Much has been said today about the Commerce Clause and how we can do this under the Commerce Clause. I have a couple of questions, particularly since comparisons have been made to the civil rights laws. I just throw it out to whoever wants to comment. Didn't the Court in Boerne specifically go out of its way to show how the civil rights laws were different in that there was a much stronger record and that the laws were narrowly tailored to address the problem, whereas RFRA was a broad, kind of unfocused law that covered a lot more and a lot-frankly a lot of out of proportion to whatever the law was? Does somebody want to comment?

Ms. HAMILTON. Representative Scott, I would be happy to talk about that. That actually is precisely in the opinion, and it was in our briefs as well. It was clear from the beginning to me that the problem with RFRA was that it was an unfocused attempt to exert congressional power. This bill seems to have the same problem, that it is a scattershot approach attempting to embrace as much religious conduct as possible without examining the particular Federal interest that is or could be implicated. I think you are right to say that there is a high degree of risk that the Supreme Court would invalidate RLPA rather quickly.

Mr. EISGRUBER. May I also speak to that?

Congressman Scott, I agree with your interpretation of the Court's opinion in Flores, and I think it points to an important aspect of the remarks that have been offered in defense of RLPA today, wherein an effort has been made to assimilate this statute to an antidiscrimination statute.

From a constitutional perspective, it is easy to understand why people would want to invoke the authority of the antidiscrimination laws. Obviously they have done wonderful things. And in addition, the Court in Boerne was quite clear about the existence of constitutional authority to enact those laws.

As I said in my earlier remarks, I think that authority extends to any law that would be reasonably understandable as an effort to protect against discrimination on the basis of religious interests. There is no reason that this should be construed as an authority that Congress has only with respect to some forms of discrimination and not others. On the other hand, RLPA is not plausibly construed as an antidiscrimination statute.

Let me give an example of the kind of law that would come under scrutiny under the zoning provisions of RLPA which I think cannot be justified in terms of an antidiscrimination theory. There are some cities which have greenbelt ordinances, zoning restrictions around the city designed to preserve open space. These greenbelt ordinances prevent any kind of building from taking place in those open spaces. It may well be cheaper to build in those open spaces. Some of that land may be farmland, and if you have got a greenbelt around a city that is filling up, the land outside of the city may well be less expensive to purchase. But those restrictions are going to operate on any enterprise that wants to build there, on anybody who wants to build there regardless of how charitable or salutary their motives are.

As I understand the land use section of this bill, it creates, as Mr. Schaerr said earlier, something like the compelling interest

test that would have to be satisfied in order to apply that kind of ordinance to a church which sought to construct in that area simply for the reason that it would be cheaper to do so.

That kind of a law goes much further than anything plausibly construed as an antidiscrimination statute, and I think this law for that reason will be unable to claim the benefits of the Court's doctrine on antidiscrimination laws.

Mr. LAYCOCK. Can I speak to that question?

Mr. CANADY. The gentleman's time has expired. Without objection, the gentlemen will have 5 additional minutes.

Mr. SCOTT. Thank you, Mr. Chairman.

Mr. LAYCOCK. Mr. Scott, I think you are right that the Court is hostile to the protection of religious liberty, but I don't think we should infer from that that it will run amuck with Commerce Clause doctrine and Spending Clause doctrine to implement that hostility and strike down legislation that presents questions that are very different from the constitutional questions presented in Boerne.

Everything in the Boerne case is in the context of whether RFRA was an act to enforce the Fourteenth Amendment. And the Court said, in order for it to be an act to enforce the Fourteenth Amendment, it has to be an act to enforce the Fourteenth Amendment as interpreted in the Smith case.

So all the talk about proportionality and connection and whether there is discrimination was in the context of whether there was sufficient evidence of widespread violations of the free exercise clause as the Court interpreted it in Smith.

Mr. SCOTT. You are talking about that entire analysis with the Commerce Clause? They went through it with the section 5, and now we have to go through the same thing as to whether or not a law that the Supreme Court is expressing hostility to-I mean, you had five or six votes to begin with, and then another one said, well, you are establishing a religion, so I don't have to hear any more. I mean, you have got some that are extremely hostile to this idea. So in your commerce evaluation, wouldn't you have to assume that they are going to be as restrictive as possible in that analysis? Mr. LAYCOCK. They may interpret the connection to commerce more narrowly here than they do in other contexts, and that will have the consequence that the bill doesn't cover as much as we might like it to cover. But the point I was trying to make is that when they say in Boerne that there is no sufficient showing here that this bill protects against constitutional violations, this is simply a question that is not relevant under the Spending Clause and Commerce Clause provisions. They are not worried about the Spending or Commerce Clause anywhere in the Boerne opinion, and they couldn't have been. It would have been utterly irrelevant. And when they say the civil rights cases are different-first of all, it was the Voting Rights Act of 1965 that they said in some detail was different, but again, it is in the context of whether there was a showing of a constitutional violation. There is not a word in Boerne that suggests that the commerce power to protect against racial discrimination is any different from the use of the commerce power to project religious liberty. That issue simply was not presented.

Mr. SCOTT. Well, when you are talking about the Commerce Clause, if the I think Mr. Stern has shown that churches obviously are involved in commerce. Does the law, if you are going to use the Commerce Clause, have to affect commerce, or does it just have to deal with an entity in commerce?

Obviously, the civil rights laws, when you are using the Commerce Clause, have an effect on how commerce is going to take place. And we have had testimony today that this bill, whatever effect it may have, will not affect commerce.

Mr. STERN. Well, I would

Mr. LAYCOCK. Go ahead, Marc.

Mr. STERN. You know, there are several things to be said. First I would not

Mr. SCOTT. It would not affect commerce?

Mr. STERN. Yes. First, I would not yield by silence the notion that we haven't demonstrated extensive religious discrimination in the zoning area. I think we have. My own town in the last couple of months has turned down a Muslim mosque because there is not enough parking. It has turned down interracial, nondenominational church because there is not enough parking; and when a Methodist church wants to come in, somehow there is enough parking. And so, you know, I don't want that to go by silence.

Mr. SCOTT. Well, that would be a situation where the law, if it just dealt with zoning

Mr. STERN. Right.

Mr. SCOTT [continuing]. Would be narrowly tailored to address a specific problem.

Mr. STERN. And, in fact, the statute specifically addresses zoning separately for precisely that reason, because we thought we made the record with regard to zoning, and we have special rules that apply to zoning. I think Professor Eisgruber was reading the act incorrectly. I think in his case it would not be the compelling interest test, which would be relevant, but the special rule for zoning that we have laid out, assuming the town made reasonable provision elsewhere for churches.

But even as to commerce, several years ago there was a lawsuit in New York City about the way child care was delivered. It was mostly an Establishment Clause case. The city insisted, after a settlement, that Catholic youth homes, Catholic children's homes, were required to provide birth control teaching and materials, actual birth control devices, to children in its care. I have forgotten who the Cardinal was at the time, but he said he would close all of Catholic charities rather than violate church doctrine and teach contraceptive use to children in his care.

And the same is true of Catholic and Baptist hospitals. If a State and there are places where this is conceivable were to say that anybody who has got a license to operate a hospital has to perform abortions, I would expect that Catholic and many Baptist hospitals would simply close their doors. Now, that is going to have an impact on commerce.

In many parts of the country-I think, as Professor Laycock has said elsewhere about southern California, it is practically impossible to build a church anymore. Now, if you can't build churches in southern California, that is going to have an impact on the

building industries and on these industries that deal with the provision of interiors of churches. So there are lots of things that will be affected.

Will there be things that do not affect interstate commerce? Yes. We will not reach we know that we do not reach every religious exercise under the Commerce Clause. It may well be, for example, that home schooling is not reached under the Commerce Clause. So there are things that are cut out, but there are lots of things that are in commerce and that are we know from actual litigation experience, or actual regulatory conflicts, where if you don't have protection, commerce will dry up. The pool of commerce will be made smaller because government is allowed to regulate religion in ways that religion simply finds intolerable. In response religion will simply walk out of the marketplace.

Ms. HAMILTON. If I could just add one point to that.

Mr. CANADY. Well, I will tell you, I don't want to cut it off but we have gone already over 10 minutes, but you certainly will have an opportunity.

Mr. Nadler.

Mr. NADLER. Thank you.

First of all, I ask unanimous consent to insert my opening statement, which I wasn't here to deliver in the record.

Mr. CANADY. Without objection.

[The prepared statement of Mr. Nadler follows:]

PREPARED STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Thank you, Mr. Chairman. I want to commend you for scheduling this hearing today and for introducing with me the Religious Liberty Protection Act.

Although I have that uneasy feeling of deja vu, I believe that what we are doing today is necessary, though I find regrettable the fact that the Supreme Court has once again made legislation of this sort a necessity.

In its Smith decision, the Supreme Court threw away decades of sound First Amendment law by holding that government could interfere with an individual's religious practice, even imprison that individual for practicing this religion, and the Constitution would permit it, so long as the government didn't single out that person's religion.

So generally applicable laws, like zoning ordinances which exclude houses of worship, law which outlaw giving sacramental wine to children and other laws which have the effect of prohibiting the free exercise of religion, are ok. The government does not even have to show a compelling need for the law, nor does it have to show that there is another way to advance that public interest in a manner that is less restrictive on religion.

Congress responded with the Religious Freedom Restoration Act which the Court struck down in its Boerne decision, at least as applied to state laws, saying that Congress has exceeded its authority. I disagreed, but the Court does get the last word in these matters.

What we are doing with the Religious Liberty Protection Act is to follow the Court's instructions in its recent cases and provide the protection we believe our First Freedom merits. At least that is what we are trying to do. The purpose of this hearing is to continue the process of making the factual record the Court has said it needs to demonstrate the Constitutional power and the factual basis for this legislation. I also look forward to hearing the testimony of the fine constitutional scholars who have argued this question from all sides, to clarify the source of our powers, and to ensure that our final product will pass muster with the Court. We will do no one any good if we simply pass another bill which is ultimately struck down.

Religious liberty is threatened, not just because of bigotry, or hostility toward religion. It is in peril because sometimes the rules need to accommodate religion to protect it, and minority faiths, those lacking in political clout, cannot always depend upon the legislatures, whether it is a town council or the United States Congress, to grant them the leeway they need to observe their faith. We need federal civil

rights legislation to ensure that, whether or not a religious minority has the clout to make the political branches of government respond, they can still be assured their right to religious liberty. It is my hope that this legislation will accomplish that goal.

No American should be denied the right to religious liberty. With the passage of the Religious Liberty Protection Act, that right will once again be protected in a manner consistent with the Supreme Court's rulings.

Thank you, Mr. Chairman. With that, I yield back the balance of my time.

Mr. NADLER. Thank you. I think I am going to give Professor Hamilton the opportunity to comment. I was just going to ask her to comment on the on Mr. Stern's interpretation of the Commerce Clause in this connection. Do you think it is too expansive?

Ms. HAMILTON. It is twofold. It is much too expansive under the current Supreme Court's doctrine and the trend of its doctrine.

The second problem is that he has transformed every aspect of the First Amendment into a subject of the Commerce Clause. The Commerce Clause is an enumerated power. The First Amendment is a limitation on Congress. You cannot say that all the subjects of the First Amendment are now enumerated powers. Congress was not originally intended to have any authority in this field. That it has any authority is only if it is acting appropriately with respect to an enumerated power on a particular topic in which it is solving a national problem. That is not the blueprint for this.

Mr. NADLER. Or under the Enforcement Clause of the Fourteenth Amendment.

Ms. HAMILTON. Under the Enforcement Clause, which does not apply to Federal activities. It only applies to State activities, and there, only as Boerne v. Flores says, only if you are enforcing what would be unconstitutional activity.

Mr. SCHAERR. Could I respond to that, the question as to the scope of the commerce power?

The most recent and somewhat controversial decision in that area, as the panel knows, is the-is the Lopez case, which said that Congress may regulate under the commerce power not in just one circumstance but in three different kinds of circumstances.

First of all, the Court said Congress may regulate the use of the channels of interstate commerce. That is not what we have here. Second, they said Congress is empowered to regulate and protect the instrumentalities of interstate commerce. Again, that is not what we have here.

But the third category is the key one. They said, finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.

So I think Mr. Stern's interpretation of the commerce power is exactly right. Even under the Lopez decision, which was viewed as somewhat of a restriction on the scope of Congress' commerce power, the Supreme Court has clearly indicated that this kind of legislation, just like traditional civil rights legislation, is still within Congress' power under the commerce-under the Commerce Clause.

Mr. NADLER. Thank you.

Let me ask you this, Professor Hamilton: In your testimony on page 3, you state that RLPA's intervention in local land use law would set the pace for the most expansive invasion of State and local government authority in history. That is a quote.