House Subcommittee on the Constitution

Hearing on H.R. 1691

The Religious Liberty Protection Act of 1999

May 12, 1999

Testimony of Douglas Laycock

University of Texas Law School

Thank you for the opportunity to testify in support of H.R. 1691, the Religious Liberty Protection Act of 1998. This statement is submitted in my personal capacity as a scholar. I hold the Alice McKean Young Regents Chair in Law at The University of Texas at Austin, but of course The University takes no position on any issue before the Committee.

I have taught and written about the law of religious liberty, and also about a wide range of other constitutional issues, for more than twenty years. I have represented both religious organizations and secular civil liberties organizations, including important cases under the Religious Freedom Restoration Act.

Other witnesses have addressed the need for this bill, in this hearing and in earlier hearings. I will not repeat that testimony, except to say that RLPA is not a bill for left or right, or for any particular faith, or any particular tradition or faction within a faith. RLPA will protect people of all races, all ethnicities, and all socio-economic statuses. Religious liberty is a universal human right.

The Supreme Court has taken the cramped view that one has a right to believe a religion, and a right not to be discriminated against because of one's religion, but no right to practice one's religion. You will hear today from witnesses opposed to the bill, witnesses who are intensely committed to the view that there is no right to practice a religion, and that religion should be regulated to the same extent as everything else in our pervasively regulated society. There is no room for religious liberty in that view of the world. Congress rejected that view by overwhelming margins when it passed the Religious Freedom Restoration Act. To the extent that it still has power to do so, Congress should again enact substantive protection for religious liberty.

My own testimony will explain the detailed workings of the bill, the sources of Congress's constitutional authority to enact RLPA, the range of cases to which the bill might be applied, and some of the drafting choices presented by the bill.

This bill would use those powers that are available to Congress to provide as much protection as is possible under existing Supreme Court interpretations. There is ample precedent in other civil rights legislation for using such a combination of federal powers to protect as much as possible of what Congress wanted to protect. The Civil Rights Act of 1964 used the power to enforce the Fifteenth Amendment in Title I, the commerce power and the power to enforce the Fourteenth Amendment in Title II, the power to enforce the Fourteenth Amendment in Title III, the spending power and the power to enforce the Fourteenth Amendment in Title IV, the spending power in Titles VI, VIII, and X, the commerce power in Title VII, and all these powers in Title V. The Federally Protected Activities Act uses the enforcement power, the commerce power, the spending power, and power to prohibit interference with federal programs and activities (thus invoking all the powers which Congress used to create such programs and activities) to protect a broad list of activities. 18 U.S.C. §245 (1994). RLPA is more focused and less miscellaneous, but it is similar in its use of those powers that are available to protect activities in need of protection.

I. The Spending Clause Provisions.

Section 2(a) of RLPA tracks the substantive language of the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq. (1994), providing that government shall not substantially burden a person's religious exercise, and applies that language to cases within the spending power and the commerce power. Section 2(b) also tracks RFRA. It states the compelling interest exception to the general rule that government may not substantially burden religious exercise.

Section 2(a)(1) specifies the spending power applications of RLPA. The bill applies to programs or activities operated by a government and receiving federal financial assistance. "Government" is defined in §8(6) to include persons acting under color of state law. In general, a private-sector grantee acts under color of law only when the government retains sufficient control that "the alleged infringement of federal rights [is] `fairly attributable to the State.'" Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

Section 2(a)(1) would therefore protect against substantial burdens on religious exercise in programs or activities receiving federal financial assistance and operating under color of state law. It would protect a wide range of students and faculty in public schools and universities, job trainees, workfare participants, welfare recipients, tenants in public housing, and participants in many other federally assisted but state-administered programs. An individual could not be excluded from a federally assisted program because of her religious dress, or because of her observance of the Sabbath or of religious holidays, or because she said prayers over meals or at certain times during the day -- unless these burdens served a compelling interest by the least restrictive means.

The federal interest is simply that the intended beneficiaries of federal programs not be excluded because of their religious practice, and that federal funds not be used to impose unnecessary burdens on religious exercise. The provision should be interpreted to protect both the person who avoids violation of his religious beliefs by refusing to participate in a federally-assisted program for which he is eligible, and the person who participates in the program at the cost of violation his religious beliefs. The burden on religious exercise is the same in each case: each has been subjected to the choice of abandoning the practice of his religion or of forfeiting governmental benefits. The Supreme Court has long recognized that government burdens religious liberty when it imposes such a choice. Sherbert v. Verner, 374 U.S. 398 (1963). The Court has not questioned that part of Sherbert, although it has largely eliminated the governments duty to justify such burdens.

The Spending Clause provision is modeled directly on similar provisions in other civil rights laws, including Title VI of the Civil Rights Act of 1964, which forbids race discrimination in federally assisted programs, 42 U.S.C. §2000d (1994), and Title IX of the Education Amendments of 1972, which forbids sex discrimination in federally assisted educational programs, 20 U.S.C. §1681 (1994).

Congressional power to attach conditions to federal spending has been consistently upheld since Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Conditions on federal grants must be "[]related to the federal interest in particular national projects or programs." South Dakota v. Dole, 483 U.S. 203, 207 (1987). Federal aid to one program does not empower Congress to demand compliance with RLPA in other programs; the bill's protections are properly confined to each federally assisted "program or activity." Dole upheld a requirement that states change their drinking age as a condition of receiving federal highway funds, finding the condition directly related to safe interstate travel. Id. at 208. The connection between the federal assistance and the condition imposed on that assistance by RLPA -- ensuring that the intended beneficiaries actually benefit -- is even tighter than the connection in Dole. Section 2(a)(1) is clearly constitutional under existing law.

"Program or activity" is defined in §8(4) by incorporating a subset of the definition of the same phrase in Title VI of the Civil Rights Act of 1964. The facial constitutionality of that definition has not been seriously questioned. If it turns out, in the case of some particularly sprawling state agency, that federal assistance to one part of the agency is wholly unrelated to a substantial burden on religious exercise imposed by some other and distant part of the agency, the worst case should be an as-applied challenge and a holding that the statute cannot be applied on those facts. Given the variety of ways in which agencies are structured in the fifty states, I believe that it would be difficult to draft statutory language for such unusual cases. We may be able to agree on such language, or we may leave such cases to case-by-case adjudication.⁽¹⁾

Section 2(c) provides that the bill does not authorize the withholding of federal funds as a remedy for violations. This provision is modeled on the Equal Access Act, another Spending Clause statute that precludes the withholding of federal funds. 20 U.S.C. §4071(e) (1994). Withholding funds is too harmful, both to the states and to the intended beneficiaries of federal assistance. Because the remedy is so harmful, it is rarely used. A far more effective remedy is provided in §4, which authorizes individuals to sue for appropriate relief, and authorizes the United States to sue to enforce compliance. States may accept or reject federal financial assistance, but if a state accepts federal assistance subject to the conditions imposed by this bill, it is obligated to fulfill the conditions and the courts may enforce that obligation. Private rights of action have been the primary and effective means of enforcement under other important Spending Clause statutes, including Title IX (see Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Cannon v. University of Chicago, 441 U.S. 677 (1978)), and of course the Equal Access Act (see Board of Education v. Mergens, 496 U.S. 226 (1990).

The rule of construction in §5(c) provides that RLPA neither creates nor precludes a right to receive funding for any religious organization or religious activity. The bill is therefore neutral on legal and political controversies over vouchers and other forms of aid to religious schools, charitable choice legislation, and other proposals for funding to religious organizations. The Coalition for the Free Exercise of Religion includes groups that disagree fundamentally on these issues, but all sides agreed that this language is neutral and that no side's position will be undermined by this bill.

As already noted, private-sector grantees not acting under color of law are excluded from the bill. This exclusion is important, because some private-sector grantees are religious organizations, and applying the bill to them would sometimes create conflicting rights under the same statute. The result in such cases might be to restrict religious liberty rather than protect it. Congress has provided similar statutory protections where needed in the private sector, most notably in the employment discrimination laws, the public accommodations laws, and the church arson act. The free exercise of religion has historically been protected primarily against government action, with statutory protection extended to particular contexts where Congress or state legislatures found it necessary. This bill need not change the existing scope of protection in the private sector.

II. The Commerce Clause Provisions.

Section 2(a)(2) protects religious exercise in any case in which a substantial burden on religious exercise, or the removal of that burden would affect interstate or foreign commerce. This language embodies the historic constitutional standard, and it is similar to language in many other statutes that require an effect on commerce as a condition of applicability.⁽²⁾ The bill protects all that religious exercise, and only that religious exercise, that Congress is empowered to protect. This part of the bill is constitutional by definition; any religious exercise beyond the reach of the Commerce Clause is simply outside the bill.

Hearings held in the previous Congress documented parts of the enormous volume of commerce that is based on religious exercise. See especially the testimony of Marc Stern before this Subcommittee on June 16, 1998. These data make clear that the activity of religious organizations substantially affects commerce; the religious exercise of these organizations is protected by the bill, subject to the compelling interest test. The construction of churches, the employment of people to do the work of the church, and the purchase of supplies and materials all are conducted in interstate commerce. Courts have upheld federal arson prosecutions for the burning of churches, on the grounds that the property destroyed was used in an activity that affected commerce. United States v. Rea, 169 F.3d 1111 (8th Cir. 1999). The religious exercise of individuals will sometimes be protected by the bill, as when religious exercise requires the use of property of a kind that is bought and sold in commerce and used in substantial quantities for religious purposes, or when an individual is denied an occupational license or a driver's license because of a religious practice.

Substantial burdens on religious exercise prevent or deter or raise the price of religious exercise. On standard economic models, such burdens reduce the quantity of religious exercise and therefore the quantity of commerce growing out of religious exercise. Religious exercise and associated commerce that is not prevented may be diverted or distorted, which are other ways of interfering with the free flow of commerce. Congress has plenary power to protect the commerce generated by religious exercise or inhibited by substantial burdens on religious exercise, and Congress's motive for acting is irrelevant. United States v. Darby, 312 U.S. 100 (1941).

Models for the Commerce Clause provisions include the Privacy Protection Act of 1980, 42 U.S.C. §2000aa (Supp. II 1996), protecting papers and documents used in preparation of a publication in or affecting commerce, which has not been challenged, the public accommodations title of the Civil Rights Act of 1964, 42 U.S.C. §2000a (1994), forbidding racial and religious discrimination in places of public accommodation affecting commerce, which the Supreme Court has upheld, the commerce clause provisions of the Federally Protected Activities Act, 18 U.S.C. 245 (1994), which the Tenth Circuit has upheld, United States v. Lane, 883 F.2d 1484, 1489-93 (10th Cir. 1989), the church arson act, 18 U.S.C. §247 (1994 and Supp. II), which has not been challenged, and many other provisions of Title 18.

The public accommodations law is particularly instructive. Congress's first public accommodations law was the Civil Rights Act of 1875, enacted to enforce the Thirteenth and Fourteenth Amendments. The Supreme Court struck that law down as beyond the enforcement power. Civil Rights Cases, 109 U.S. 3 (1883). Congress's second public accommodations law was the Civil Rights Act of 1964, enacted with substantially the same scope in practical effect but pursuant to the commerce power. The Court upheld this Act in Katzenbach v. McClung, 379 U.S. 294 (1964), and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

I have given considerable thought to United States v. Lopez, 514 U.S. 549 (1995), in which the Court struck down the Gun Free Schools Act as beyond the reach of the Commerce Clause. 18 U.S.C. §922 (1994). The offense defined in that Act was essentially a possession offense; neither purchase nor sale of the gun nor any other commercial transaction was relevant. The Court emphasized that the offense "has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms," 514 U.S. at 561, and that the offense "is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 567.

Equally important, the offense in Lopez contained no jurisdictional element. That is, the government was not required to prove an effect on commerce, or a jurisdictional fact from which an effect on commerce could be inferred. This bill does have such a jurisdictional element. In every case under the commerce clause section of this bill, plaintiff must prove either that the burden on religious exercise affects commerce, or that removal of the burden would affect commerce.

These distinctions have been critical in the lower courts' interpretation of Lopez. Lopez's skeptical attitude toward the commerce power has been confined to cases in which Congress tries to dispense with case by case proof of any connection to the commerce power. Thus, in United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999), and cases there cited, the court held Lopez inapplicable to statutes that require proof of a jurisdictional element, and further held that when Congress requires proof of such an element, "even a de minimis connection to interstate commerce" is sufficient. By contrast, when the Fourth Circuit struck down the Violence Against Women Act, it emphasized that "in contrast to the statutes that the Supreme Court has previously upheld as permissible regulations under the substantially affects test, but analogously to the Gun-Free Schools Zones Act, [VAWA] either regulates an economic activity nor contains a jurisdictional element." Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 833 (4th Cir. 1999). Because RLPA contains a jurisdictional element, requiring proof of a connection to commerce in each case, it raises no serious constitutional question under the commerce clause.

These and similar lower court cases read Lopez to reaffirm the long-standing rule that Congress may regulate even "trivial" or "de minimis" intrastate transactions if those transactions, "taken together with many others similarly situated," substantially affect interstate commerce. Id. at 556, 558. I will refer to this rule as the aggregation rule: in considering whether an activity substantially affects commerce, Congress may aggregate large numbers of similar transactions.

The aggregation rule is important to the scope of the bill, and especially to the protection of small churches and individuals. A small church with a RLPA claim need not show that the burden on that church substantially affects commerce all by itself; it is enough to show that the burden affects commerce to some extent. An individual need not show that the burden on his religious practice substantially affects commerce all by itself; it is enough to show that the burden affects commerce to some extent. If the statute's jurisdictional element is satisfied case by case, Congress can rely on the aggregate effect of all similar burdens that satisfy the jurisdictional element.

There will likely be cases in which the effect on commerce cannot be proved, and which therefore fall outside the protections of the bill. That is the nearly unavoidable consequence of being forced to rely on the Commerce Clause. But there will be many cases in which the burdened religious exercise affects commerce when aggregated with "many others similarly situated," Lopez, 514 U.S. at 558, and in those situations, restricting or eliminating the religious exercise by burdensome regulation would also affect commerce. I am certain that the Commerce Clause provisions are constitutional, and I am confident that they will have a wide range of applications.

Persons who would normally defend religious liberty have attacked this bill for treating religion as commerce. Of course the bill does no such thing; at most it recognizes that commercial transactions are sometimes necessary to enable persons to exercise their religion. But this year's version does not even do that. It does not require a finding that the religious exercise affects commerce; it requires a finding that the burden, or the removal of the burden, affects commerce.

The spending clause section protects only those people who accept government benefits or participate in government programs, and only within the scope of the program. The land use section protects only land use decisions. The only protection for churches outside the land use context, and the only protection for individual believers outside the scope of government funded programs, is the commerce clause section. We should not abandon the bill's principal protection for religious liberty to accommodate a theory of the commerce clause that was itself abandoned more than a century ago.

III. The Enforcement Clause Provisions.

Section 3 would be enacted as a means of enforcing the Fourteenth Amendment. Section 3 attempts to simplify litigation of free exercise violations as defined by the Supreme Court, facilitating proof of violations in cases where proof is difficult.

A. Shifting the Burden of Persuasion.

Section 3(a) provides that if a claimant demonstrates a prima facie violation of the Free Exercise Clause, the burden of persuasion then shifts to the government on all issues except burden on religious exercise. No element of the Court's definition of a free exercise violation is changed, but in cases where a court is unsure of the facts, the risk of nonpersuasion is placed on government instead of on the claim of religious liberty. This provision facilitates enforcement of the constitutional right as the Supreme Court has defined it. City of Boerne v. Flores, 117 S.Ct. 2157 (1997), of course reaffirms broad Congressional power to enforce constitutional rights as interpreted by the Supreme Court.

This provision applies to any means of proving a free exercise violation recognized under judicial interpretations. See generally Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Employment Division v. Smith, 494 U.S. 872 (1990). Thus, if the claimant shows a burden on religious exercise and prima facie evidence of an anti-religious motivation, government would bear the burden of persuasion on the question of motivation, on compelling interest, and on any other issue except burden on religious exercise. If the claimant shows a burden on religious exercise and prima facie evidence that the burdensome law is not generally applicable, government would bear the burden of persuasion on the question of general applicability, on compelling interest, and on any other issue except burden on religious exercise. If the claimant shows a burden on religion and prima facie evidence of a hybrid right, government would bear the burden of persuasion on the claim of hybrid right, including all issues except burden on religion. In general, where there is a burden on religious exercise and prima facie evidence of a constitutional violation, the risk of nonpersuasion is to be allocated in favor of protecting the constitutional right.

The protective parts of the Smith and Lukumi rules create many difficult issues of proof and comparison. Motive is notoriously difficult to litigate, and the court is often left uncertain. The general applicability requirement means that when government exempts or fails to regulate secular activities, it must have a compelling reason for regulating religious activities that are substantially the same or that cause the same harm. See, e.g., Lukumi, 508 U.S. at 543 ("The ordinances . . . fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree"); id. at 538-39 (noting that disposal by restaurants and other sources of organic garbage created the same problems as animal sacrifice); Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (rule against beards, with medical exception, must have religious exception; exception for undercover officers is distinguishable and would not require religious exception). As these examples suggest, there can be endless arguments about whether the burdened religious activity and the less burdened secular activity are sufficiently alike, or cause sufficiently similar harms, to trigger this part of the rule. The scope of hybrid rights claims remains uncertain. Burden of persuasion matters only when the court is uncertain, but the structure of the Supreme Court's rules leave many occasions for uncertainty.

The one issue on which the religious claimant always retains the burden of persuasion is burden on religion. Note that in the free exercise context, the claimant need prove only a burden, not a substantial burden. The lower courts have held that where the burdensome rule is not generally applicable, any burden requires compelling justification. Hartmann v. Stone, 68 F.3d 973, 978-79 & nn.3-4 (6th Cir. 1995); Brown v. Borough of Mahaffey, 35 F.3d 846, 849-50 (3d Cir. 1994); Rader v. Johnston, 924 F. Supp. 1540, 1543 n.2 (D. Neb. 1996).

B. Land Use Regulation.

Section 3(b) enacts prophylactic rules for land use regulation. Section 3(b) is an overlapping alternative to the commerce clause provision in section 2. Many land use cases will be covered by both sections, because the burden affects commerce and because one or more of the elements of section 3(b) is satisfied. Some cases may fall under only one section, or the elements of one section may be easier to prove than the elements of the other section.

Section 3(b)(1)(A) provides that "in any system of land use regulation or exemption" in which "a government has the authority to make individualized assessments of the proposed uses to which real property would be put," government may not substantially burden a person's religious exercise except in furtherance of a compelling interest. This applies the language of Employment Division v. Smith, 494 U.S. 872, 884 (1990), in the context of land use regulation; it is a provision to enforce the free exercise clause as interpreted in that case.

Section 3(b)(1)(B) requires that land use regulation treat religious assemblies or institutions on equal terms with nonreligious assemblies or institutions. Section 3(b)(1)(C) forbids discrimination against any assembly or institution on the basis of religion or religious denomination. These subsections also enforce the free exercise clause as interpreted in Smith and the free speech clause as interpreted in many cases. Discrimination between different categories of speech, and especially discrimination between different viewpoints, already requires strong justification;⁽³⁾ these subsections implement this rule as applied to land use regulation that permits secular assemblies while excluding churches.

Section 3(b)(1)(D) provides that zoning authority shall not be used to "unreasonably exclude from the jurisdiction," "or unreasonably limit within the jurisdiction," assemblies or institutions devoted to religious exercise. This enforces the free speech clause as interpreted in Schad v. Borough of Mount Ephraim, 425 U.S. 61 (1981), which held that a municipality cannot entirely exclude from its boundaries a category of first amendment activity. It enforces the analogous right to assemble for worship or other religious exercise under the free exercise clause, and the hybrid free speech and free exercise right to assemble for worship or other religious exercise under Schad and Smith.

Legislative power to enforce constitutional rights depends on Congress having "reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." City of Boerne v. Flores, 521 U.S. 507, 532 (1997). Note that the standard is not certainty, but "reason to believe" and "significant likelihood." This bill, and the hearing record on which it is based, satisfy that test in two ways.

First, the test is satisfied legally. Each of these subsections is designed to enforce a specific element of a constitutional right as interpreted in Smith and Lukumi or in Schad. No further showing of constitutional power is required. In cases of discrimination, or of exclusion of first amendment activity from a jurisdiction, all or nearly all the laws affected will violate the Constitution. Similarly, in cases in which religious exercise is burdened despite a system of individualized assessments and exemptions, many of the laws affected will be unconstitutional under Smith and Lukumi. Constitutionality follows from the close connection between the legal standard in the bill and the legal standard in the Supreme Court's interpretation of the Constitution.

Second, and independently, the test is satisfied factually. This subcommittee has also assembled a massive factual record on land use regulation. The record of hearings in the last Congress is replete with statistical and anecdotal evidence of likely constitutional violations in land use regulation. I believe this factual record is ample to support §3(b) as legislation to enforce the Fourteenth Amendment. I have reviewed and summarized this evidence at considerable length in my testimony on July 14, 1998. I incorporate that testimony by reference here, and will summarize far more briefly today.

The hearing record shows that land use regulation is administered through highly individualized determinations not controlled by generally applicable rules. Land use regulation thus regularly falls within the Smith exception for regulatory schemes that permit "individualized governmental assessment of the reasons for the relevant conduct." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993); Employment Div. v. Smith, 494 U.S. 872, 884 (1990). The hearing record also shows that these individualized determinations frequently burden religion and frequently discriminate against religious organizations and especially discriminate against smaller and non-mainstream faiths. Even without the benefit of the Congressional hearing record, some courts have recognized that land use cases can fall within exceptions to the general rule of Employment Division v. Smith. See Korean Buddhist Dae Won Sa Tample v. Sullivan, 953 P.2d 1315, 1344-45 n.31 (Hawaii 1998); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992); Keeler v. Mayor of Cumberland, 940 F. Supp. 879 (D. Md. 1996).

The practice of individualized determinations makes this discrimination extremely difficult to prove in any individual case, but the pattern is clear when Congress examines large numbers of cases through statistical surveys and anecdotal reports from around the country. This record of widespread discrimination and of rules that are not generally applicable shows both the need for, and the constitutional authority to enact, clear general rules that make discrimination more difficult.

It is important to summarize this hearing record and report Congressional findings in the committee report. It would probably also be prudent to insert a conclusory statement of those findings in the text of the bill itself. RFRA was criticized because its findings were in the committee reports instead of in the statutory text, and while the argument seemed to me absurd it was made repeatedly. So it may be better to put basic findings in the bill and to elaborate in the report.

Let me briefly describe two more recent examples that have come to my attention since the last hearing. The case of Morning Star Christian Church in Rolling Hills Estates, California, illustrates some of the techniques available and the lengths to which municipalities will sometimes go to exclude churches. Rolling Hills Estates created an "Institutional Zone," in which a variety of public buildings, including churches, should be located. The Institutional Zone of all the spots on which a church or other covered institution was already located -- and no other land whatever. In effect, all existing churches were grandfathered in, and a presumption was raised against any new churches.

The presumption was not absolute, because churches could still be located in commercial zones with a conditional use permit. Morning Star Christian Church acquired rights to a building in a commercial zone. The building had formerly been a theater with 884 seats; then it had been converted to a skating rink with occupancy limited to 300 during business hours and to 500 on evenings and weekends. The church's congregation was much smaller, with about 170 adult members, and that size had been stable. During extended consideration of its permit application, the time limits on the church's contract ran out, and it was forced to buy the property. The church agreed to limit further growth in the conditional use permit, so as to comply with the most restrictive reading of parking requirements.

When it became clear that the church had satisfied all requirements for a conditional use permit, the city passed an emergency ordinance declaring a moratorium on all institutional uses in commercial zones. No application was pending except the church's. During the moratorium, the city amended its zoning code to ban churches in commercial zones. It is now the law in Rolling Hills Estates that new churches are banned. Churches are conditionally permitted in the Institutional Zone, which is entirely occupied by existing churches and other institutions. The city's zoning law makes extensive provision for places of secular assembly, including public and private schools, government buildings, public and private clubs, recreational centers, movie theaters, live theaters, clubs for games with spectator seating, and many others. The city's zoning law violates every provision of section 3(b) of this bill. It also violates the Constitution, but obviously the Constitution is not sufficiently explicit for the city council to understand.

I know fewer details about the second case, which has not yet entered the public record. But it is an important example, not only because it again illustrates the dangers of discretionary land use regulation, but also because it illustrates how the bill could protect churches at all points on the political spectrum. Corinth, Texas is a small city in the Dallas-Fort Worth metroplex. It has a conservative citizenry and a conservative mayor, and you might expect it to be friendly to churches. But it has a church in its industrial zone that it is determined to eliminate, and the mayor has devoted enormous effort to the cause. The church has no harmful impact on its neighbors, which are more intense uses than it is. The city simply says that churches in the industrial zone are inconsistent with its plan. The other essential fact about this case is that the church is the Metropolitan Church, a denomination with basically Protestant theology that especially ministers to gays and lesbians. It has been perfectly foreseeable that the Metropolitan Church would be especially vulnerable to zoning problems outside the largest and most tolerant cities, and now we have a clear example. As I said at the beginning, this is not a bill about left or right. Every American with any beliefs about religion needs this bill.

Section 3(b)(2) would guarantee a full and fair adjudication of land use claims under subsection (b). Procedural rules before land use authorities may vary widely; any procedure that permits full and fair adjudication of the federal claim would be entitled to full faith and credit in federal court. But if, for example, a zoning board with limited authority refuses to consider the federal claim, does not provide discovery, or refuses to permit introduction of evidence reasonably necessary to resolution of the federal claim, its determination would not be entitled to full faith and credit in federal court. And if in such a case, a state court confines the parties to the record from the zoning board, so that the federal claim still can not be effectively adjudicated, the state court decision would not be entitled to full faith and credit either.

Full and fair adjudication should include reasonable opportunity to obtain discovery and to develop the facts relevant to the federal claim. Interpretation of this provision should not be controlled by cases deciding whether habeas corpus petitioners had a "full and fair hearing" in state court. Interpretation of the habeas corpus standard is often influenced by hostility to convicted criminals seeking multiple rounds of judicial review. Whatever the merits of that hostility, a religious organization seeking to serve existing and potential adherents in a community is not similarly situated.

Subsection 3(b)(3) provides that equally or more protective state law is not preempted. Zoning law in some states has taken account of the First Amendment needs of churches and synagogues, and to the extent that such law duplicates or supplements RLPA, it is not displaced.

IV. Judicial Relief

A. General Remedies Provisions.

Section 4 of the bill provides express remedies. Section 4(a) is based on the corresponding provision of RFRA; it authorizes private persons to assert violations of the Act either as a claim or a defense and to obtain appropriate relief. This section should be read against a large body of federal law on remedies and immunities under other civil rights legislation. Appropriate relief includes declaratory judgments, injunctions, and damages, but government officials have qualified immunity from damage claims.

Section 4(b) provides for attorneys' fees; this is based squarely on RFRA and is essential if the Act is to be enforced.

Section 4(d) provides that the United States may sue for injunctive or declaratory relief to enforce the Act.

B. Prisoner Litigation.

Section 4(c) makes clear that litigation under the bill is subject to the Prison Litigation Reform Act. This provision effectively and adequately responds to concerns about frivolous prisoner litigation. In the first full year under the Prison Litigation Reform Act, federal litigation by state and federal prisoners dropped 31%. Administrative Office of the United States Courts, L. Meacham, Judicial Business of the United States Courts: 1997 Report of the Director 131-32 (Table C-2A). Further reductions may be reasonably expected, as the Act becomes better known; some provisions of the Act, such as the authorization of penalties on prisoners who file three or more frivolous actions, have not yet had much opportunity to work.

There has been substantial litigation over the constitutionality of some provisions of the Prison Litigation Reform Act, but that litigation does not affect RLPA. The courts of appeals have taken seriously the claim that provisions on existing consent decrees unconstitutionally reopen final judgments. Even so, six out of seven courts of appeals have upheld that part of the Act. Only the Ninth Circuit has struck it down, and only with respect to reopening final judgments, and that judgment has been vacated by the court en banc.⁽⁴⁾

I have followed this litigation closely for my casebook, Modern American Remedies. I expect that the PLRA will be upheld even in the highly problematic context of reopening final decrees, because the Act addresses only the prospective effect of those decrees. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 (1995) (noting Congressional power to "alter[] the prospective effect of injunctions"). But however that difficult issue is resolved, it does not affect RLPA. RLPA does not require that any final judgment be reopened, and the provisions of the Prison Litigation Reform Act most important to RLPA are not the structural reform provisions that have drawn so much litigation, but the provisions that deter frivolous individual claims. I am confident that those provisions are constitutional in all but unusual applications.

If further legislative action on prisoner claims is needed, it should follow the approach of the Prison Litigation Reform Act, which addresses prisoner litigation generally. Congress should not exclude prisoners from the substantive protections of RLPA. RFRA did not cause any significant increment to prisoner litigation. The Attorney General of Texas has stated that his office handles about 26,000 active cases at any one time. Of those, 2200 are "inmate-related, non-capital-punishment cases." Of those, sixty were RFRA claims when RFRA applied to the states. Thus, RFRA claims were only 2.7% of the inmate caseload, and only .23% (less than one-quarter of one percent) of the state's total caseload. It is also reasonable to believe that many of these sixty RFRA cases would have been filed anyway, on free exercise, free speech, Eighth Amendment, or other theories. This data is reported in Brief of Amicus Curiae State of Texas 7-8, in City of Boerne v. Flores (No. 95-2074), 117 S.Ct. 2157 (1997).

Members are well aware that prisoners sometimes file frivolous claims. But they should also be aware that prison authorities sometimes make frivolous rules or commit serious abuses. Examples include Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997), in which jail authorities surreptitiously recorded the sacrament of confession between a prisoner and the Roman Catholic chaplain; Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996), vacated on other grounds, 117 S.Ct. 2502 (1997), in which a Wisconsin prison rule prevented prisoners from wearing religious jewelry such as crosses, on grounds that Judge Posner found barely rational; and McClellan v. Keen (settled in the District of Colorado in 1994), in which authorities let a prisoner attend Episcopal worship services but forbad him to take communion.

On remand in Sasnett, after the invalidation of RFRA, the district court concluded that the general rule that Smith applies to all citizens is less protective than the rule formerly applicable only to prisoners. The court said it could not hold on cross-motions for summary judgment that the prison's rules had a reasonable relationship to any legitimate penological purpose. No. 94-C-52-C (W.D. Wis. 1999). But it held that under Smith, no such relationship is required. Under existing free exercise law, the American people are subject even to irrational burdens on religious liberty if the burdensome law court is generally applicable.

RLPA is needed to deal with such abuses to the extent that Congress can reach them. Whether RLPA applies will depend on whether the particular prison system receives federal financial assistance, on whether the prisoner can show a substantial effect on commerce, or on whether the prisoner can show a prima facie violation of the Free Exercise Clause. Probably some prisoner claims will be covered and others will not. But it is important not to exclude those that can be covered.

V. Rules of Construction.

The rules of construction in §5 clarify the bill and greatly reduce the risk of misinterpretation.

Section 5(a) is based on RFRA. It provides that the Act does not authorize government to burden any religious belief, avoiding any risk that the compelling interest test might be transferred from religious conduct to religious belief. Section 5(b) provides that nothing in the bill creates any basis for regulating or suing any religious organization not acting under color of law. These two subsections serve the bill's central purpose of protecting religious liberty, and avoid any unintended consequence of reducing religious liberty.

Sections 5(c) and 5(d) keep this bill neutral on all disputed questions about government financial assistance to religious organizations and religious activities. Section 5(c) states neutrality on whether such assistance can or must be provided at all. Section 5(d) states neutrality on the scope of existing authority to regulate private entities as a condition of receiving such aid. Section 5(d)(1) provides that nothing in the bill authorizes additional regulation of such entities; §5(d)(2), perhaps in an excess of caution, provides that existing regulatory authority is not restricted except as provided in the bill. Agencies with authority to regulate the receipt of federal funds retain such authority, but their specific regulations may not substantially burden religious exercise without compelling justification. These provisions were carefully negotiated with Americans United for Separation of Church and State, People for the American Way, and the American Civil Liberties Union, in exchange for their commitment to vigorously support the bill.

Section 5(e) states explicitly what would be obvious in any event -- that a government that burdens religious exercise has discretion over the means of eliminating the burden. Government can modify its policy to eliminate the burden, or adhere to its policy and grant religious exceptions either on the face or the law or in application of the law, or make any other change that eliminates the burden. The bill would not impose any affirmative policy on the states, nor would it restrict state policy in any way whatever in secular applications or in religious applications that do not substantially burden religious exercise. The bill would require only that substantial burdens on religious exercise be eliminated or justified.

Section 5(f) provides that proof that a burden on religious exercise affects commerce for purposes of this bill, or that removal of such a burden would affect commerce for purposes of this bill, does not give rise to an inference or presumption that the religious exercise is subject to any other statute regulating commerce. Different statutes exercise the commerce power to different degrees, and the courts presume that federal statutes do not regulate religious organizations unless Congress manifested the intent to do so. NLRB v. Catholic Bishop, 440 U.S. 490 (1990).

Section 5(g) states that the Act should be construed "in favor of a broad protection of religious exercise, to the maximum extent permitted by its terms and the Constitution."

Section 5(h) states that each provision and application of the bill shall be severable from every other provision and application.

Section 6 is also a rule of construction, taken directly from RFRA, insuring that this bill does not change results in litigation under the Establishment Clause.

VI. Amendments to Religious Freedom Restoration Act.

Section 7 of the bill amends RFRA to delete any application to the states and to leave RFRA applicable only to the federal government. Section 7(a)(3) amends the definition of "religious exercise" in RFRA to conform it to the RLPA definition, discussed below.

VII. Definitions.

Section 8 contains definitions. Section 8(1) defines "religious exercise" by incorporating the first amendment definition, with two clarifications of issues that have been the subject of litigation. First, religious exercise "need not be compelled by, or central to, a larger system of religious belief." Second, "the use, building, or converting of real property for religious exercise shall itself be considered religious exercise."

The current draft of the bill introduces these clarifications with the word "however," which might be taken to suggest that these clarifications would not be included in the basic definition. I believe they are included in the basic definition, and are set out here to avoid unnecessary litigation. The word "however," in section 8(1) and also in section 7(a)(3), should be changed to "provided that".

This definition, with the provisos, codifies the intended meaning of RFRA as reflected in its legislative history. The decisions that most thoroughly examined the legislative history and precedent concluded that Congress intended to protect conduct that was religiously motivated, whether or not it was compelled.⁽⁵⁾

The Supreme Court's cases have not distinguished religiously compelled conduct from religiously motivated conduct. The Congressional Reference Service marshalled these opinions for the RFRA hearings, noting that the Court has often referred to protection for religiously motivated conduct. Letter from the American Law Division of the Congressional Research Service to Hon. Stephen J. Solarz (June 11, 1992), in Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 131, 131-33 (1992). Since that compilation, justices on both sides of the issue have treated the debate as one over protection for religious motivation, not compulsion.⁽⁶⁾

Congress nowhere expressed any intention to confine the protection of RFRA to practices that were "central" to a religion. This concept did not appear either in statutory text or legislative history; it was read into the statute by some courts after RFRA's enactment. Other courts rejected or ignored this misinterpretation; the most extensive opinion concluded that Congress did not intend such a requirement, that pre-RFRA cases did not contain it, and that courts could not resolve disputes about the centrality of religious practices. Muslim v. Frame, 891 F. Supp. 226, 230-31 (E.D. Pa. 1995), aff'd mem., possibly on other grounds, 107 F.3d 7 (1997).

Insistence on a centrality requirement would insert a time bomb that might destroy the statute, for the Supreme Court has repeatedly stated that courts cannot hold some religious practices to be central and protected, while holding other religious practices noncentral and not protected. Employment Div. v. Smith, 494 U.S. 872, 886-87 (1990); Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 457-58 (1985). The Court in Smith unanimously rejected a centrality requirement. 494 U.S. at 886-87 (opinion of the Court); id. at 906-07 (O'Connor, J., concurring); id. at 919 (Blackmun, J., dissenting). The Court's disagreement over whether regulatory exemptions are constitutionally required does not depend on any disagreement about a centrality requirement.

In the practical application of the substantial burden and compelling interest tests, it is likely to turn out that "the less central an observance is to the religion in question the less the officials must do" to avoid burdening it. Mack v. O'Leary, 80 F.3d 1175, 1180 (1996), vacated on other grounds, 522 U.S. 801 (1997). The concurring and dissenting opinions in Smith imply a similar view, in the passages cited in the previous paragraph. But this balancing at the margins in individual cases is a very different thing from a threshold requirement of centrality, in which all religious practices are divided into two categories and cases are dismissed as a matter of law if the judge finds, rightly or wrongly, that a practice falls in the noncentral category. Such an either-or threshold requirement greatly multiplies the consequences of the inevitable judicial errors in assessing the importance of religious practices. RLPA properly disavows any such interpretation.

Section 8(2) cautiously defines the Free Exercise Clause to include both the clause in the First Amendment and the application of that clause to the states through the Fourteenth Amendment.

Section 8(3) defines "land use regulation". This definition was negotiated at a time when the draft bill provided different standards in section 3(b)((1)(A) and in section 2; under that draft, much more turned on what was a land use regulation. The definition is now less important, but it still matters to the application of section 3(b). The application of section 3(b)(1)(A) matters when plaintiff cannot show, or chooses not to show, that the burden or removal of the burden affects commerce. And sections 3(b)(1)(B), (C), and (D) provide protection not found in section 2.

Land use regulation is a law or decision that restricts a private person's use or development of land or structures affixed to land, where the private person has any kind of property interest in the land or a contract to acquire such a property interest. The law or decision must apply to "one or more particular parcels of land," as in spot zoning or a permit requirement, or "within one ore more designated geographical zones," as in conventional zoning rules. The intention here is to exclude regulation that applies generally to all real property, such as housing discrimination laws.

The definition of "program or activity" in section 8(4) has been discussed in connection with the spending clause provision.

The definition of "demonstrates" in §8(5) is incorporated verbatim from the Religious Freedom Restoration Act.

Section 8(6) defines government to include both state and local governments throughout the bill, and to include the federal government in sections 3(a) and 5. These are the sections shifting the burden of proof in free exercise cases and the rules of construction, some of which are not included in RFRA. The federal government is not included in the rest of the bill because it is already subject to the compelling interest test under RFRA as amended. RFRA was struck down only insofar as it attempted to enforce the Fourteenth Amendment against the states; it still applies to the federal government. In re Young, 141 F.3d 854 (8th Cir.), cert. denied, 119 S.Ct. 43 (1998); EEOC v. Catholic University, 83 F.3d 455, 470-71 (D.C. Cir. 1996).

VIII. Other Constitutional Objections.

A. The Establishment Clause.

Justice Stevens suggested that RFRA might violate the Establishment Clause. City of Boerne v. Flores, 521 U.S. 507, 536-37 (1997). He got no vote but his own, and his view has no support in the Court's precedents. Government is not obligated to substantially burden the exercise of religion, and government does not establish a religion by leaving it alone. RLPA would not violate the Establishment Clause.

The Supreme Court unanimously upheld regulatory exemptions for religious exercise in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). There the Court held that Congress may exempt religious institutions from burdensome regulation. The Court so held even with respect to activities that the Court viewed as secular, id. at 330, even though the Court expressly assumed that the exemption was not required by the Free Exercise Clause, id. at 336, and even though the exemption applied only to religious institutions and not to secular ones, id. at 338-39. Amos held that alleviation of government-imposed burdens on religion has a secular purpose, id. at 335-36, and that the religious organization's resulting ability better to advance religious ends is a permitted secular effect, id. at 336-37. Exempting religious practice also avoids entanglement between church and state "and effectuates a more complete separation of the two." Id. at 339. Amos expressly rejected the assumption that exemptions lifting regulatory burdens from the exercise of religion must "come packaged with benefits to secular entities." Id. at 338.

The Court reaffirmed these principles, after Employment Division v. Smith, in Board of Education v. Grumet:

[T]he Constitution allows the state to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice.

512 U.S. 687, 705 (1994).

The Supreme Court has at times questioned or invalidated exemptions that focus too narrowly on one religious faith or one religious practice, that do not in fact relieve any burden on religious exercise, or that shift the costs of a religious practice to another individual who does not share the faith. Id. at 703; Texas Monthly v. Bullock, 489 U.S. 1 (1989); Estate of Thornton v. Caldor, 472 U.S. 703 (1985). RLPA avoids these constitutional dangers. The bill minimizes the risk of denominational preference by enacting a general standard exempting all religious practices from all substantial and unjustified regulatory burdens; its even-handed generality serves the important Establishment Clause value of neutrality among the vast range of religious practices. By its own terms, the bill does not apply unless there is a substantial burden on the exercise of religion. And if particular proposed applications unfairly shift the costs of a religious practice to another individual, those applications will be avoided by interpreting the compelling interest test or by applying the Establishment Clause to the statute as applied.

Religion and the exercise of religion should be understood generously for purposes of RLPA, and unconventional beliefs about the great religious questions should be protected. But the Constitution distinguishes religion from other human activities, and it does so for sound reasons. In history that was recent to the American Founders, government regulation of religion had caused problems very different from the regulation of other activities. The worst of those problems are unlikely in America today, and our tradition of religious liberty is surely a large part of the reason. Today the greatest threat to religious liberty is the vast expansion of government regulation. Pervasive regulation regularly interferes with the exercise of religion, sometimes in discriminatory ways, sometimes by the mere existence of so much regulation written from a majoritarian perspective. Many Americans are caught in conflicts between their constitutionally protected religious beliefs and the demands of their government. RLPA would not establish any religion, or religion in general; it would protect the civil liberties of people caught in these conflicts.

B. Federalism.

RLPA is consistent with general principles of federalism that sometimes limit the powers granted to Congress.

In particular, RLPA would not violate Printz v. United States, 521 U.S. 898 (1997). Printz struck down federal imposition of specific affirmative duties on state officers to implement federal programs. It held that Congress "cannot compel the States to enact or enforce a federal regulatory program," and that it "cannot circumvent that prohibition by conscripting the State's officers directly." Id. at 935.

The proposed bill does not impose any specific affirmative duty, implement a federal regulatory program, or conscript state officers. The substantive provisions of the bill are entirely negative; they define one thing that states cannot do, leaving all other options open. The bill thus pre-empts state laws inconsistent with the overriding federal policy of protecting religious liberty in areas constitutionally subject to federal authority.

The bill operates in the same way as other civil rights laws, which pre-empt state laws that discriminate on the basis of race, sex, and other protected characteristics, and in the same way as other legislation protecting the free flow of commerce from state interference. Congress could itself regulate all transactions affecting interstate commerce, and then exempt burdened religious exercise from its own regulation; it has instead taken the much smaller step of pre-empting state regulation that unnecessarily burdens religious exercise. Cf. New York v. United States, 505 U.S. 144, 167 (1992):

Where Congress has power to regulate private activity under the Commerce Clause, we have recognized Congress's power to offer states the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.

RLPA would pre-empt to the minimum extent compatible with the federal policy; it pre-empts the unjustified burden on religious exercise but leaves all other options open. As already noted, §5(e) makes explicit what would be clear in any event -- states can pursue any policy they choose, and remove burdens in any way they choose, so long as they do not substantially burden religious exercise without compelling reason.

Printz distinguishes and leaves unchanged two important pre-emption cases upholding federal statutes in the era of National League of Cities v. Usery, 426 U.S. 833 (1976). In each case, the Printz majority noted that the federal law "merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field." 521 U.S. at 925-26.

The first of these cases was Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264 (1981), which upheld a federal statute that required states either to affirmatively implement a specific federal regulatory program or turn the field over to direct federal regulation. The Court said that "nothing" in National League of Cities "shields the States from pre-emptive federal regulation of private activities affecting interstate commerce." Id. at 291. Hodel is reaffirmed not only in Printz, but also in New York v. United States, 505 U.S. 144, 161 (1992).

The Court reached similar conclusions in Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742 (1982) (the FERC case). The statute there went further, and required the state to "consider" implementing an affirmative federal policy. But the state was not required to adopt the policy, and law's provisions "simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals." Id. at 765.

In Hodel, the Court commented that "Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining." Id. at 290. RLPA would not go nearly so far. It would prohibit only some state regulation of religious exercise -- regulation that falls within the reach of spending or commerce powers, that substantially burdens religious exercise, and that cannot be justified by a compelling interest.

Hodel and FERC also went much further than RLPA in another way, because they required states either to implement or consider specific and affirmative federal policies or cede the field to federal regulation. RLPA imposes no specific policies, but only the general limitation that whatever policies they pursue, states can not substantially burden religious exercise without compelling reason.

Some provisions of the statutes in Hodel and FERC were directed expressly to the states and, in a sense, applied only to the states. Only the state agency could implement or consider the federal policy. But this did not render the statutes invalid for singling out the states. Congress was pursuing a policy for the appropriate regulation of private conduct, and it required the states to conform to that policy or to vacate the field. This is the classic work of federal pre-emption.

If RLPA seems in any way odd, it is because the federal policy with respect to the private sector is generally one of deregulation, not regulation. The Congressional policy is that religious exercise not be substantially burdened without compelling reason. Congress has no more affirmative or more specific regulatory policy for religion to substitute for the pre-empted regulation. But that is not unique either. As Professor Thomas Berg points out in an excellent article on a range of constitutional objections to RFRA and RLPA,⁽⁷⁾ the statutes deregulating the transportation industries broadly pre-empted state regulation and substituted only minimal federal regulation in its place. He cites the Staggers Rail Act of 1980, 40 U.S.C. §10505 (1994), and the Airline Deregulation Act of 1978, 49 U.S.C. §41701 et seq. (1994).

[Continued]

It is instructive to compare the pre-emption provision of the Airline Deregulation Act with the central provision of RLPA:

There is no difference in structure or in principle between these two provisions. Both on their face regulate state laws and only state laws. Both in their operation pre-empt state laws that are inconsistent with a federal policy of deregulation. The Airline Deregulation Act provision was broadly construed, without constitutional challenge, in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). Nothing in either Printz or the National League of Cities line of cases casts doubt on federal power to pre-empt state regulation inconsistent with federal policy in areas where Congress could regulate directly if it chose. That is all the Religious Liberty Protection Act would do.

In place of the pre-empted state burdens, Congress would substitute its only policy of religious liberty. Congress has applied the same rules to itself and to federal agencies and officials, universally and across the board, whether or not there is government spending, or land use regulation, or an effect on commerce. Congress has provided similar statutory protections where needed in the private sector, most notably in the employment discrimination laws, the public accommodations laws, and the church arson act. The federal policy is one of religious liberty; that policy is pursued quite generally; and inconsistent state law is pre-empted to the extent that Congress has power to do so. There is nothing constitutionally suspect about that under existing law.

IX. Policy Objections

A. Professor Hamilton's Parade of Horribles

I wish also to address a few of the principle policy objections to the bill. They are remarkable. Professor Marci Hamilton has repeatedly testified, and presumably will testify again, that no public policy is safe from RLPA. Wives will be beaten, children will be abandoned, people will die -- all in the name of religious liberty. Of course she has no examples of these dire consequences.

The truth is that religious liberty legislation has been underenforced, not overenforced. Courts have been quite cautious about taking risks with religious liberty. The great danger with RLPA is not that important public policies will be undermined, but that courts will too often defer to bureaucratic rationalizations and permit the suppression of harmless religious practices.

When confronted with the long history of judicial underenforcement of religious liberty rights, or with precedents holding certain government interests to be compelling, Professor Hamilton tends to say that those cases were decided without benefit of the least restrictive means test. With respect to the RFRA cases, this is obviously false; RFRA had an express least restrictive means test. With respect to the pre-Smith free exercise cases, it is also false. Least restrictive means and similar formulations were a regular part of the Court's formulation of the pre-Smith free exercise standard, as she well knows.⁽⁸⁾ The least restrictive means test never had the terrible consequences that Professor Hamilton predicts, and it was not interpreted in the bizarre way that she claims to interpret it. The conclusive answer to her parade of horribles is that for four years under RFRA and for twenty-seven years under the free exercise clause, they did not happen.

B. The Demand for a Civil Rights Exception

Other witnesses have demanded an exception for civil rights claim, across the board, without regard to context, wholly subordinating any exercise of religious liberty to any interest that can be slipped into a civil rights law. This demand is a betrayal of the fundamental agreement on which the Coalition for Free Exercise has depended -- neither right nor left would demand carveouts for its own special interests. A civil rights carve out would be wholly unnecessary in the great bulk of cases, and wrongheaded in those few cases where the religious liberty interest is entitled to a respectful hearing.

A civil rights exception is unnecessary, because most civil rights claims satisfy the compelling interest test. The Supreme Court has held, in a free exercise case, that eradicating racial discrimination in education serves a compelling interest by the least restrictive means. Bob Jones University v. United States, 461 U.S. 574, 604 (1983). The Court has held, in free speech cases, that eliminating sex discrimination in places of public accommodation serves a compelling interest by the least restrictive means. Board of Directors v. Rotary Club, 481 U.S. 537, 549 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 623-29 (1984). Dictum in Rotary Club said generally (without regard to the basis of discrimination) that "public accommodations laws `plainly serv[e] compelling state interests of the highest order.'" 481 U.S. at 549. Race discrimination is even more suspect than sex discrimination, and employment is at least as important as public accommodations. Those who resist civil rights laws in the name of religion will, in nearly every case, lose.

An across-the-board civil rights exemption would take RLPA out of cases in which the religious practice should clearly be protected. The example that is hardest to argue with is the line of cases typified by Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839 (2d Cir. 1996). Similar cases have arisen on college campuses around the country. Each such case involves a student religion club of a particular faith, which requires a statement of faith for membership, for voting, and/or for holding office. In the name of civil rights, the school argues that the statement of faith is a form of religious discrimination, and demands that the club abandon the statement of faith or be dissolved as a campus organization. In Hsu, the court reached the remarkable conclusion that a Christian club could require that its President, Vice-President, and Music Coordinator be Christians, but that it could not require that its Secretary, its Activities Coordinator, or its members be Christian. On the same theory pursued in Hsu, a church may be a place of public accommodation that discriminates on the basis of religion. These cases mistake the existence of religious organizations for religious discrimination. In Hsu, the club relied on the Equal Access Act, but that does not apply to the college cases. RLPA should not be available; a civil rights amendment would make it unavailable.

A civil rights amendment would also invite challenges to core religious practices, presenting difficult issues that should be left unresolved until and unless they arise. Catholics and Orthodox Jews restrict the priesthood and rabbinate to males, in violation of the literal language of the employment discrimination laws. Convents and monasteries rent dwellings, within the definitions in some fair housing acts, to only one sex and to adherents of only one religion. Religious organizations operate retirement residences and nursing homes, and some may give priority to their own members. Some churches and other religious organizations require church employees to adhere to the religion's moral code; as applied to unwed mothers, this is easily converted to a claim of pregnancy discrimination.

Current law permits religious organizations to prefer employees of their own faith to do the organization's work, but there are many ambiguous limits to that exemption. A preference for Jews might be attacked as racial rather than religious. Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). The Texas Attorney General has attacked a preference for Christians as unprotected, insisting that only a preference for particular denominations is within the statutory exception. Speer v. Presbyterian Children's Home, 847 S.W.2d 227 (Tex. 1993). That issue remains unresolved. A preference for persons of any faith so long as they are not overtly hostile to the religious mission is probably unprotected.

Reasonable people can disagree about how such issues should be resolved. If such cases arise, both sides will be fully heard under the statutory standards of substantial burden and compelling interest. Fair and just results may depend on context: a pastor is different from a youth director, and both are different from a custodian; a convent is different from a retirement home. There are few occasions for religious exceptions from the civil rights laws, but it would not be right to simply enact that any civil rights claim automatically trumps any religious liberty claim without debate or discussion.

Any exception to RFRA violates the core agreement that has held together supporters of religious liberty legislation. This bill has broad support across the political spectrum from left to right, bipartisan, interfaith, religious and secular. The core agreement that has held that broad coalition together is that RFRA bills should enact uniform standards, applicable to all religious practices and all governmental interests, and that the groups within the coalition will argue out their disagreements under those standards. Every private interest group and every government agency has an agenda that could be insulated from future argument by an exception exempting that agenda from RFRA. Some of those potential exceptions involve deep moral commitments, as deeply felt as civil rights. It is impossible to make one exception without inviting many others. It is impossible even to consider many exceptions without abandoning the principle of religious liberty and substituting a series of votes on what religious practices can hold a majority vote in a crowded legislative session. Rep. Stephen Solarz, the sponsor of RFRA, explained the most fundamental reason why he would not entertain proposed exceptions to his bill:

If Congress succumbs to the temptation to pick and choose among the religious practices of the American people, protecting those practices the majority finds acceptable or appropriate, and slamming the door on those religious practices that may be frightening or unpopular, then we will have succeeded in codifying rather than reversing Smith.

He correctly described the effect of exceptions then, and that would still be the effect of exceptions today.

Let me say that this should not be an issue that divides left and right. It should not be a litmus test of support for civil rights. I spent most of April helping to write a brief defending the constitutionality of affirmative action in a renewed appeal in Hopwood v. Texas, and I worked publicly and privately for three years to make that renewed appeal happen. Turning to the agenda that is principally driving the demand for a civil rights carve out, I voted for my city's gay rights ordinance, and I have publicly defended the constitutional rights of sexually active gays and lesbians. This is not about whether one supports civil rights; it is about whether civil rights is for all Americans and all their fundamentally personal beliefs and activities, or only for selected groups, selected beliefs, and selected activities.

Civil rights and religious liberty are both about living together with our differences. There should be legal protection for gays and lesbians and also for persons with religious commitments to traditional sexual morality. There should be a general gay rights law, and there should be religious exemptions. And it should be obvious that gay rights laws will be far easier to enact if there are exemptions for religious objectors -- the most legitimate and often the most intensely felt source of opposition.

It should also be clear that gays and lesbians also have religions, and exercise them, and are especially likely to need the protection of religious liberty legislation. I have already mentioned the zoning problems of the Metropolitan Church. Let me describe another case, in which I have committed to file a friend of the court brief.

LG v. G, now pending in the state court of appeals in Texas, involves a lesbian mother, now divorced from her former husband. She and the father have joint custody, and a complicated agreement concerning their respective rights to guide the religious instruction of the child. The mother was taking the daughter to the Metropolitan Church. The father objected. The mother offered in evidence the tape of a typical service, and expert testimony on the best interests of the child; there is no suggestion of any age-inappropriate content at the church. The father offered no evidence about the church and refused to visit a service; he simply objected. The court decided that the mother could take the daughter to "mainline" churches and no others, and that the court would decide what counted as mainline. The Metropolitan Church was unacceptable.

The source of hostility here is the sexual orientation of the mother. But the target of discrimination is her church and her religious exercise. The court has not suppressed her sexual behavior; it has suppressed her religious behavior. In the course of doing that, it has undertaken to decide what are acceptable religions and what are not.

I doubt that RLPA can reach that case, although the Constitution might, and state law surely could. The point is not that this particular bill will fix that particular case, but that religious liberty should be important to both sides of the dispute over sexual orientation. I will join in defending the rights of gays and lesbians. I wish their leaders would join me in defending the rights of religious believers. And I wish that all concerned would recognize that these are not mutually exclusive categories.

X. Conclusion.

This bill is needed for the reasons set forth by other witnesses and in earlier hearings. The bill's opponents seem to be few in number, but they are able and creative; they can think of many arguments. In this testimony, I have tried to anticipate those arguments.

No one can predict how the Supreme Court might change the law in the future. But Congress should not be intimidated into not exercising powers that have been established for decades because of the risk that the law might change in the future. The bill is clearly within Congressional power under existing law, and I urge its enactment.

1. Cf. Salinas v. United States, 118 S.Ct. 469, 475 (1997). Salinas interpreted 18 U.S.C. §666(a)(1)(B) (1994), part of the federal bribery statute, to apply to any bribe accepted in a covered federally assisted program, whether or not the federal funds were in any way affected. The Court also concluded that under that interpretation, "there is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case." Preferential treatment accorded to one federal prisoner (the briber) "was a threat to the integrity and proper operation of the federal program," even if it cost nothing and diverted no federal funds. The Court did not find it necessary to consider whether there might someday be an application in which the statute would be unconstitutional as applied.

2. See the Clayton Act, 15 U.S.C. §18 (1994) ("person engaged in commerce or in any activity affecting commerce"); the Federal Trade Commission Act, 15 U.S.C. §45 (1994) ("unfair or deceptive acts or practices in or affecting commerce"); the Federal Fire Prevention and Control Act, 15 U.S.C. §2224 (1994) ("places of public accommodation affecting commerce"); the Petroleum Marketing Practices Act, 15 U.S.C. §2801 (1994) (trade, etc., "which affects any trade, transportation, exchange, or other commerce" between any state and any place outside of such state); the Semiconductor Chip Protection Act, 17 U.S.C. §910 (1994) ("conduct in or affecting commerce"); the criminal provisions of the Health Insurance Portability and Accountability Act, 18 U.S.C. §24 (Supp. II 1996) ("any public or private plan or contract, affecting commerce"); the Federally Protected Activities Act, 18 U.S.C. §245 (1994) ("engaged in a business in commerce or affecting commerce"); the National Labor Relations Act, 29 U.S.C. §152 (1994) ("affecting commerce"); the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §402 (1994) ("industry affecting commerce"); the Age Discrimination in Employment Act, 29 U.S.C. §630 (1994) ("industry affecting commerce"); the Occupational Safety and Health Act (OSHA), 29 U.S.C. §652 (1994) ("engaged in a business affecting commerce"); the Employment and Retirement Income Security Act (ERISA), 29 U.S.C. §1003 (1994) ("in commerce or in any industry or activity affecting commerce"); the Employee Polygraph Protection Act, 29 U.S.C. §2002 (1994) ("any employer engaged in or affecting commerce"); the Family and Medical Leave Act, 29 U.S.C. §2611 (1994) ("industry or activity affecting commerce"); Title II of the Civil Rights Act of 1964, 42 U.S.C. §2000a (1994) ("if its operations affect commerce"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e ("engaged in an industry affecting commerce"); the Privacy Protection Act, 42 U.S.C. §2000aa (Supp. II 1996) ("public communication, in or affecting interstate or foreign commerce"); the Energy Policy and Conservation Act, 42 U.S.C. §6291 (1994) (trade, etc., "which affects any trade, transportation, exchange, or other commerce" between any state and any place outside of such state); the Americans with Disabilities Act, 42 U.S.C. §12111 (1994) ("engaged in an industry affecting commerce"); the Commercial Motor Vehicle Safety Act, 42 U.S.C. §31101 (1994) ("engaged in a business affecting commerce").

3. See, e.g., Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995); Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1984); Carey v. Brown, 447 U.S. 455 (1980); Police Dept. v. Mosley, 408 U.S. 92 (1972).

4. Tyler v. Murphy, 135 F.3d 594 (8th Cir. 1998); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998), cert. petition filed (Apr. 13, 1998, No. 97-1693); Dougan v. Singletary, 129 F.3d 1424 (11th Cir. 1997), cert. petition filed (Mar. 2, 1998, No. 97-8120); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 657-58 (1st Cir. 1997), cert. petition filed, 66 U.S.L.W. 3531 (Feb. 4, 1998, No. 97-1278); Benjamin v. Johnson, 124 F.3d 162 (2d Cir. 1997); Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), cert. petition filed (Jan. 5, 1998, No. 97-7420); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996), cert. denied, 117 S.Ct. 2460 (1997); but cf. Taylor v. United States, 1998 Westlaw 214578 (9th Cir., May 4, 1998).

5. Sasnett v. Sullivan, 908 F. Supp. 1429, 1440-47 (W.D. Wis. 1995), aff'd, 91 F.3d 1018, 1022 (7th Cir. 1996), vacated on other grounds, 521 U.S. 1114 (1997); Muslim v. Frame, 891 F. Supp. 226, 229-31 (E.D. Pa. 1995), rehearing denied, 897 F. Supp. 216, 217-20 (E.D. Pa. 1995), aff'd mem., possibly on other grounds, 107 F.3d 7 (3d Cir. 1997); Mack v. O'Leary, 80 F.3d 1175, 1178-80 (7th Cir. 1996), vacated on other grounds, 522 U.S. 801 (1997).

6. City of Boerne v. Flores, 521 U.S. 507, 538 (Scalia, J., concurring) ("religiously motivated conduct"); id. at 540 (same); id. at 546 (O'Connor, J., concurring) (same); id. at 548 (same); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 ("conduct motivated by religious beliefs"); id. at 533 ("religious motivation"); id. at 538 (same); id. at 543 ("conduct with religious motivation"); id. at 545 ("conduct motivated by religious belief"); id. at 546 ("conduct with a religious motivation"); id. at 547 ("conduct motivated by religious conviction"); id. at 560 n.1 (Souter, J., concurring) ("conduct motivated by religious belief"); id. at 563 ("religiously motivated conduct"); id. ("conduct . . . undertaken for religious reasons") (quoting Employment Div. v. Smith, 494 U.S. at 532); id. at 578 (Blackmun, J., concurring) ("religiously motivated practice").

7. Thomas C. Berg, The Constitutional Future of Religious Freedom Legislation, 20 UALR L.J. 715, 761-62 (1998).

8. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 19 (1989) (Brennan, J., for plurality) ("We noted that `[n]ot all burdens on religion are unconstitutional, and held that `the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest;"); Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 142 (1987) ("Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."); Bowen v. Roy, 476 U.S. 693, 728 (1986) (O'Connor, J., for plurality) ("Once it has been shown that a governmental regulation burdens the free exercise of religion, `only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.' This Court has consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector `is essential to accomplish an overriding governmental interest,' or represents `the least restrictive means of achieving some compelling state interest.'"); Bob Jones University v. United States, 461 U.S. 574, 603-604 (1983) ("The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. . . . The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, and no `less restrictive means' are available to achieve the governmental interest."); United States v. Lee, 455 U.S. 252, 257-58 (1982) ("The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. . . . This mandatory participation is indispensable to the fiscal vitality of the social security system."); Thomas v. Review Board, 450 U.S. 717, 718 (1981) ("The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest."); McDaniel v. Paty, 435 U.S. 618, 628 (1978) (Burger, C.J., for plurality) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."); Sherbert v. Verner, 374 U.S. 398, 407 (1963) ("For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.") (all emphases added). Professor Hamilton has seen this list of quotations, but she continues to misstate the prior law.

In City of Boerne v. Flores, 521 U.S. 507, 535 (1997), the Supreme Court actually said -- in a parenthetical phrase inserted without citation of any authority -- that least restrictive means was not part of the pre-Smith law. This erroneous statement was taken from the City's brief, written by Professor Hamilton. The Court can change the law for the future, but neither the Court nor Professor Hamilton can rewrite the past, and the Court's own past opinions are clear. Least restrictive means, or equivalent formulations such as "no alternative forms of regulation," "essential to accomplish," "not otherwise served," or "indispensable to," were part of nearly every significant Supreme Court case on the free exercise of religion prior to 1990. Least restrictive means is not a new and untried standard; it was the law for thirty-one years, under the federal Constitution and under RFRA, with no untoward consequences.