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When you take that small camp and you multiply it across the scope of religion in the United States, it seems to me perfectly clear that Congress is within its authority in using the Commerce Clause here.
Let me say just quickly on this as well: Congress often uses its Commerce Clause power to protect an industry to allow it to grow, to allow it to function, depending upon the needs of that industry. With regard to the Internet, it may mean exempting Internet commerce from local taxation. With regard to railroads, it means that States can't regulate what size cars or when railroads run. Each industry has its own needs to work as a national player on the economy. What religion needs is deregulation from State control.
Very briefly about civil rights laws, I would emphasize again what is frequently lost sight of. RLPA is not a statute that by itself trumps any particular practice or statute. It simply says you have got to look at it again and see if the statute or practice meets these standards: Does it serve a very important government interest, and does it do so in a way least burdensome to religion?
It invalidates no civil rights law or any other law. In that respect, it is much narrower than existing exemptions from civil rights laws that give carte blanche to religious institutions to engage in religious discrimination, which is a typical feature of civil rights laws. Many civil rights laws have broader provisions—apply that same standard to anything a religious institution does.
RLPA is not that broad. It gives the government a chance to justify its regulation. As I say in detail in the testimony, there aren't any religious organizations of any significance, and I don't know of any altogether, that practice or encourage racial discrimination. There are very few, and here the picture is a little more cloudy with regard to sexual discrimination. Moreover, it is settled by case law, that outside the area of hiring ministers, the claims of sexual equality are going to prevail over religious exemptions. That is even for religious institutions, to say nothing of for-profit institutions. I don't know of a single for-profit institution that has ever raised a successful religious freedom claim as against a civil rights claim. We can go into later, if there are questions, about how it would apply to marital status discrimination and gay rights discrimination, but I would expect largely that same pattern would hold.
Why, then, is it necessary to include civil rights laws within the scope of RLPA? There are several answers, one political. Once you start making exceptions, you are going to find it very hard-lots of interest groups, (Professor Hamilton has already listed some of them), are going to come and say, we also have important interests, we ought to be outside the scope of RLPA, and soon we won't have anything worth doing.
But the second reason particularly relates to gay rights legislation and marital discrimination, marital status discrimination in particular. Those discrimination laws embody a particular view of hotly contested moral issues, issues where we may agree that in public we won't discriminate, but the underlying moral issue is very much in dispute in our society. To say in RLPA that some moral views are outside the universe of polite discourse, we are not even going to allow them to be questioned, is in effect to use RLPA
to say that certain religious views ought not to be even heard, ought not to be considered. And given the political controversy and the genuine moral debate over those issues in the country, it seems to me that that would be unwise, particularly since it is unlikely that many people raise those claims and that they will be successful in any number of cases to change our commitment to equal treatment of all citizens, to note these cases out of court from the outset.
Thank you. I am sorry I ran late.
PREPARED STATEMENT OF MARC STERN, DIRECTOR, LEGAL DEPARTMENT, AMERICAN
JEWISH CONGRESS Article I, 98, cl. 3 authorizes Congress to "regulate Commerce with foreign nations, and among the several States.” I am not here as an expert on the Commerce Clause. For me to claim such expertise would border on perjury. I rather come to lay out some of the economic facts about religious life in the United States.
The Commerce Clause is the constitutional hook on which Congress rests its authority to act, not a characterization of the interests involved. City of Boerne teaches that broad religious liberty protection needs to rest on an enumerated power of Congress within the list in Art. I, § 8, other than $5 of the Fourteenth Amendment. The Commerce Clause is one such power on which this bill rests, albeit not the only one.
The use of the Commerce Clause as a hook for legislation whose political and social heart is a moral principle is hardly unprecedented. Some of the nation's most important pieces of social legislation rest on the Commerce Clause. The most visible (and successful) recent examples are Titles II and VII of the 1964 Civil Rights Act, banning racial, sexual and religious discrimination in places of public accommodation and employment. (Earlier still, Congress used this power to ban child labor and the interstate transportation of women for immoral purposes—the Mann Act). No one believes that the principle of non-discrimination embodied in these landmark pieces of legislation is tainted because it rests on the Commerce Clause. The clients I represent who seek religious accommodation in the workplace are not in the slightest offended that the Act upon which their cases is premised rests on the Commerce Clause. Those to be protected by the Religious Liberty Protection Act will no doubt also not be offended that their rights are protected by the Commerce Clause.
We know authoritatively that many activities of religious not-for-profit corporations come within the Commerce Clause. The Supreme Court told us so last Term in Camps Newfound/Owatanna v. Town of Harrison, 117 S.Ct. 1590 (1997). The summer camps were religious, operated by Christian Scientists, to allow children to grow "spiritually and physically in accordance with the tenets of their religion.” Id. at 1594. It challenged (ultimately, successfully) a preference in the operation of a real property tax exemption for camps serving Maine residents primarily as a violation of the Commerce Clause.
At the outset, this claim was met with the twin objections that campers were not articles of commerce, and that the camps were not in the business of making a profit, and hence that the camps could not raise a Commerce Clause challenge. The Court rejected these defenses:
Even though petitioner's camp does not make a profit, it is unquestionably engaged in commerce, not only as a purchaser, see Katzenbach v. McClung, 379 U.Š. 294, 300_301 (1964); United States v. Lopez, 514 U.S. 549 (1995), but also as a provider of goods and services. It markets those services, together with an opportunity to enjoy the natural beauty of an inland lake in Maine, to campers
who are attracted to its facility from all parts of the Nation. Id. at 1596.
Moreover, as we will show, the very size of an action can bring it within the Commerce Clause if it affects interstate commerce. NLRB v. Fainblatt, 306 U.S. 601 (1939); Wickert v. Fillburn, cited in Hodel v. Virginia Surface Mining Assn., 452 U.S. 264, 308 (1981). In that case, Justice Rehnquist insisted upon a substantial effect on interstate commerce, id. At 310–11. Accord Lopez v. U.S., 115 S.Ct. 1624, 1630 (1994). "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Lopez also reaffirms Wickert's holding that the cumulative effects of small-scale economic activity can bring an activity within the Commerce Clause.
Much religious activity will fall within these rules. Although, perhaps contra to Karl Marx, religion is not primarily an economic activity, in all its various forms, institutional and personal, it surely has a substantial effect on commerce.
A caveat before I turn to the statistics. As a consequence of the American tradition that religion is not the business of government, the government appears to have relatively little relevant data. Churches are not required to file the informational return required of other not-for-profits (Form 990). The Census Bureau asks no questions about religious affiliations, nor, as best as I can discover, does it survey churches to assay their economic activity. The Department of Housing and Urban Development does a biennial survey of housing, and inquires into those factors which lead people to select a home, but it asks no questions about religion. (I.e., whether the presence of a church makes a difference. Is the presence of a significant body of fellow believers a prerequisite for moving into a community?) The Commerce Department does keep figures on religious construction, but these may well substantially underestimate the extent of that activity.
As I will discuss, there are private studies by Independent Sector and others, notably the National Association of Fund Raising Counsel and Empty Tomb, which attempt to quantify the extent of philanthropic activity directed toward the support of religious activity. These data are imprecise in part because no government agency collects official data. Moreover, there are religious institutions involved in a variety of activities likely to come within the scope of RLPA which are not houses of worship, and are lumped together with other apparently secular categories. On the other hand, the possibility of some dual reporting cannot be eliminated, either. Still, the numbers I describe are the ones that experts and others in the field point to with some regularity, and in some measure, cross-check with each other.
Most churches and religious not-for-profit organizations support themselves with membership dues and fees for services. Independent Sector's 1990 survey l reports that 60 percent of national household charitable giving totaling 122.5 billion dollars 2 was given to religious institutions, or a total of 65.76 billion dollars. More recently some have argued that the amount of religious giving is exaggerated by some 20 percent, and that the total of giving to churches is only (!) 44 billion dollars. 3 The Not-for-Profit Almanac (1996–7), p.175 reports that revenues for religious institutions in 1992–93 were 58.3 million dollars. The Almanac also reports that religious congregations had current operating expenditures of 41 billion dollars. Some of the difference is no doubt savings or reserves, but much of the rest is no doubt spent on capital improvements-new buildings and upgrading old ones, a fact which makes RLPA's zoning provisions quite important. To the extent that localities interfere with the ability of religious institutions to build, they reduce the amount of commerce in construction—much of which involves the interstate movement of goods (stained glass, furnishings) and services.
Even as to houses of worship these figures on philanthropy understate the impact of houses of worship/themselves only a subset of the religious community. According to the Almanac, income from endowments (for 1992) is another 1.3 billion dollars. In 1992,some 6 billion dollars was spent on capital improvements and new construction (Almanac, p. 190, Table 4.2), up from 4.8 billion dollars in 1987. (By comparison, all educational institutions-a category which includes many religious institutions, the figures were 6.4 and 4.9 billion dollars respectively.) In 1982, religious institutions had endowment investment income of 1 billion dollars, and spent $800,000,000 on construction. In short, in recent years there has been a substantial leap in the amount of capital construction by religious organizations.
These figures include only current financial expenditures. Even more capital is invested in religious institutions in the form of real property and buildings, some of which have been dedicated to church use for centuries. Recent studies indicate that these facilities are used by other community groups, often at reduced rents; this multiplies their effect both on the economy and the well-being of our communities and the nation.
Data, however, is hard to come by. In almost all states, statistics on exempt property are maintained locally, not at the state level. I have not had the resources to
1 From Belief to Commitment (1993), p. xi. 2 Giving USA (1990), p. 101. 3J. &.Š. Ronsvalle, How Generous Are We? Christian Century, June 3–10, 1998, pp. 579–80.
compile this data piecemeal. Two states, however, do maintain such data: New York and Wisconsin.
The most recent figures for New York show 13.5 billion dollars of property (In some 23,000 parcels) held as houses of worship, and an additional 3.6 billion dollars of parsonages. Other property used by religious organizations (cemeteries, schools, hospitals, and the like) are not broken out separately. This amounts to about 5 percent of the total exempt property (a category which includes government buildings and public parks).4
The most recent figures for Wisconsin (1996) show that church/religious property amounts to almost $5 billion of tax exempt property, which constitutes 40.6% of all exempt private real property.5 As in the case of New York, other property used by religious organizations are not broken out separately.
Houses of worship do not exhaust the economic extent of religious activity. At this point, though, certainty becomes even less possible. Religious enterprises include schools, hospitals, and social welfare institutions. Some of the latter two categories may be largely indistinguishable from their secular counterparts, but surely not all. Catholic and Baptist hospitals operate under a series of religious directives. These have in the past clashed with various regulations. Given the consolidation in the health care industry, it is likely that there will be more such clashes. In any event, these hospitals are a significant economic player.
The Catholic health care sector has a huge economic impact. There are 625 Catholic hospitals in 48 states; 713 long-term care facilities, and 51 HMO's in 32 states. They make up 16 percent of the total U.S. community hospital admissions and outpatient visits. They produce over $44 billion in hospital revenues, much of which is spent, obviously , in interstate commerce in pharmaceutical and other supplies. The assets of these facilities also exceed 44 billion dollars.6 Catholic health care systems account for 10 of the 20 largest health care systems in the country. These figures do not, of course, include the large Baptist, Jewish and other religiously affiliated hospitals.
The economics of parochial schools are somewhat different than for houses of worship. To varying degrees, depending largely on the vagaries of each denomination's organization, these institutions derive much support from tuition. Catholic schools enroll (according to the National Catholic Education Association) during the most recent school year for which figures are available-1997–98—some 2.5 million students, in 8,200 schools at an average per pupil cost of $2,414, for a rough total of 6.24 billion dollars.
Conservative Christian schools, according to the National Center for Educational Statistics (March 1998) enroll about a half million students in 3,300 schools. Some 172,000 Jewish students attend some 688 schools. I have been unable to locate average costs for the Christian schools supplying. Applying the Catholic schools' costs to these students, gives a (conservative) total of 1.2 billion dollars.
Jewish schools are more expensive. The Avi Chai Foundation 8 did a study of Jewish schools outside the New York area concerning the 1995–96 school year and nonNew York Metropolitan area schools calculated an average cost of between $5,000 and $6,000 per student. Using the lower figure for the entire student population including those in schools in the New York area, we conclude that the tuition costs are $860,000,000. These three streams—and they by far do not exhaust the spectrum-lead to a total of tuition costs of 8.3 billion dollars. These numbers (admittedly rough) do not include fees and charitable contributions, as well as endowment income to the schools, which educate together three-fifths of all non-public school students.
Some of the funds go to salaries; others go to textbook publishers and computer manufacturers, and sellers of school supplies, all of whom are regularly involved in interstate commerce. These institutions build and maintain buildings with supplies purchased in interstate commerce by companies which are nationwide in scope. The number of buildings (over 12,000) is itself so substantial as to necessarily have an impact on interstate commerce.
These figures include only elementary and secondary schools. But religious education does not stop there. Institutions of religious higher education also exist. I do not have figures for the economic impact of the many colleges under religious auspices, even if defined to mean school where religion plays a significant and more
4 Statewide Summary of Exemptions by Property Group and Exemption Code, 1995 Assessment Roles, pages B.85–959, Table B.4
5 State of Wisconsin Summary of Tax Exemption Devises, Feb. 1997, p. 100, Table 1.
than a nominal role in the life of the school, but also in schools of theology. The Association of Theological Schools, representing mainline Protestant schools of the ology, represents some 220 schools, enrolling some 65,000 students in the 1996–97 school year at an average cost to student of $6,200 per student for a total of $406,000,000.9 Again, this figure would not include grants or endowment income. And it says nothing of Catholic seminaries, smaller Bible schools, or yeshivot (rabbinical schools).
Nor is it beyond the realm of the possible that these schools and hence interstate commerce would be affected by state imposed substantial burdens. During the 1980's state regulators and operators of so-called Christian schools frequently clashed. In Nebraska, where courts had upheld the broad power of regulation, many schools singly closed their doors rather than operate in violation of their religious principles. Those closures reduced purchases in interstate commerce.
Another area not included until now is that of charitable giving under religious auspices. The Chronicle of Philanthropy 10 annually lists the top 400 charities in the United States. The largest charity in the United States is the Salvation Army, with an annual income of over 2 billion dollars—and it has on several occasions clashed with the government over religious liberty and government regulation. Number 5 is Catholic charities at 1.1 billion dollars. Numbers 7 and 8 were also religious affiliates—the YMCA and Habitat for Humanity. Number 19 at one quarter of a billion dollars is Campus Crusade for Life. Many other religious charities-not-individual houses of worship-are scattered through this list.
So far what has been said relates to income and capital expenditures of religious institutions. Religious life also has a personal side, one which commands expenditure of funds by believers in furtherance of their religious beliefs and practices, from ritual object to ritually acceptable food to books, music and mass media. Much of these move in either international or interstate commerce.
The Christian Bookseller Association is the trade association of Christian product suppliers. It has 12,500 member stores in the U.S. selling books, records, apparel and videos. It estimates that it members do 3 billion dollars of annual business, with many stores doing over 1 million dollars a year in annual business. In 1997, it had a convention in Georgia, attended by over 13,000 people, and over 400 exhibitors from across the country and the world.
The Catholic and Jewish communities also have their own publishers and distributors of religious articles, including furnishings for synagogues and ritual objects. Increasing, these businesses work not as small local bookstores, but as catalog sales business selling objects made in various state and foreign locations across the United States. One such seller to the Jewish market, J. Levine Booksellers, started out as a small bookstore on New York's lower east side 90 years ago. Today, it does 70 percent of its business ($2.5 million) in national mail order business.
Other enterprises sell church and synagogue furniture by mail order catalog to houses of worship nationwide, as can be seen in particular from the ads in the Catholic Directory. Copies of these will be entered in the record.
Some faiths have ritual diet requirements, and these, too, have a substantial impact on interstate commerce, and these, too, have been involved in questions of religious liberty.
Dr. Joseph Regenstein, a expert on ethnic and religious diets at Cornell University, estimates that there are between 2 and 3 billion dollars in directed sales of kosher food, that is, sales of items where the consumer seeks out a kosher product. A total of some 35 billion dollars of food products are sold which are under rabbinical supervision. A total of 41,000 products are under rabbinical supervision. Grappa to Scones, New York Times, 12/3/97. I can speak here with personal expertise. These foods are available nationally, and their availability in the national market in ordinary groceries and supermarkets has greatly facilitated travel and business by those like myself who observe the kosher food laws. And by the same token, the transition to a national market in Kosher food has greatly simplified the life of those who in pursuit of economic advantage seek to move away for the largest Jewish communities. Kosher food is now more less available everywhere. One large producer, Manishewitz, distributes its products to more than 18,000 supermarkets (out of a national total of 30,000 stores).
This development has had important implications for the kosher food industry. In Schacter v. U.S., 295 U.S. 495 (1935), the so-called sick chicken case, the Supreme Court invalidated the National Industrial Recovery Act at the behest of a small wholesaler of kosher chickens who purchased some live chickens from other states, but who slaughtered, dressed and sold the chickens for the local market. That was
9ATS Fact Book (1997–98), pp. 27, 103. 10 October, 1997 pp. 1, 45.