cisely the way Flores said was appropriate. In Flores, the Court explicitly recognized that Congress has the power under Section 5 to enforce the protections of the Fourteenth Amendment through substantive or even "preventive" legislation where two conditions are satisfied: (1) "there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional"; and (2) there is "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."2

The land-use restrictions contained in the Act are a prime example of legislation that is constitutional under this formula. Land-use regulation is usually administered through highly individualized processes, often without regard to generally applicable rules. As the legislative record shows, there is strong evidence that these processes have been and are repeatedly being used throughout the United States to discriminate against religious minorities, denying them houses of worship in communities where they-and perhaps religion in general-are unpopular. This type of discrimination is clearly unconstitutional, but is often extremely difficult to detect and prevent.

For this reason, it is entirely appropriate for Congress to adopt the kind of remedy embodied in Section 3(a). That remedy-requiring that the regulation be the least restrictive means to prevent substantial and tangible harm to the government's compelling interest-is certainly "proportional" to and congruent with the constitutional injury documented in the record. Unlike RFRA, the remedy is limited to a defined class of particularly problematic government decisions, and does not apply more broadly. Thus, the land-use provisions of the Act simply follow the road map laid down in Flores, and I think the Supreme Court will recognize that if anyone challenges them.

Third, the Act's limited abrogation of sovereign immunity for violations of the Free Exercise Clause is constitutionally uncontroversial even under recent Supreme Court precedent. That is because this aspect of the Act is based on the Fourteenth Amendment rather than a constitutional provision pre-dating the Eleventh Amendment.3 And the abrogation of sovereign immunity here is similar to those contained in the civil rights laws.4 Moreover, in this regard the Act simply treats state governments the same as the federal government, which is also deprived of its sovereign immunity as to free exercise claims.

Fourth, to the extent the Act relies upon Congress's spending power, it does so in a way that is similarly uncontroversial. Congress has frequently attached conditions to the use of federal funds to ensure that such funds are not used in a manner that undermines the interests of the United States or the rights of its citizens. For example, under Title VI of the Civil Rights Act of 1964, Congress has long required that state participants in federal programs not engage in racial discrimination,5 and no one could seriously question the validity of that requirement under the Spending Clause.

So too here: Section 2(a)(2) simply requires that all those who operate federally funded programs respect religious freedom in the administration of those programs. That is no different in principle from Title VI.

6

It is also far easier to defend than the law that was upheld in South Dakota v. Dole, and which permitted the Secretary of Transportation to withhold all highway funds from states in which minors could purchase alcohol. There, the federal government essentially forced the states to take action that was entirely separate from operating federally funded programs as a condition of participating in those programs-kind of like forcing the states to enact religious-freedom legislation as a condition of participating in Medicaid. Here, by contrast, the spending condition—respecting religious freedom-applies only on a program-by-program basis, and does not require the state to take any external action.7

Fifth, because RLPA is narrower than RFRA, the Establishment Clause argument against the Act is even weaker than the Establishment Clause argument that garnered only one vote in Flores. The Supreme Court has repeatedly upheld laws that exempt religious beliefs and practices from generally applicable rules against Establishment Clause claims.8 That is all RLPA does. And the Court has never remotely suggested that to preserve religious freedom in more than one area of public policy

2 Flores, 117 S.Ct. at 2164, 2170.

3 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996). 4E.g. Civil Rights Act of 1964, § 701 et seq., 706(k) as amended.

5 See 42 U.S.C. § 2000d et seq. (1994).

6483 U.S. 203 (1987)

7 Moreover, as with all federal spending conditions, the recipients of federal money are free to decline payment for a particular program if they do not wish to comply with the requirements established by Congress for that program.

8 E.g., Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).

at the same time is an "establishment of religion," whereas to do so on a statueby-statute basis is perfectly acceptable.

Sixth and finally, the separation-of-powers attack on the Act is also weaker than a similar argument that Ms. Hamilton made in Flores-which got no votes there and was recently rejected by the Eighth Circuit in Christians v. Crystal Evangelical Free Church. To be sure, Justice Kennedy's majority opinion in Flores discussed separation-of-powers principles, but only in the context of justifying and explaining the Court's interpretation of Section 5.10 The Court did not suggest, much less hold, that RFRA violated the constitutional separation of powers in addition to being beyond Congress's authority under Section 5.11

In contrast to RFRA, moreover, the Act does not purport to be a full-blown "restoration" by Congress of the rules applicable to free-exercise claims prior to the Supreme Court's decision in Employment Division v. Smith.12 So no one can plausibly claim that Congress in this legislation is somehow trying to second-guess or “overrule" the Court as to the proper interpretation of the Constitution in litigated cases. Nor, for the same reason, can anyone plausibly claim that the act is an effort to "amend the Constitution" without proper ratification procedures.

Indeed, by enacting this legislation, Congress is simply taking up the Supreme Court's invitation in Smith to resolve issues of religious freedom through the democratic process. In Smith, the Court characterized its decision as "leaving [religious] accommodation to the political process," and further stated: "Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well." 13 That same invitation was reiterated by Justice Scalia, the author of Smith, in his concurrence in Flores: "The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of [religious accommodation] cases. The historical evidence . does nothing to undermine the conclusion we reached in Smith: It shall be the people." 14 Given this explicit invitation in Smith and Flores to the people's elected representatives, it is highly unlikely that the Court would fault Congress for having carried out the will of the people within the sphere of Congress's enumerated powers.

Finally, with all respect to Professor Eisgruber, the argument that Section 3(a) violates the separation of powers by allocating the burden of proof to defendants on most issues in free exercise cases is frivolous. There is no case-law support for that position. And it is refuted by Supreme Court decisions upholding Congress's power to do just that in constitutional civil-rights cases. 15

IS THE ACT A WISE USE OF FEDERAL POWER?

Now I recognize and strongly believe that even if a statute does not exceed Congress's power under existing interpretations of the commerce clause, or Section 5, or whatever provision Congress invokes, it may still be objectionable on federalism grounds as a matter of policy. But this is not such a statute.

First of all, the Act's impact on the States is carefully limited in key ways. For example, Section 2(d) expressly gives a state or local government great latitude in choosing a remedy for a violation of the statute. The government may not only change the policy that results in a burden on religion; it may also leave the policy in place but grant religious exemptions or do anything else that eliminates the religious burden. Section 2(c) also prevents the federal government from denying or withholding financial assistance as a remedy for violations. And Section 4(c) greatly reduces the litigation burden on states by subjecting prisoner claims brought under the Act to the Prison Litigation Reform Act of 1995 and subsequent amendments.

9 1998 WL 166642 (8th Cir. 1998).

10 117 S.Ct. at 2162-72.

11 The argument that the Act violates the "enumerated powers requirement" is frivolous. Of the key operative provisions, Section 2(a)(1) is obviously based on Congress's commerce power under Article I, Sec. 8, cl. 3; Section 2(a)(2) is plainly based on the spending power under Article I, Sec. 8, cl. 1, & Sec. 9; and Section 3 is expressly based on Section 5 of the Fourteenth Amendment. And the fact that the Act does not identify a specific arena of commerce or spending is irrelevant. The Act's opponents have not cited a single decision suggesting that such a requirement applies.

12 494 U.S. 872 (1990).

13 494 U.S. at 890.

14 117 S. Ct. at 2176.

15 Rome v. United States, 446 U.S. 156, 174 (1980); South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).

By contrast, as I have already explained, the Act does not "push the envelope" of Congressional power. All it does is extend to religious exercise the same types of protections that Congress has traditionally used to protect other values such as non-discrimination.

And so the fundamental policy issue presented by the Act is this: Is religious freedom as important as the value of non-discrimination, or even other values such as access to abortion clinics-that have been protected through similar uses of federal power? If not, then perhaps an additional application of the federal commerce power is not worth the price. But if religious freedom is as important as the other values that Congress has protected through similar measures, the Act is a wise and sensible use of that power.

For me, other than the rule of law itself, there is no value more deserving of protection than religious liberty. I believe religious liberty is central to God's entire plan of happiness for us, His children.16 And I believe that is one of the principal reasons He inspired our Founding Fathers to organize this nation as they did, and why He has protected it to this day.17 Because of these beliefs, I have no difficulty concluding that the value of religious liberty is at least as important as other values that Congress has previously protected through means similar to those used in the Act. But that is the key issue each Member will have to decide for himself or herself.

WILL THE ACT HELP PROTECT RELIGIOUS LIBERTY?

This leads me to the final issue: Will the Act actually help protect religious liberty?

Preliminarily, it is important to remember that the Act is carefully crafted to avoid any unintended, adverse impact on religion. Section 5(e), for example, makes clear that a finding under the Act that a particular religious exercise affects commerce "does not give rise to any inference or presumption that the religious exercise is subject to any other law regulating commerce." Similarly, Section 5(b) precludes any effort to use the Act as a basis for any claims against a religious organization, including a religiously affiliated school or university, whose activities do not rise to the level of "acting under color of law." Under the Supreme Court's decisions, that is a very difficult showing to make. 18

Nor do I think Section 2(a) would create discrimination in favor of large, mainstream religions and religious groups against smaller or less mainstream groups. The test under Section 2(a) is not whether the particular group has a discernible impact on commerce, but whether the type of religious exercise has such an impact. Thus, the religious practices of a wide range of religious groups could and should be aggregated in determining whether the commerce requirement has been satisfied. This greatly reduces any advantage large religious groups might otherwise enjoy in establishing an impact on interstate commerce.

Nor do I believe the commerce requirement of Section 2(a) would in any way "cheapen" religion, as some have claimed. That provision does not require a claimant to show that his or her religious exercise is a commercial activity. All it requires is some impact on commerce. I think religious people are smart enough to draw a distinction between actions that are themselves commercial, and actions that in the aggregate have an impact on commerce. Thus, I do not believe the Act will in any way harm religious freedom.

By contrast, each of the three main operative provisions of the Act will materially increase the level of legal protection for religious liberty throughout the nation. First, Section 3(a) will provide a means of redressing a broad range of violations of the Free Exercise Clause that cannot be enforced effectively today because some of the elements of a violation are so difficult to detect and prove. As a litigator, I can tell you that shifting the burden of proof on some of those elements will, by itself, have a powerful, salutary impact on the way in which government bodies respond to actual or potential free-exercise claims.

Consider for example a school district that rents its facilities to private users on weekends, but because of hostility to religion, is considering whether to prevent those facilities from being used for worship services. If the school district knows that an adversely affected religious group would have to prove that the district acted with an anti-religious purpose, they may simply agree to adopt the restriction, keep

16 E.g., Joshua 24:15; The Book of Mormon, Another Testament of Jesus Christ, 2 Nephi 2:1112, 26-27; The Pearl of Great Price, Moses 7:32.

17 E.g.,The Book of Mormon, Another Testament of Jesus Christ, Nephi 1:6-7; 10:10-12; Ether 2:12; Doctrine & Covenants of the Church of Jesus Christ of Latter-Day Saints 101:7680. 18 E.g., NCAA v. Tarkanian, 488 U.S. 179 (1988).

silent about their motivations, and hope for the best. But if they know they will have to prove affirmatively that they acted for legitimate reasons, they will think twice before adopting the restriction. Or at least their lawyers will so advise them.19 Second, as will be explained in greater detail by Professor Cole Durham, Section 3(b) will provide a very important institutional benefit to churches and other religious bodies by making it more difficult for local land-use regulators to exclude religious buildings. Few things are more central to most peoples' religious practice than the ability to worship in a nice building, in a nice location, and not too far from

one's home.

Third, by reinstating the "compelling interest" test for government decisions falling within Congress's power under the commerce and spending clauses, Section 2 will go some distance toward closing the remaining gap between the level of protection provided for religious freedom prior to Smith and the protection that currently exists. Exactly how far will depend to some extent on how the Supreme Court construes the scope of the commerce power. But even if the Supreme Court significantly narrows its interpretation of that power, Section 2 would still likely protect a great deal of religious activity. At a minimum, religion would be protected under federal law to the same extent as other important values such as non-discrimination. And that is perhaps the most anyone can hope for.

At the end of the day, I believe a combination of RFRA and RLPA, supplemented by the Supreme Court's existing interpretation of the Free Exercise Clause, will likely cover about 95 percent of the religious-liberty problems that were covered by the compelling interest test prior to Smith. And that of course means that this patchwork of statutory and constitutional protections will be about 95 percent as effective as a constitutional amendment restoring the compelling interest test in all cases alleging a deprivation of religious freedom. Given the difficulty and uncertainty surrounding any constitutional amendment, I believe it is wise to take a statutory approach again before proposing and submitting a constitutional amendment. With so much at stake, Congress should not let the perfect become the enemy of the good.

In sum, the proposed Act is plainly constitutional. It is a wise and prudent use of federal power. And it will have an enormous, positive impact on religious freedom in this country. Thank you again for the opportunity to testify on this important subject.

Mr. CANADY. Mr. Stern.

STATEMENT OF MARC STERN, DIRECTOR, LEGAL
DEPARTMENT, AMERICAN JEWISH CONGRESS

Mr. STERN. I want to thank you for putting me on last. The first time the committee held hearings I spoke after some very eloquent ministers. This time I get to speak after a number of law professors. It is going to be a lot easier to sound interesting this time.

I have two tasks today. One is to demonstrate the substantial economic impact of religious activity, and the second is to discuss the impact of RLPA on civil rights laws.

My grandmother supported herself and my mother during the Great Depression by operating a little kosher chicken market. And the way the business operated was that she would buy chickens from a local wholesaler. Somebody would come in and want to buy a chicken, and my grandmother would arrange for the ritual slaughterer to come in and slaughter the chicken. It was a local business.

Today the kosher poultry market is dominated by two or three large firms located in Indiana, Pennsylvania, and Iowa, all of which distribute nationally.

On the desk in front of me are two piles of catalogs. One comes from a Baptist Association, of which there are 1,200 in the United

19 See, e.g., June 4, 1998 memorandum from Steve McFarland of the Center for Law and Religious Freedom to Hon. Charles Canady at 6 (“McFarland Memorandum”) (attached) (citing this and other examples).

States. One is taken from the shelves of a Baptist church in Virginia. These are catalogs of materials sold to religious organizations, especially designed to meet religious needs. I have from the Catholic Directory, which is the national how-do-you-find-things-inthe-Catholic-Church directory, an advertisement for a Munich firm of stained glass makers, which has its American offices 2 or 3 miles from where I live in New Jersey. Pictured are stained glass windows installed in churches in Covington, Kentucky; Seattle, Washington; Philadelphia, Pennsylvania, and Germany.

I have as well as catalogs addressed to synagogues. One sells synagogue furniture. The furniture is made in Israel and customdesigned for synagogues across the United States. The other is a catalog of a business that started out 100 years ago on the lower east side selling locally; now does 70 percent of its business nationwide by mail order.

The economic impact of religion, of course, is not limited to what churches buy and what they sell. Estimates range between $44 billion and $66 billion a year of charitable donations to houses of worship. When one adds to that the amounts paid in tuition to just the three largest streams of church schools, Catholic schools, about $6.5 billion; $1.2 billion to Christian schools; about half a billion dollars to Jewish schools, (there are yet others that I haven't calculated), when one adds all of that together and then one takes into account hospitals, which operate under church auspices and frequently under church rules that come into conflict with Government regulation-e.g., abortion and end-of-life decision-making. Catholic hospitals are very large networks. They are 10 of the 20 largest HMO networks in the country, and, again, billions of dollars flow through those institutions. They buy and sell things in interstate commerce. They hire people, and those people spend the money they earn, and that has an impact on religious commerce. I don't think there can really be any serious question about the extent to which religion is a significant player on the American economic scene. It doesn't mean religion, as Karl Marx might have had it, simply another economic enterprise. It doesn't mean that everything that happens in the name of religion affects interstate commerce. There are lots of small and private religious activities that may have no larger connections. But religion as a whole is clearly a major economic factor.

I would say two things. In my view, the Commerce Clause question was settled last year by the Supreme Court in the case of Camps Newfound Town of Harrison, in which there was a passive Commerce Clause question. The camp was not tax-exempt under Maine law because many of its campers came from out of Maine. That limitation was challenged as interfering with interstate commerce. And the town, in defense of its tax scheme, said this wasn't commerce at all, campers weren't articles of commerce, and that camps were not in the business of making a profit and therefore could not invoke the Commerce Clause.

The Court, in a very short paragraph that I quote in my written testimony, just rejected that out of hand. People move interstate. The camp buys and sells things interstate. That puts it in interstate commerce.