PROTECTING RELIGIOUS FREEDOM AFTER

BOERNE V. FLORES

MONDAY, JULY 14, 1997

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2141, Rayburn House Office Building, Hon. Charles Canady (chairman of the subcommittee) presiding.

Present: Representatives Charles Canady, Henry J. Hyde, Robert C. Scott, Bob Goodlatte, and Jerrold Nadler.

Also present: Brett Shogren, clerk, Kathryn Lehman, chief counsel, John Ladd, counsel, Keri Harrison, counsel, Robert Corry, counsel and Perry Apelbaum, minority counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

Mr. CANADY. The subcommittee will be in order.

This morning the Subcommittee on the Constitution convenes to consider proposals to protect the free exercise of religion after the U.S. Supreme Court's recent decision in Boerne v. Flores. In Boerne, the Supreme Court held that the Religious Freedom Restoration Act was not a valid exercise of Congress' power under section 5 of the 14th Amendment. The Religious Freedom Restoration Act, or RFRA, passed by Congress in 1993 requires Government to give a compelling reason for laws which substantially burden religious exercise.

The Boerne decision has left men and women of faith without adequate protection against laws that interfere with their free exercise of religion. Because the freedom to practice one's religion is a fundamental right, we are meeting this morning in the wake of Boerne to consider what sources of authority Congress may utilize to protect this most precious freedom from governmental infringement.

Before we begin, I would like to make two observations: First, there have been questions raised as to whether RFRA is a valid exercise of Congress' authority with respect to Federal laws. The Boerne decision struck down RFRA as being outside of the scope of Congress' enforcement authority under section 5 of the 14th Amendment. The 14th Amendment allows Congress to protect individual rights against State infringement. It would appear, therefore, that RFRA is still valid as to the Federal Government. It is, however, noteworthy that the U.S. Supreme Court remanded a case involving an application of RFRA to a Federal bankruptcy issue for

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consideration in light of the Boerne ruling. If the Federal component of RFRA is struck down, I believe Congress would be well within its authority to enact legislation to instruct Federal agencies to accommodate religious practices that are substantially burdened by the Federal Government's actions.

Second, and most importantly, the Court's holding regarding the role of the Congress in interpreting the Constitution and protecting individual liberties raised troubling issues concerning the relationship between the judiciary and the elected representatives of the people in the Legislative branch. Although we will not delve deeply into these issues this morning, we may well give further attention to these components of the decision at a later date.

This morning the witnesses will help us to explore options for preserving our first freedom. I want to thank each of the witnesses for being with us this morning. I look forward to hearing their testimony.

Mr. Scott.

Mr. SCOTT. Thank you, Mr. Chairman. I'd like to begin by thanking you for scheduling the hearing and providing this opportunity for the subcommittee to consider how to address the Supreme Court decision. The Religious Freedom Restoration Act is the product of years of hard work done by uncharacteristically broad coalitions involving religious groups, Members of Congress, civil liberties organizations, and constitutional scholars. Despite their accomplishments, the Supreme Court has spoken, and now we have to respond.

RFRA's balancing test that the Government may substantially burden a person's exercise of religion only if it demonstrates the application of the burden to the person, is in furtherance of a compelling governmental interest and is the least restrictive means for furthering the compelling Government interest. Although the Supreme Court has overturned the means by which we attempted to enforce RFRA, the end of ensuring free exercise of religion is still legitimate.

There have been a number of ways suggested to maintain the protection of RFRA: Reconfiguring the statute based on an Interstate Commerce clause or on the Spending Clause are the credible options we have before us. We will, however, have to ensure that the manner of implementing these protections does not in any way compromise the original intent of RFRA. Although the task before us is a difficult one, I'm confident that we will be able to craft an effective response to the Boerne decision without delay, and I look forward to hearing testimony from today's witnesses and look forward to working with you in developing the ends that we had in RFRA to begin with and working with the coalitions to address this issue.

And I thank you for calling the hearing and also for having witnesses that can go through, particularly, the legal implications, because for once I think we have a consensus on what the end is. It's just a matter of getting there. Usually, we have very diverse views on what our ends would be. So, obviously, getting there is usually very contentious. Thank you.

Mr. CANADY. Thank you, Mr. Scott.

I'd like to invite the members of our first panel to come forward and take their seats.

The first witness of our first panel this morning will be Charles W. Colson. Mr. Colson is chairman of the board in Prison Fellowship, an outreach organization he founded to assist prisoners, exprisoners, victims, and affected families. Mr. Colson is the author of several inspirational books and was awarded the Templeton prize for progress in religion in 1993. Mr. Colson will be accompanied by Pat Nolan, president of the Justice Fellowship.

We will then hear from the Reverend Oliver Thomas. Reverend Thomas is special counsel for religion and civil liberties to the National Council of Churches, the Nation's largest ecumenical body. Next, we will hear from Mark V. Stern. Mr. Stern, co-director of the American Jewish Congress' Commission on Law and Social Action, is a legal expert in the areas of church and State matters and civil rights.

The final witness on the first panel will be Mark E. Chopko. Mr. Chopko is general counsel to the U.S. Catholic Conference where he advises national organizations chartered by the U.S. Roman Catholic bishops on civil law issues.

Thank you all for appearing this morning. I would like to ask that each of you, please, attempt to summarize your testimony in 5 minutes or less, and without objection, your statement will be included in the record. Although the 5-minute rule is something we attempt to follow, we are not going to strictly enforce it today. So do your best. Again, we want to thank each of you for being with us. Your input on this issue is very important to us, and we'd like to begin with Mr. Colson.

STATEMENT OF CHARLES W. COLSON, PRESIDENT, PRISON FELLOWSHIP MINISTRIES

Mr. COLSON. Thank you, Mr. Chairman. I appreciate the flexibility on the 5-minute rule, because a politician turned preacher can barely get through his introduction in 5 minutes. [Laughter.]

I thank you very much for holding this hearing. I think I speak for people of all faiths in telling you how much we admire your courage in doing this in the face of this, what I view to be a usurpation by the Supreme Court of the congressional power: the power of the people to make their own decisions according to their moral traditions.

I have with me this morning Pat Nolan, and Pat and I both have the same background: politicians who got-Pat was the minority leader of the California assembly, and both of us had a post-graduate course courtesy of the United States Government, free room and board following our political careers, and so we've seen the justice system from the top and from the bottom, and gives us somewhat of a unique perspective, less unique than it used to be among politicians.

There are three issues, and I will not try to address the written testimony which you have before you, and people can read, but simply try to summarize very quickly the three issues. The publicity about this decision, the Boerne case, and even the Court's own decision, talks as if Congress is trying to impose some new standard of law. All that Congress was attempting to do in RFRA was

reinstate what had been settled constitutional law since 1963, at least was assumed to be settled law. There was nothing new in what the Congress endeavored to do, nor did it establishing some new right or substantive law; Congress was merely going back and correcting an error the Court made. The Court continues to make the same error by misrepresenting its own precedents in its interpretation of the cases on compelling State interest.

The Boerne decision makes religious liberty an inferior right. It's only going to be enforceable if it can be coupled with some other constitutional right, and, therefore, makes it the first hybrid liberty. This is preposterous to those of us in the religious community and should be preposterous to most Americans, because freedom of conscience should be the first of the inalienable rights, something Government does not grant, but rather something Government recognized in the Declaration of Independence and in the founding of the Constitution. The formation of the Constitution saw to it that Government's duty would be to protect that inalienable right which does not come from Government, which preceded Government-the right of free conscience.

The general problem with this from our standpoint is twofold: As the head of a nonprofit, Christian organization, we would see the possibilities for mischief with the repeal of RFRA to be endless. If, for example, in our hiring practices we were to refuse to hire someone, because they did not believe what we believe in our statement of faith, local governing bodies could penalize us or force us to hire people who believe things contrary to what we believe. Or if we were to discharge someone or a church excommunicates someone because of behavior which we believe was prohibited by scripture, but there were laws providing recourse to those aggrieved employees, we could find ourselves in a position in which we could not exercise our own faith in our own organizations.

I use the example of communion in my prepared testimony simply to show how absurd the applications of the laws could be if we repealed the compelling Government interest and made the only test the general applicability of a statute. Hospitals that are Christian hospitals that would not wish to perform abortions could be made to do so or to lose their accreditation.

In the prisons, the problem is really severe, as Pat and I can testify to. You live at the whim of that warden. We now work in 1,200 prisons in America, and we know the delicate negotiations we go through to get access in order to be able to bring religious programming into the prisons. It is obviously an administrative burden to the officials of that prison, understandably. They're somewhat restrictive of outside activities, but, again, in order to be able to do our job in the prisons, we need some assurance that free exercise will be respected.

I had one commissioner of corrections tell me that if RFRA were repealed, he would shut down any religious programming, and when I argued with him, he said he'd get rid of the chaplains. He said, "Why should I maintain them?" He said, "Anybody can go in their cell and practice their own religious beliefs in their own ways," and he simply reflects a misunderstanding of what Christianity is, because Christianity is a communal religion. It is one in which we have to be together to practice our faith; to administer

the sacraments, and to be part of a community of believers; that's what Christian faith is. So, you can't do it just by worshipping privately in your cell.

The irony of restricting it in prisons is particularly painful, because we know from 20 years of work that, religion, faith is the one thing that will turn the lives of these prisoners around. A study was done in New York of the programming of Prison Fellowship, funded by the Templeton Foundation and done by the National Institute of Mental Health. This study discovered that if people were in 10 of our programs in a year, the recidivism rate was reduced from 41 percent, which was the recidivism rate in that prison, to 14 percent among those who went through our programs. Why in the world it would make any sense to restrict religious activities in the prisons when we can show that, in over 20 years' experience, that's the one thing that makes a difference, is a question that I will leave for the Committee.

The second point I want to make very quickly is that, contrary to what the public believes, the Constitution does not give the Supreme Court the right to make ultimate decisions about what is constitutional and what is not. The Constitution is silent, because both the conservatives and the liberals, Hamilton and Jefferson, opposed giving that right to the Supreme Court. The Supreme Court took it in the case of Marbury v. Madison, Chief Justice Marshall's opinion in 1803, but it didn't take it the way this Court has interpreted it. This Court has misinterpreted Marbury v. Madison. Marbury v. Madison, Chief Justice Marshall said, "In a case of controversy which comes before us, a statute is in conflict with the Constitution and is unconstitutional, we have the right to say that that statute is unconstitutional." They assumed the right. It was challenged by Jefferson at the time; it was challenged by Andrew Jackson in the Bank case; it was challenged by Abraham Lincoln in the Dred Scott decision-thank God it was.

But only in recent years has the Court been applying this as recklessly as they have in the Boerne decision. Because in the Boerne decision, they've created brand-new constitutional law. The Congress must not turn away from this challenge. What they have said to the Congress is, "You can't pass any kind of law that makes a substantive determination about a constitutional right that either adds to or subtracts from it." If that had been enforced during the civil rights movement in this country, we would still have applications of the Dred Scott decision and its successor decisions on the books, because what they're basically saying-strip away all the language and all the mistaken interpretations of court decisions and precedents by the Supreme Court-what they're basically saying, is that only the Supreme Court can decide what is a constitutional right, and only the Supreme Court can enforce what is a constitutional right.

Congress is reduced to procedural powers only. This is a preposterous challenge to the authority of this body which represents the people. When the people of the United States, through their elected representatives, almost unanimously say this is how we want to protect our first freedom, and for the Supreme Court to say this body acting on behalf of the people does not have authority, is a preposterous challenge. It is throwing down the gauntlet, and if