the typical pattern in that era—and again I speak from personal experience because my grandmother (coincidentally named Schacter-the name means ritual slaughterer owned a small poultry store at the time.

Today, the industry is different as is Commerce Clause doctrine. Almost no poultry is ritually slaughtered at the point of sale. Most is slaughtered and prepared by a few large companies. Hebrew National (owned by Conagra), Empire (located in Mifflintown, PA) and Rubashkin (Agra-processor located in Pottsville, Iowa). These companies distribute their products nationally-as a trip to almost any supermarket will disclose. The same pattern holds for beef with Hebrew National, Sinai/ 48 (owned by Sara Lee) and Rubashkin increasingly dominating the market and pushing out of business small local sellers-in just the way small hardware stores have yielded to large national chains like Home Depot.

The Muslim community too, has some dietary restrictions, notably with regard to the slaughter of beef and the avoidance of pork. It has three or four supervising agencies (there are some 80 or 90 Jewish agencies, but only 4 national ones), one of the biggest of which is the Islamic Food and Nutrition Board of America located in Illinois. Much of the work of the councils involves certifying the export of American products for the overseas Islamic market.

There is a domestic market as well. I spoke to the manager of the largest Hallal market in the Washington area, Hallalco in Falls Church. Hallalco does its own slaughtering. Much of its work involves the slaughter of local beef within Virginia, but when the supply of local beef is insufficient, Hallalco imports live animals for slaughter from Texas. It has now began slaughtering operations in Maryland. It does not produce its own Hallal delicatessen. These it imports from a Hallal producer in Iowa.

What has been said does not begin to exhaust the extent of the economic impact of churches on interstate commerce. I have not discussed religious broadcasting, nor the many large religious conventions. Does anyone think that Salt Lake City welcomed the Southern Baptists because of their desire to proselytize Mormons? Religious conventions, like other conventions make a real economic contribution to a community. Multiply that by all the conventions held yearly, to say nothing of large revivals, and again the cumulative impact on the national economy is substantial. Add to that the funding that flows from around the country to national and international affiliates or parents of the local religious organization, and one again confronts an important factor on the national economy. I am sure that economists could tell you how that sum multiplies through the economy. Even without it, the impact of religion on the economy is significant to allow Congress, should it choose to do so, to protect this segment of the economy.11

III

The simple fact is that the Commerce Clause has frequently been applied to religious activities, Camp Newfound, cited earlier, unequivocally establishes that religious institutions can claim the protection of the Commerce Clause even though they are not in the business of making money. Presumably, if such institutions can claim the benefit of the dormant Commerce Clause, whose existence is disputed by some Justices of the Supreme Court, it would seem to follow that Congress can invoke the Clause as an affirmative grant of power to protect the viability of this sector of the economy.

It would be particularly odd if this were not the case because the courts, including the Supreme Court have routinely applied Commerce Clause legislation to church activities. Thus, in Tony and Susan Alamo Foundation v. United States, 471 U.S. 290 (1985), the Court upheld the minimum wage provisions of the Fair Labor Standards Act to businesses which were part of a church's ministry. In NLRB v. Hanna Boys Center, 940 F.2d 1295 (5th Cir. 1991), the Court upheld the application of the National Labor Relations Act to the non-teaching staff of a religious home. Courts have upheld application of various Commerce Clause anti-discrimination laws to various religious institutions. See, e.g., Lukasewski v. Nazareth Hospital, 764 F.Supp. 57 (E.D. Pa. 1991) (age); EEOC v. Southwestern Seminary, 651 F.2d 277 (5th Cir. 198) (religious, racial and gender discrimination); Brock v. Wendell's Woodwork, Inc. 867 F.2d 196 (4th Cir.1989) (child labor).

One could multiply examples. Religious broadcasting, itself a multi-billion dollar enterprise, is subject to the Federal Communication Commission's regulations, again based on the Commerce Clause, in the same way that secular broadcasters are. Ritual slaughter is subject to the federal Humane Slaughter Act, and the processing of kosher food is subject to the FDA supervision, all under the Commerce Clause.

11 That Congress has the power to regulate religion does not mean that it should do so lightly.

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It is, it seems to me, hard to sustain the proposition that religion is commerce for purposes of regulations which may limit its reach, but it is not commerce when it come to legislation which allows it to flourish.

Congress frequently has utilized its power under the Commerce Clause to foster business which operates interstate. Sometimes this requires the limitation of the power of states to tax, a power Congress is considering exercising with regard to the Internet. Sometimes it provides that national rules for the operation of an industry preempt local regulation, notably in the case of transportation. No one could run a railroad if each state could regulate the times of operation, and the types of equipment which could be utilized. Congress long ago exercised its power to protect interstate commerce by preempting contrary state regulations.

Religious enterprise depends on the ability of citizens to exercise free religious choice, not only to the bare holding of beliefs, but to putting them in practice. An important segment of interstate commerce would evaporate if states decide to ban ritual slaughter as inhumane, as several European countries do. Municipalities that ban religious structures altogether restrict commerce in services and materials designed for the church market. If Congress can protect the Internet by barring state laws which would interfere with its functioning, such as taxes and libel laws, why can it not protect the practice of religion which also has an impact on the economy? I think there is no relevant distinction.

IV

I have also been asked to address the question of the impact of the Religious Liberty Protection Act on the civil rights laws. This question has arisen not only in regard to RLPA, but with regard to state religious freedom statutes. Probably no question surrounding RLPA has been discussed with greater passion than this one.

Let me note first that many civil rights acts already contain substantial exemptions for religious institutions. Thus, Title VII of the 1964 Act allows religious corporations to engage in religious discrimination without restriction. At least as to not-for-profit corporations, this provision is constitutional even as to positions with no religious content. Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987); Killinger v. Sanford University,, 113 F.3d 196 (9th cir. 1997). In Amos, the Court left open the question of whether the exemption applied to for-profit corporations and whether if so applied it was constitutional. Justice Brennan indicated that he thought such application unconstitutional. Title VIII allows religious corporations to engage in religious discrimination in the operation of housing owned by them. New York State's Human Rights law allows religious organizations the right to engage in any form of discrimination if necessary to further its religious purposes. (The exact scope of the exemption is unclear. The one case to reach the New York Court of Appeals gave the section a narrow reading-Schacter v. St. Johns University, 84 N.Y.2d 120 (1993).) The proposed federal gay rights legislation (ENDA) has a broad exemption for not-for-profit organizations, negotiated by gay rights groups and religious organizations, at least some of whom could not support the legislation without such an exemption, but could support it with it.

In addition to these statutory exemptions, courts have uniformly refused to intervene the decision of a church to hire or fire ministers, even where there are allegations of racial or secular discrimination outside the scope of the statutory exemptions.

The federal statutory exemptions are both narrower and broader than RLPA would be. They are narrower in that they generally apply only to religious discrimination by religious corporations, and RLPA would in theory apply to all forms of discrimination by religious institutions and religious individuals. The statutory exemptions are broader-and the significance of the point cannot be overestimatedbecause they are total and absolute. No matter how important the interest in eliminating a particular form of discrimination, an organization exempt under the statute wins. Not so under RLPA. A person or institution claiming under RLPA must overcome the government's showing of compelling interests-experience indicated that the barrier will frequently be insurmountable.

How great is the likelihood that RLPA would be used to frustrate the important policies behind the civil rights acts question that should be addressed before one discusses whether RLPA should or should not reach these statutes. Based on past experience in the years predating Employment Division v. Smith, 494 U.S. 872 (1990) the answer as to race is clear-not likely at all. Bans on sexual discrimination will survive RPLA analysis most of the time. There is not much case law for other forms of discrimination, although we have some indications for marital status. There has been a fair amount of litigation as regards marital discrimination, but almost none with regard to sexual orientation discrimination.

The leading case with regard to racial discrimination is Bob Jones University v. Simon, 461 U.S. 574 (1983). There a religious university lost its tax exemption because it enforced a ban on inter-racial dating. The University challenged the decision on, inter alia, the grounds that it denied it the Free Exercise of religion. The argument merited only a footnote, in which the Court easily found a compelling interest. I do not know of a single subsequent case in which the claim was advanced that racial discrimination was religiously based and hence immune from regulation. If made, I have no doubt that it would be rejected.

Claims of sexual discrimination in employment are more frequent. Typically, the cases have arisen in the context employment by a religious organization, there being to the best of my knowledge no claim by a private for-profit employer that his or her religion required discrimination against women, and certainly no such claim has ever been-nor is it likely that one ever would be-upheld. This is not surprising, given the general tendency of the law to equate sexual discrimination with racial discrimination. Title VII's exemption for religious institutions is inapplicable because it deals only with religious discrimination.

A typical case is EEOC v. Pacific Press, 676 F.2d 1272 (9th Cir. 1980), involving the publication arm of a church. On the grounds that women should not be heads of households, Pacific Press paid women workers less than men. It offered a religious liberty defense, roundly rejected by the Ninth Circuit.

Less even in results are cases involving parochial school teachers. A typical case involves the single female teacher who becomes pregnant out of wedlock. The school claims such teachers are "ministers" and that it can insist that ministers set a moral example. The response typically is that the school does not enforce a similar rule as to male teachers who have sex out of wedlock. The case law is divided on this subject. See, e.g., Dolter v. Wahlert H.S., 483 F.Supp. 266 (N.D. Iowa 1980). The Supreme Court once considered a slight variation on this theme. A parochial school refused to allow mothers (but not fathers) of young children to teach because it believed mothers should be home with their children. The state claimed a compelling interest in ending such sexual role casting, no doubt an important and impelling interest, but which in this case came perilously close to amounting to the suppression of a religious idea. See Hurley v. Boston Gay & Lesbian & Bisexual Group, 515 U.S. 587 (1995). The Supreme Court decided the case on procedural grounds. Ohio Civil Rights Comm'n v. Dayton Christian, 477 U.S. 619 (1986). The case subsequently settled.

These cases are typically outside statutory exemptions because they involve sexual, not religious discrimination. At least in the context of the parochial school teachers, they also come close to the rule of non-interference in the selection of ministers. On the other hand, they also expose children to sexual stereotypes which the state surely does not wish to see perpetuated. In short, these are hard cases and do not for me admit of across the board answers. And, indeed, the courts have not given uniform answers, differing both on their statements of the legal balance to be struck and on their evaluations of the specific facts observed in each case. RLPA would not change this result.

What can be said with certainty about these cases are the following propositions: (1) claims for outright race and sex discrimination outside the ministerial or teaching professions are almost certain to be rejected;

(2) for-profit employees, and by extension private persons under the statutes (i.e., public accommodation laws) will not be heard to successfully argue that RLPA exempts them from civil rights law compliance;

(3) when the compelling interest test was the law, i.e., before Employment Division v. Smith, the free exercise defense was rarely made successfully with regard to sex discrimination, and never with regard to racial discrimination;

(4) the cases where a free exercise claim was given serious consideration involved substantial and conflicting values, which should not be summarily and broadly decided; and

(5) the existence of the ability to raise such claims, sometimes even successfully, did not in any substantial way impede national progress toward reducing the general incidence of illicit and invidious discrimination.

I know of no denomination that purports to regard racial discrimination as a religious duty. Most, if not all, regard it as a heinous sin. And while there still is substantial disagreement over sex roles, I am unaware of any church or religious organization which encourages its followers to discriminate against women in the private workplace. These facts do not eliminate the possibility of a religiously based

claim to practice discrimination in the workplace, but they greatly reduce its likelihood. 12

The hardest questions involve relatively new civil rights-those of marital status and sexual orientation. As to the latter, there has been as yet relatively little litigation, in part because these statutes tend to exempt religious organizations. This is the case by terms of New York City's "gay rights" law, and presumably most other gay "rights" laws because they fit into the general framework of human rights laws which have such exemption. In the case of New Jersey, where the legislation seemed (at least to one church) unclear on whether the ban on sexual orientation discrimination would apply to its hiring of youth ministers and the like (perhaps because the statute exempted only religious discrimination by religious groups). After lengthy procedural battles, the state conceded that the statute would not apply to such decisions in keeping with the general rule that courts will not police the hiring of ministers. These exemptions for religious organization would continue under the proposed ENDA. Thus, to the extent that RLPÅ would be invoked by religious organizations would break no new ground, and change nothing.

RLPA would be available to private parties seeking to avoid "sexual orientation” discrimination. Such challenges were available under RFRA, and none seem to have been brought. The closest case is one involving the discharge of a public official who criticized homosexuals. The court found that the state had a compelling interest in ensuring an end to sexual orientation legislation, sufficient to justify discharge of the official. Lumpkin v. Brown, 109 F.3d 1498 (9th Cir. 1997). While not dispositive, perhaps, of the rights of private parties, I think the decision is indicative of the likely result-that an end to discrimination of the basis of sexual orientation furthers a compelling interest.

Case law on the question of claims for exemption from bans on marital status discrimination are mixed. Alaska, in Swanner v. Anchorage Equal Right Comm'n, 874 P.2d 274 (1994). California reached the same result, but by different (and quite questionable) reasoning in Smith v. FEHC, 12 Cal.4th 1143 (1996). Massachusetts, however held in Attorney General of Massachusetts v. Desilets,

Mass.

(1994), that a private landlord was entitled under the state constitution to prove that the state's interest in making housing available for cohabitating couples was not seriously compromised by allowing a small landlord with religious exemptions to such rentals not to do so. Illinois and Minnesota have each had similar cases, but neither resulted in an opinion on the issue confronting the Committee today. Against this background, it can be said that the courts have not rushed to allow religious freedom claims to trump civil rights claims. With regard to marital status, where we have more litigation, the most that can be gotten from the only decision to (partially) favor a religious landlord is that she or he might be exempt if their personal refusal to rent to unmarried couples will not significantly affect their chance for finding housing and only in such circumstances will such a claim succeed. Now it is fairly debatable whether the purpose of the ban on marital status discrimination is only or primarily to ensure the availability of housing—or if it is also to prevent the psychological and social stigma caused by such discrimination, in which case it may be wrong. Either way, however, the practical effects of following Desilets would still be, in practical terms, very small. Surely no large, or even midsized commercial landlord would be able to use RLPA to avoid compliance with an anti-marital status discrimination ordinance.

Understandably, precisely because there is in our society an ongoing moral debate about the wisdom and morality of granting unmarried couples and gay and lesbian couples equal rights with traditional heterosexual married couples, those who favor equal rights for these groups-as my organization does-are reluctant to countenance exemptions because they may be seen as encouraging wide-spread evasion of the newly adopted legal norms against discrimination.

I understand the argument, but am not persuaded that it is so powerful that it ought to foreclose inquiry into whether the state's interest is sufficiently important to outweigh the burden on religious practice.

First, given the importance of egalitarianism in our political and legal culture, it seems unlikely that allowing the inquiry will result in any wide-scale sanctioning of invidious discrimination. Second, there are cases nominally within the scope of the anti-discrimination laws where exemption is certainly appropriate, such as the case of the pro-life printer sued under the public accommodation law for refusing to print pro-choice flyers, or the Catholic church sued for refusing to rent a parish

12 Take the recent case of the truck driver who refused to do long distance runs with a female partner, who would sleep in the back of the truck cabin. As I understand the case, he did not claim that women should not be truck drivers, only that he should be assigned a different partner. I believe he lost even this claim.

hall to one of its theological critics. Exempting civil rights from RLPA would leave these cases untouched. Third, in the analogous area of clashes between the freedom of association and the rights to be free of discrimination, the Supreme Court, applying compelling interest analysis, has refused to follow a per se rule, preferring instead a case-by-case adjudication. Compare Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) with Hurley v. Irish-American Gay & Lesbian & Bisexual Group, 515 U.S. 587 (1995). No reason appears why the right of religious practice should not be treated the same way. Fourth, it bears repeating again, that RLPA does not command blind deference to religious objections to complying with the civil rights laws, or any other law. It compels only a second look; a weighing of competing interests. RLPA does not cut a wide swathe through the civil rights laws.

Allowing religious claims to be heard accords those who hold them a level of moral respect and seriousness which in my experience greatly facilitates acceptance of any ultimate judgment compelling compliance with the civil rights laws. That alone would be an important reason not to exempt civil rights laws from RLPA's reach. A second reason is political. Consider ENDA. Would its chances of passage be enhanced or reduced if religious believers thought it would apply to youth ministers or Sunday school teachers, or church day care? RLPA goes even less far-because it is not a blanket exemption, but only a second look-but it does make legislation in many controversial areas more palatable to religious believers of both left and right. And excluding civil rights laws from RLPA would simply fuel endless calls from supporters of this or that cause to place their cause beyond question.

The third reason is, I think, most important. On issues such as marital status and sexual orientation there are profound moral differences in this society. Those moral debates are serious, weighty and unresolved. Exempting civil rights claims from RLPA amounts to a declaration that some principles are beyond serious question, are not, in fact, morally serious. At least with regard to marital status and sexual orientation that is surely not factually accurate, whatever view one ultimately takes on both the underlying moral issue or the narrower question of how a RLPA claim should be resolved. (It may be true with regard to race, but as to such claims there is only a slightly greater than zero chance that such a claim would prevail.) So declaring would alienate many morally decent individuals, relegating their most deeply held moral beliefs to beyond the pale.

If there were a serious danger that even considering the claim for exemption would threaten this nation's fundamental egalitarian commitment, there might be reason to exempt civil rights laws from RLPA. But in my judgment, that is not the case. I recognize that discrimination still exists, and its victims are understandably reluctant to tolerate any questioning of their right to equal treatment. But in my judgment, it is not the case. The commitment to equal treatment is too well settled too broadly and deeply held, to be shaken because in some few instances we allow those with profound moral objections to particular policies to question these egalitarian values, and perhaps in some even smaller number of cases, exempt themselves from them. To do so is simply to acknowledge that our society honors numerous values, equal treatment being one, and religious liberty another, and we must, if at all possible, do our best to honor both.

Mr. CANADY. Mr. Scott.

Mr. SCOTT. Mr. Chairman, part of my concern about the constitutionality of this bill stems from some of the language in Boerne, where the Court expresses almost a hostility to this kind of legislation and gives me the idea that it won't take much for them to throw out the next one. And the language that I am referring to says in governments-where they stated in the Smith-where they remind in Boerne what they said in the Smith case, which says, government's ability to enforce generally applicable prohibitions of socially harmful conduct cannot depend on measuring the effects of governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling, contradicts both constitutional tradition and common sense.

That kind of suggests that if they find something to throw this out with, it just suggests to me that they are going to.