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Mr. SCOTT. Could I ask another question?
Mr. CANADY. The gentleman from Virginia is recognized.

Mr. SCOTT. There is one kind of technical question on the land use. Page 4, line 17, it says, section 2 does not apply. Section 2 includes the Commerce Clause and the Spending Clause. So is it the reading of the witnesses that we are relegated to section 5 enforcement?

Mr. MAUCK. I think the Land Use sections of the Religious Liberty Protection Act is a valid exercise of Congress' power under at least two constitutional provisions. First, the Enforcement Clause of the 14th Amendment gives the Congress power to enact laws where, according to the Flores case. Congress has evidence of systematic violation of constitutional rights. I have given you evidence of widespread religious, ethnic, racial and socio-economic discrimination in the sphere of zoning and will supplement the record in that regard. The second basis for Congressional enactment authority is the Commerce Clause. The Commerce Clause does not authorize religious regulation but does authorize Congress to restrain local governments in their over regulation o fuses affecting commerce. Other witnesses have shown the massive effect of church construction, church relocation and other religious land use on commerce. If Congress discerns that local land use regulations are negatively affecting commerce by, for example, the race to erect ever higher barriers to land use between municipalities or states then they can and should retrain those abuses as an exercise in prudent Federalism. Municipalities cannot end the higher barriers “arms race" themselves and states, to a large extent, are also powerless. Congress is uniquely positioned to "demilitarize" the zoning codes under the Commerce Clause.

Well, I don't think it should be, if that is what it is saying, that this is not a commerce issue, because it does—at least as I see it, in every zoning hearing, every zoning board says this is a commerce issue. That is how the local communities see it: We want more business and less church.

Mr. CANADY. With the indulgence of the members of the subcommittee, I think it would be appropriate and helpful to have Professor Laycock, if he would be willing to address that specific point, because in the statement he has provided the committee, he has addressed that.

Mr. LAYCOCK. Thank you, Mr. Chairman. It is in the statement. My understanding of the intention of that provision is to say that the compelling interest test in section 2 does not apply to land use, so that the land use authorities do not face a double hurdle of first they have to show that they have complied with A, B and C, and then in addition they have to show that they meet the compelling interest test. The substantive standard is one or the other.

But I think the committee should make clear that that provision does not say anything about what sources of constitutional authority Congress is relying on to enact the land use provisions. Those provisions are primarily intended as acts to enforce the Fourteenth Amendment, but in many of their applications, they will also be cases affecting commerce, and Congress can rely on the Commerce Clause certainly in construction cases and probably in lots of other cases. And there may even be occasional cases where there

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is some sort of Federal aid and there is a Spending Clause application.

Mr. SCOTT. Let me ask it another way. Line 18, which is in section 2, are you really aiming at just such sections 2 (B), (C), (D) and (E), and not section 2(A)?

Mr. LAYCOCK. My copy of the bill doesn't have numbered lines. I had to get it off the Internet.

Mr. SCOTT. Section 2 says, general rule, and 2(A)(1) says, Federal assistance.

Mr. CANADY. If I could just interject here. I think that there would be a conflict because the standard set forth in section 2 is a different standard than that set forth in section 4, the section on land use that we are focusing on; section 3(B). Mr. LAYCOCK. I think we have to think

Mr. CANADY. It is a more particularized standard that relates to land use than the general standard articulated in the earlier section.

Mr. LAYCOCK. That is right. We clearly don't want the compelling interest test to apply. This language has been tinkered with since the last time I saw it, and we may have to think through it very carefully and make sure we have got it right. And, Mr. Scott, it may only be some subsections that do not apply.

Mr. SCOTT. Is it your intention that the relevance of the Commerce Clause and Federal assistance would apply to section 3?

Mr. LAYCOCK. Yes. That was clearly the intention of the coalition when they began talking to the Members about the bill.

Mr. SCOTT. Thank you, Mr. Chairman.

Mr. CANADY. Again, I want to thank you for participating in our hearing today. Your testimony is very valuable to the considerations of the subcommittee. The subcommittee stands adjourned.

[Whereupon, at 1:10 p.m., the subcommittee was adjourned.]

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RELIGIOUS LIBERTY PROTECTION ACT OF

1998

TUESDAY, JULY 14, 1998

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY,

Washington, DC. The subcommittee met, pursuant to call, at 9:30 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady (chairman of the subcommittee) presiding.

Present: Representatives Charles Canady, Robert C. Scott and Jerrold Nadler.

Also Present: Representative Henry J. Hyde.

Staff Present: Cathleen Cleaver, Counsel; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel.

Mr. CANADY. The subcommittee will be in order. This is the fifth hearing the Subcommittee on the Constitution has conducted over the last year concerning the protection of religious liberty in the wake of the Boerne v. Flores decision of the Supreme Court.

We convene today for the second hearing focusing specifically on H.R. 4019, the Religious Liberty Protection Act of 1998, legislation which Mr. Nadler and I introduced on June the 9th. It is my hope that with today's hearing, the subcommittee will have completed the hearing phase of our work on this issue and that we will be in a position to move forward with consideration of H.R. 4019 after the members have had an opportunity to reflect on the testimony offered by the distinguished witnesses who are with us here today.

I do want to thank members of both panels for taking the time to be with us. Some are back with us after previously testifying. We appreciate your participation in this ongoing process.

I now recognize Mr. Scott. Mr. SCOTT. Thank you, Mr. Chairman. I am delighted that we are having the hearing to review the legislation. Frankly, I thought the major purpose of the hearing was to hear from the Justice Department. I thought you were instructed to invite the Justice Department.

Could you tell me what happened, and I will yield.
Mr. CANADY. Yes, I will be happy to respond.

We have invited the Department of Justice. They felt that they were unable to be prepared to appear. I think they were given adequate notice. I was disappointed that they were unwilling or unable to be with us here today, because that was something that we had hoped to accomplish here.

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Let me say that I am ready, willing, and able to hear from the Justice Department whenever they feel that they are in a position to make a presentation. It is disappointing that it is taking them so long, because this is an issue that has been around for some period of time. The bill has been filed for some weeks now. They have known about this. They were aware of this bill even before it was filed, so I am somewhat mystified. I don't want to attack them in this context, but I am disappointed.

As I had offered previously, I will offer again, once they do have their act together on this, I would be happy to host a briefing for members of the subcommittee or the full committee, as the case may be, to hear from the Department.

I think that I can state what I understand the Department's position is. They don't see any substantial problems with the bill. I think they may have some different views about the way various things should be phrased in terms of the legislative language. But it is my understanding, and I am not in a position really to represent them, but it is my understanding that they are generally supportive of the approach in the legislation.

Mr. SCOTT. Well, thank you, Mr. Chairman. I am delighted to know that they were invited, because there are significant concerns with the constitutionality of the bill. We would not want to pass another bill that gets rejected by the Supreme Court.

I look forward to the testimony of the witnesses. I yield. Mr. CANADY. Well, if the gentleman would yield. I have just seen that there is a letter which we have just received from the acting Assistant Attorney General, indicating that the administration supports the goals of this important legislation designed to protect the religious liberties of all Americans. It goes on to say, as you know, the Department is continuing to review and analyze the array of important constitutional considerations raised by H.R. 4019 to help ensure that the legislation conforms with the Supreme Court precedent as well as the important legal and policy issues raised by the legislation.

They go on to say that they believe that they can best assist the committee by continuing that process. I would suggest that they can best assist the committee by completing that process and giving us the benefit of their considered judgment.

Mr. SCOTT. Well, thank you, Mr. Chairman. I think we tend not to agree on many things, but I think we agree on this one, that we would like to hear from the Justice Department. I think we all agree with the goals of the legislation; but if there are constitutional imperfections, we want them cured before the bill proceeds.

With that, I will yield back.

Mr. CANADY. Thank you. Are there members wishing to make an opening statement?

Okay. We will now move to the first of two panels. So if the members of the first panel would come forward to take your seats. We will have five witnesses on this first panel and five witnesses on the second panel.

On our first panel today, our first witness will be Pat Nolan, who is President of the Justice Fellowship. Following him will be William Dodson, who is the Director of Government Relations of the Southern Baptist Convention. Our third witness this morning will be Michael Farris, who is the President of the Home School Legal Defense Association. Our fourth witness will be Colby May, Senior Counsel, Office of Governmental Affairs with the American Center For Law and Justice. The final witness on our first panel will be Steven McFarland, Director of the Center for Law and Religious Freedom.

As most of you know, you have been around the committee, and you have either testified or have observed the proceedings here, we would ask that you would do your best to summarize your testimony in no more than 5 minutes. I don't expect that anyone is going to insist on strict enforcement of the 5-minute rule here today, but if you could, we would appreciate your coming as close to the 5 minutes as you can.

I would point out that we have another hearing of the subcommittee scheduled this afternoon for consideration of the bill introduced by the chairman of the full committee, so we will have to make certain that we are done in time to convene that hearing. So your consideration would be appreciated.

Of course, your full written statements will, without objection, be made a part of the permanent record of the hearing.

Mr. CANADY. With that, I will now recognize Mr. Nolan.

STATEMENT OF PATRICK NOLAN, PRESIDENT, JUSTICE

FELLOWSHIP Mr. NOLAN. Good morning, Mr. Chairman and members. And thank you for this opportunity to address this panel on a most important topic, religious liberty.

I am the President of the Justice Fellowship, and we are the public policy arm of Prison Fellowship Ministries, Chuck Colson's ministry. Justice Fellowship works to reform our criminal justice system based on biblical principles of restorative justice. We seek to restore peace to our communities by healing the wounds of victims and renewing the hearts of offenders.

I bring a unique background to Justice Fellowship. Prior to being its President, I served for 15 years in the California State Assembly for them as Republican leader. I also was a Federal inmate for 25 months, 25 months in prison, 4 months in a halfway house. This was hard on my wife and young children. The one solace I had was my faith. And I saw firsthand the routine inference with my ability to practice my faith in prison.

But I am not here to simply bring a prison ministry's perspective to this important issue. I am here to show how this issue is important to all Americans, liberals as well as my fellow conservatives.

We were disappointed with the Boerne decision and the impact it has had on religious liberty around the country. Following the Boerne decision, religious freedom came under swift attack. Christian day care centers in Philadelphia were served with notice to comply with local ordinances prohibiting discrimination on the basis of faith.

California death row inmates were prevented from bringing bibles to Bible studies. Bible studies in South Carolina were broken up by local authorities claiming they violated local zoning ordinances. And Texas school children were disciplined for wearing ro

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