Mr. CANADY. Professor Durham STATEMENT OF W. COLE DURHAM, JR., BRIGHAM YOUNG UNIVERSITY LAW SCHOOL Mr. DURHAM. Thank you. It is a great honor for me to address this body today on legislation vital to protecting one of our preeminent liberties: religious freedom. I have spent much of the past decade working in support of this great principle both in my home State of Utah and at the Federal level, work which underscores my sense that we are dealing with one of the bedrock principles of any just society. It is a true tragedy that some of the most fundamental problems arise in this area, and some people seem to think that they can't be dealt with at the Federal level. I believe that the proposed law is measured, that it does follow what has been done in other areas. For example, it involves valid assertions of the commerce and spending powers. I also want to focus primarily on the land use issues. I think I must have misheard Marci Hamilton. I thought she said land use is the last bastion of liberty. I cannot believe that. I have to say that I must have misheard her. Mr. CANADY. My ears heard the same thing with the same response on my part. Mr. DURHAM. Maybe she misspoke, but certainly anyone who has been in any of these processes I know often have questions and problems with that. One of my fundamental roles in this hearing is to draw together anecdotes-cases-on land use planning. There is a reason that we deal with anecdotes in this area, and that is that every piece of land is different; land is unique. And yet there are recurring kinds of problems. A year or so ago when we were preparing the amicus briefs in the Boerne case, I along with some other colleagues pulled together all of the reported cases that we could find regarding land use and religious freedom. We tabulated them and simply looked at what happened. The result is not a scientific study in the strict sense. Frankly, I don't know how one would assemble a scientific universe of such cases. Instead, we simply tried to get all of the reported cases. When you look at them, you see an overwhelming pattern of discrimination./ This, of course, goes to the section 5 issue and section 5 support for the land use provisions of Religious Protection Act. Let me just summarize very briefly what the overall results are. I am skipping over another study that was done by DePaul University that looks at the scope and the range of land uses that are done by churches throughout the country. This was a survey of about 300 major denominations and what their land use patterns are. But focusing just on this collection of data about the actual cases, we compared the treatment received by smaller religious groups. This is a continuum, but we took those with 1.5 percent of the population or less and we compared those with the treatment that is received by larger religious groups. Minority religions that fall in the category of having less than 1.5 percent of the population represent about 9 percent of the total population of the United States. Mr. SCOTT. What percent? Mr. DURHAM. About 9 percent. These small groups represent only 9 percent of the population, and yet they were involved in over 49 percent of the cases regarding the right to locate buildings at a particular site and over 33 percent of the cases seeking approval of accessory uses. When we did the study, you couldn't exactly tell which kind of denomination was involved in each case. If the case name is "Roman Catholic diocese such and such," you know that it is Catholic, but some of the others are not so obvious. So there were a number of cases that are unclassified or are from unascertainable denominations. These unclassified cases are likely also to be in the category of small religious groups (with less than 1.5 percent of the population). It turns out that the disproportionate burden becomes even more distressing when these cases are taken into account. If these are counted in, over 68 percent of the reported location cases, and over 50 percent of the accessory use cases involve smaller religious groups. There may be some imperfections in the data, but there could be substantial error without disturbing the result. The point is this portrays a picture of significant recurring discrimination. I think, as Mr. Mauck said, we are just seeing the tip of the iceberg. I can walk through a number of cases, as my testimony does, and you see churches being driven from pillar to post seeking place after place simply in order to find a place to worship, and this is, in my view, unconscionable. Now, it is true that there are all sorts of planning reasons that one can give for such results. I want to say that most of the planning people in this country act in good faith and so forth, but I think that they end up suffering from what I call "secular blindness." They are often more concerned about some relatively minor concern about aesthetics and the like than they are with responding religious freedom. As important and valuable as these concerns are, they cannot outweigh the value of religion and religious freedom in our society. It is vital to adopt a law like the Religious Liberty Protection Act to deal with these things. In conclusion, I would simply underscore what was said at another point in my written testimony with respect to the Commerce Clause issue. Commerce issues are particularly obvious in the land use area. Religious use of land has all kinds of impacts on commerce, and the impacts are clearly substantial. Religious uses are directly burdened by the land use decisions, and it is perfectly permissible for Congress to exercise its power to deregulate this area that is so vital to exercise one of the most fundamental freedoms in the world. Thank you. Mr. CANADY. Thank you, Professor. [The prepared statement of Mr. Durham follows:] PREPARED STATEMENT OF W. COLE DURHAM, JR., BRIGHAM YOUNG UNIVERSITY LAW This statement is submitted by Professor Durham in his personal capacity, and is not made on behalf of any organizations or institutions with which he is affiliated. It is a great honor for me to address this body today on legislation vital to protecting one of our preeminent liberties: religious freedom. I have spent much of the past decade working in support of this great principle: in my home state of Utah, at the federal level, and as a comparative law expert in many of the countries emerging from the yoke of communism. Experience in all these contexts has reaffirmed my conviction, in setting after setting, that religious freedom is one of the bedrock principles of any just human society. As Madison rightly argued over two centuries ago in his famous Memorial and Remonstrance, religious freedom "is in its nature an unalienable right" because it relates to duties that are "precedent, both in order of time and in degree of obligation, to the claims of Civil Society." "1 While this hearing rightly focuses on issues of United States constitutional law, it is worth remembering that the principle of religious freedom is deeper and more absolute than any constitution. The Universal Declaration of Human Rights, whose fiftieth anniversary is celebrated this year, clearly recognized (as did our founding fathers) that religious freedom is not a right conferred on individuals by states; it is a right possessed by everyone simply by virtue of being human. Our Constitution is hallowed in no small part because it was one of the first great charters of human history to protect the deeper principle of religious freedom. Moreover, our constitutional history as a people remains impressive because of ongoing efforts to protect this cherished liberty. The legislation we are discussing today, if enacted, will be part of our generation's elaboration of the American heritage of religious freedom. I. GENERAL CONSIDERATIONS CALLING FOR ADOPTION OF THE RELIGIOUS LIBERTY Congressional action is vital because religious freedom faces unique challenges at this juncture in our history. These challenges are not limited to the fact that the United States Supreme Court has radically and unnecessarily narrowed the scope of religious freedom protections as traditionally understood in this country.2 They flow from the pervasiveness of the modern state, the increasing pluralization of culture, and powerful forces of secularization. Each of these three factors intensifies the need for added protection of religious freedom. This is most obvious as one considers the massiveness of the modern state. The seemingly inexorable expansion of state activity into more and more sectors of life increases the number of areas in which state and religious activity can come into conflict, and where religious freedom protections are vital to protect individual and collective religious activity. This Hearing, previous hearings on the legislation in question, and all the hearings on the earlier Religious Liberty Protection Act, were replete with evidence of the many areas in which religious freedom is threatened if encroaching governmental action is not strictly scrutinized. The increasing pluralism of contemporary society further compounds the potential friction points between religious activity and the state. Some, including Justice Scalia in the Smith decision, have cited this factor as an argument against accommodation of religious difference. But this runs counter to our historical experience. What the American experiment has shown, and shown stunningly (if not always perfectly), is that accommodation and toleration are much more effective in promoting social stability and flourishing than insistence on homogeneity and standardization. Increasing pluralism calls for more, not less religious freedom, because in addition to being right, respect for difference pays richer social dividends than wooden insistence on conformity. Less obvious, perhaps, is the challenge posed by progressive secularization, which is particularly evident among our intellectual elites. Secularization is gradually dulling our sensitivities to the vital importance of religion and religious freedom to the strength of our republic. The importance of religion to society was obvious to the founders and to many of the greatest commentators on American life, such as Alexis de Tocqueville. But in secularized minds, the legitimate interests and claims of religion seem to fade in importance or to be marginalized when balanced against 1 James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON, Marvin Meyers, ed. (rev. ed. 1981). The Memorial and Remonstrance is also reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63 (1947). 2 City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Employment Division v. Smith, 494 U.S. 872 (1990). relationships were healed, we were hindered in that effort. 22. The emotional cost to the congregation has been extremely high. At one point during the process, in the summer of 1991, the Board seriously discussed dissolving the church, due to the untenable situation we were in and the opposition we faced. We have lost members, whose absence has been keenly felt in the programs of the church and in its budget. current size of the congregation is approximately fifty adults, plus children. The Jerone E. Lowrey signed and sworn to before me this 14 day of September, 1994. IN THE UNITED STATES DISTRICT COURT CIVIL LIBERTIES FOR URBAN BELIEVERS, ET AL., V. CITY OF CHICAGO AND STATE OF ILLINOIS. AFFIDAVIT OF THE CHURCH ON "THE WAY" PRAISE I, Charlene Crossley, being sworn upon my oath, state that I am the Pastor of the Church on "the Way" Praise Center and that I have personal knowledge of the facts stated herein and am competent to testify thereto: 1. 2. 3. 4. 5. 6. The Church on "the Way" Praise Center is an Illinois Not-for- It is essential to the exercise of the beliefs of the members The church began meeting on October 23, 1982 in the basement of my home. We began with seven people; by the time we moved elsewhere in December 1984, we were 25 people. As soon as we began meeting, we began looking for a space to rent. Every suitable space we found for two years was either too expensive, too run down, or the landlord was not willing to rent to a church. In December, 1984, we rented half of a storefront at 1704 W. 69th Street. The building was owned by a minister who had his church in the other half of the building. We met there for six and a half years, until the building burned in December of 1989. Another pastor heard that the church was "homeless" and |