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106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-219




  July 1, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed


 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with


                        [To accompany H.R. 1691]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1691) to protect religious liberty, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.


The Amendment....................................................     1
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     5
Hearings.........................................................    25
Committee Consideration..........................................    26
Vote of the Committee............................................    26
Committee Oversight Findings.....................................    26
Committee on Government Reform and Oversight Findings............    26
New Budget Authority and Tax Expenditures........................    26
Congressional Budget Office Cost Estimate........................    26
Constitutional Authority Statement...............................    27
Section-by-Section Analysis and Discussion.......................    27
Dissenting Views.................................................    32
Additional Dissenting Views......................................    40

  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:


  This Act may be cited as the ``Religious Liberty Protection Act of 


  (a) General Rule.--Except as provided in subsection (b), a government 
shall not substantially burden a person's religious exercise--
          (1) in a program or activity, operated by a government, that 
        receives Federal financial assistance; or
          (2) in any case in which the substantial burden on the 
        person's religious exercise affects, or in which a removal of 
        that substantial burden would affect, commerce with foreign 
        nations, among the several States, or with Indian tribes;
even if the burden results from a rule of general applicability.
  (b) Exception.--A government may substantially burden a person's 
religious exercise if the government demonstrates that application of 
the burden to the person--
          (1) is in furtherance of a compelling governmental interest; 
          (2) is the least restrictive means of furthering that 
        compelling governmental interest.
  (c) Remedies of the United States.--Nothing in this section shall be 
construed to authorize the United States to deny or withhold Federal 
financial assistance as a remedy for a violation of this Act. However, 
nothing in this subsection shall be construed to deny, impair, or 
otherwise affect any right or authority of the Attorney General or the 
United States or any agency, officer, or employee thereof under other 
law, including section 4(d) of this Act, to institute or intervene in 
any action or proceeding.


  (a) Procedure.--If a claimant produces prima facie evidence to 
support a claim alleging a violation of the Free Exercise Clause or a 
violation of a provision of this Act enforcing that clause, the 
government shall bear the burden of persuasion on any element of the 
claim; however, the claimant shall bear the burden of persuasion on 
whether the challenged government practice, law, or regulation burdens 
or substantially burdens the claimant's exercise of religion.
  (b) Land Use Regulation.--
          (1) Limitation on land use regulation.--
                  (A) Where, in applying or implementing any land use 
                regulation or exemption, or system of land use 
                regulations or exemptions, a government has the 
                authority to make individualized assessments of the 
                proposed uses to which real property would be put, the 
                government may not impose a substantial burden on a 
                person's religious exercise, unless the government 
                demonstrates that application of the burden to the 
                person is in furtherance of a compelling governmental 
                interest and is the least restrictive means of 
                furthering that compelling governmental interest.
                  (B) No government shall impose or implement a land 
                use regulation in a manner that does not treat 
                religious assemblies or institutions on equal terms 
                with nonreligious assemblies or institutions.
                  (C) No government shall impose or implement a land 
                use regulation that discriminates against any assembly 
                or institution on the basis of religion or religious 
                  (D) No government with zoning authority shall 
                unreasonably exclude from the jurisdiction over which 
                it has authority, or unreasonably limit within that 
                jurisdiction, assemblies or institutions principally 
                devoted to religious exercise.
          (2) Full faith and credit.--Adjudication of a claim of a 
        violation of the Free Exercise Clause or this subsection in a 
        non-Federal forum shall be entitled to full faith and credit in 
        a Federal court only if the claimant had a full and fair 
        adjudication of that claim in the non-Federal forum.
          (3) Nonpreemption.--Nothing in this subsection shall preempt 
        State law that is equally or more protective of religious 


  (a) Cause of Action.--A person may assert a violation of this Act as 
a claim or defense in a judicial proceeding and obtain appropriate 
relief against a government. Standing to assert a claim or defense 
under this section shall be governed by the general rules of standing 
under article III of the Constitution.
  (b) Attorneys' Fees.--Section 722(b) of the Revised Statutes (42 
U.S.C. 1988(b)) is amended--
          (1) by inserting ``the Religious Liberty Protection Act of 
        1998,'' after ``Religious Freedom Restoration Act of 1993,''; 
          (2) by striking the comma that follows a comma.
  (c) Prisoners.--Any litigation under this Act in which the claimant 
is a prisoner shall be subject to the Prison Litigation Reform Act of 
1995 (including provisions of law amended by that Act).
  (d) Authority of United States To Enforce This Act.--The United 
States may sue for injunctive or declaratory relief to enforce 
compliance with this Act.


  (a) Religious Belief Unaffected.--Nothing in this Act shall be 
construed to authorize any government to burden any religious belief.
  (b) Religious Exercise Not Regulated.--Nothing in this Act shall 
create any basis for restricting or burdening religious exercise or for 
claims against a religious organization, including any religiously 
affiliated school or university, not acting under color of law.
  (c) Claims to Funding Unaffected.--Nothing in this Act shall create 
or preclude a right of any religious organization to receive funding or 
other assistance from a government, or of any person to receive 
government funding for a religious activity, but this Act may require 
government to incur expenses in its own operations to avoid imposing a 
burden or a substantial burden on religious exercise.
  (d) Other Authority To Impose Conditions on Funding Unaffected.--
Nothing in this Act shall--
          (1) authorize a government to regulate or affect, directly or 
        indirectly, the activities or policies of a person other than a 
        government as a condition of receiving funding or other 
        assistance; or
          (2) restrict any authority that may exist under other law to 
        so regulate or affect, except as provided in this Act.
  (e) Governmental Discretion in Alleviating Burdens on Religious 
Exercise.--A government may avoid the preemptive force of any provision 
of this Act by changing the policy that results in the substantial 
burden on religious exercise, by retaining the policy and exempting the 
burdened religious exercise, by providing exemptions from the policy 
for applications that substantially burden religious exercise, or by 
any other means that eliminates the substantial burden.
  (f) Effect on Other Law.--In a claim under section 2(a)(2) of this 
Act, proof that a substantial burden on a person's religious exercise, 
or removal of that burden, affects or would affect commerce, shall not 
establish any inference or presumption that Congress intends that any 
religious exercise is, or is not, subject to any other law.
  (g) Broad Construction.--This Act should be construed in favor of a 
broad protection of religious exercise, to the maximum extent permitted 
by its terms and the Constitution.
  (h) Severability.--If any provision of this Act or of an amendment 
made by this Act, or any application of such provision to any person or 
circumstance, is held to be unconstitutional, the remainder of this 
Act, the amendments made by this Act, and the application of the 
provision to any other person or circumstance shall not be affected.


  Nothing in this Act shall be construed to affect, interpret, or in 
any way address that portion of the first amendment to the Constitution 
prohibiting laws respecting an establishment of religion (referred to 
in this section as the ``Establishment Clause''). Granting government 
funding, benefits, or exemptions, to the extent permissible under the 
Establishment Clause, shall not constitute a violation of this Act. As 
used in this section, the term ``granting'', used with respect to 
government funding, benefits, or exemptions, does not include the 
denial of government funding, benefits, or exemptions.


  (a) Definitions.--Section 5 of the Religious Freedom Restoration Act 
of 1993 (42 U.S.C. 2000bb-2) is amended--
          (1) in paragraph (1), by striking ``a State, or subdivision 
        of a State'' and inserting ``a covered entity or a subdivision 
        of such an entity'';
          (2) in paragraph (2), by striking ``term'' and all that 
        follows through ``includes'' and inserting ``term `covered 
        entity' means''; and
          (3) in paragraph (4), by striking all after ``means,'' and 
        inserting ``any exercise of religion, whether or not compelled 
        by, or central to, a system of religious belief, and includes 
        (A) the use, building, or conversion of real property by a 
        person or entity intending that property for religious 
        exercise; and (B) any conduct protected as exercise of religion 
        under the first amendment to the Constitution.''.
  (b) Conforming Amendment.--Section 6(a) of the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb-3(a)) is amended by striking 
``and State''.


  As used in this Act--
          (1) the term ``religious exercise'' means any exercise of 
        religion, whether or not compelled by, or central to, a system 
        of religious belief, and includes (A) the use, building, or 
        conversion of real property by a person or entity intending 
        that property for religious exercise; and (B) any conduct 
        protected as exercise of religion under the first amendment to 
        the Constitution;
          (2) the term ``Free Exercise Clause'' means that portion of 
        the first amendment to the Constitution that proscribes laws 
        prohibiting the free exercise of religion and includes the 
        application of that proscription under the 14th amendment to 
        the Constitution;
          (3) the term ``land use regulation'' means a law or decision 
        by a government that limits or restricts a private person's 
        uses or development of land, or of structures affixed to land, 
        where the law or decision applies to one or more particular 
        parcels of land or to land within one or more designated 
        geographical zones, and where the private person has an 
        ownership, leasehold, easement, servitude, or other property 
        interest in the regulated land, or a contract or option to 
        acquire such an interest;
          (4) the term ``program or activity'' means a program or 
        activity as defined in paragraph (1) or (2) of section 606 of 
        the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a);
          (5) the term ``demonstrates'' means meets the burdens of 
        going forward with the evidence and of persuasion; and
          (6) the term ``government''--
                  (A) means--
                          (i) a State, county, municipality, or other 
                        governmental entity created under the authority 
                        of a State;
                          (ii) any branch, department, agency, 
                        instrumentality, subdivision, or official of an 
                        entity listed in clause (i); and
                          (iii) any other person acting under color of 
                        State law; and
                  (B) for the purposes of sections 3(a) and 5, includes 
                the United States, a branch, department, agency, 
                instrumentality or official of the United States, and 
                any person acting under color of Federal law.

                          PURPOSE AND SUMMARY

    H.R. 1691, ``The Religious Liberty Protection Act of 
1999,'' protects religious activities and practices from being 
substantially burdened by government action. H.R. 1691 was 
introduced on May 5, 1999 by bi-partisan co-sponsors, and 
enjoys the support of over 80 churches and religious 
organizations from all points on the political spectrum. H.R. 
1691 was introduced, in part, in response to the Supreme 
Court's partial invalidation of the Religious Freedom 
Restoration Act (RFRA), which itself was enacted in 1993 in 
response to an earlier Court decision.
    RFRA was a response to the Supreme Court's opinion in 
Employment Division v. Smith,\1\ holding that the First 
Amendment's protection of the free exercise of religion did not 
extend to religious exercise that is burdened by a neutral law 
of general applicability. RFRA restored legal protection for 
religious exercise in such situations by requiring religious 
freedom claims to be analyzed under the strict scrutiny 
standard, evaluating whether the offending law is the ``least 
restrictive'' means of furthering a ``compelling'' governmental 
interest. In 1997, the Supreme Court in City of Boerne v. 
Flores \2\ invalidated RFRA as applied to infringement of 
religious freedom by state and local governments.
    \1\ 494 U.S. 872 (1990).
    \2\ 521 U.S. 507 (1997).
    The Religious Liberty Protection Act of 1998, H.R. 1691's 
predecessor, was introduced in the 105th Congress in response 
to the Boerne decision. The Subcommittee on the Constitution 
held five hearings in the 105th Congress on the need for 
federal protection of religious freedom after the Boerne 
decision and on the Religious Liberty Protection Act of 1998. 
The hearings examined specific cases of generally applicable 
laws and government actions that substantially burden the free 
exercise of religion, patterns of religious discrimination by 
less-than-generally-applicable laws in the area of land use and 
zoning, and the constitutionality and effect of the Religious 
Liberty Protection Act of 1998. The Subcommittee reported the 
bill favorably with certain amendments and no further action 
was taken on the bill.
    In the 106th Congress, the Subcommittee on the Constitution 
held a hearing on H.R. 1691, the Religious Liberty Protection 
Act of 1999, on May 12, 1999, and a markup session on May 25, 
1999 in which the Subcommittee reported the legislation 
favorably with an amendment to clarify language in the 
definition section of the bill. The Committee held a markup 
session on H.R. 1691 on June 23, 1999 and reported the bill 
favorably by voice vote with no amendments.


Employment Division v. Smith

    The First Amendment to the United States Constitution 
provides that ``Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise 
thereof . . .'' Beginning in 1963, free exercise claims were 
analyzed under the ``compelling state interest'' test, 
providing that when a governmental action or regulation imposed 
a significant burden on a sincerely-held religious belief, the 
governmental action was unconstitutional as against the 
religious practitioner unless it was the ``least restrictive'' 
means of furthering a ``compelling'' governmental interest.\3\
    \3\ See Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, a 
Seventh-Day Adventist who had refused to work on her religion's Sabbath 
was awarded unemployment compensation which had previously been denied.
    In Employment Division v. Smith,\4\ however, the Supreme 
Court held that the First Amendment did not protect religious 
exercise from being burdened by a neutral law of general 
application. The Smith decision arose from an unemployment 
compensation dispute involving two Native American employees of 
a private drug and alcohol rehabilitation facility in Oregon. 
The two were fired after they admitted to ingesting peyote, a 
sacrament of the Native American Church, during a religious 
ceremony. Because Oregon law prohibits the knowing or 
intentional possession of a ``controlled substance,'' which 
includes peyote,\5\ the state Employment Division determined 
that the employers were properly discharged for ``cause'' and 
therefore not entitled to unemployment benefits. The employees 
sued, challenging the Oregon law as applied to their religious 
    \4\ 494 U.S. 872 (1990).
    \5\ See Ore. Rev. Stat. Sec. 475.992(4) (1987).
    The Oregon Supreme Court held that the state's prohibition 
on sacramental peyote use violated the Free Exercise Clause, 
reaffirming a previous holding that the state could not deny 
unemployment benefits. The United States Supreme Court 
reversed, declining to apply the ``compelling state interest'' 
standard from Sherbert.
    In essence, the Supreme Court took the cramped view that, 
while one has a right to believe a religion, and a right not to 
be discriminated against because of religion, one has no 
constitutional right to practice religion in a way that is 
inconsistent with even trivial laws or regulations.\6\ Smith's 
``bare requirement of formal neutrality,'' then, serves as a 
substitute for the particular protections that the Free 
Exercise Clause envisions, protections ``most often needed by 
practitioners of non-mainstream faiths who lack the ability to 
protect themselves in the political sphere'' and by ``any 
person of religious convictions caught in conflict with our 
secular political culture.''\7\
    \6\ See Religious Liberty Protection Act: Hearing on H.R. 1691 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong. (May 12, 1999) (statement of Douglas Laycock, 
Professor, University of Texas Law School) <>[hereinafter Laycock Testimony, May 12, 1999].
    \7\ McConnell, Free Exercise Revisionism, 57 U.Chi.L.Rev. at 1152-
    The Smith opinion was careful, however, to enumerate 
exceptions to its ruling. First, the Court distinguished 
earlier decisions that invalidated the application of neutral, 
generally applicable laws on free exercise grounds, holding 
that those cases involved the assertion of free exercise claims 
coupled with other constitutional protections.\8\ The Smith 
employees' claim was limited, however, to the Free Exercise 
Clause and thus did not fall within the category of ``hybrid'' 
constitutional claims.
    \8\ In the majority opinion, Justice Scalia wrote:

        The government's ability to enforce generally applicable 
      prohibitions on socially harmful conduct, like its ability 
      to carry out other aspects of public policy, ``cannot 
      depend on measuring the effects of a governmental action on 
      a religious objector's spiritual development.'' Lyng v. 
      Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 
      451 (1988). To make an individual's obligation to obey such 
      a law contingent upon the law's coincidence with his 
      religious beliefs, except where the State's interest is 
      ``compelling''--permitting him, by virtue of his beliefs, 
      ``to become a law unto himself,'' Reynolds v. United 
      States, 98 U.S. 145, 167 (1878)--contradicts both 
      constitutional tradition and common sense.

Employment Division v. Smith, 494 U.S. at 881-82. See also Wisconsin 
v.Yoder, 406 U.S. 205 (1972) (holding that Old Order Amish's free 
exercise interests, combined with right of parents to direct child's 
education, outweighed state interest in enforcing compulsory education 
statute); Wooley v. Maynard, 430 U.S. 705 (1977) (invalidating state 
law requiring display of license plate slogan that offended individual 
religious beliefs); West Virginia Board of Education v. Barnette, 319 
U.S. 624 (1943) (holding unconstitutional compulsory flag salute 
statute challenged by religious objectors); Cantwell v. Connecticut, 
310 U.S. 296 (1940) (finding state licensing system for religious and 
charitable solicitations invalid where administrator had discretion to 
deny license to any cause he deemed nonreligious).
    The Court's attempt to justify this distinction between mere free 
exercise claims and ``hybrid'' claims rested on its conclusion that the 
cases involving hybrid claims ``specifically adverted to the non-free-
exercise principle involved.'' Smith, 494 U.S. at 881, n. 1. This 
footnote explanation has been described as ``no explanation at all.'' 
Sarah J. Gralen Rous, Why Free Exercise Jurisprudence in Relation to 
Zoning Restrictions Remains Unsettled After Boerne v. Flores, 52 SMU L. 
Rev. 305, 317 (1999). Moreover, Smith itself could have been viewed as 
a hybrid case, involving both the right of free exercise and a right 
pursuant to the Free Speech Clause to communicate one's religious 
message through the act of using peyote. See Michael W. McConnell, Free 
Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 
1122 (1990).
    The Smith opinion also found that the heightened standard 
of review adopted in Sherbert would apply (1) where the 
challenged law was either facially non-neutral, where, for 
example, it attempts to ban ``acts or abstentions only when 
they are engaged in for religious reasons or only because of 
the religious belief that they display''; (2) even if facially 
neutral, where the law had the surreptitious purpose of 
burdening religious practices; and (3) where the law was not 
generally applicable because it failed to regulate secular 
conduct that implicated the same government interests as the 
prohibited religious conduct.\9\
    \9\ Smith, 494 U.S. at 877. The Court faced this precise issue in 
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 
(1993). There, adherents to the Santeria faith leased city land with 
plans to engage in worship services involving the killing, cooking, and 
ingestion of animals. After becoming aware of the Santeria believers' 
intentions, the city adopted an ordinance prohibiting the slaughter of 
animals within city limits. The Supreme Court, however, invalidated the 
ordinance, holding that, while facially neutral, it failed to reach a 
range of secular conduct with similar effects. No longer viewed as a 
neutral, generally applicable law, the ordinance thus fell outside the 
scope of Smith and the Court struck it down pursuant to the strict 
scrutiny standard.
    Finally, and most important for the purposes of the 
Religious Liberty Protection Act of 1999, the Court held that 
Sherbert's compelling state interest standard applies where 
there is ``individualized governmental assessment of the 
reasons for the relevant conduct,'' as opposed to an ``across-
the-board criminal prohibition on a particular form of 
    \10\ Smith, 494 U.S. at 884.

The Religious Freedom Restoration Act and City of Boerne v. Flores

    After three years of hearings, study, and intense drafting 
and redrafting, the Religious Freedom Restoration Act was 
enacted by Congress to restore legal protection for religious 
exercise by requiring all free exercise claims to be examined 
under strict scrutiny. RFRA, in effect, codified the balancing 
test that had been used by the courts in the three decades 
prior to Smith. Under RFRA's balancing test, ``government may 
substantially burden a person's exercise of religion only if it 
demonstrates that application of the burden to the person is in 
furtherance of a compelling governmental interest; and is the 
least restrictive means of furthering that compelling 
governmental interest.''\11\
    \11\ 42 U.S.C. Sec. 2000bb-1.
    Congress based its authority for RFRA on Section 5 of the 
Fourteenth Amendment, which provides Congress with the ``power 
to enforce'' by ``appropriate legislation'' the constitutional 
guarantee that no State shall deprive any person of ``life, 
liberty, or property, without due process of law,'' nor deny 
any person ``equal protection of the laws.''\12\ In City of 
Boerne v. Flores,\13\ however, the Supreme Court ruled that in 
enacting RFRA Congress had exceeded its enforcement authority 
under Section 5 of the Fourteenth Amendment.
    \12\ U.S. Const. amend. XIV.
    \13\ 521 U.S. 507 (1997).
    In Boerne, the Archbishop of San Antonio granted permission 
to St. Peter Catholic Church, located in the Boerne, Texas, to 
meet the needs of its growing congregation by enlarging its 
existing mission-style structure, built in 1923. Subsequently, 
the Boerne City Council approved an ordinance that required the 
approval of a Historic Landmark Commission prior to any 
construction that would affect historic landmarks or buildings 
located within a historic district. Upon the Archbishop's 
application, city authorities denied the permit and 
retroactively changed the boundaries of the historic district 
to include the church. The Archbishop then filed suit in 
federal court, relying upon RFRA to challenge the permit 
denial. The district court held that Congress exceeded its 
Section 5 enforcement power but the United States Court of 
Appeals for the Fifth Circuit reversed, holding that the 
statute was constitutional.
    The Supreme Court reversed. In an opinion by Justice 
Kennedy, the Court ruled that, while Congress has the power to 
enact legislation ``enforcing'' the constitutional right to the 
free exercise of religion under Section 5 of the Fourteenth 
Amendment, its Section 5 power is limited to enacting laws that 
will remedy violations of the free exercise clause as the Court 
has interpreted it.\14\ Such power exists where Congress has 
``reason to believe that many of the laws affected by the 
congressional enactment have a significant likelihood of being 
unconstitutional.'' \15\ Congress lacks, however, the authority 
to decree the substance of the Fourteenth Amendment, and thus 
cannot legitimately determine on its own what substantive 
rights are protected by it.\16\ In the view of the Court, 
RFRA's legislative record lacked sufficient evidence of 
discriminatory laws.\17\ Thus, ``RFRA is so out of proportion 
to a supposed remedial or preventive object that it cannot be 
understood as responsive to, or designed to prevent, 
unconstitutional behavior.'' \18\ The Court concluded that RFRA 
violated venerable principles of federalism because it subjects 
state laws to the most demanding test of scrutiny in 
constitutional law, even if those laws did not violate the free 
exercise clause. This, the Boerne majority said, ``would 
require searching judicial scrutiny of state law with the 
attendant likelihood of invalidation. This is a considerable 
congressional intrusion into the States' traditional 
prerogatives and general authority to regulate for the health 
and welfare of their citizens.'' \19\ The Supreme Court also 
regarded RFRA as contradicting the principle of separation of 
    \14\ See Boerne, 521 U.S. at 519 (citing South Carolina v. 
Katzenbach, 383 U.S. 301, 326 (1966)).
    \15\ Boerne, 521 U.S. at 532.
    \16\ Boerne, 521 U.S. at 532. Commentators have criticized this 
important element of the Boerne holding. For example, as Professor 
McConnell explains, ``[t]he historical record shows that the framers of 
the [Fourteenth] Amendment expected Congress, not the Court, to be the 
primary agent of its enforcement, and that Congress would not 
necessarily consider itself bound by Court precedents in executing that 
function.'' Michael W. McConnell, Institutions and Interpretation: A 
Critique of City of Boerne v. Flores, 111 Harv. L. Rev, 153, 194 
(1997). See also Religious Liberty Protection Act: Hearing on H.R. 1691 
before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong. (May 12, 1999) (statement of Dr. Richard D. 
Land, President-Treasurer, Ethics and Religious Liberty Commission) 
(stating that the Boerne Court ``incorrectly focused on the issue of 
whose right it is to interpret the Constitution. From the Supreme 
Court's perspective, it was a turf war.'').
    \17\ Boerne, 521 U.S. at 530.
    \18\ Boerne, 521 U.S. at 532.
    \19\ Boerne, 521 U.S. at 534.
    \20\ The opinion appears to reinforce a broad role for courts in 
exercising their constitutional function. See Religious Liberty 
Protection Act: Hearing on H.R. 4019 Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 105th Cong. (June 16, 
1998) (statement of W. Cole Durham Jr., Professor, J. Reuben Clark Law 
School, Brigham Young University) <<
durham.htm>> [hereinafter Durham Testimony] (asserting that Boerne 
diminished the legislative role for protection of religious liberty). 
Justice Scalia's concurrence, in which he responds to the historical 
evidence offered in Justice O'Connor's dissent to cast doubt on the 
Smith rule, appears, however, to suggest a broader role for legislative 

      Who can possibly be against the abstract proposition that 
      government should not, even in its general, 
      nondiscriminatory laws, place unreasonable burdens upon 
      religious practice? Unfortunately, the abstract proposition 
      must ultimately be reduced to concrete cases. The issue 
      presented by Smith is, quite simply, whether the people, 
      through their elected representatives, or rather this 
      Court, shall control the outcome of those concrete cases. . 
      . . The historical evidence put forward by the dissent does 
      nothing to undermine the conclusion we reached in Smith: It 
      shall be the people.

Boerne, 521 U.S. at 544 (Scalia, J., concurring).
    As Professor McConnell argues, however:

        The oddity, of course, is that RFRA was enacted by the 
      elected representatives of the people. In declaring RFRA 
      unconstitutional, the Boerne Court overturned the will of 
      the people' in the name of protecting their democratic 
      voice from undue interference by the judiciary. Justice 
      Scalia's democratic rhetoric thus seems at cross-purposes 
      with his conclusion.

McConnell, Institutions and Interpretation, 111 Harv.L.Rev. at 168.

Impact of the Smith and Boerne Decisions

    Following the Boerne decision, the Subcommittee on the 
Constitution conducted several hearings to assess the need for 
federal protection of religious freedom. The cases presented in 
oral and written testimony before the Subcommittee involved 
government action which either requires violation of religious 
beliefs or practices or which restricts the fulfillment of 
religious beliefs or practices.\21\ For an illustration of the 
types of cases presented,\22\ consider the following: \23\
    \21\ Testimony regarding cases in the area of land use and zoning 
will be described in more detail below in the section devoted to H.R. 
1691's land use provision.
    \22\ Several witnesses made the point that state and local 
governments have taken the message of Smith to be that they never have 
to make exemptions for religious believers, and can therefore simply 
refuse to respond to their requests. Because RFRA gave citizens a 
potentially viable claim, officials had a reason to engage in 
discussions with potential claimants which often resulted in mutually 
acceptable solutions. The Need for Federal Protection of Religious 
Freedom after Boerne v. Flores, II, 1997: Oversight Hearings Before the 
Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th 
Cong. (March 26, 1998)(statement of Mark Chopko, General Counsel, U.S. 
Catholic Conference) <> 
[hereinafter Chopko Testimony] (accord statement of Mark Stern, 
Director, Legal Department, American Jewish Congress) <> [hereinafter Stern Testimony, 
March 26, 1998).
    \23\ These anecdotes explain why the issue has come to the 
attention of Congress. Elsewhere in the Report, we discuss the sources 
of Congressional power to address the problems illustrated by these 
    Testimony included instances where government action 
thwarts the fulfillment of religious sacraments. During the 
years that RFRA was still valid law, the Ninth Circuit found 
that RFRA had been violated when prison personnel deliberately 
intercepted confessional communication.\24\ According to the 
testimony of Mark Chopko, General Counsel to the U.S. Catholic 
Conference, absent this legal protection, it is debatable 
whether a prison regulation dictating that all conversations 
between prisoners and visitors be intercepted would have to 
exempt religious communications.\25\ The strict confidentiality 
of communications between priest and penitent, required by the 
Catholic church, has come under strong attack, with litigants 
attempting to discover sacred confessional information for use 
in civil lawsuits.\26\
    \24\ See Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).
    \25\ Chopko Testimony.
    \26\ See Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992); Scott v. 
Hammock, 870 P.2d 947 (Utah 1994). See Religious Liberty Protection 
Act: Hearings on H.R. 1691 Before the Subcomm. on the Constitution of 
the House Comm. on the Judiciary, 106th Cong. (May 12, 1999) (statement 
of Von Keetch, Counsel, Church of Jesus Christ of Latter-Day 
Saints)<> [hereinafter 
Keetch Testimony, May 12, 1999].
    Other testimony described religious dietary laws 
conflicting with government regulations or practices. The 
testimony of Marc Stern of the American Jewish Congress 
included a case where the director of an Immigration and 
Naturalization Service detention facility refused to provide 
detainees--some of whom were seeking asylum for religious 
persecution--pork-free diets. Only when President Clinton 
ordered federal officials to comply with RFRA after being 
threatened with a lawsuit did the manager agree to provide a 
pork-free diet.\27\ In Michigan, prison officials refuse to 
purchase matzo, the unleavened bread required to be eaten by 
Jews on Passover, essentially forcing all Jewish inmates to 
violate their sacred religious practices. One Jewish 
organization has offered to donate and ship matzo to meet the 
prisoners' needs during Passover, but the officials have 
refused even the donated matzo.\28\
    \27\ Stern Testimony, March 26, 1998.
    \28\ The Need for Federal Protection of Religious Freedom After 
Boerne v. Flores, II: Hearing Before the Subcomm. on the Constitution 
of the House Comm. on the Judiciary, 105th Cong. (March 26, 
1998)(statement of Isaac M. Jaroslawicz, Director of Legal Affairs for 
Aleph Institute) <> 
[hereinafter Jaroslawicz Testimony].
    Religious clothing formed the basis for a number of cases 
presented to the Subcommittee. Testimony included a case about 
a school district in South Carolina that banned the wearing of 
hats in school. The regulation prevented an Orthodox Jewish 
student from wearing a yarmulke in school as his religion 
requires. Only when advised of the possibility of a lawsuit 
under RFRA did the school board accommodate the student.\29\
    \29\ Jaroslawicz Testimony.
    Another case illustrating this conflict involved the 
Illinois Athletic Association's requirement that basketball 
players play bare-headed, precluding any Orthodox Jewish boys 
from participating due to their religious obligation to wear 
yarmulkes. The league defended its rule on grounds of safety, 
contending that if players wore hats, the hats might fall off 
and cause other players to trip. When an Orthodox school sought 
to play in the league and have its students wear yarmulkes, its 
request was denied. The school offered to make the boys attach 
the yarmulkes to their hair with clips so that they would not 
fall off. Because this was a pre-Smith case, the Seventh 
Circuit held that this alternative had to be explored. Without 
the strict scrutiny standard, the government could completely 
ignore the Orthodox school's position, given that the 
regulation at issue is facially neutral.\30\
    \30\ Id.
    Testimony included descriptions of numerous conflicts 
between laws and religious obligations and practices. In New 
York, adult children with strong religious convictions about 
caring for their ailing parents are prohibited from 
volunteering to assist with their elderly parents housed in 
government-regulated nursing homes.\31\ This prevents them from 
fulfilling their understanding of the requirements of the 
Biblical commandment to honor their father and mother.
    \31\ Keetch Testimony, May 12, 1999. See Greater New York Health 
Care Facilities v. Axelrod, 770 F. Supp. 183 (S.D.N.Y. 1991).
    Elsewhere, local governments have attempted to interfere 
with, or altogether eliminate, the proselytizing by Church 
missionaries through so-called ``generally applicable'' laws 
that place severe restrictions on the times and places that 
missionaries may contact door-to-door. In the span of a year 
alone, local officials have attempted to curtail church 
proselytizing in such jurisdictions as Mundelein, Illinois; 
Dover, New Jersey; Flemington, New Jersey; Chester, 
Connecticut; Valencia, California; Media, Pennsylvania; Downers 
Grove, Illinois; Marin County, California; and Seven Hills, 
Ohio.\32\ In Miami, an Orthodox Jewish rabbi was threatened 
with criminal prosecution for leading morning and evening 
prayers in a converted garage in one of Miami's single-family 
residential areas. The U.S. Court of Appeals for the Eleventh 
Circuit held that, in this post-Smith world, the city's 
interest in an exception-free zoning plan outweighed the 
rabbi's interest because the services ``are not integral to 
[his] faith.'' \33\
    \32\ Keetch Testimony, May 12, 1999.
    \33\ The Need for Federal Protection of Religious Freedom After 
Boerne v. Flores, II: Hearing Before the Subcomm. on the Constitution 
of the House Comm. on the Judiciary, 105th Cong. (March 26, 1998) 
(statement of Steve McFarland, Director, Center for Law and Religious 
Freedom) <> [hereinafter 
McFarland Testimony, March 26, 1998].
    Government officials in Arapahoe County, Colorado, enforced 
specific numerical restrictions on the number of students that 
may be enrolled in religious schools, and indeed, on the number 
of persons in congregations of various churches, as a way of 
limiting growth.\34\ In Douglas County, Colorado, 
administrative officials proposed restricting the operational 
hours of a church the same way they do any ``commercial'' 
facility.\35\ Limiting its operational hours means that a 
church could not lawfully engage in any act of service or 
devotion during those forbidden hours--not even devotions such 
as prayer vigils, which attract no crowd .\36\
    \34\ Chopko Testimony.
    \35\ Id.
    \36\Id. One such act of devotion performed in Catholic Churches is 
known as the Perpetual Adoration of the Blessed Sacrament. This 
requires that the Blessed Sacrament in the Church never be left 
unattended, necessitating 24-hour access to the Church by parishioners.
    Throughout the country, religious student groups or clubs 
are denied access to campus ministry space if they require that 
their student leaders share their particular religious beliefs. 
Many campuses deny official charter status altogether to any 
group that selects its leadership based on religion. This means 
that the chapter cannot use campus resources available to all 
other secular groups, meet on campus, use campus media to 
announce their activities, or distribute literature to their 
peers. Legal battles over this issue have occurred at 
University of Arizona, University of Minnesota, University of 
Kansas, University of Toledo, Texas Institute of Technology, 
Johnson State University (VT), California State University--
Monterey Bay, and Georgia Institute of Technology.\37\ 
Testimony also included a case in New York where a school 
district allows only secular community groups to rent school 
facilities on weekends, but denies religious-oriented community 
groups the opportunity to rent the facilities for worship or 
religious instruction.\38\
    \37\ Religious Liberty Protection Act: Hearing on H.R. 4019 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
105th Cong. (July 14, 1998) (statement of Steve McFarland, Director, 
Center for Law and Religious Freedom) [hereinafter McFarland Testimony, 
July 14, 1998].
    \38\ McFarland Testimony, July 14, 1998 (citing Bronx Household of 
Faith v. Community Sch. Dist., 127 F.3d 207 (2d Cir. 1997), cert. 
denied 118 S.Ct. 1517 (1998).
    Testimony addressed a range of government laws and policies 
mandating activities contrary to religious convictions. The 
United States Court of Appeals for the First Circuit rejected a 
Free Exercise claim brought by parents who objected on 
religious grounds to their child's participation in a 
government school program conducted by ``Hot, Sexy, and Safer 
Productions.'' \39\ During the program the presenter engaged in 
a variety of sexually explicit activities in front of the 
students, including simulating masturbation, using profanity, 
telling one minor he had a ``nice butt,'' and referring to 
``anal sex.'' \40\ The court rejected the parents' free 
exercise claim, questioning ``whether the Free Exercise Clause 
even applies to public education,'' \41\ and finding that the 
free exercise claim was not conjoined to any other 
constitutional right in order to qualify for Smith's ``hybrid'' 
    \39\ See Brown v. Hot, Sexy, and Safer Prods., Inc., 68 F.3d 525 
(1st Cir. 1995).
    \40\ See id. at 529.
    \41\ Id. at 536.
    \42\ See id. at 539.
    In Maryland, a Catholic hospital was denied government 
accreditation because of its religiously-based refusal to 
instruct its medical residents on the performance of 
abortion.\43\ Mr. Chopko testified that, in some cases, if 
church employers are to provide adequate insurance for their 
employees, the government requires them to provide a full 
panoply of medical services, including abortion, which some 
churches unequivocally condemn.\44\
    \43\ See St. Agnes Hospital v. Riddick, 748 F. Supp. 319 (D. MD. 
1990)); Keetch Testimony, May 12, 1999. Alarmingly, the District Court 
in St. Agnes found a compelling government interest in requiring the 
Catholic hospital to teach abortion.
    \44\ Chopko Testimony.
    Other testimony described the case of a Jewish man killed 
on a commuter train by another train coming from the opposite 
direction. The coroner insisted on an autopsy as the condition 
to certifying the cause of death. The family of the deceased 
strongly objected, on religious grounds, to the performance of 
an autopsy. The family offered to agree to other, non-
destructive, medical examinations of the body as a compromise, 
but the coroner rejected this. Only after a RFRA lawsuit was 
contemplated did the state attorney general advise the coroner 
to accommodate the request.\45\ One district court held that a 
medically unnecessary autopsy of a young Hmong man did not 
constitute a violation of the Free Exercise Clause, despite the 
religiously-based belief of his family that the autopsy 
condemned the spirit of the deceased. The court had originally 
ruled in favor of the family, but after Smith, felt compelled 
to reverse its earlier ruling.\46\
    \45\ Stern Testimony, March 26, 1998.
    \46\ Keetch Testimony, May 12, 1999.
    The Subcommittee also heard testimony about a case 
involving a family's religious conviction regarding the taking 
of interest. A Muslim child won a court judgment for injuries 
which left him physically and mentally handicapped. The child's 
lawyer sought to invest the judgment in an interest-bearing 
account as required by state law. The parents objected, since 
their religious beliefs forbade the taking of interest. The 
judge ordered the parties to show cause why the lawyer should 
not be appointed guardian with the obligation, over the 
parents' objections, to invest the monies in an interest 
bearing account. While there are financial arrangements that 
would provide the same ``return'' but would not violate the 
parents' faith, the state law did not permit an accommodation 
of this sort.\47\
    \47\ Stern Testimony, March 26, 1998.

The Religious Liberty Protection Act

    The Religious Liberty Protection Act of 1998 was introduced 
in the House on May 5, 1999. Mindful of the limitations 
enunciated by the Court in Boerne, H.R. 1691 employs well 
settled sources of Congressional authority for the protection 
of religious exercise. After the Boerne decision, the power of 
Congress in the area of religious liberty is limited to the 
spending power, regulating interstate commerce, and remedying 
state infringements on due process, equal protection, or the 
privileges and immunities of citizenship. H.R. 1691 employs all 
of these remaining avenues of established Congressional 
    \48\ In addition, H.R. 1691 clarifies that RFRA applies to federal 
law, policies, property, and employees. This clarification is 
appropriate given that the Supreme Court in Boerne held RFRA 
unconstitutional only as applied to actions of state and local 
governments. See Florida Prepaid Postsecondary Education Expense Board 
v. College Savings Bank, 1999 WL 412723, *7 (U.S., June 23, 
1999)(stating that Boerne invalidated RFRA ``insofar as RFRA was made 
applicable to the states); In re Young, 141 F.3d 854 (8th 
Cir.)(upholding RFRA as applied to federal laws), cert. denied 
Christians v. Crystal Evangelical Free Church, 119 S.Ct. 43 (1998).
    While the means used by H.R. 1691 are different from those 
used by RFRA, the ends of each Act are the same: to restore the 
requirement that courts examine substantial government burdens 
on the exercise of religion to determine whether the offending 
state action is the ``least restrictive'' means of furthering a 
``compelling'' governmental interest. To trigger a claim under 
H.R. 1691, a religious person or organization must first 
demonstrate that the government has ``substantially 
burden[ed]'' religious exercise. The modifier ``substantially'' 
is intended to ensure that strict scrutiny is not triggered by 
trivial, technical, or de minimus burdens on religious 
exercise. While both Acts employ a ``substantial burden'' 
threshold, H.R. 1691 clarifies that the burdened religious 
activity need not be compulsory or central to a religious 
belief system as a condition for the claim.\49\
    \49\ One issue raised during the Subcommittee Markup was whether a 
business corporation could make a claim under H.R. 1691. The 
requirement of H.R. 1691 that the claimant demonstrate a substantial 
burden on religious exercise is equally applicable whether a claimant 
is a natural person or a corporation. Most corporations are not engaged 
in the exercise of religion, but religious believers, such as people in 
the Kosher slaughter business, should not be precluded from bringing a 
claim under H.R. 1691 simply because they incorporated their activities 
pursuant to existing law.
    To defeat a religious claim under H.R. 1691's compelling 
interest/strict scrutiny test, the government must not merely 
show a compelling government interest, but must show that its 
refusal to grant an exemption or accommodation for religious 
claimants is in furtherance of that compelling government 
    Some discussion in the Committee process was motivated by a 
concern that H.R. 1691 will ``trump'' certain civil rights 
laws. H.R. 1691's purpose is to protect religious liberty, one 
of the most fundamental of ``civil rights.'' The question 
should not be H.R. 1691's effect on ``civil rights,'' but how 
to resolve the inevitable conflicts between the exercise of one 
civil right, in this case religious liberty, and other civil 
rights.\50\ H.R. 1691 imposes a standard of review, not an 
outcome, and cases are litigated on real facts before the 
court. Thus, it is difficult in some hypothetical cases to 
predict with certainty which interests will prevail. One thing, 
however, is certain: Without H.R. 1691, the free exercise 
claimant, burdened by a law of general application, will very 
nearly always lose.
    \50\ With respect to claims of racial discrimination, the 
government's interest is compelling. See Bob Jones Univ. v. United 
States, 461 U.S. 574, 604 (1983) (holding that the government's 
``compelling'' and ``overriding interest in eradicating racial 
discrimination in education . . . substantially outweighs whatever 
burden denial of tax benefits places on petitioners' exercise of their 
religious beliefs''). As Steven T. McFarland of the Center for Law and 
Religious Freedom testified during a Subcommittee hearing on July 14, 
1998, ``the general standard of compelling government interest . . . 
has no difficulty being met in the area of racial discrimination.'' 
McFarland Testimony, July 14, 1998.
    With respect to claims of discrimination on the basis of 
sex, Steven K. Green, Legal Director of Americans United for 
Separation of Church and State, states that, ``in most 
conflicts involving individual religious claimants, the 
antidiscrimination laws will probably prevail.'' Religious 
Liberty Protection Act: Hearing on H.R. 4019 Before the 
Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 105th Cong. (July 14, 1998) (statement of Dr. Steven 
K. Green, Legal Director, Americans United for Separation of 
Church and State) <> 
[hereinafter Green Testimony]. A H.R. 1691 claim would likely 
prevail over a sex discrimination claim in the context of the 
clergy, according to Professor Doug Laycock of the University 
of Texas Law School. Id. (statement of Douglas Laycock, 
Professor, University of Texas Law School) [hereinafter Laycock 
Testimony, July 14, 1998]. Such a result seems to be a 
reasonable balancing of the state's interest in eradicating 
sexual discrimination against the liberty of many religions to 
adhere to centuries-old practices regarding the ordination of 
    There have also been several cases in which a RLPA-type 
defense was raised in response to claims by unmarried 
cohabitants of discrimination in housing based on marital 
status. The courts are split on this issue. Some hold in favor 
of the religious liberty claimant. See Thomas v. Municipality 
of Anchorage, 165 F.3d 692, 714 (9th Cir. 1999) (holding that 
government has no compelling interest in eradicating marital 
status discrimination); Cooper v. French, 460 N.W.2d 2, 6-7, 
10-11 (Minn. 1990) (holding that marital status does not 
include unmarried cohabitation; plurality holding that the 
government has no compelling interest in eradicating marital 
status discrimination). Others hold in favor of the unmarried 
cohabitants. See McCready v. Hoffius, 586 N.W.2d 723 (Mich. 
1998) (finding state's interest in providing equal access to 
housing compelling and uniform application of law the least 
restrictive means of serving that interest), vacated in part, 
1999 WL 226862 (Mich. April 16, 1999); Swanner v. Anchorage 
Equal Rights Commission, 874 P.2d 274 (Alaska 1994) (holding 
that granting religious liberty claimant an exemption would 
thwart the state's interest in eradicating marital status 
discrimination); Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. 
App. Ct. 1997) (finding state's interest in providing equal 
access to housing compelling and uniform application of law the 
least restrictive means of serving that interest), vacated, 685 
N.E.2d 622 (Ill. 1997).
    It is useful to examine in some detail the application and 
effect of the substantive provisions of H.R. 1691.
            Spending clause provision
    H.R. 1691 applies to programs or activities operated by a 
government and which receive federal financial assistance. It 
does not apply to private-sector grantees, unless they are 
acting under color of state law and the government retains 
sufficient control that ``the alleged infringement of federal 
rights [is] ``fairly attributable to the State.' ''\51\ This 
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,\52\ and Title IX of the Education Amendments 
of 1972, which forbids sex discrimination in federally assisted 
educational programs.\53\ Congressional power to attach 
conditions to federal spending has been consistently upheld 
since Steward Machine Co. v. Davis.\54\ Conditions on federal 
grants must be ``[]related to the federal interest in 
particular national projects or programs.''\55\ Under H.R. 
1691, federal aid to one program does not demand compliance in 
other programs; the bill's protections are properly confined to 
each federally assisted ``program or activity.''
    \51\ See Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
    \52\ 42 U.S.C. Sec. 2000d (1994).
    \53\ 20 U.S.C. Sec. 1681 (1994).
    \54\ 301 U.S. 548 (1937).
    \55\ South Dakota v. Dole, 483 U.S. 203, 207 (1987).
    H.R. 1691 protects the religious exercise of beneficiaries 
of state and local programs that are federally subsidized or 
assisted from most government interference. H.R. 1691 would 
make it more difficult for the government to sustain, for 
example, a state requirement that welfare-to-work recipients 
attend training classes on Sunday, a public school's refusal to 
excuse religious students from sexually explicit contraception 
programs, and a public medical school's rejection of an 
applicant due to her religious objection to performing 
abortions. H.R. 1691 would protect the religious liberty of 
students and faculty in public schools and universities, job 
trainees, welfare recipients, tenants in public housing, and 
participants in many other federally-assisted but state-
administered programs. H.R. 1691 would provide a cause of 
action where an individual is 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.
            Commerce clause provision
    H.R. 1691 relies on Congress' power to regulate commerce 
among the States\56\ and includes a jurisdictional element to 
be proven in claims resting on this power.\57\ Specifically, 
H.R. 1691 states that ``a government shall not substantially 
burden a person's religious exercise in any case in which the 
substantial burden on the person's religious exercise affects, 
or in which a removal of that substantial burden would affect, 
commerce with foreign nations, among the several states or with 
Indian Tribes.'' H.R. 1691 would make it more difficult for the 
government to, for example, deny a Catholic hospital 
accreditation for refusing to instruct residents on how to 
perform abortions, or prohibit a Jewish day school from 
requiring its teachers to be of the same faith. H.R. 1691 
provides a claim where an individual is denied an occupational 
license or a driver's license because of a religious practice.
    \56\ U.S. Const. Art. I Sec. 8.
    \57\ One objection raised to the use of the commerce clause is 
motivated by a generalized concern over the legitimacy of invoking the 
commerce clause of the U.S. Constitution as authority for the 
legislation. This objection is based on a narrow reading of the 
commerce clause that has long been rejected by the Supreme Court. A 
wide range of federal laws have relied upon the commerce clause as 
constitutional authority. The Federal Fair Labor Standards Act, which 
set minimum wage and maximum working hours for employees, has been 
upheld by the Supreme Court as a valid exercise of the federal Commerce 
Power. See United States v. Darby, 312 U.S. 100 (1941). The Court's 
contemporary reading of the Commerce Clause has also been invoked as 
constitutional authority for numerous federal criminal laws, including 
those prohibiting the possession of a firearm that has been transported 
in interstate commerce, see 18 U.S.C. Sec. Sec. 921-928, and 
prohibiting extortionate credit transactions or ``loan sharking,'' see 
18 U.S.C. Sec. Sec. 891 et seq. Congress has repeatedly used the 
commerce power as the basis for effective legislation to protect civil 
rights. H.R. 1691 simply follows that tradition. For example, Title II 
of the Civil Rights Act of 1964, which prohibits racial discrimination 
in places of public accommodation, was based on Congress' power to 
regulate commerce. That provision has been upheld by the Supreme Court 
as applied to hotels, see Heart of Atlanta Motel, Inc. v. United 
States, 379 U.S. 241 (1964); restaurants, see Katzenbach v. McClung, 
379 U.S. 294 (1964); and public recreational facilities, see Daniel v. 
Paul, 395 U.S. 298 (1969). Similarly, the Age Discrimination in 
Employment Act, which prohibits discrimination in employment on the 
basis of age, has been upheld by the Supreme Court as a valid exercise 
of Congress' power to regulate commerce. See Equal Employment 
Opportunity Comm'n v. Wyoming, 460 U.S. 226 (1983).
    The commerce provision of H.R.1691 provides as an element 
of the claim that the burden on religious exercise or the 
removal of that burden must affect commerce. Thus, H.R. 1691 
protects only as much religious exercise as Congress is 
constitutionally empowered to protect. The provision is 
tautologically constitutional: to the extent that the commerce 
power reaches some burdens on religious exercise, the bill will 
protect the religious exercise; to the extent that it does not 
reach the burden on religious exercise, the bill will not reach 
that far. H.R. 1691 thus does not raise the constitutional 
problems associated with the Gun Free Schools Act,\58\ which 
was invalidated in United States v. Lopez.\59\
    \58\ 18 U.S.C. Sec. 922 (1994).
    \59\ 514 U.S. 549 (1995).
    In Lopez, the Court invalidated the Gun Free Schools Act 
(the Act) because it was ``a criminal statute that by its terms 
has nothing to do with `commerce' or any sort of economic 
enterprise.''\60\ The Court stressed that because the Act 
``contains no jurisdictional element which would ensure, 
through case-by-case inquiry, that the firearm possession in 
question affects interstate commerce,'' the Act was 
unconstitutional.\61\ The Court distinguished the Act from 
another federal firearm statute which it had previously upheld, 
18 U.S.C. Sec. 1202(a), which made it a crime for a felon to 
``posses[s], or transpor[t] in commerce . . . any 
firearm.''\62\ The Lopez Court found it significant that 
``[t]he Court [in Bass] interpreted the possession component of 
[the firearm statute] to require an additional nexus to 
interestate commerce,'' and thus upheld 18 U.S.C. 
Sec. 1202(a).\63\ The Lopez Court stated that, ``[u]nlike the 
statute in Bass, [the Act] has no express jurisdictional 
element which might limit its reach to a discrete set of 
firearm possessions that additionally have an explicit 
connection with or effect on interstate commerce.''\64\ H.R. 
1691, in line with the requirement articulated in Lopez, 
includes an express jurisdictional element, and would require a 
case-by-case analysis of the affect on interstate commerce.\65\
    \60\ Id. at 561.
    \61\ Id.
    \62\ United States v. Bass, 404 U.S. 336 (1971).
    \63\ Lopez, 514 U.S. at 562.
    \64\ Id.
    \65\ There are many ways in which religious activities, whether 
engaged in by individuals or institutions, might affect commerce. For 
example, according to Marc Stern of the American Jewish Congress, 
``many activities of religious not-for-profit corporations come within 
the Commerce Clause,'' including purchasing and providing goods and 
services. See Religious Liberty Protection Act: Hearings on H.R. 4019 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 105th Cong. (June 16, 1998) (statement of Marc D. Stern, 
Director, Legal Department, American Jewish Congress) [hereinafter 
Stern Testimony, June 16, 1998] (citing Camps Newfound/Owatanna v. Town 
of Harrison, 117 S. Ct. 1590 (1997)). In Camps Newfound, the Supreme 
Court concluded that religious camps in Maine were ``unquestionably 
engaged in commerce, not only as a purchaser, but also as a provider of 
goods and services.'' 117 S. Ct. at 1596 (citations omitted). See also 
United States v. Rea, 169 F.3d 1111 (8th Cir. 1999)(upholding federal 
prosecution under the commerce power for arson of a church). Mr. Stern 
also noted that under the Supreme Court's Commerce Clause 
jurisprudence, ``the cumulative effects of small-scale economic 
activity can bring an activity within the Commerce Clause.'' Stern 
Testimony, June 16, 1998; see Hodel v. Virginia Surface Mining Ass'n, 
452 U.S. 264, 277 (1981) (``[E]ven activity that is purely intrastate 
in character may be regulated by Congress, where the activity, combined 
with like conduct by others similarly situated, affects commerce among 
the States or with foreign nations.'') (internal quotation marks 
omitted); Lopez, 514 U.S. at 556; and Wickard v. Filburn, 317 U.S. 111, 
127-28 (1942). See also 18 U.S.C. Sec. 247 (1994 and Supp. II).
            Section 5, Fourteenth Amendment land use provision
    H.R. 1691 follows the Supreme Court's directive in Boerne 
to aim legislation under Section 5 of the 14th Amendment at 
certain laws where there is a significant likelihood of 
unconstitutionality.\66\ Local land use regulation, which lacks 
objective, generally applicable standards, and instead relies 
on discretionary, individualized determinations, presents a 
problem that Congress has closely scrutinized and found to 
warrant remedial measures under its Section 5 enforcement 
authority. A detailed description of how land use regulations 
substantially burden religious exercise follows the explanation 
of H.R. 1691's land use provisions.
    \66\ See Boerne, 521 U.S. at 532.
    Section 3(b)(1)(A) specifically targets the established 
evidence of discriminatory land use regulations based on 
Congress' remedial power under Section 5 of the 14th Amendment, 
pursuant to the Court's directive in Boerne,\67\ and tracks the 
Smith opinion's explanation that, where governmental bodies 
possess authority to make ``individualized assessments'' of the 
reasons for certain conduct, those bodies may not substantially 
burden a person's free exercise activities without a compelling 
interest.\68\ Section 3(b)(1)(A) advances this very 
proposition, requiring a compelling state interest ``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,'' and 
thus protects free exercise as interpreted by the Smith Court.
    \67\ See Boerne, 521 U.S. 507 (1997) (holding that Congress must 
accept Court's interpretation of constitutional right that Congress 
means to enforce).
    \68\ Smith, 494 U.S. at 884.
    The Court in Boerne explained that Congress's enforcement 
power under Section 5 of the 14th Amendment is a remedial power 
and may not be used to alter an interpretation of substantive 
law made by the Supreme Court.\69\ Statistical and anecdotal 
evidence strongly indicates a pattern of abusive and 
discriminatory actions by land use authorities who have imposed 
substantial burdens on religious exercise. Accordingly, the 
land use subsections of H.R. 1691 require these authorities to 
meet the strict scrutiny standard to justify their actions. In 
remedying the problems that land use regulations have posed for 
religious individuals and organizations attempting to exercise 
First Amendment rights, H.R. 1691 carefully follows the Boerne 
Court's interpretation of Section 5 and operates as precisely 
the type of ``enforcement'' that the Boerne Court invited.
    \69\ Boerne, 521 U.S. at 532.
    Other subsections in 3(b)(1) remedy substantial burdens 
caused by certain specific land use regulation schemes as 
demonstrated by extensive testimony. The remedies for these 
burdens are different from the strict scrutiny test of 
subsection 3(b)(1)(A). Subsection 3(b)(1)(B) seeks to prevent a 
municipal zoning authority from treating houses of worship, 
scripture studies in homes, and religious schools in a manner 
less favorably than nonreligious assemblies.
    Subsection 3(b)(1)(C) prohibits land use regulations from 
discriminating against an assembly or institution on the basis 
of religion or religious denomination. This provision would 
prevent a government from discriminating against houses of 
worship, church schools, home Bible studies or other religious 
gatherings, either because they are religious or because of 
their particular religious viewpoint.
    Subsection 3(b)(1)(D) requires zoning authorities to make 
reasonable provision for religious land use. Under this 
provision, a city cannot ban churches altogether nor 
unreasonably limit the sites where religious schools may 
locate. Reasonableness is a familiar legal standard that relies 
upon the facts and circumstances in each case and jurisdiction.
            Summary of hearing testimony
    Religions are practiced by communities of believers. At the 
very core of religious liberty is the ability to assemble for 
worship. Finding a location for a new church, however, can be 
extremely difficult in the face of pervasive land use 
regulation and the nearly unlimited discretionary power of land 
use authorities. The frustration of this core First Amendment 
right is not limited to certain religions or to certain areas 
of land. Churches, large and small, are unwelcome in suburban 
residential neighborhoods and in commercial districts alike.
    Land use regulations frequently discriminate by design, 
other times by their neutral application, and sometimes by 
both. Hearings before the Subcommittee on the Constitution in 
the 105th and 106th Congresses provide a substantial record of 
evidence indicating a widespread pattern of religious 
discrimination in land use regulation.\70\
    \70\ See Religious Liberty Protection Act: Hearing on H.R. 1691 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong. (May 12, 1999) (statements of Rabbi David 
Saperstein, Director and Counsel, Religious Action Center of Reform 
Judaism) <> [hereinafter 
Saperstein Testimony] (Steven T. McFarland, Director, Center for Law 
and Religious Freedom ) <> 
[hereinafter McFarland Testimony, May 12, 1999]; Laycock Testimony, May 
12, 1999; Keetch Testimony, May 12, 1999; Religious Liberty Protection 
Act: Hearing on H.R. 4019 before the Subcomm. on the Constitution of 
the House Comm. on the Judiciary, 105th Cong. (July 14, 1998) 
(statements of Douglas Laycock, Professor, University of Texas Law 
School) <> (Rev. Elenora 
Giddings Ivory, Director, Washington Office of the Presbyterian Church 
(USA) [hereinafter Ivory Testimony) <>; Shoulson Testimony; Religious Liberty Protection Act: 
Hearing on H.R. 4019 Before the Subcomm. on the Constitution of the 
House Comm. on the Judiciary, 105th Cong. (June 16, 1998) (statement of 
Douglas Laycock, Professor, University of Texas Law School) <>; and John Mauck, land use 
attorney, Mauck, Bellande & Cheely, Chicago, IL <>); Durham Testimony. A well-organized summary of 
this testimony will appear in an article by Prof. Douglas Laycock to be 
published in a forthcoming symposium in the University of California-
Davis Law Review.
    While longstanding churches in residential communities do 
not generally feel threatened by outright removal, attempting 
to locate a new church in a residential neighborhood is 
typically an exercise in futility. The Subcommittee received 
testimony explaining that, unless a church can meet in a single 
house, the only way to build a church in a residential zone is 
to find several adjacent lots that are on the market 
simultaneously, buy them, and tear down the houses--an 
unfeasible strategy on its face.\71\
    \71\ See Religious Liberty Protection Act of 1998, Hearing on H.R. 
4019 Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 105th Cong. (statement of Bruce D. Shoulson, attorney) 
<> [hereinafter cited as 
Shoulson Testimony].
    Commercial districts, therefore, are the only feasible 
avenue for the location of new churches. Land use schemes exist 
permitting churches only in residential areas, which give the 
appearance that regulators are being generous to churches, when 
just the opposite is true.\72\ Other testimony revealed that 
some land use regulations deliberately exclude all new churches 
from an entire city.\73\ One attorney specializing in land use 
litigation testified that it is not uncommon for ordinances to 
establish standards for houses of worship differing from those 
applicable to other places of assembly, such as where they are 
conditional uses or not permitted in any zone.\74\ ``The result 
of these zoning patterns is to foreclose or limit new religious 
groups from moving into a municipality. Established houses of 
worship are protected and new houses of worship and their 
worshipers are kept out.'' \75\
    \72\ See Cornerstone Bible Church v. City of Hastings, 740 F. Supp. 
654, 663 (D. Minn. 1990) (holding that zoning ordinance left open 
``ample alternative channels of communication'' because church could 
locate in residential zones), rev'd in part, on other grounds, 948 F.2d 
464 (8th Cir. 1991); City of Chicago Heights v. Living Word Outreach 
Full Gospel Church and Ministries, Inc., 707 N.E.2d 53, 59 (Ill. App. 
1999) (upholding exclusion of churches from commercial zones in part 
because residential zones were open to churches). Churches face similar 
obstacles from landmarking regulations. See The Need for Federal 
Protection of Religious Freedom and Boerne v. Flores, I, Hearing Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
105th Cong. (1998) (statement of Richard Robb, First Presbyterian 
Church of Ypsilanti, Michigan) <> (describing case where city landmarked a building on lot 
which had been purchased by a church for expansion).
    \73\ See Keetch Testimony (describing Corporation of the Presiding 
Bishop v. Board of Comm'rs, No. 95-1135 (Chancery Ct. Davidson County, 
Tenn., Jan. 27, 1998), where the court found that even though the city 
intended there to be and there was in fact ``no property in the City'' 
where the church locate, ``there was no evidence of discriminatory 
intent directed at the church'').
    \74\ Shoulson Testimony.
    \75\ Id.
    Another zoning expert testified about a survey of twenty-
nine zoning codes from suburban Chicago. In twelve of these 
codes, there was no place where a church could locate without 
the grant of a special use permit.\76\ In ten codes, churches 
could locate as of right only in residential neighborhoods, 
with the attendant problems discussed above.\77\ Some codes 
employed a scheme where churches were authorized to locate in 
specified sites, but those sites happened to be where existing 
churches were already located.\78\ Therefore, twenty-two of the 
twenty-nine suburbs effectively denied churches the right to 
locate except by grant of a special use permit. In other words, 
it was within the complete discretion of land use regulators 
whether these individuals had the ability to assemble for 
worship. ``The zoning board did not have to give a specific 
reason. They can say it is not in the general welfare, or they 
can say that you are taking property off the tax rolls.'' \79\
    \76\ Mauck Testimony.
    \77\ Id.
    \78\ Keetch Statement (describing Corporation of the Presiding 
Bishop v. Board of Comm'rs, No. 95-1135 (Chancery Ct. Davidson County, 
Tenn., Jan. 27, 1998), in which the four existing churches and one 
school were zoned ER--Educational and Religious Zone); 1999 House 
Hearing, supra note 53 (statement of Douglas Laycock, <>) (describing Morning Star 
Christian Church v. City of Rolling Hills Estates, Cal. (pending in the 
Superior Court of the County of Los Angeles), in which city created 
``Institutional Zone'' that included only existing churches, and barred 
churches even on special use permit from all other zones).
    \79\ Mauck Testimony.
    Significantly, non-religious assemblies need not follow the 
same rules. This survey revealed that uses such as banquet 
halls, clubs, community centers, funeral parlors, fraternal 
organizations, health clubs, gyms, places of amusement, 
recreation centers, lodges, libraries, museums, municipal 
buildings, meeting halls, and theaters are often permitted as 
of right in zones where churches require a special use permit, 
or permitted on special use permit where churches are wholly 
excluded.\80\ One explanation suggested for this disparate 
treatment was that local officials may not want non-tax-
generating property taking up space where tax-generating 
property could locate.\81\
    \80\ Mauck Testimony. Every code surveyed treated at least one of 
these uses more favorably than churches, and one treated twelve of such 
uses more favorably. Many business uses are also generally permitted as 
of right without special use permits.
    \81\ See Mauck Testimony (describing case of Cornerstone Community 
Church in Chicago Heights, Illinois, where the city preferred that an 
old department store building remain vacant rather than approve the use 
by a church because of the opportunity to approve a tax-generating 
    Regulators typically have virtually unlimited discretion in 
granting or denying permits for land use and in other aspects 
of implementing zoning laws. In fact, the Subcommittee heard 
testimony of repeated cases in Chicago where the City Council 
rezoned an individual parcel of property upon application for a 
special use permit by a church to disqualify the church 
altogether.\82\ In another example, a city issued a building 
permit to a church, and after the church had commenced 
construction on the building, the city revoked the permit on 
the assertion that the city had erred in calculating the number 
of parking spaces its code would require.\83\ This inherent 
uncertainty for churches attempting to locate is exacerbated by 
the fact that, as one witness explained, the church must commit 
to a costly lease or a mortgage to hold the property while it 
litigates in order to have standing.\84\
    \82\ See Ira Iglesia de la Biblia Abierta v. Banks, 129 F.3d 899 
(7th Cir. 1997) (holding alderman protected by absolute legislative 
    \83\ See McFarland Testimony, March 26, 1998.
    \84\ See Mauck Testimony (``[j]udicial remedies are often not 
available. The churches don't have the money, or the municipalities can 
wait them out because a church has a choice of buying a building that 
it can't use or having to carry that expense and pay the mortgage every 
month, if you can get a mortgage, on a building that it can't use, or 
walking away.'') See Love Church v. City of Evanston, 896 F.2d 1082 
(7th Cir. 1990) (holding that church lacked standing to challenge 
zoning restrictions because it did not have a lease on a specific 
property, despite fact that no lease would be granted pending zoning 
    The Subcommittee heard testimony regarding a study 
conducted at Brigham Young University finding that Jews, small 
Christian denominations, and nondenominational churches are 
vastly over represented in reported church zoning cases.\85\ 
The testimony included discussion of a pattern of abuse that 
exists among land use authorities who deny many religious 
groups their right to free exercise, often using mere pretexts 
(such as traffic, safety, or behavioral concerns) to mask the 
actual goal of prohibiting constitutionally protected religious 
activity.\86\ Religious groups accounting for only 9% of the 
population account for 50% of the reported litigation involving 
location of churches, and 34% of the reported litigation 
involving accessory uses at existing churches.\87\ These small 
groups plus unaffiliated and nondenominational churches account 
for 69% of the reported location cases and 51% of the reported 
accessory use cases.\88\ Jews account for only 2% of the 
population, but 20% of the reported location cases and 17% of 
the reported accessory use cases.\89\
    \85\ See Keetch Testimony, May 12, 1999; see also Religious Liberty 
Protection Act of 1998, Hearing Before the Subcomm. on the Constitution 
of the House Comm. on the Judiciary (statement of Prof. W. Cole Durham, 
Brigham Young Univ.) <> 
(discussing study) [hereinafter Brigham Young Study].
    \86\ Durham Testimony. Indeed, as shown by the BYU study, while 
factors other than religious prejudice serve to ``explain some of the 
disparity . . . the differences (among religious groups) are so 
staggering that it is virtually impossible to imagine that religious 
discrimination is not playing a significant role.'' Id. (emphasis 
added). See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 
U.S. 520, 534 (1993) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 696 
(1970) (Harlan, J. concurring) (``[T]he Free Exercise Clause protects 
against government hostility which is masked as well as overt. `The 
Court must survey meticulously the circumstances of governmental 
categories to eliminate, as it were, religious gerrymanders.' ''). See 
also Islamic Center of Mississippi v. City of Starkville, 840 F.2d 293 
(5th Cir. 1988) (reversing a district court holding that no inference 
of discrimination existed where local officials ordered a Muslim group 
to cease worship services in its building, despite the fact that a next 
door residence produced more noise and traffic congestion while serving 
as a worship center for Pentecostal Christians and was not required to 
cease services).
    \87\ See Keetch Testimony.
    \88\ Id.
    \89\ Id.
    In Congressional testimony regarding a survey of the 
efforts of Presbyterian congregations in land use and zoning 
matters, almost half of the cases examined involved no 
generally applicable rule and individualized decision making by 
regulators: 32% of the congregations requiring a land use 
permit reported that ``no clear rules permitted or forbade what 
we wanted to do, and everything was decided based on the 
specifics of this particular case (e.g., variance, waiver, 
special use permit, conditional use permit, amendment to the 
zoning ordinance, etc.)''; \90\ 15% reported that ``even though 
a clear rule seemed to permit or forbid what we wanted to do, 
the land use authority's principal decision involved granting 
exceptions to the rule based on the specifics of this 
particular case.'' \91\ Presbyterian congregations needing a 
land use permit in a span of 5 years, 10%, or roughly 325 to 
400 congregations, reported significant conflict with 
government or neighbors over the land use permit.\92\ 
Significantly, the Brigham Young study discovered only five 
reported cases involving Presbyterian churches,\93\ which 
highlights the great disparity between reported and actual 
cases. The success rate of churches in the relatively few 
reported cases has, in fact, declined.\94\
    \90\ See Religious Liberty Protection Act of 1998: Hearing on 
S.2148 Before the Sen. Comm. on the Judiciary, 105th Cong. (statement 
of Prof. Douglas Laycock, Univ. of Texas) (reporting data from survey 
of Presbyterian congregations [hereinafter Laycock Senate Testimony).
    \91\ Id.
    \92\ See Religious Liberty Protection Act of 1998: Hearing on H.R. 
4019 Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 105th Cong. (June 16, 1998) (testimony of Rev. Eleanora 
Giddings Ivory, Director, Washington Office of the Presbyterian Church 
(U.S.A.) (Presbyterians are a mainline denomination, yet still 
experience problems). 8% reported that government imposed conditions 
that increased the cost of the project by more than 10%. Id.
    \93\ Keetch Statement.
    \94\ See The Need for Federal Protection of Religious Freedom and 
Boerne v. Flores, II: Hearing Before the Subcomm. on the Constitution 
of the House Comm. on the Judiciary, 105th Cong. (statement of Von 
Keetch, Partner, Kirton & McConkie) <> (citing report showing churches winning 71 out of 106 
prior to 1980 and only 48 out of 83 afterwards). See Christian Gospel 
Church v. San Francisco, 896 F.2d 1221 (9th Cir. 1990); Messiah Baptist 
Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988) (upholding 
exclusion of church from agricultural zone); Grosz v. City of Miami 
Beach, 721 F.2d 729 (11th Cir. 1983) (upholding prohibition on prayer 
services in rabbi's residence); Lakewood Congregation of Jehovah's 
Witnesses v. City of Lakewood, 699 F.2d 303, 304 (6th Cir. 1983) 
(upholding exclusion of church from ``residential'' lot on six-lane 
    The statistical and survey-related evidence of religious 
discrimination presented to the Subcommittee was supported by 
persuasive anecdotal evidence. One witness described twenty-one 
cases where cities refused to permit churches to use existing 
buildings that non-religious assemblies had previously 
used.\95\ In three of the most egregious cases, churches 
applied for permits to use a flower shop, a bank, and a 
theater. In each case, upon application for a use permit by the 
church, the land use regulator rezoned each small parcel of 
land into tiny manufacturing zones, rendering the churches non-
permitted uses for these ``zones.'' \96\ Other examples 
included the City of Rockford, Illinois's refusal to allow the 
Family Christian Center to use a former school building; this 
decision was ultimately found to be arbitrary and 
capricious.\97\ Living Word Outreach Full Gospel Church and 
Ministries in Chicago Heights, Illinois was refused the use of 
a Masonic Temple for religious assembly.\98\ Gethsemane Baptist 
in Northlake, Illinois was refused the use of a VFW hall as a 
church hall.\99\ Faith Cathedral Church in Chicago was refused 
the use of a funeral parlor complete with chapel and spacious 
parking.\100\ Vinyard Church in Chicago was refused the use of 
a former theater for religious services.\101\ Evanston Vinyard 
Church in Evanston, Illinois was not allowed to use an office 
building with an auditorium for the purpose of religious 
assembly.\102\ Cornerstone Community Church in Chicago Heights 
was not allowed to use a former department store for religious 
    \95\ See Mauck Testimony.
    \96\ Id
    \97\ See Family Christian Fellowship v. County of Winnebago, 503 
N.E.2d 367 (Ill. App. 1986).
    \98\ See City of Chicago Heights v. Living Word Outreach Full 
Gospel Church and Ministries, Inc., 707 N.E.2d 53 (Ill. App. 1999) 
(finding the denial of the special use permit to be arbitrary and 
    \99\ Mauck Testimony.
    \100\ Id.
    \101\ Id.
    \102\ Id.
    \103\ Id.
    This brash display of religious discrimination is not 
endemic to the State of Illinois. In Forest Hills, Tennessee, a 
Mormon church was denied a permit to use property which had 
formerly been used as a church. The site was in a cluster of 
four large churches near a major intersection--one Methodist, 
one Presbyterian, and two Churches of Christ. When one of the 
churches closed, the Mormon church bought the property and 
applied for its use as a church. The city denied the permit on 
the basis that a temple would not be ``in the best interests of 
and promote the public health, safety, morals, convenience, 
order, prosperity, and general welfare of the City'' and citing 
its desire to have no more churches in the community. The judge 
concluded that the city's decision was ``essentially aesthetic, 
to maintain a `suburban estate character' of the City'' and 
upheld the exclusion.\104\
    \104\ Id.
    Because Orthodox Jews may not use motorized vehicles on the 
Sabbath, they must live within walking distance of a synagogue 
or shul.\105\ It is very easy, therefore, for land use 
regulators to exclude Orthodox Jews from living in a 
neighborhood by excluding their place of worship. The City of 
Los Angeles refused to allow fifty elderly Jews to meet for 
prayer in a house in the large residential neighborhood of 
Hancock Park. The City permitted other places of assembly in 
Hancock Park, including schools, recreational uses, and embassy 
parties, but refused this use because Hancock Park had no place 
of worship and the City did not want to create a precedent for 
    \105\ Shoulson Testimony; Stern Testimony, June 1998.
    \106\ See Need for Federal Protection of Religious Freedom after 
Boerne v. Flores: Oversight Hearings Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 106th Cong. (February 
26, 1998) (statement of Rabbi Chaim Baruch Rubin, Congregation Etz 
Chaim, Los Angeles, California) <>.
    One witness before the Subcommittee testified to having 
handled more than thirty such cases in New Jersey.\107\ He 
explained that land use regulators often refuse permits for 
Orthodox synagogues because they do not have as many parking 
spaces as the city requires for the number of seats.\108\ One 
vivid example of this tactic was the case of the City of 
Cheltenham Township, Pennsylvania, which insisted that a 
synagogue construct the required number of parking spaces 
despite their being virtually unused. When the synagogue 
finally agreed to construct the unneeded parking spaces, the 
city denied the permit anyway, citing the traffic problems that 
would ensue from cars for that much parking.\109\ A related 
example occurred in Long Island, New York, where a bustling 
beach community with busy weekend night activity excluded a 
synagogue on the basis that it would bring traffic on Friday 
    \107\ Shoulson Testimony.
    \108\ Shoulson Testimony; Stern Testimony, June 1998.
    \109\ Orthodox Minhan v. Cheltenham Township Zoning Hearing Board, 
552 A.2d 772, 773 (Pa. Com. 1989).
    \110\ See Stern Testimony, March 1998.
    The Subcommittee also received testimony of overt religious 
bigotry in zoning hearings.\111\ One witness described a 
hearing in which ``an objector turned to the people in the 
audience wearing skull caps and said `Hitler should have killed 
more of you.' '' \112\ In New Jersey, a zoning board invited 
testimony on the effect that substantial Orthodox Jewish 
populations had had on other communities.\113\ Another witness 
discussed a case involving the application for a permit by the 
Family Christian Center, where a neighbor implored, ``Let's 
keep these God damned Pentecostals out of here.'' \114\ This 
sentiment was apparently shared by the judge; although the 
application was for a permit to use an existing school 
building, the judge said from the bench, ``We don't want 
twelve-story prayer towers in Rockford,'' an apparent reference 
to the twelve-story prayer tower at Oral Roberts 
    \111\ Racial or ethnic discrimination may also play a part. One 
witness testified to a case in which the mayor told the city manager to 
deny the permit because ``We don't want Spics in this town.'' The city 
manager who disclosed this statement was fired. Mauck Testimony. He 
described several other cases in which racial motivations involving 
black and Korean churches were evident. Id. (describing Ira Iglesia de 
la Biblia Abierta, Christ Center, Pipe Stream Morning Star Retreat, and 
Korean Central Covenant Church). Wayne, New Jersey denied a permit to a 
black church, after one official opposed the permit on the ground that 
the city would soon look like Patterson, a predominantly African-
American city nearby. Stern Testimony, March 1998. Clifton, New Jersey 
denied permits for a black mosque four times, offering parking concerns 
as the reason, then approved a white church nearby that raised the very 
same parking issues. Id.
    \112\ Shoulson Testimony. See Stern Testimony, March 1998 
(describing anti-Semitic views openly expressed against a Jewish 
proposal that had received land use approval in Ohio).
    \113\ Id.
    \114\ Mauck Testimony.
    \115\ Id.
    This factual record, complete with statistical and 
anecdotal evidence, results in the Committee's finding that 
many exercises of land use regulation are unconstitutional. 
Congress therefore exercises its enforcement power pursuant to 
Sec. 5 of the Fourteenth Amendment as a means of remedying 
these abuses of the First Amendment right to free 
    \116\ See U.S. Const. amend. XIV. See also Boerne, 521 U.S. at 532 
(holding that Congress's Sec. 5 enforcement power requires ``reason to 
believe that many of the laws affected by the congressional enactment 
have a significant likelihood of being unconstitutional.'') (emphasis 
added). Cf. Rous, supra note 8, at 331 (arguing that the Smith rule is 
``untenable in free exercise zoning challenges''); Shelley Ross Saxer, 
Zoning Away First Amendment Rights, 53 Wash. U. J. Urb. & Contemp. L. 1 
(1998) (arguing that land use regulations that burden free exercise 
rights should be treated as prior restraints); McConnell, Institutions 
and Interpretation, supra note 21, at 195 (discussing the ``remedial'' 
understanding of Sec. 5 and arguing that RFRA was the type of 
enforcement legislation that the Fourteenth Amendment envisions).
    Many cities overtly exclude churches, others do so subtly. 
The motive is not always easily discernible, but the result is 
a consistent, widespread pattern of political and governmental 
resistance to a core feature of religious exercise: the ability 
to assemble for worship.
    Several conclusions flow from the land use evidence 
gathered by the Subcommittee:
    Some land use regulations are designed to exclude churches, 
other regulations are in fact implemented to exclude churches. 
Many zoning schemes around the country make it illegal to start 
a church anywhere in the community without discretionary 
permission from a land use authority. In a significant number 
of communities, it is difficult or impossible to build or 
occupy space for a new church. While discrimination can be very 
difficult to prove in any individual case, many of the land use 
regulations affected by H.R. 1691 have a significant likelihood 
of being unconstitutional.
    Land use regulation is commonly administered through 
individualized processes not controlled by neutral and 
generally applicable rules. The standards in individualized 
land use decisions are often vague, discretionary, and 
    Conflicts between religious organizations and land use 
regulators are much more common than reported cases would 
indicate. Smaller and less mainstream denominations are over-
represented in reported land use disputes, but they win their 
claims at the same rates as larger churches; this over-
representation in reported cases indicates discriminatory 
regulation of these faiths and not the merits of their cases or 
their own propensity to litigate. Land use regulation has a 
disparate impact on churches and especially on small faiths and 
nondenominational churches.
    Inferences from reported cases are re-enforced by anecdotal 
evidence of discrimination from around the country. Churches 
are often refused permission to meet in buildings designed for 
meetings, and in which secular meetings have been permitted. 
Religious discrimination is sometimes coupled with racial and 
ethnic discrimination.
            Section 5, Fourteenth Amendment burden shifting provision
    Finally, H.R. 1691 simplifies the litigation of all free 
exercise claimants by shifting the burden of persuasion to the 
government once the claimant shows a prima facie case. Under 
Section 3(a), 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 the burden 
on religious exercise. This provision facilitates enforcement 
of the right to religious exercise as defined by the Supreme 
Court. Thus, when a claimant shows a burden on religious 
exercise by a discriminatory motivation, by a less than 
generally applicable law, or under the hybrid rights 
theory,\117\ the burden of persuasion on all elements except 
the religious exercise burden would shift to the government. 
Because the Supreme Court's free exercise test has many 
exceptions of uncertain scope, shifting the burden of 
persuasion has important implications. This exercise of Section 
5 authority thus favors the constitutional right to free 
exercise where the facts are uncertain; where the government 
demonstrates that no constitutional violation has occurred 
pursuant to rules set forth by the Supreme Court, then the 
government wins on the merits.
    \117\ See Church of the Lukumi Babalu Aye, 508 U.S. 520; Boerne, 
521 U.S. 507.


    H.R. 1691 lifts burdens on religious exercise without 
dictating the means by which governments might accomplish this. 
H.R. 1691 does not impose any specific affirmative duty, 
implement a federal regulatory program, or conscript state 
officers. Its core policy is not to regulate the states, but to 
deregulate the exercise of religion. H.R. 1691 pre-empts state 
laws that fall within the scope of Congressional power and 
substantially burden religious exercise without a compelling 
reason, and it provides a cause of action to enforce that 
policy. RFRA deregulates religious exercise at the federal 
level, and H.R. 1691 would pre-empt state regulation 
inconsistent with that federal policy. The structure of RLPA's 
spending and commerce power sections is strikingly parallel to 
the structure of the Airline Deregulation Act,\118\ which also 
deregulated a field of private activity and pre-empted 
inconsistent state regulation.
    \118\ Laycock Testimony, May 12, 1999; Thomas C. Berg, The 
Constitutional Future of Religious Freedom Legislation, 20 UALR L.J. 
715, 761-62 (1998).
    H.R. 1691 does not violate the Tenth Amendment as 
interpreted by the Supreme Court in New York v. United 
States\119\ and Printz v. United States.\120\ Both cases 
explicitly recognize Congressional power to make ``compliance 
with federal standards a precondition to continued state 
regulation in an otherwise pre-empted field.''\121\ What is 
prohibited by New York and Printz is any attempt by Congress to 
require a state, in its sovereign capacity, to regulate its own 
citizens according to federal dictate, or to impress state 
officials to implement or enforce federal policy. Put another 
way, the federal government may not ``commandeer'' state 
legislatures or state officials to affirmatively enact or 
enforce federal policy. But it may prohibit them from violating 
federal policy regulating or deregulating private activity in 
fields subject to Congressional power.
    \119\ 505 U.S. 144 (1992).
    \120\ 521 U.S. 898 (1997).
    \121\Printz, 521 U.S. at 925-26; accord, New York, 505 U.S. at 167; 
Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 
264, 291 (1981).


    The Committee's Subcommittee on the Constitution held one 
day of hearings on H.R. 1691, Religious Liberty Protection Act 
of 1999 on May 12, 1999. Testimony was received from the 
following witnesses: Dr. Richard Land, President, Ethics and 
Religious Liberty Commission of the Southern Baptist 
Convention; Lawrence G. Sager, Robert B. McKay Professor of 
Law, New York University School of Law; Von Keetch, Counsel, 
The Church of Jesus Christ of Latter-Day Saints; J. Brent 
Walker, General Counsel, Baptist Joint Committee on Public 
Affairs; Dr. Clarence E. Hodges, Vice President, Seventh-day 
Adventist Church of North America; Christopher E. Anders, 
Legislative Counsel, American Civil Liberties Union; Rabbi 
David Saperstein, Director and Counsel, Religious Action Center 
of Reform Judaism; Chai Feldblum, Professor of Law and 
Director, Federal Legislation Clinic, Georgetown University Law 
Center; Douglas Laycock, Associate Dean for Research, 
University of Texas Law School; Oliver S. Thomas, Special 
Counsel for Religious and Civil Liberties, National Council of 
Churches; Reverend C. J. Malloy, Jr., First Baptist Church of 
Georgetown; Bradley Jacobs for Michael P. Farris, President, 
Home School Legal Defense Association; Marci A. Hamilton, 
Professor of Law, Benjamin N. Cardozo School of Law; Steven T. 
McFarland, Director, Center for Law & Religious Freedom, 
Christian Legal Society.

                        COMMITTEE CONSIDERATION

    On Wednesday, May, 26, 1999, the Subcommittee on the 
Constitution met in open session and ordered favorably reported 
the bill, H.R. 1691, as amended, by a voice vote, a quorum 
being present. On June 15 and 23, 1999, the Committee met in 
open session and ordered favorably reported the bill, H.R. 
1691, with amendment by voice vote, a quorum being present.

                         VOTE OF THE COMMITTEE

    There were no roll call votes.


    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.


    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 3(c)(4) of rule XIII of the Rules of the House of 


    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.


    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1691, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 28, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1691, the 
Religious Liberty Protection Act of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
                                          Dan L. Crippen, Director.

H.R. 1691--Religious Liberty Protection Act of 1999

    CBO estimates that enacting H.R. 1691 would have no 
significant impact on the federal budget because this bill 
would primarily address state actions. Because enactment of 
H.R. 1691 would not affect direct spending or receipts, pay-as-
you-go procedures would not apply.
    Under current law, a state or local government may infringe 
upon a person's exercise of religion as long as that action 
bears a rational relationship to the government's interest. 
H.R. 1691 would preclude, under certain circumstances, any 
infringement on a person's exercise of religion unless the 
state or local government could show that it furthered a 
compelling interest by the least restrictive means.
    H.R. 1691 would allow the federal government to sue state 
and local governments to enforce compliance with provisions of 
the bill. CBO expects that any costs associated with this 
authority would be insignificant. Such federal costs, if any, 
would be subject to the availability of appropriated funds.
    Section 4 of the Unfunded Mandates Reform Act excludes from 
the application of that act any legislative provisions that 
enforce the constitutional rights of individuals. CBO has 
determined that H.R. 1691 fits within that exclusion.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Robert A. Sunshine, 
Deputy Assistant Director for Budget Analysis.


    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, clause 1; Article I, 
section 8, clause 3; Article VI, clause 2; Amendment V; and 
Amendment XIV, section 5 of the Constitution.

                      SECTION-BY-SECTION ANALYSIS

    Section 1. This section provides that the title of the Act 
is the Religious Liberty Protection Act of 1999.
    Section 2. The introductory and concluding clauses of 
Sec. 2(a) track the substantive language of RFRA, providing 
that where the section applies, government shall not 
substantially burden a person's exercise of religion. This 
general rule is expressly subject to the compelling interest 
exception set out in Sec. 2(b).
    Section 2(a)(1) applies this general rule to programs or 
activities receiving federal financial assistance. This 
subsection ensures that no person will be unnecessarily 
deprived of the benefits of a federally assisted program, or 
unnecessarily forced to abandon or compromise religious 
practices as a condition of participation in a federally 
assisted program.
    Section 2(a)(2) applies the general rule to cases in which 
the substantial burden affects commerce, or removal of the 
burden would affect commerce. This so-called jurisdictional 
element must be proved in each case as an element of the cause 
of action. This subsection does not treat religious exercise 
itself as commerce, but it recognizes that the exercise of 
religion sometimes requires commercial transactions, such as 
the construction of churches, the hiring of employees, or the 
purchase of supplies and equipment. Where the burden or removal 
of the burden on religious exercise affects one of these 
commercial transactions, the Act applies.
    Section 2(b) is taken verbatim from RFRA. It states the 
compelling interest exception to the general rule that 
government may not substantially burden religious exercise. The 
application of the burden to the person whose religious 
exercise is burdened--not the government program in general--
must serve a compelling interest by the least restrictive 
    Section 2(c) prevents any threat of withholding federal 
funds from a federally assisted activity. Withholding funds is 
too drastic a remedy to be used effectively, and it hurts the 
intended beneficiaries of the federally assisted program (who 
are also the intended beneficiaries of this Act). But the 
United States may enforce the Act with injunctive and 
declaratory remedies preserved in this section and expressly 
created in Sec. 4(d).
    Section 3. This section is legislation to enforce the 
Fourteenth Amendment. But in many of its applications, it is 
also an exercise of the commerce power, because burdensome 
regulation of religious uses will prevent construction projects 
or real estate transactions that affect commerce. Where the 
effect on commerce can be proved, land use regulation may be 
challenged either under Sec. 2(b)(2) or under Sec. 3.
    Section 3(a) simplifies enforcement of the Free Exercise 
Clause as interpreted by the Supreme Court. The Court applies 
the compelling interest test to laws that are not neutral and 
generally applicable, to laws that provide for individualized 
assessment of regulated conduct, to regulation motivated by 
hostility to religion, to cases involving hybrid claims that 
implicate both the Free Exercise Clause and some other 
constitutional right, and to other exceptional cases. Many of 
these exceptions present issues in which the facts are 
uncertain and difficult to prove, or essential information is 
controlled by the government. Section 3(a) provides generally 
that if a complaining party produces prima facie evidence of a 
free exercise violation, the government then bears the burden 
of persuasion on all issues except burden or substantial burden 
on religion.
    Section 3(b)(1) codifies parts of the Court's 
constitutional tests as applied to land use regulation. Section 
3(b)(1)(A) provides that if a land use regulation gives 
government the authority to make individualized assessments of 
the proposed uses of real property, then the authorities 
applying that regulation may not substantially burden the free 
exercise of religion unless application of the burden to the 
person furthers a compelling interest by the least restrictive 
means. This directly enforces that part of Employment Division 
v. Smith, 494 U.S. 872 (1990), that applies the compelling 
interest test to cases in which the regulated conduct is 
subject to individualized assessment.
    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 land use regulations that discriminate on the basis of 
religion or religious denomination. These provisions directly 
enforce the constitutional rule that government may not 
discriminate against religion or unnecessarily burden religious 
exercise with laws that are less than generally applicable.
    Section 3(b)(1)(D) provides that government may not 
unreasonably exclude religious assemblies from a jurisdiction, 
or unreasonably limit them within the jurisdiction. This 
provision enforces the rule that First Amendment uses cannot be 
excluded from a municipality. Schad v. Borough of Mt. Ephraim, 
452 U.S. 61 (1981). What is reasonable must be determined in 
light of all the facts, including the physical and financial 
availability of land to religious organizations.
    Section 3(b)(2) requires a full and fair opportunity to 
litigate land use claims arising under the Free Exercise Clause 
or under section 3(b). For example, if a zoning board refuses 
to entertain a federal claim because of limits on its 
jurisdiction, or if it excludes evidence of how places of 
secular assemblies were treated, and if the state court then 
confines itself to the record before the zoning board, the 
resulting judgment is not entitled to full faith and credit in 
a federal suit under the Free Exercise Clause or section 3(b) 
of this Act.
    Section 3(b)(3) expressly provides that equally or more 
protective state law is not preempted. Some state zoning laws 
make accommodations for religious uses, and those 
accommodations are unaffected by this Act.
    Section 4. This section provides remedies for violations. 
Sections 4(a) and (b) track RFRA, creating a private cause of 
action for damages, injunction, and declaratory judgment, and 
creating a defense to liability, and providing for attorneys' 
fees. These claims and defenses lie against a government, but 
the Act does not abrogate the Eleventh Amendment immunity of 
states. In the case of violation by a state, the Act must be 
enforced by suits against state officials and employees.
    Section 4(c) subjects prisoner claims to the Prison 
Litigation Reform Act. Section 4(d) expressly authorizes the 
United States to sue for injunctive or declaratory relief to 
enforce the Act.
    Section 5. This section states several rules of 
construction designed to clarify the meaning of all the other 
provisions. Section 5(a) provides that nothing in the Act 
authorizes government to burden religious belief; this tracks 
RFRA. Section 5(b) provides that nothing in the Act creates any 
basis for restricting or burdening religious exercise or for 
claims against a religious organization not acting under color 
of law. These two subsections serve the Act's central purpose 
of protecting religious liberty, and avoid any unintended 
consequence of reducing religious liberty.
    An example of a religious organization acting under color 
of law would be one that undertook by contract to administer a 
government program. That government program would be subject to 
this Act even though administered by a religious organization.
    Sections 5(c) and 5(d) have been carefully negotiated to 
keep this Act 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 be provided at all; Sec. 5(d) states 
neutrality on the scope of existing authority to regulate 
private organizations that accept such aid.
    Section 5(e) emphasizes that this Act does not require 
states to pursue any particular public policy or to abandon any 
policy, but that each state is free to choose its own means of 
eliminating substantial burdens on religious exercise. The Act 
preempts laws that unnecessarily burden the exercise of 
religion, but it does not impose any specific policy on the 
states or require any affirmative conduct by the states.
    Section 5(f) provides that proof of an effect on commerce 
under Sec. 2(a)(2) does not establish any inference or 
presumption that Congress meant to regulate religious exercise 
under any other law.
    Section 5(g) provides that the Act should be broadly 
construed to protect religious exercise to the maximum extent 
permitted by its terms and the Constitution. Section 5(h) 
provides that each provision of the Act is severable from every 
other provision.
    Section 6. This section is taken verbatim from RFRA. It is 
language designed to ensure that the Act is neutral on all 
disputed issues under the Establishment Clause.
    Section 7. Section 7 amends the Religious Freedom 
Restoration Act. Sections 7(a)(1) and (2) and 7(b) collectively 
conform RFRA to the Supreme Court's decision in City of Boerne 
v. Flores, 521 U.S. 507 (1997), eliminating all references to 
the states and leaving RFRA applicable only to the federal 
    Section 7(a)(3) clarifies the definition of ``religious 
exercise,'' conforming the RFRA definition to the definition in 
this Act.
    Section 8. This section defines important terms used in the 
Act. Section 8(a)(1) defines ``religious exercise,'' clarifying 
issues that had generated litigation under RFRA. Religious 
exercise need not be compulsory or central to the claimant's 
religious belief system, and building a church, or otherwise 
using real property for religious purposes, is religious 
exercise. As under RFRA, religious exercise includes any 
conduct that is the exercise of religion under the First 
    Section 8(a)(2) defines ``Free Exercise Clause'' to mean 
both the clause in the First Amendment and the application of 
that clause under the Fourteenth Amendment.
    Section 8(a)(3) defines land use regulation to include only 
regulation that applies to particular parcels or zones and to 
persons with a property interest in the affected land. 
Regulation that applies to all land in a jurisdiction is not 
land use regulation, even if it has some connection to land. 
Such regulation may be also reached under Sec. 2 if it affects 
commerce or is implemented with federal financial assistance, 
but it cannot be reached under Sec. 3.
    Section 8(a)(4) incorporates the relevant parts of the 
definition of program or activity from Title VI of the Civil 
Rights Act of 1964. This definition ensures that federal 
regulation is confined to the program or activity that receives 
federal aid, and does not extend to everything a state does.
    The definition of ``demonstrates'' in Sec. 8(a)(5) is taken 
verbatim from RFRA. It includes both the burden of going 
forward and the burden of persuasion.
    The definition of ``government'' in Sec. 8(a)(6)(A) tracks 
RFRA, except that the United States and its agencies have been 
deleted, because the United States remains subject to RFRA. 
Section 8(a)(6)(B) puts the United States and its agencies back 
in for the purposes of Sec. Sec. 3(a) and (5), because the 
burden-shifting provision in Sec. 3(a), and some of the rules 
of construction in Sec. 5, do not appear in RFRA.

                            DISSENTING VIEWS

    We cannot support H.R. 1691, the ``Religious Liberty 
Protection Act of 1999'' (hereinafter ``RLPA''). We believe 
that this bill will be found unconstitutional by the Supreme 
Court. We are further concerned that the bill is not well-
crafted and will be used to undermine its stated goal of 
enhancing religious protections for all citizens. For these 
reasons, we offer the following dissenting analysis.
Brief summary of applicable law
    H.R. 1691 is a legislative response to several Supreme 
Court decisions regarding the Free Exercise Clause of the First 
Amendment. Prior to 1990, Sherbert v. Verner, 374 U.S. 398 
(1963), was widely recognized as the seminal Free Exercise 
case. Sherbert involved a South Carolina woman who was refused 
unemployment compensation because she refused to work on her 
Saturday Sabbath. The state of South Carolina later refused her 
unemployment compensation. The state argued that the woman 
simply refused an employment opportunity. The Court held, 
however, that the state's refusal violated the Free Exercise 
Clause because its denial of unemployment compensation forced 
Sherbert to choose between religious adherence and unemployment 
compensation benefits. In doing so, the Court applied a 
``compelling interest'' test and determined that the state 
government's interest in denying the benefits was neither 
compelling, nor narrowly tailored to the least restrictive 
means. Sherbert, 374 U.S. at 409.
    In 1990, the Court retreated from the strict scrutiny 
standard it had articulated in Sherbert in Employment Division, 
Oregon Department of Human Resources v. Smith, 494 U.S. 872 
(1990). Instead of applying strict scrutiny, the Court 
determined that laws of general applicability are presumptively 
constitutional so long as such laws are not motivated by a 
governmental desire to burden religion.
    In Smith, two Native American state employees who worked as 
counselors for a private drug rehabilitation organization 
ingested peyote (a powerful hallucinogen) for ceremonial 
purposes as members of the Native American Church. The 
rehabilitation agency fired the counselors, who later filed 
unemployment compensation claims. The state rejected the 
unemployment compensation claims of both workers on grounds 
that both were dismissed for ``work-related misconduct.''
    After unsuccessfully appealing their claims to the Oregon 
Supreme Court, the plaintiffs sought U.S. Supreme Court review 
of the state court decision. The Court vacated and remanded the 
Oregon high court decision to determine whether sacramental use 
of peyote violated Oregon's illicit drug laws. The Oregon 
Supreme Court determined that Oregon drug laws prohibited the 
consumption of peyote, even for religious uses. The state court 
further held that this prohibition violated the Free Exercise 
Clause and the case returned to the United States Supreme Court 
for review.
    The Supreme Court reversed the state court determination 
that Oregon drug laws violated the Free Exercise Clause by 
prohibiting the religious use of peyote. Justice Scalia, 
writing for the majority, observed that the Court has never 
held that an individual's religious beliefs excuse that 
individual from compliance with an otherwise valid law 
prohibiting conduct that the government is free to regulate. 
Allowing exceptions to every state law or regulation affecting 
religion ``would open the prospect of constitutionally required 
exemptions from civic obligations of almost every conceivable 
kind.'' Smith, 494 U.S. at 890. Scalia cited compulsory 
military service, tax obligations, vaccination requirements and 
child-neglect laws as examples of facially neutral laws that 
prohibit conduct that the government is free to regulate 
regardless of the religious burden. Citing these policy 
concerns, the Court concluded that a law which is religiously 
neutral may be uniformly applied to all persons without regard 
to any burden or prohibition placed on their exercise of 
religion. In the case of the plaintiffs in Smith, the Free 
Exercise Clause afforded no religious exemption from the Oregon 
illicit drug laws for ceremonial uses of peyote. Consequently, 
the plaintiffs' claims for unemployment compensation were held 
to be properly denied.1
    \1\ Subsequent to Smith, Congress made the religious use of peyote 
by members of the Native American Church legal under federal law. See 
42 U.S.C. 1996a (enacted October 6, 1994). Oregon also decriminalized 
the religious use of peyote. Ore. Rev. Stat. 475.992(5) (1996).
    RLPA creates a right of action where any religiously-
neutral state or local law is alleged to ``substantially 
burden'' a religious practice. Where such a burden is alleged, 
the state or local government law at issue will be found in 
violation of the statute unless the government can demonstrate 
that the law furthers a compelling government interest and is 
the least restrictive means of achieving that interest. In 
other words, unless the challenged government law survives 
strict scrutiny analysis, an individual's right to practice his 
or her religion will take precedence over that law. Initially, 
RLPA appears to track the ``Religious Freedom Restoration Act 
of 1993'' (hereinafter ``RFRA''), which passed a Democratic 
majority House of Representatives by a voice vote.2 
See 42 U.S.C. Sec. 2000bb-2000bb-4.
    \2\ Prior to passing RFRA, the Democratic majority passed several 
other important reforms to foster a more inclusive religious 
environment. When the Supreme Court held that a Jewish soldier did not 
have First Amendment right to wear a yarmulke, the 100th Congress 
passed a bill that allows members of the U.S., military to wear 
religious apparel. 10 U.S.C. 774 (1987). When the Supreme Court held 
that road construction proposed on a site held to be sacred by Native 
Americans did not pose a free exercise issue, the 100th Congress 
withdrew funding for Forest Service road construction that would have 
harmed the sacred site. House Comm. on Appropriations, Dept. of the 
Interior and Related Agencies Appropriations Bill, 1989, H.R. Rep. No. 
713, 100th Congress, 2d Sess. 72 (1988).
    One major difference between the RFRA and RLPA is that they 
use different constitutional authority to impose strict 
scrutiny on state and local laws. RFRA drew upon Section 5 of 
the Fourteenth Amendment.3 However, in 1997, the 
Supreme Court found that the broad protections accorded 
individuals against state and local laws under RFRA were 
excessive and could not be supported under Section 5. The case, 
City of Boerne, Texas v. Flores, 521 U.S. 507 (1997), involved 
a local Catholic church that wanted to raze much of its 
existing structure to build a larger sanctuary. The Boerne city 
council refused to grant a building permit to allow the 
expansion, contending that the designation of the sanctuary as 
an historic site impeded its expansion under a local historic 
preservation ordinance. Archbishop Flores of San Antonio 
challenged the denial of the building permit under RFRA. The 
city contended that RFRA was unconstitutional as applied to the 
local historic preservation ordinance.
    \3\ Section 2 of the Fourteenth Amendment prohibits states from 
depriving ``any person of life, liberty, or property, without due 
process of law.'' Religious freedom has been recognized as a 
``liberty'' interest under the Fourteenth Amendment. Section 5 of the 
Fourteenth Amendment provides that ``Congress shall have power to 
enforce, by appropriate legislation, the provisions of this article.''
    In holding that Congress ``exceeded its authority'' under 
Section 5 of the Fourteenth Amendment, the Court explained that 
Section 5 is remedial in nature and requires proportionality 
between constitutionally recognized harm and the statutory 
means used to guard against that harm. Where the extent of harm 
is small, the means adopted to cure the harm must be modest. 
Where the harm is great, the corrective measures may be more 
    In Boerne, the Court found that RFRA provided extreme 
measures to protect free exercise rights but provided no 
factual predicate in the legislative record to justify such a 
broad enactment. The Court compared RFRA to the Voting Rights 
Act of 1965, which also provided broad protections under the 
Fourteenth Amendment. However, in the case of the Voting Rights 
Act, the Court said, Congress presented a detailed legislative 
record identifying the broad scope of the problems to be 
remedied by that Act. RFRA, unlike the Voting Rights Act, had 
no such factual background, and therefore its broad-based 
measures were deemed unconstitutional as applied to state and 
local law.4 The proponents of RLPA have proffered 
the same sort of legislative record as Congress established in 
1993.5 We agree with proponents of RLPA that its 
broad protections cannot be achieved by use of Section 
5.6 However, unlike RLPA's proponents, we believe 
that the substitution of Commerce Clause and Spending Clause 
powers raises even more questions of law and policy, which may 
invite the Court to overturn RLPA.
    \4\ It is hard to say with any certainty that the Boerne holding 
can be limited solely to the Court's interpretation of Congress' power 
under the Fourteenth Amendment. Some scholars, including Professor 
Lawrence Sager, contend that the Boerne Court's Sec. 5 analysis masked 
deeper misgivings about RFRA that could not be corrected by 
substituting Commerce and Spending Clause powers. If, for example, 
imposition of the ``compelling interest'' in the text of the statute 
violates the separation of powers doctrine, RLPA has inherited this 
constitutional defect from RFRA. See Christopher L. Eisgruber & 
Lawrence G. Sager, Congressional Power and Religious Liberty After City 
of Boerne v. Flores, 1997 Sup. Ct. Rev. 79 (1997); Christopher L. 
Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration 
Act Is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994).
    \5\ The legislative record described in the Boerne opinion bears a 
striking similarity to the record that has been established thus far 
with respect to RLPA.

        RFRA's legislative record lacks examples of modern 
      instances of generally applicable laws passed because of 
      religious bigotry. The history of persecution in this 
      country detailed in the hearings mentions no episodes 
      occurring in the past 40 years. The absence of more recent 
      episodes stems from the fact that, as [Doug Laycock] 
      testified, ``deliberate persecution is not the usual 
      problem in this country.'' Rather the emphasis of the 
      hearings was on laws of general applicability which place 
      incidental burdens on religion. Much of the discussion 
      centered upon anecdotal evidence of autopsies performed on 
      Jewish individuals and Hmong immigrants in violation of 
      their religious beliefs and on zoning regulations and 
      historic preservation laws, which as an incident of their 
      normal operation, have adverse effects on churches and 
      synagogues. It is difficult to maintain that they are 
      examples of legislation enacted or enforced due to animus 
      or hostility to the burdened religious practices or that 
      they indicate some widespread pattern of religious 
      discrimination in this country. Congress' concern was with 
      the incidental burdens imposed, not the object or purpose 
      of the legislation.

Boerne, 117 S.Ct. 2157, 2169 (1997) (citations and parentheses 
    \6\ We note, however, that the land use provisions included in H.R. 
1691 attempt to use Section 5 power. The broad protections included 
therein may indeed tempt the Supreme Court to overturn those 
provisions, and it seems odd that the framers of the proposed 
legislation would forward it without a stronger record of land use 
abuse. Given the record, as we will point out later, we believe that 
the Supreme Court may well overturn the land use provisions.

Commerce clause

    Congress has authority to regulate state activities that 
``substantially affect'' interstate commerce.7 In 
the past Congress has successfully invoked its commerce power 
to enact, among other things, many civil rights laws, including 
the Civil Rights Act of 1964, the Age Discrimination in 
Employment Act and the Americans with Disabilities 
    \7\ Article I, Section 8, clause 3 of the United States 
Constitution provides Congress with authority to ``regulate Commerce 
with foreign nations, and among the several states, and with the Indian 
    \8\ Other examples of Congressional acts that have successfully 
used the Commerce power include federal regulation of intrastate coal 
mining, Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 
U.S. 264, 276-280 ((1981), intrastate extortionate credit transactions, 
Perez v. United States, 402 U.S. 146, 155-56 (1971), restaurants using 
substantial interstate supplies, Katzenbach v. McClung, 379 U.S. 294, 
299-301 (1964), inns and hotels catering to interstate guests, Heart of 
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53 (1964), and 
production and consumption of wheat, Wickard v. Filburn, 317 U.S. 111 
    For the most part, the Supreme Court has given significant 
deference to Congress' determination that its commerce clause 
authority is properly invoked in a given statute. However, in 
one recent decision, United States v. Lopez, 514 U.S. 549 
(1995), the Court did find an outer limit to the commerce 
authority of Congress. The Lopez decision may call into 
question whether RLPA is a proper exercise of Congressional 
    In Lopez, the Court considered the ``Gun-Free School Zones 
Act of 1990,'' which, among other things, made it a federal 
offense to ``knowingly possess a firearm at a place that the 
individual knows, or has reasonable cause to believe, is a 
school zone.'' In an opinion written by Chief Justice 
Rehnquist, the Court found that there was no rational nexus 
between the Act and interstate commerce. First, the Court noted 
that the Act was a criminal statute, which ``by its terms has 
nothing to do with `commerce' or any sort of economic 
enterprise.'' Lopez, 514 U.S. at 561. Second, the Court 
observed that the Gun-Free Schools Act contained no 
jurisdictional element that ``would ensure, through a case-by-
case inquiry, that [ ] firearm possession [ ] affects 
interstate commerce.'' Id. Third, the Court noted that the 
legislative record contained no findings that the ``effects 
upon interstate commerce of gun possession in a school zone.'' 
Citing these three factors, the Court found that the Gun Free 
School Zones Act could not be upheld under the Commerce Clause, 
because ``[t]he possession of a gun in a local school zone is 
in no sense an economic activity that might, through repetition 
elsewhere, substantially affect any sort of interstate 
commerce.'' Id. at 567.
    It is clear the H.R. 1691 does not provide a facially valid 
interstate commerce nexus. Therefore, we believe that Lopez 
will require courts to conduct a preliminary hearing on whether 
the claimant has established an interstate commerce nexus 
before a RLPA case proceeds to the merits. This approach will 
no doubt lead to inconsistent results. Moreover, we believe 
that tying religious burdens to interstate commerce may create 
a bias toward adherents of larger religious groups, since those 
groups are more likely to engage in interstate commerce. Even 
so, where a particular religious practice is at issue, this 
bill may discriminate among practices within a large religious 
domination. These consequences do not follow from the spirit of 
inclusiveness that have characterized our earlier efforts to 
promote religious free exercise.

Spending clause

    The test of whether a given enactment is an appropriate use 
of Spending Clause power is whether the legislation establishes 
a nexus between conditions of accepting the federal financial 
assistance in question and the purpose of those funds. The 
classic case in this area involved the federal legislation 
designed to encourage states to increase the drinking age from 
18 to 21 years. In that instance, Congress attempted to 
condition the disbursement of federal highway funds on state 
agreement to a higher drinking age requirement. The Supreme 
Court, in South Dakota v. Dole, 514 U.S. 549 (1995), held that 
such a use of spending power was proper. The Court found a 
nexus between the condition and the purpose of funds--promotion 
of highway safety. Moreover, the Court determined that the 
ability of states to reject the condition (and thereby 
relinquish their entitlements to the conditioned highway funds) 
was a significant factor. As in the Commerce Clause area, RLPA 
does not on its face evidence a nexus with federal spending. 
Instead, it applies to all ``programs or activities'' that 
receive federal financial assistance. The Spending Clause power 
implicated in this bill is one of its more curious provisions. 
One cannot be certain about what sorts of laws will be 
challenged under this provision, and the proponents of this 
bill have not articulated any examples.
Separation of powers
    We believe that the Boerne decision also indicates that 
Congress may have violated separation of powers principles by 
enacting RFRA, an issue the Court would be forced to decide if 
RLPA is enacted. If the Smith decision stands for anything, it 
stands for the Court's determination that an across-the-board 
strict scrutiny standard would work a substantial injustice to 
other important but not compelling government interests. Rather 
than reject strict scrutiny, as the proponents of RLPA have 
claimed the Court did, the Court retained that standard but 
decided to apply it on an as-needed basis. While Smith no doubt 
left the religious community with some uncertainty about the 
standard governing Free Exercise challenges, we cannot agree 
with the proponents of RLPA that the Court has abandoned its 
commitment to our longstanding tradition of religious free 
exercise. As Professors Sager and Eisgruber have stated, ``The 
Supreme Court held in Employment Division, Department of Human 
Resources v. Smith, and reiterated in Church of the Lukumi 
Babalu Aye v. Hialeah, 508 U.S. 520 (1993), that `where the 
State has in place a system of individual exemptions, it may 
not refuse to extend that system to cases of religious hardship 
without compelling reason.' '' \9\ By imposing an across-the-
board strict scrutiny standard, which the Court has expressly 
declined to apply in Smith, RLPA raises serious separation of 
power issues. Indeed, the very language of the Boerne decision 
indicates that this concern is real.\10\
    \9\ See, Professors Lawrence Sager and Christopher Eisgruber, 
Explanatory Notes on the ``Religious Liberty Enforcement Act,'' (Letter 
to Minority Counsel, dated May 20, 1999) (quoting Smith, 494 U.S. at 
884 (quotations, citations, and alterations omitted)).
    \10\ Consider the final few sentences of the opinion in which the 
Court strikes an ominous tone:

        Our national experience teaches that the Constitution is 
      preserved best when each part of the government respects 
      both the Constitution and the proper actions and 
      determinations of the other branches. When the Court has 
      interpreted the Constitution, it has acted within the 
      province of the Judicial Branch, which embraces the duty to 
      say what the law is. Marbury v. Madison, 1 Cranch, at 177, 
      2 L.Ed. 60. When the political branches of the Government 
      act against the background of a judicial interpretation of 
      the Constitution already issued, it must be understood that 
      in later cases and controversies the Court will treat its 
      precedents with the respect due them under settled 
      principles, including stare decisis, and contrary 
      expectations must be disappointed. RFRA was designed to 
      control cases and controversies, such as the one before us; 
      but as the provisions of the federal statute here invoked 
      are beyond congressional authority, it is this Court's 
      precedent, not RFRA, which must control. . . . Broad as the 
      power of Congress is under the Enforcement Clause of the 
      Fourteenth Amendment, RFRA contradicts vital principles 
      necessary to maintain separation of powers and the federal 

Boerne, 117 S.Ct. 2157, 2172 (1997). Admittedly, the Court was not 
altogether clear about what ``vital principles'' were compromised by 
the enactment of RFRA; however, this language does evidence the Court's 
disfavor with Congress enacting a statute that seeks to restore a 
strict scrutiny standard in an area where the Court has previously 
rejected it.
Land use provisions and Section 5 concerns
    RLPA sets forth a procedure for religious-based challenges 
to all federal, state and local zoning regulations and requires 
that the challenged regulations be defended against a strict 
scrutiny standard. To effect this sweeping right of action, 
RLPA uses the same Congressional authority that the Supreme 
Court rejected in Boerne, Section 5 of the Fourteenth 
Amendment. Using the test outlined by the Court in Boerne, we 
are called to ask whether RLPA's protections are proportionate 
to the present land use problems faced by religious 
organizations and individuals adherents. We suggest that it is 
    As we have suggested, the proponents of this bill have 
articulated the same sort of anecdotal evidence of land use 
discrimination that the Court considered in Boerne. We doubt 
that the instances articulated, even when viewed in a totality, 
will establish a pattern sufficient to justify making every 
federal, state and local land use decision and regulation 
vulnerable to attack.
Drafting concerns and other consequences
    Even if we agreed that this legislation is necessary (a 
position we do not hold), we are not as certain as the 
proponents of H.R. 1691 that this bill is crafted in such way 
as to meet its goals. We note here a few of the most glaring 
deficiencies in the drafting of this bill:
    1. H.R. 1691 fails to track the minimal standards governing 
Commerce Clause authority. RLPA does not include the baseline 
standard established by the Supreme Court in U.S. v. Lopez, 
supra, the ``substantial affects'' test. Instead, the framers 
of this bill have attempted to broaden its coverage to conduct 
that merely ``affects'' interstate commerce.
    2. H.R. 1691 contradicts Supreme Court law governing Free 
Exercise Clause cases. While Congress may be able to create 
statutory rights to protect religious liberty, Congress may not 
dictate to the Supreme Court how it is to decide First 
Amendment cases. Several sections of RLPA allude to a First 
Amendment cause of action, and to the extent that RLPA 
contemplates such actions, the across-the- board strict 
scrutiny requirement is inconsistent with the Supreme Court 
holding in Oregon v. Smith.
    3. H.R. 1691 repeats the errors of RFRA by using Section 5 
of the Fourteenth Amendment to impose its broad land use 
provisions. The land use provisions of RLPA apply to all state 
and local land use laws. The Supreme Court considered the very 
same record evidence of land use discrimination before it 
rejected RFRA, and there is little doubt that the Court would 
reach the same result in this context.
    These are only a few of the concerns we have about the 
drafting of this bill, and we have expressed these concerns 
throughout the subcommittee and full committee consideration 
process. While proponents of this bill have sought our 
endorsement of the bill, they have shown that any efforts to 
improve it will be rejected. While there are times when the 
national legislature must act in the dark to ensure fairness in 
our society, this bill has not been crafted in the dark but has 
been in the making for almost ten years. We understand the 
frustration of the proponents of this bill but we cannot ``go 
along'' with a bill that falls short of its noble goals.
    We know from our brief experience with RFRA and with 
several state versions of that statute that some religious 
groups will use RLPA to attack state and local civil rights 
laws. See Smith v. Employment & Housing Comm'n, 913 P.2d 909 
(Cal. 1996) (``marital status'' includes unmarried heterosexual 
couples and the government's interest in providing equal 
housing access to such couples is compelling); Swanner v. 
Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1996) 
(same); compare, Cooper v. French, 460 N.W.2d 2 (Minn. 1990) 
(``marital status'' does not include unmarried cohabiting 
couples; a plurality of the court held that there was no 
compelling governmental interest in preventing marital status 
discrimination); Attorney General v. Desilets, 636 N.E.2d 233 
(Mass. 1994) (remanding for further consideration of whether 
governmental interest in preventing marital status 
discrimination in housing is compelling). However, the Ninth 
Circuit recently decided a case in which it held that the 
government interest in preventing marital status discrimination 
was not compelling. See Thomas v. Municipality of Anchorage, 
1999 U.S. App. Lexis 440 (9th Cir. Jan. 14, 1999). We can 
expect that, if passed, RLPA will invite more of these 
challenges, because it specifically authorizes individuals to 
raise a religious liberty affirmative defense in any judicial 
proceeding. Thus, the religious liberty defense could be 
asserted against federal civil rights plaintiffs in cases 
concerning disability, sexual orientation, familial status and 
pregnancy. Employers in non-religiously affiliated 
organizations, for example, may assert the religious liberty 
defense against gay or lesbian applicants. Even if a majority 
of these defense claims fail, they will increase the cost of 
bringing a federal civil rights suit.
    Proponents of RLPA claim that the bill leaves all 
protections against racial discrimination intact, because laws 
against racial discrimination have always been held to be 
compelling.11 However, RLPA will also require that 
challenged anti-discrimination laws aimed at race or gender 
must follow the least restrictive means of achieving those 
purposes. Presumably, substantial litigation could arise on 
that ground as well. We therefore regret that the majority has 
failed to take into account this issue by protecting civil 
rights laws and by rejecting amendments offered before the full 
committee that would have addressed this concern.
    \11\ While the race and gender interests may be protected even 
under a compelling interest test, the requirement that a law must also 
meet the ``least restrictive means'' test seems to open those laws to 
attack. On an as-applied basis, it is not out of the question to 
suppose that at least some race and gender anti-discrimination laws 
could be struck down under this bill.
    We would like to believe that the consequences of RLPA 
would end with the civil rights issue. However, not even the 
proponents of RLPA can suggest that its potential adverse 
impact is so limited. We can expect challenges to historic 
preservation ordinances, environmental protection laws and 
child welfare laws. Whenever such a law is challenged, the 
government will be hamstrung by the strict scrutiny 


    If RLPA is the best that can be done in light of the First 
Amendment, then perhaps we should allow the alleged unfairness 
of the present system to reveal itself through the many Free 
Exercise cases that continue to be argued year after year. This 
approach may be more effective and more expeditious in the 
long-term than picking a fight with the Supreme Court, as RLPA 
may be perceived to do. Perhaps the role of religious free 
exercise is less certain today than it was prior to the Smith 
decision. Perhaps there is a role for the federal government to 
play in fostering an environment in which religious faith is 
encouraged. But RLPA is not the panacea its proponents contend 
that it is.
    By attempting to avoid constitutional traps, the proponents 
of RLPA are trapping their own stated interests by relying on 
the Commerce and Spending clauses. We cannot agree that drawing 
lines between religious adherents based on their interstate 
commerce impact follows our tradition of religious free 
exercise or our tradition against the establishment of 
religion. By imposing an across-the-board strict scrutiny 
standard, RLPA will be used to attack state and local civil 
rights laws, child welfare laws and a host of other laws that 
may not be compelling but that nonetheless serve important 
governmental functions. In the end, we find ourselves faced 
with a bill that even the Sherbert Court may have recognized as 
dangerous. As that Court expressed it, ``Even when [ ] action 
is in accord with one's religious convictions, it is not 
totally free from legislative restrictions.''

                                   John Conyers, Jr.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Maxine Waters.
                                   Marty Meehan.
                                   Tammy Baldwin.


    We believe that legislation restoring the legal protections 
for the free exercise of religion, which the Supreme Court 
rendered virtually a dead letter in its infamous decision in 
Employment Division v. Smith,\1\ demands swift and effective 
legislative action. The Congress has tried previously to 
achieve this with the Religious Freedom Restoration Act 
[RFRA],\2\ which the court struck down in part City of Boerne 
v. Flores.\3\ While RFRA remains good law at the federal 
level,\4\ protection against infringements of this fundamental 
liberty by state and local governments remains limited, and the 
state of religious liberty in America precarious.
    \1\ 494 U.S. 872 (1990).
    \2\ 42 U.S.C. 2000bb et. seq.
    \3\ 521 U.S. 507 (1997).
    \4\ Christians v. Crystal Evangelical Free Church (In re: Young), 
141 F.3d 854, 856 (8th Cir. 1998).
    We strongly believe that legislation along the lines of the 
Religious Liberty Protection Act [RLPA] is necessary. It 
restores the application of strict scrutiny in those cases in 
which facially neutral, generally applicable laws have the 
incidental effect of burdening the free exercise of religion. 
Government should not have the ability to subject our first 
freedom to a substantial burden unless it is able to 
demonstrate that it has used ``the least restrictive means of 
achieving a compelling state interest.'' \5\ Legislation 
restoring this appropriate balance between the rights of 
individuals and minority religions, including the religions of 
racial and ethnic minorities with different religious beliefs, 
on the one hand, and the prerogatives of the majority on the 
other, should remain at the top of the legislative agenda.
    \5\ Thomas v. Review Board, Indiana Employment Security Commission, 
450 U.S. 707, 718 (1981).
    The Supreme Court's Decision in Smith set a truly dangerous 
precedent. As Justice Scalia acknowledged in writing for the 
majority, ``It may fairly be said that leaving accommodation to 
the political process will place at a relative disadvantage 
those religious practices that are not widely engaged in . . . 
.'' \6\
    \6\ Smith. at 890.
    Justice Scalia went on to accept this plainly foreseeable 
tyranny of the majority as the ``unavoidable consequence of 
democratic government.'' \7\ He dismissed our nation's proud 
heritage of protecting religious freedom as a ``luxury'' which 
we ``cannot afford.'' \8\
    \7\ Id.
    \8\ Id. at 888.
    The Framers of our Bill of Rights clearly understood the 
danger of subjecting fundamental rights to a popular vote. As 
Mr. Justice Jackson explained,

          The very purpose of a Bill of Rights was to withdraw 
        certain subjects from the vicissitudes of political 
        controversy, to place them beyond the reach of 
        majorities and officials and to establish them as legal 
        principles to be applied by the courts. One's right to 
        life, liberty, and property, to free speech, and a free 
        press, freedom of worship and assembly, and other 
        fundamental rights may not be submitted to a vote; they 
        depend on the outcome of no elections.\9\
    \9\ West Virginia State Board of Education v. Barnette, 319 U.S. 
624, 638 (1943).

    We believe it is important that Congress act affirmatively 
to reinstate that understanding. We are, however, concerned 
that this legislation, as drafted, would not simply act as a 
shield to protect religious liberty, but could also be used by 
some as a sword to attack the rights of many Americans, 
including unmarried couples, single parents, lesbians and gays. 
We find deeply disturbing the prospect that legislation drafted 
to restore fundamental rights might have the unintended 
consequence of stripping large numbers of Americans of newly-
won rights to seek and retain employment, a place to live and 
their just and equal place in society--rights that have for too 
long been denied to too many.
    We have received testimony from a representative of at 
least one organization that has brought free exercise 
litigation in an effort to undermine these newly won civil 
rights and that fully intends to use the statute, once enacted, 
to further that legal effort.\10\ While those religious beliefs 
may be sincere and entitled to a fair hearing, we believe it is 
necessary to strike the appropriate balance between respect for 
such beliefs and the legitimate claims of others to protection 
under the law. That balance is, in our view achievable without 
threatening this vital legislation and the fundamental 
religious liberties it seeks to protect.
    \10\ Hearing on H.R. 1691, The Religious Liberty Protection Act of 
1999 Before the Subcomm. On the Constitution of the House Judiciary 
Committee, 105th Congress 167 (May 12, 1999) (Testimony of Steven T. 
McFarland) (Unofficial Transcript).
    At both Subcommittee and Full Committee, Mr. Nadler offered 
an amendment, drafted in consultation with both religious and 
civil rights groups, which would have achieved that balance. It 
would have done so, without carve-outs and without singling out 
any religious belief or practice for different adverse 
treatment. Instead, it sought to clarify that religious liberty 
is an individual right expressed by individuals and through 
religious associations, educational institutions and houses of 
worship. It would have made clear that the right to raise a 
claim under RLPA would have applied to that individual right, 
but that non-religious corporate entities could not seek refuge 
in a religious claim under RLPA to attack civil rights laws. 
Individuals could still have raised claims based on their 
sincerely held religious beliefs which were burdened by 
government, whether in the conduct of their businesses, their 
employment by governments, their participation in the rental 
market, their right to observe the Sabbath or to wear religious 
articles and to follow the other teachings of their faith, 
including those relating to family life, the education of 
children and the conduct of their religious institutions.
    At the same time, the amendment recognized that in 
protecting rights, we are always balancing other individuals' 
rights. The courts do it, Congress does it, and there is no way 
around it. It would have provided a basis to enact a bill that 
will pass and that will protect people--real people who are in 
need of protection.
    We all know that without good faith compromise, by people 
with vastly different beliefs, this bill will never pass. That 
was our experience with RFRA, and nothing has changed.
    We regret that the majority rejected the Nadler amendment, 
and we hope that through further work and negotiation we can 
craft a final bill that protects the rights of all Americans 
and finally restores the legal protections for religious 
freedom that have been largely out of reach of average citizens 
for nearly a decade.

                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Sheila Jackson Lee.
                                   William D. Delahunt.