I would ask that you do your best to summarize your testimony in 5 minutes or less and try to be governed by the light. When it is red, that means you should try to conclude as soon as possible. But without objection, of course, your full written statements will be made a part of the permanent record of the hearing.

Mr. CANADY. With that, we will begin with Professor Laycock.

STATEMENT OF DOUGLAS LAYCOCK, PROFESSOR, ASSOCIATE
DEAN FOR RESEARCH, UNIVERSITY OF TEXAS LAW SCHOOL
Mr. LAYCOCK. Thank you, Mr. Chairman, and Mr. Scott.

I strongly support this bill. The House unanimously concluded that a bill of this sort was necessary 5 years ago when it enacted RFRA, and now the question is what constitutional authority is available and how much of the religious liberties of the American people can Congress protect.

I have tried to address the constitutional and scope issues in detail in my written statement. I will try to summarize the highlights here.

First, as to the Spending Clause, the Spending Clause provisions of this bill are based squarely on the provisions in such familiar statutes as Title VI of the Civil Rights Act, Title IX on sex discrimination in education, and the Equal Access Act. The bill would ensure that the intended beneficiaries of federally-assisted programs are not excluded by unnecessary burdens on their religious exercise and would ensure that Federal funds are not spent contrary to congressional intent to unnecessarily burden religious exercise.

Those purposes are at the very core of the power to attach conditions to the grant of Federal funds, and I think in all but the most unusual applications the Spending Clause provisions would pass constitutional muster.

The Commerce Clause provisions track the language of the Clayton Act, the Federal Trade Commission Act, the Americans with Disabilities Act and many other familiar statutes. "In or affecting commerce" is the historic constitutional standard for what Congress can regulate. This provision is constitutional by definition.

Religious exercise beyond the reach of the Commerce Clause is simply outside the scope of the bill. Marc Stern's testimony later today will show that religious exercise has broad commercial consequences, and on standard economic models a substantial burden on religious exercise will reduce the volume of that exercise and reduce the volume of the resulting commerce.

I think this will have a broad range of applications. It won't reach all the religious liberty Congress would like to protect, but it will reach a very large part of it.

Section 3 is based on the power to enforce the Fourteenth Amendment. Section 3(a) would enforce the Free Exercise Clause as interpreted by the Supreme Court. There are important parts of Employment Division v. Smith that actually do protect religious liberty, but each of those exceptions to the Smith rule poses difficult factual questions where proof is elusive, where the evidence is often in the hands of the government and where the truth is uncertain.

i

Section 3(a) changes no element of the Supreme Court's test, but by shifting the burden of persuasion, it protects religious liberty when the case for suppression has not been fully proven.

Section 3(b) would impose prophylactic rules on church land use regulation. The record from the earlier hearings before this committee is overwhelming that land use regulation is administered in individualized processes with few generally applicable rules; that it is rife with discrimination against religious organizations and especially against minority churches and nonmainstream churches.

Each of these facts brings land use within one of the exceptions to the Smith rule, but these facts are very difficult to prove one case at a time. Only Congress has the ability to examine many cases and find the factual pattern that pervades across the cases. These facts support the need for section 3(b) as enacted to enforce the Fourteenth Amendment.

The Court said in City of Boerne that Congress may act where there is reason to believe that many of the laws have a significant likelihood of being unconstitutional. The standard is not certainty. It is reason to believe and significant likelihood, and that standard is, in my judgment, easily met by this hearing record.

With respect to prison litigation, the bill is subject to the Prison Litigation Reform Act, which is succeeding. In the first year of the Act, prisoner litigation was reduced by 31 percent. Further reductions can reasonably be expected as the bill becomes more fully effective.

Mr. Scott asked about challenges to the constitutionality of that Act, and I have been following those challenges. Six circuits have upheld the Act. Only the Ninth Circuit has struck it down, and even there only with respect to retroactive reopening of final judgments. That is a very sensitive issue, but it is not an issue that would be posed by any of the interactions of the Religious Liberty Protection Act and the Prison Litigation Reform Act. The provisions on frivolous prison litigation, so far as I know, have not even been challenged; I don't think they successfully could be challenged.

With respect to sovereign immunity, the law is fairly clear. Section 4(d) overrides the States' Eleventh Amendment immunity with respect to claims under section 3, which enforces the Fourteenth Amendment. That override is squarely authorized by Justice Rehnquist's opinion in Fitzpatrick v. Bitzer. Fitzpatrick is reaffirmed in the 1996 case of Seminole Tribe v. Florida. Seminole Tribe also holds that Congress cannot override the Eleventh Amendment in Commerce Clause legislation, and this bill does not do that. The override is squarely confined to the Fourteenth Amendment provisions.

With respect to the Establishment Clause, the bill does not violate that Clause. The Court has unanimously held that Congress can exempt religious exercise from burdensome regulation, and that those exemptions do not have to come packaged with similar benefits for secular activities. That was the Amos decision in 1987, reaffirmed after Smith and Board of Education v. Grumet in 1994. Finally, I think the bill is consistent with federalism limitations on Congress' power. The bill declares a Federal policy that religious exercise should not be unnecessarily burdened. It preempts State

laws that are inconsistent with that policy. The structure and effect and even the syntax of the bill's Commerce and Spending Clause provisions is indistinguishable from the structure and effect of preemption bills such as the Airline Deregulation Act. That is no coincidence. This is effectively a religion deregulation act.

The Court recognized the validity of that sort of preemptive legislation in United States v. Printz, its most recent federalism decision, when it cited with approval its earlier decisions in FERC v. Mississippi and Hodel v. Virginia. There are similar statements in New York v. United States, and all of these statements are cited fully and quoted where appropriate in my written testimony.

I think the bill is constitutional under existing precedent. No one can predict the future, but Congress would act entirely responsibly to protect the liberties of the American people with this bill. Thank you, sir.

Mr. CANADY. Thank you, Professor Laycock.

[The prepared statement of Mr. Laycock follows:]

PREPARED STATEMENT OF DOUGLAS LAYCOCK, PROFESSOR, ASSOCIATE DEAN FOR RESEARCH, UNIVERSITY OF TEXAS LAW SCHOOL

Thank you for the opportunity to testify this morning in support of H.R. 4019, the Religious Liberty Protection Act of 1998. This statement is submitted in my personal capacity as a scholar. I hold the Alice McKean Young Regents Chair in Law at The University of Texas at Austin, but of course The University takes no position on any issue before the Committee.

I have taught and written about the law of religious liberty, and also about a wide range of other constitutional issues, for more than twenty years. I have represented both religious organizations and secular civil liberties organizations, including important cases under the Religious Freedom Restoration Act. I wish to address Congress's constitutional authority to enact RLPA, the range of cases to which the bill might be applied, and some of the drafting choices presented by the bill.

But first let me say a little about the importance and universality of this bill. RLPA is not a bill for left or right, or for any particular faith, or any particular tradition or faction within a faith. There is an extraordinary diversity of beliefs about religion in America, from the very far left to the very far right both theologically and politically, from the most traditional orthodoxies to the most experimental and idiosyncratic views of the supernatural. RLPA will protect people of all races, all ethnicities, and all socio-economic statuses.

Religious liberty is a universal human right. The Supreme Court has taken the cramped view that one has a right to believe a religion, and a right not to be discriminated against because of one's religion, but no right to practice one's religion. To the extent that it has power to do so, Congress should enact more substantive protection for religious liberty.

I. THE SPENDING CLAUSE PROVISIONS.

Section 2(a) of RLPA tracks the substantive language of the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq. (1994), providing that government shall not substantially burden a person's religious exercise, and applies that language to cases within the spending power and the commerce power. Section 2(b) also tracks RFRA. It states the compelling interest exception to the general rule that government may not substantially burden religious exercise.

Section 2(a)(1) specifies the spending power applications of RLPA. The bill applies to programs or activities operated by a government and receiving federal financial assistance. "Government" is defined in § 2(e)(1) to include persons acting under color of state law. In general, a private-sector grantee acts under color of law only when the government retains sufficient control that "the alleged infringement of federal rights [is] 'fairly attributable to the State."" Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

Section 2(a)(1) would therefore protect against substantial burdens on religious exercise in programs or activities receiving federal financial assistance and operating under color of state law. It would protect a wide range of students and faculty in public schools and universities, job trainees, workfare participants, welfare recipients, tenants in public housing, and participants in many other federally assisted

but state-administered programs. An individual could not be excluded from a federally assisted program because of her religious dress, or because of her observance of the Sabbath or of religious holidays, or because she said prayers over meals or at certain times during the day-unless these burdens served a compelling interest by the least restrictive means.

The federal interest is simply that the intended beneficiaries of federal programs not be excluded because of their religious practice, and that federal funds not be used to impose unnecessary burdens on religious exercise. The provision is modeled directly on similar provisions in other civil rights laws, including Title VI of the Civil Rights Act of 1964, which forbids race discrimination in federally assisted programs, 42 U.S.C. §2000d (1994), and Title IX of the Education Amendments of 1972, which forbids sex discrimination in federally assisted educational programs, 20 U.S.C. § 1681 (1994).

Congressional power to attach conditions to federal spending has been consistently upheld since Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Conditions on federal grants must be "[]related to the federal interest in particular national projects or programs." South Dakota v. Dole, 483 U.S. 203, 207 (1987). Federal aid to one program does not empower Congress to demand compliance with RLPA in other programs; the bill's protections are properly confined to each federally assisted "program or activity." Dole upheld a requirement that states change their drinking age as a condition of receiving federal highway funds, finding the condition directly related to safe interstate travel. Id. at 208. The connection between the federal assistance and the condition imposed on that assistance by RLPA-ensuring that the intended beneficiaries actually benefit-is even tighter than the connection in Dole. I am confident that §2(a)(1) is constitutional.

"Program or activity" is defined in § 2(e)(2) by incorporating a subset of the definition of the same phrase in Title VI of the Civil Rights Act of 1964. The facial constitutionality of that definition has not been seriously questioned, and I do not believe that it could be. If it turns out, in the case of some particularly sprawling state agency, that federal assistance to one part of the agency is wholly unrelated to a substantial burden on religious exercise imposed by some other and distant part of the agency, the worst case should be an as-applied challenge and a holding that the statute cannot be applied on those facts. Given the variety of ways in which agencies are structured in the fifty states, I believe that it would be difficult to draft statutory language for such unusual cases, and that they are best left to case-bycase adjudication.1

Section 2(c) provides that the bill does not authorize the withholding of federal funds as a remedy for violations. This provision is modeled on the Equal Access Act, another Spending Clause statute that precludes the withholding of federal funds. 20 U.S.C. §4071(e) (1994). Withholding funds is too harmful, both to the states and to the intended beneficiaries of federal assistance. Because the remedy is so harmful, it is rarely used. The individual right of action provided in §4 of RLPA is a far more appropriate remedy. States may accept or reject federal financial assistance, but if a state accepts federal assistance subject to the conditions imposed by this bill, it is obligated to fulfill the conditions and the courts may enforce that obligation. Private rights of action have been the primary and effective means of enforcement under other important Spending Clause statutes, including Title IX (see Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Cannon v. University of Chicago, 441 U.S. 677 (1978)), and of course the Equal Access Act (see Board of Education v. Mergens, 496 U.S. 226 (1990).

The rule of construction in § 5(c) provides that RLPA neither creates nor precludes a right to receive funding for any religious organization or religious activity. The bill is therefore neutral on legal and political controversies over vouchers and other forms of aid to religious schools, charitable choice legislation, and other proposals for funding to religious organizations. The Coalition for the Free Exercise of Religion includes groups that disagree fundamentally on these issues, but all sides have agreed that this language is neutral and that no side's position will be undermined by this bill.

1Cf. Salinas v. United States, 118 S.Ct. 469, 475 (1997). Salinas interpreted 18 U.S.C. § 666(a)(1)(B) (1994), part of the federal bribery statute, to apply to any bribe accepted in a covered federally assisted program, whether or not the federal funds were in any way affected. The Court also concluded that under that interpretation, "there is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case." Preferential treatment accorded to one federal prisoner (the briber) "was a threat to the integrity and proper operation of the federal program," even if it cost nothing and diverted no federal funds. The Court did not find it necessary to consider whether there might someday be an application in which the statute would be unconstitutional as applied.

As already noted, private-sector grantees not acting under color of law are excluded from the bill. This exclusion is important, because some private-sector grantees are religious organizations, and applying the bill to them would sometimes create conflicting rights under the same statute. The result in such cases might be to restrict religious liberty rather than protect it. Extending the bill to secular grantees in the private sector would sometimes overlap with other statutory protections, as in the employment discrimination laws and public accommodations laws. The free exercise of religion has historically been protected primarily against government action, with statutory protection extended to particular contexts where Congress or state legislatures found it necessary. This bill need not change the existing scope of protection in the private sector.

II. THE COMMERCE CLAUSE PROVISIONS.

Section 2(a)(2) protects religious exercise "in or affecting commerce." This language is taken verbatim from the Federal Trade Commission Act, and it tracks similar or identical language in the Clayton Act, the Americans with Disabilities Act, and many other statutes.2 This language embodies the historic constitutional standard. The bill protects all that religious exercise, and only that religious exercise, that Congress is empowered to protect. This part of the bill is constitutional by definition; any religious exercise beyond the reach of the Commerce Clause is simply outside the bill.

In testimony prepared for this hearing, Marc Stern of the American Jewish Congress has documented some parts of the enormous volume of commerce that is based on religious exercise. This data makes clear that the activity of religious organizations substantially affects commerce; the religious exercise of these organizations is protected by the bill, subject to the compelling interest test. The religious exercise of individuals will sometimes be protected by the bill, as when religious exercise requires the use of property of a kind that is bought and sold in commerce and used in substantial quantities for religious purposes, or when an individual is denied an occupational license or a driver's license because of a religious practice.

Substantial burdens on religious exercise prevent or deter or raise the price of religious exercise. On standard economic models, such burdens reduce the quantity of religious exercise and therefore the quantity of commerce growing out of religious exercise. Religious exercise and associated commerce that is not prevented may be diverted or distorted, which are other ways of interfering with the free flow of commerce. Congress has plenary power to protect the commerce generated by religious exercise or inhibited by substantial burdens on religious exercise, and Congress's motive for acting is irrelevant. United States v. Darby, 312 U.S. 100 (1941).

Models for the Commerce Clause provisions include the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (Supp. II 1996), protecting papers and documents used in preparation of a publication in or affecting commerce, which has not been challenged, the commerce clause provisions of the Federally Protected Activities Act, 18

2 See the Clayton Act, 15 U.S.C. § 18 (1994) (“person engaged in commerce or in any activity affecting commerce"); the Federal Trade Commission Act, 15 U.S.C. §45 (1994) ("unfair or deceptive acts or practices in or affecting commerce"); the Federal Fire Prevention and Control Act, 15 U.S.C. §2224 (1994) (“"places of public accommodation affecting commerce"); the Petroleum Marketing Practices Act, 15 U.S.C. §2801 (1994) (trade, etc., “which affects any trade, transportation, exchange, or other commerce" between any state and any place outside of such state); the Semiconductor Chip Protection Act, 17 U.S.C. §910 (1994) ("conduct in or affecting commerce"); the criminal provisions of the Health Insurance Portability and Accountability Act, 18 U.S.C. §24 (Supp. II 1996) ("any public or private plan or contract, affecting commerce"); the Federally Protected Activities Act, 18 U.S.C. § 245 (1994) (“engaged in a business in commerce or affecting commerce"); the National Labor Relations Act, 29 U.S.C. §152 (1994) ("affecting commerce"); the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §402 (1994) ("industry affecting commerce"); the Age Discrimination in Employment Act, 29 U.S.C. § 630 (1994) ("industry affecting commerce"); the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 652 (1994) (“engaged in a business affecting commerce"); the Employment and Retirement Income Security Act (ERISA), 29 U.S.C. § 1003 (1994) ("in commerce or in any industry or activity affecting commerce"); the Employee Polygraph Protection Act, 29 U.S.C. § 2002 (1994) ("any employer engaged in or affecting commerce"); the Family and Medical Leave Act, 29 U.S.C. §2611 (1994) ("industry or activity affecting commerce"); Title II of the Civil Rights Act of 1964, 42 U.S.C. §2000a (1994) ("if its operations affect commerce"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e ("engaged in an industry affecting commerce"); the Privacy Protection Act, 42 U.S.C. § 2000aa (Supp. II 1996) (“public communication, in or affecting interstate or foreign commerce"); the Energy Policy and Conservation Act, 42 U.S.C. §6291 (1994) (trade, etc., "which affects any trade, transportation, exchange, or other commerce" between any state and any place outside of such state); the Americans with Disabilities Act, 42 U.S.C. § 12111 (1994) ("engaged in an industry affecting commerce"); the Commercial Motor Vehicle Safety Act, 42 U.S.C. §31101 (1994) (“engaged in a business affecting commerce").