorities engage in "individualized assessments"⁽²⁾ and where religious claimants claim burdens on their religion.

Under Boerne v. Flores, the Congress may only enforce constitutional rights pursuant to Sec. 4 of the Fourteenth Amendment if there is congruence between the means chosen and the end of preventing constitutional violations. "While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means chosen and the ends to be achieved. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." 117 S. Ct. at 2169. RLPA is a very strong measure addressing an unproven set of constitutional violations.

To prove congruence, two facts need to be widely recognized or established through reliable factfinding (which can be accomplished through general acknowledgment of a fact). First, the states and local governments must have done something unconstitutional or likely unconstitutional to justify the federal intervention in their affairs. See The Civil Rights Cases, 109 U.S. 3 (1883), cited in Flores, 117 S. Ct. at 2166.

To my knowledge, there is no evidence that the states and local governments have engaged in a pattern of free exercise violations through their land use laws. Religious buildings do tend to conflict with land use regulations, but that does not mean that religious entities' rights under the Free Exercise Clause have been violated. If the laws are applied generally and neutrally, the incidental burden imposed by such laws is not unconstitutional. Smith, 494 U.S. 872, 882 (1990).

If there were ever time when state and local governments needed to be permitted to enforce general and neutral land use laws, even if they burden religious institutions, now is the time. Communities are increasingly interested in preserving open space, historical properties, and cultural artifacts. The people seem genuinely devoted to these causes, which have been taken up recently by First Lady Hillary Clinton and Vice President Al Gore. At the same time, religious institutions are turning to ever-larger houses of worship and building complexes. There is an unmistakable development toward all-inclusive services on one religious entity's

Letter to House Subcommittee on the Constitution

May 12, 1999

Page 6

property. For example, a single congregation may build a building for worship, a movie theater, a coffee house or restaurant, a fitness center, and a child and senior care center on the same property. Religious entities are eager to avoid land use laws with respect to these other buildings as well as their houses of worship. By its terms, RLPA does not appear to be limited to houses of worship and therefore would appear to undermine local control over any building that is constructed by a religious entity.

RLPA's land use provisions take a large leap from existing precedent to micromanage local land use decisions. They exceed the power of Congress under Section 5 and they violate the Constitution's inherent principles of federalism.

Second, the means chosen must be "responsive to, or designed to prevent, unconstitutional behavior." Boerne, 117 S. Ct. at 2170. In the absence of proof of unconstitutional behavior, this prong cannot be satisfied.

4. RLPA Violates the Establishment Clause. According to the Court in Employment Div. v. Smith, a "nondiscriminatory religious-practice exemption is permitted." 494 U.S. 872, 890 (1990). See, e.g., Dep't of Air Force, Reg. 35-10, para. 2-28 (b)(2) (Apr. 1989) (permitting wearing of religious head covering when military headgear is not authorized and when the religious head covering does not interfere with the function or purpose of required military headgear); see also American Indian Religious Freedom Act, 42 U.S.C. sec. 1996a (1994) (permitting Native American use of peyote during religious ceremonies). RLPA, however, is not a religious-practice exemption. Rather, it is a readjustment of power between church and state intended to force accommodation even when the government deems such an exemption opposed to the general welfare.

There is no case support for the proposition that Congress has the power to provide for or force accommodation in a wide variety of fields simultaneously. Justice Stevens pointed out the Establishment Clause evil in RFRA (and, therefore, RLPA) in his concurrence in Boerne. 117 S. Ct. at 2172. Some have tried to make a great deal out of the fact that no other Justice joined Justice Stevens' concurrence. Equally true is the fact that no other Justice mentioned, let alone rejected, Justice Stevens' reasoning. The oral argument before the Court in the Boerne case would indicate that a significant number of Justices have sincere concerns regarding the propriety of RFRA (and therefore RLPA) under the Establishment Clause.

RLPA privileges religion over all other interests in the society. While the Supreme Court indicated in Smith that tailored exemptions from certain laws for particular religious practices might pass muster, it has never given any indication that legislatures have the power to privilege religion across-the-board in this way.

Letter to House Subcommittee on the Constitution

May 12, 1999

Page 7

RFRA's and RLPA's defenders have relied on Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987), for the proposition that government may enact exemptions en masse. This is a careless reading of the case, which stands for the proposition that religion may be exempted from a particular law (affecting employment) if such an exemption is necessary to avoid excessive entanglement between church and state. RLPA, like RFRA, creates, rather than solves, entanglement problems. RLPA, which was drafted by religion for the purpose of benefitting religion and has the effect of privileging religion in a vast number of scenarios, violates the Establishment Clause.

In sum, Congress lacks the power to institute this broad-ranging attempt to privilege religion in a vast array of arenas. Even if it held such power, this exercise of congressional power crosses the line from permissible accommodation to the unconstitutional establishment of religion.

Please do not hesitate to let me know if I can provide any further information. Additional information on state and federal religious liberty legislation can be obtained at my website: www.marcihamilton.com

1. Letters written to both the California and the Texas legislatures indicate that one of the primary objectives of the Christian Legal Society in supporting such legislation is to permit members to trump the fair housing laws and to discriminate against homosexuals.

2. The reference to "individualized assessments" is an attempt to piggyback on dictum in the Smith case. The Court in Smith indicated that individual assessments in unemployment compensation cases might justify strict scrutiny. See 494 U.S. 884. The Court clearly did not mean that all unemployment compensation schemes require strict scrutiny. The Smith case itself involved an unemployment compensation claim and the Court did not apply strict scrutiny. What the Court meant by "individualized assessments" and whether the idea can be analogized to the land use arena are open questions.