U.S.C. 245 (1994), which the Tenth Circuit has upheld, United States v. Lane, 883 F.2d 1484, 1489-93 (10th Cir. 1989), and the public accommodations title of the Civil Rights Act of 1964, 42 U.S.C. §2000a (1994), forbidding racial and religious discrimination in places of public accommodation affecting commerce, which the Supreme Court has upheld.

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

The public accommodations law and the Federally Protected Activities Act are also instructive in another way. Each uses a variety of federal powers to protect as much as possible of what Congress wanted to protect. The public accommodations law applies to operations that affect commerce and also to those whose discrimination is supported by state action. 42 U.S.C. §2000a(b) (1994). The Federally Protected Activities Act uses the enforcement power, the commerce power, the spending power, and power to prohibit interference with federal programs and activities (thus invoking all the powers which Congress used to create such programs and activities) to protect a broad list of activities. 18 U.S.C. §245 (1994). RLPA is more focused and less miscellaneous, but it is similar in its use of those powers that are available to protect activities in need of protection.

I have given considerable thought to United States v. Lopez, 514 U.S. 549 (1995), in which the Court struck down the Gun Free Schools Act as beyond the reach of the Commerce Clause. 18 U.S.C. §922 (1994). The offense defined in that Act was essentially a possession offense; neither purchase nor sale of the gun nor any other commercial transaction was relevant. The Court emphasized that the offense "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms," 514 U.S. at 561, and that the offense "is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Id. at 567. Lopez appears to reaffirm the longstanding rule that Congress may regulate even "trivial” or “de minimis” intrastate transactions if those transactions, "taken together with many others similarly situated," substantially affect interstate commerce. Id. at 556, 558. I will refer to this rule as the aggregation rule: in considering whether an activity substantially affects commerce, Congress may aggregate large numbers of similar transactions.

The aggregation rule is important to the scope of the bill, and especially to the protection of small churches and individuals. Á small church with a RLPA claim need not show that it affects commerce all by itself; it is enough to show that churches in the aggregate affect commerce. An individual need not show that his religious practice affects commerce all by itself; it is enough to show that the practice affects commerce in the aggregate, or perhaps that a broad set of related or analogous religious practices affects commerce in the aggregate.

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

III. OTHER PROVISIONS IN § 2.

Section 2(d) states explicitly what would be obvious in any event-that the government that burdens religious exercise has discretion over the means of eliminating the burden. Government can modify its policy to eliminate the burden, or adhere to its policy and grant religious exceptions where necessary to avoid imposing burdens, or make any other change that eliminates the burden. The bill would not impose any affirmative policy on the states, nor would it restrict state policy in any way whatever in secular applications or in religious applications that do not substantially burden religious exercise. The bill would require only that substantial burdens on religious exercise be eliminated or justified.

The definition of "demonstrates" in §2(e)(3) is incorporated verbatim from the Religious Freedom Restoration Act.

IV. THE ENFORCEMENT CLAUSE PROVISIONS.

Section 3 would be enacted primarily as a means of enforcing the Fourteenth Amendment. Section 3 attempts to simplify litigation of free exercise violations as defined by the Supreme Court, facilitating proof of violations in cases where proof is difficult. In some applications-church construction projects are the most obvious example § 3 could also be upheld as an exercise of the commerce power.

A. Shifting the Burden of Persuasion.

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

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

fail to pro

The protective parts of the Smith and Lukumi rules create many difficult issues of proof and comparison. Motive is notoriously difficult to litigate, and the court is often left uncertain. The general applicability requirement means that when government exempts or fails to regulate secular activities, it must have a compelling reason for regulating religious activities that are substantially the same or that cause the same harm. See, e.g., Lukumi, 508 U.S. at 543 (“The ordinances. hibit nonreligious conduct that endangers these interests in a similar or greater degree"); id. at 538-39 (noting that disposal by restaurants and other sources of organic garbage created the same problems as animal sacrifice). But there can be endless arguments about whether the burdened religious activity and the less burdened secular activity are sufficiently alike, or cause sufficiently similar harms, to trigger this part of the rule. The scope of hybrid rights claims remains uncertain. Burden of persuasion matters only when the court is uncertain, but, as these examples show, the structure of the Supreme Court's rules leave many occasions for uncertainty.

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

B. Land Use Regulation.

Section 3(b) enacts prophylactic rules for land use regulation. Section 3(b)(1)(A) provides that land use regulation may not substantially burden religious exercise, except where necessary to prevent substantial and tangible harm. Power to enact this standard without limitation to the scope of the commerce or spending power depends on a hearing record showing "reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." City of Boerne v. Flores, 117 S. Ct. 2157, 2170 (1997). Note that the standard is not certainty, but "reason to believe" and "significant likelihood."

This is the fourth hearing before this Subcommittee on the subject matter of this bill. The record of these hearings is replete with statistical and anecdotal evidence of likely constitutional violations in land use regulation. More evidence to the same

effect is being offered at this hearing. I believe this factual record is ample to support §3(b) as legislation to enforce the Fourteenth Amendment.

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

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

Sections 3(b)(1)(B) and (C) provide that governments may not deny religious assemblies a reasonable location somewhere within each jurisdiction, and that religious assemblies may not be excluded from areas where nonreligious assemblies are permitted. The record of individualized determinations and religious discrimination also supports these provisions, but they are not so dependent on that record. It is unconstitutional to wholly exclude a First Amendment activity from a jurisdiction. Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981). Section 3(b)(1)(B) codifies this rule as applied to churches. Discrimination between different categories of speech, and especially discrimination between different viewpoints, already requires strong justification;3 §3(b)(1)(C) codifies this rule as applied to land use regulation that permits secular assemblies while excluding churches.

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

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

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

Subsection 3(b)(4) provides that §2 shall not apply to land use cases. The more detailed standards of § 3(b) control over the more general language of § 2. But note that this provision does not say anything about sources of constitutional power. The land use provisions may be upheld in all their applications as an exercise of power to enforce the Fourteenth Amendment; they may also be upheld in many cases as an exercise of the commerce power. There may even be cases of federally assisted

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

land use planning processes in which these provisions would also be an exercise of the spending power. But however many sources of Congressional power support these provisions, the statutory standards to be applied in land use cases come from §3, and not from §2.

A. General Remedies Provisions.

V. JUDICIAL RELIEF

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

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

B. Prisoner Litigation.

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

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

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

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

Members are well aware that prisoners sometimes file frivolous claims. But they should also be aware that prison authorities sometimes make frivolous rules or com

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

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

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

C. Sovereign Immunity.

Section 4(d) waives the sovereign immunity of the United States, and overrides the Eleventh Amendment immunity of the states, "in claims for a violation of the Free Exercise Clause under section 3." This waiver and override does not apply to claims under section 2.

Congress has power to waive the sovereign immunity of the United States whenever it chooses, so there is no doubt about the constitutionality of § 4(d)(2). It is a discretionary choice, and not a constitutional requirement, that the bill confines the waiver of sovereign immunity to claims under § 3.

Section 4(d)(1) fully conforms with constitutional limitations on Congressional power to override the Eleventh Amendment immunity of the states. The relevant law is clearly set out in Seminole Tribe v. Florida, 517 U.S. 44 (1996). Seminole Tribe holds that Congress can not override Eleventh Amendment immunity in legislation under the Commerce Clause. It concludes that "Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction." Id. at 73.5

But the Court's opinion twice distinguishes and apparently reaffirms Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Seminole Tribe, 517 U.S. at 59, 65–66. Fitzpatrick holds that Congress can override Eleventh Amendment immunity in legislation to enforce the Fourteenth Amendment. Then-Justice Rehnquist's opinion for the Court concluded:

But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment. We think that Congress may,

in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other con

texts.

427 U.S. at 456. Fitzpatrick was a Title VII suit for retroactive pension benefits to be paid by the state of Connecticut, so the holding unambiguously includes suits on statutory claims if the statute was enacted to enforce the Fourteenth Amendment. Accordingly, the override of Eleventh Amendment immunity can include both claims directly under the Free Exercise Clause and claims under §3 of RLPA, which would be enacted to enforce the Free Exercise Clause.

VI. RULES OF CONSTRUCTION.

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

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

5 This conclusion probably does not include the Spending Clause. The Court noted "the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity." Id. at 65. Congress may be able to require that states waive their Eleventh Amendment immunity with respect to programs for which they voluntarily accept federal financial assistance. Immunity would then be removed not by legislation under Article I, but by the consent of the state. But RLPA does not embody this theory; the override of immunity does not include claims under the Spending Clause provisions.