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TUESDAY, JUNE 16, 1998


Washington, DC. The subcommittee met, pursuant to call, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee) presiding.

Present: Representatives Charles Canady, Robert C. Scott and Jerrold Nadler.

Staff Present: John Ladd, Chief Counsel; Robert J. Corry, Counsel; Cathleen Cleaver, Counsel; Michael Connolly, Staff Assistant; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel.

OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY. The subcommittee will be in order. This is the fourth hearing the subcommittee has conducted over the last year concerning the protection of religious liberty in the wake of the Boerne v. Flores decision of the Supreme Court.

Today's hearing will focus specifically on H.R. 4019, the Religious Liberty Protection Act of 1998, legislation which Mr. Nadler and I introduced last week.

[The information referred to follows:)

H. R. 4019
To protect religious liberty.


JUNE 9, 1998 Mr. CANADY of Florida (for himself and Mr. NADLER) introduced the following bill;

which was referred to the Committee on the Judiciary


To protect religious liberty. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the “Religious Liberty Protection Act of 1998”.



(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 or affecting commerce with foreign nations, among the several States, or with the 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; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) FUNDING NOT AFFECTED.-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.

(d) STATE POLICY NOT COMMANDEERED.-A government may eliminate the substantial burden on religious exercise by changing the policy that results in the burden, by retaining the policy and exempting the religious exercise from that policy, or by any other means that eliminates the burden. (e) DEFINITIONS.—As used in this section

(1) the term “government” means a branch, department, agency, instrumentality, subdivision, or official of a State (or other person acting under color of State law);

(2) 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); and

(3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion. SEC. 3. ENFORCEMENT OF THE FREE EXERCISE CLAUSE.

(a) PROCEDURE. If a claimant produces prima facie evidence to support a claim of a violation of the Free Exercise Clause, the government shall bear the burden of persuasion on all issues relating to the claim, except any issue as to the existence of the burden on religious exercise. (b) LAND USE REGULATION.—

(1) LIMITATION ON LAND USE REGULATION.—No government shall impose a land use regulation that,

(A) substantially burdens religious exercise, unless the burden is the least restrictive means to prevent substantial and tangible harm to neighboring properties or to the public health or safety;

(B) denies religious assemblies a reasonable location in the jurisdiction; or

(C) excludes religious assemblies from areas in which nonreligious assemblies are permitted.

(2) FULL FAITH AND CREDIT.-Adjudication of a claim of a violation of 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 exercise.

(4) NONAPPLICATION OF OTHER PORTIONS OF THIS ACT.-Section 2 does not apply to land use regulation. SEC. 4. JUDICIAL RELIEF.

(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,"; and

(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).


(1) LIABILITY OF STATES.-A State shall not be immune under the 11th amendment to the Constitution from a civil action, for a violation of the Free Exercise Clause under section 3, including a civil action for money damages.

(2) LIABILITY OF THE UNITED STATES.—The United States shall not be immune from a civil action, for a violation of the Free Exercise Clause under sec

tion 3, including a civil action for money damages. SEC. 5. RULES OF CONSTRUCTION.

(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 regulation of 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.


(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) EFFECT ON OTHER LAW.-Proof that a religious exercise affects commerce for the purposes of this Act does not give rise to any inference or presumption that the religious exercise is subject to any other law regulating commerce.

(f) 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. SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.

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 funuing, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.

(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 "an act or refusal to act that is substantially motivated by a religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief.”.

(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”. SEC. 8. DEFINITIONS. As used in this Act,

(1) the term “religious exercise” means an act or refusal to act that is substantially motivated by a religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief;

(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; and

(3) except as otherwise provided in this Act, the term "government” means a branch, department, agency, instrumentality, subdivision, or official of a State, or other person acting under color of State law, or a branch, department, agency, instrumentality, subdivision, or official of the United States, or other person acting under color of Federal law.

Mr. CANADY. From the outset of our history as Americans, concern about religious liberty has been central to our national experience. The bill we consider today is based on the conviction that the Congress has an ongoing responsibility to use its constitutionally established powers to protect the freedom of individual Americans to practice their faith against undue incursions by the force of government.

It is a fact of life that the actions of government will, from time to time, come into conflict with the religious practices of some individuals and institutions. As the scope of the activities of government has grown, the occasions for such conflict have increased. The bill on which we will hear testimony today simply attempts to ensure that such conflicts will be taken seriously and that the impact of governmental action on religious freedom will be given full consideration.

As our witnesses will explain, that does not mean that conflicts between the actions of government and the religious practices of individuals and institutions will always be resolved against the government. It does mean, however, that within the scope of the activities subject to protection by the Congress, the value of religious liberty will not be recklessly trampled by insensitive policies and thoughtless bureaucratic actions.

In America, we enjoy many important freedoms, but there is no freedom more fundamental than the freedom to practice one's faith without the interference of government. That is why we are here today, and I look forward to hearing the testimony of our witnesses who will explain the various aspects of the legislation under consideration.

Mr. CANADY. Mr. Scott is recognized.

Mr. SCOTT. Thank you, Mr. Chairman. And I appreciate the opportunity to participate in today's hearing on H.R. 4019, the Religious Liberty Protection Act, and I wholeheartedly agree with the bill's sponsors and their beliefs that too often certain religious practices are substantially burdened to the point where our constitutional freedoms of religious expression are compromised.

Reverend Wilson, a minister from my district, came to one of our hearings and testified that his church was prevented from serving meals to homeless people despite the fact that feeding the hungry is a core component of his church's religious beliefs, and that legislation that prohibited churches from serving food prohibited no other group from such service. And so churches were singled out in that case, and that is one of the cases that deserve our attention and response.

Our response, however, must be deliberate and within our authority to act. The Reverend Wilsons of the world deserve no less.

tionavorend Wilson, a mhat his church was that feeding the on

Now, I have not signed on to the language of H.R. 4019 because I am not convinced that the bill as currently drafted can pass constitutional muster. The bill is being vetted by constitutional law experts throughout the country, and as we begin to receive responses from our inquiries, a number of very significant concerns have been raised. RFRA was overturned because the Court held that the Congress lacked authority and failed to create a proper record that would justify any congressional authority, and I am delighted that we have had hearings, and numerous hearings, on this issue and hopefully are creating a record that can help us pass constitutional muster.

The Commerce Clause, the Spending Clause and section 5 authority of RLPA have been reviewed by a number of experts that contend that the authority that we are using in H.R. 4019 may be questionable. In addition, concerns have been raised in regard to the-constitutionality of State sovereign immunity and the Prison Litigation Act provisions of the bill.

Mr. Chairman, I am delighted that we are focusing our attention to a specific bill, because it will help us focus our attention on certain-on specific language and not generalities, so that as we discuss the constitutionality, we will have the document before us.

It is my hope that we will have a series of hearings to ensure that H.R. 4019 is constitutional and that we are creating the proper record. We have excellent witnesses testifying before us today. They are all experts in this field, and many have been very closely associated with some of the cases that have created the confusion that we are in and the cases that we have to deal with as we consider the constitutionality of this bill.

So I want to thank you for putting together an excellent hearing, and I look forward to hearing the witnesses. Mr. CANADY. Thank you, Mr. Scott.

We will now go to our first panel. I would ask that the members of the first panel please come forward and take your seats.

This morning we will hear from witnesses on two panels. Our first panel is composed of six witnesses, and the second panel will be composed of two witnesses.

On our first panel this morning, our first witness will be Professor Douglas Laycock, who is the associate dean for research at the University of Texas Law School.

Next will be Professor Thomas C. Berg. Professor Berg teaches at the Cumberland Law School in Birmingham, Alabama.

Following him will be Professor Christopher L. Eisgruber of the New York University School of Law.

The fourth witness will be Professor Marci Hamilton. Professor Hamilton comes to us from the Benjamin N. Cardozo School of Law, Yeshiva University, where she specializes in constitutional law, the First Amendment and Copyright law.

The next witness will be Mr. Gene Schaerr, who is with the law firm of Sidley & Austin in Washington, D.C.

And our final witness on this panel will be Mr. Marc Stern. Mr. Stern is the director of the legal department at the American Jewish Congress.

I want to thank all of you for being here with us this morning. Those of you who have been here before, I welcome you back.

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