teaching or medical personnel are badly needed. It really hurts me to learn that mission money is going for legal fees and court battles.

The Presbyterian Church (USA) is a well established denomination with over 200 years in this country. We just had our 209th General Assembly meeting in Charlotte, North Carolina. That is why it surprises many people that even PC(USA) congregations would experience such difficulties. It is even more surprising given that we are perhaps "over represented" in local governments (like zoning boards and city councils) in comparison to our percentage in the general population. In addition, about 10 percent of the U.S. Congress is Presbyterian. I have often said the "P" in Presbyterian must stand for politics. That being the case, the fact that we are in so many places where decisions are made-we are still having trouble advancing our ministries. Even as an established Church, we have encountered regulations that would deny the fulfillment of our ministries. This gives further credence to the complexity of these concerns and demonstrates why we need passage of HR 4019. We can only surmise what must be happening to smaller denominational churches and minority faiths.

In a 1995 Presbyterian Panel Survey, another information gathering instrument of the Presbyterian Church (USA), we found that many Presbyterians are politically involved. The survey found that over 70 percent of Presbyterian members either strongly agree or agree that "it is important for Presbyterians to exercise their Christian witness in the public arena." The survey found that 64 percent of church members actively participate in election campaigns and 69 percent write letters to elected officials. This is a direct out growth of our understanding of the Gospel message, to be involved with community through our churches; through our businesses and through the political process in order to do what needs to be done during times of societal decision making and need.

I want to thank you for this opportunity to share these concerns. We would be happy to provide additional information if needed.

Mr. CANADY. Thank you, Reverend Ivory.
Mr. Green.

STATEMENT OF STEVEN K. GREEN, LEGAL DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

Mr. GREEN. Mr. Chairman and honorable members of the committee, I am Steven K. Green. I am the legal director of Americans United for Separation of Church and State.

Americans United was founded in 1947 by religious leaders and educators with the goal of preserving religious liberty and separation of church and State, and we have been involved in many of the significant church-State cases before the U.S. Supreme Court. We supported the Religious Freedom Restoration Act, and following the Court's decision in the City of Boerne, we have been working with the Coalition for the Free Exercise of Religion in drafting new proposed language which is being considered by this committee.

Today I want to comment on RLPA's proposed legal standard found in section 2(b) the "compelling interest" or "strict scrutiny" test. I would like to stress why the compelling interest standard is so critical to RLPA and why it should be kept in its present form when the bill passes out of committee.

The primary reason that RLPA is supported by the broadest range of ideological groups imaginable, and the reason it presents a viable solution for protecting the religious rights of all Americans, is that it relies on the compelling interest standard and nothing more. Much of my testimony will address the concerns that the compelling interest standard is skewed toward either religious claimants or the government; in particular, that RLPA will exempt some religious people from complying with important State laws. To be sure, the compelling interest standard is an exacting one for the government. Still, the standard is fair. In my remaining time

I will briefly discuss why RLPA also does not violate the Establishment Clause.

Members of the Free Exercise Coalition frequently disagree on the substance of many issues that implicate free exercise concerns: the funding of religious education; student religious expression at public school events; and the application of nondiscrimination laws in employment and housing to religious claimants and institutions. Because members of the Coalition, like Members of Congress, hold divergent views on the merits of such claims, RLPA cannot seek to address or ordain those outcomes.

The beauty of the compelling interest standard is that it does not preordain any particular outcome but merely sets up a balancing test of competing interests. The compelling interest standard was selected, first and foremost, because it was a standard the United States Supreme Court had adhered to for almost 30 years. But the compelling interest standard in its unadulterated form was also chosen because it is ideologically neutral in its application.

Let me put to rest any concern that the compelling interest test advantages or disadvantages any group or ideological perspective. The standard is fair, but rigorous, not only for the government but also for religious claimants. It allows neither religious interests to always prevail, nor those of the government, even when those interests may be compelling.

Because RLPA, like RFRA, does not define the various elements of the standard but relies on judicial interpretations, it is helpful to look at how the courts have defined some of those terms.

With substantial burden, the responsibility for demonstrating a substantial burden on religion exists with the claimant. To claim merely that government action is inconsistent with one's religious beliefs, without more, is insufficient for a showing of a substantial burden.

The case law of the Supreme Court prior to Employment Division v. Smith and that of lower courts since RFRA clearly indicates that not all burdens on religion are unconstitutional. Merely incidental effects of government programs which may make it more difficult to practice certain religions but have no tendency to coerce individuals into acting contrary to their religious beliefs are insufficient to meet the burden standard. The burden must be one that is constitutionally significant, meaning that religiously motivated conduct is significantly or meaningfully curtailed.

Applying that standard, the high Court has held the assessment and collection of sales taxes from a religious organization does not constitute a substantial burden on religion. Similarly, a religious organization's compliance with minimum wage requirements in its commercial operations failed to constitute a substantial burden.

Even under RFRA, courts have found no constitutionally significant burden on religion where some churches were denied zoning variances to develop particular parcels, where parents were denied State-subsidized services for their children in religious schools, or for abortion protesters to comply with the Clinic Access Act. And in the now familiar California landlord-tenant case, the California Supreme Court held that a landlord's religion was not burdened by conforming her commercial activities to the State antidiscrimina

tion law. Because the substantial burden test was applied in each case, RLPA would not change the outcome in any of those cases. Now, this is not to suggest that the substantial burden standard is so high that legitimate claims go unrequited. Certainly, reasonable minds can and do differ on whether the standard has been applied correctly in any particular case. The point here is that the substantial burden requirement serves as an important triggering device to ensure that the government is not unnecessarily required to bring forward a compelling justification for its otherwise lawful actions when the interference with religion may only be minimal. Turning to the compelling interest side, as with substantial burden, RLPA does not define a compelling interest, and this is the wisest course. Any attempt to define a compelling interest would invite intensive lobbying and wrangling by groups to have their interests specially protected.

However, one point needs emphasizing. Even though RLPA claims involve what we would consider to be a fundamental right, there is no requirement that the government come forward with an interest of constitutional magnitude before it can override a religiously based claim. In other words, a RLPA claim will not automatically trump important local interests merely because it is based on Federal law or has the aura of a constitutional right. Even a cursory review of Supreme Court holdings indicate that many nonconstitutional interests will likely prevail over a RLPA claim.

The question on many minds is whether the enforcement of antidiscrimination laws constitutes a compelling interest. Courts have held that the government has a compelling interest in eradicating all forms of discrimination. I believe that in most conflicts involving individual religious claimants, the antidiscrimination laws will probably prevail. The government has an interest in prohibiting discrimination in housing and employment generally regardless of the particular form it takes.

The compelling interest test rests on the overall purposes behind the enactment of the law and in ensuring its enforceability. The parsing of a discrimination law to identify a hierarchy of rights threatens the law's integrity and subverts its goals. In other words, the compelling interest is in the eradication of discrimination generally, not in how it manifests itself.

An additional element in the discrimination laws is the detrimental impact that discrimination may have on third persons. Most free exercise claims considered by the courts have involved laws that burden religious rituals or organizations where there was a clear line between the activity and the society at large. No one else was burdened if Captain Goldman wore his yarmulke while in uniform.

Such cannot be said when a religious claim is used as a defense for alleged discrimination. In a related context, the Supreme Court has considered the impact a religious accommodation would have on third parties when weighing the government's interest. Although the Court's statements on accommodation of religion have not always been clear, it has consistently held that religious exemptions cannot impose substantial burdens on third persons not sharing in the accommodation.

No doubt some people may disagree with this analysis. The point of my testimony is not that antidiscrimination laws will prevail in every case, but to set the record straight that such laws serve as important expressions of legislative authority and that by adopting the compelling interest standard in RLPA, Congress is acknowledging that courts will consider and weigh important interests behind these laws. But because each religious claimant's situation is unique, it is appropriately left to the courts in weighing the competing interests.

I see my time us up. I will reserve my remarks on the Establishment Clause to my written comments. Thank you.

[The prepared statement of Mr. Green follows:]

PREPARED STATEMENT OF STEVEN K. GREEN, LEGAL DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

Mr. Chairman and honorable members of the Committee, I am Steven K. Green, Legal Director for Americans United for Separation of Church and State (Americans United). Americans United was founded in 1947 by religious leaders and educators with the goal of preserving religious liberty and separation of church and state, and has been involved in many of the significant church-state cases decided by the U.S. Supreme Court. We were disappointed by the Court's 1990 decision in Employment Division v. Smith and joined with a coalition of religious and civil rights organizations to bring about the Religious Freedom Restoration Act, 42 U.S.C. §2000bb (RFRA). We then helped defend the constitutionality of RFRA in the courts. Since the Court's decision in City of Boerne v. Flores, we have worked with the Coalition for the Free Exercise of Religion in drafting new remediating language that serves as the basis for the Religious Liberty Protection Act (RLPA), now being considered by this Committee.

Today, I want to comment on RLPA's proposed legal standard found in section 2(b): the "compelling interest" or "strict scrutiny" test. That standard is, of course, at the heart of RLPA and the very purpose for its being. Compelling interest was the standard the Court adhered to prior to Employment Division v. Smith and the same standard Congress incorporated into RFRA. I want to stress why the compelling interest standard is so critical to RLPA and why it should be kept in its present form when the bill passes out of committee. The primary reason that RLPA is supported by the broadest range of ideological groups imaginable and the reason it presents a viable solution for protecting the religious rights of all Americans is that it relies on the compelling interest standard, and nothing more. Much of my testimony will address concerns that the compelling interest standard is skewed towards either religious claimants or the government. To be sure, the compelling interest standard is an exacting one for the government; still, the standard is fair. In the time remaining, I will also briefly discuss why RLPA does not violate the Establishment Clause.

THE COMPELLING INTEREST STANDARD

The adage that politics makes strange bedfellows could easily be applied to the Free Exercise Coalition. A model for bipartisanship, the Coalition is comprised of groups from across the religious and ideological spectrum, from Americans United and ACLU to Concerned Women for America, from the Unitarian Universalists to the National Association of Evangelicals, and includes Muslims, Sikhs, Latter-day Saints, and the entire Jewish community. What has brought this wide array of groups together is their commitment to religious liberty; what has kept them working together is the understanding that RLPA will merely apply the legal standard that existed prior to 1990 and not seek to predetermine particular controversies.

Members of the Coalition frequently disagree on the substance of many issues that implicate free exercise concerns-the funding of religious education, student religious expression at public school events, and the application of nondiscrimination laws in employment and housing to religious claimants and institutions. Because members of the Coalition, like Members of Congress, hold divergent views on the merits of such claims, RLPA cannot seek to address or ordain their outcomes. The beauty of the compelling interest standard is that it does not preordain any particular outcome but merely sets up a balancing of competing interests. The compelling interest standard was selected, first and foremost, because it was the standard the

Supreme Court had adhered to for almost 30 years.1 But the compelling interest standard, in its unadulterated form, was also chosen because it is ideologically neutral in its application.

Let me put to rest any concern that the compelling interest test advantages or disadvantages any group or ideological perspective. The standard is fair, but rigorous, not only for the government, but also for religious claimants.2 The standard neither allows religious interests always to prevail, nor those of the government, even when its interests are compelling.3 The standard weighs and then balances competing interests, first considering the burden on the claimant's religion and then evaluating the importance of the government's activity and the available alternatives for achieving its goals.

Because RLPA, like RFRA, does not define the various elements of the standard but relies on judicial interpretations of those terms, it is helpful to look at how courts have defined such terms.

1. Substantial Burden-The responsibility for demonstrating a that substantial burden on religion exists rest with the claimant. To claim merely that a government action is inconsistent with one's religious beliefs, without more, is insufficient for showing a substantial burden.

The case law of the Supreme Court prior to Employment Division v. Smith and that of lower courts since RFRA clearly indicates that "[n]ot all burdens on religion are unconstitutional."4 Merely "incidental effects of government programs which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs" are insufficient to meet the burden standard.5 The burden must be one that is "constitutionally significant," meaning that religiously motivated conduct is “significantly or meaningfully curtained."7 As the Court stated in Thomas v. Review Board:

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and violate his beliefs, a burden upon religious exists.8

Applying this standard, the high court has held that the assessment and collection of sales taxes from a religious organization does not constitute a substantial burden on religion.9 Similarly, a religious organization's compliance with minimum wage requirements in its commercial operations failed to constitute a substantial burden.10 Even under RFRA, courts have found no constitutionally significant burden on religion where churches were denied zoning variances to develop particular parcels, where parents were denied state subsidized services for their children in religious schools, and for abortion protesters to comply with the Clinic Access Act.11 And in the now-familar California landlord-tenant case, the California Supreme Court held that the landord's religion was not burdened by conforming her commercial activities to the state's antidiscrimination law. 12 Because the substantial burden test was applied in each instance, RLPA would not change the outcome in any of those cases.

This is not to suggest that the substantial burden standard is so high that many legitimate claims go unrequited. Certainly, reasonable minds can and do differ over whether the standard has been applied correctly in a particular case. The point is that the substantial burden requirement serves as an important triggering mechanism to ensure that the government is not unnecessarily required "to bring forward

1 Hernandez v. C.I.R., 490 U.S. 680, 699 (1989).

2 See Ira Lupu, "The Failure of RFRA," 20 UALR L. Rev. 1, 19–22 (1998).

3 See Jesus Center v. Farmington Hills Zoning Board of Appeals, 544 N.W.2d 698 (Mich. App. 1996) (finding that an action of the zoning board furthered a compelling interest but was not the least restrictive means available to achieve that goal).

4 Bowen v. Roy, 476 U.S. 693, 702 (1986); United States v. Lee, 455 U.S. 252, 257 (1982).

5 Lyng v. Northwest Indian Cemetery Prot. Ass'n, 485 U.S. 439 (1988).

6 Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 377 (1990).

7 Sasnett v. Sullivan, 908 F. Supp. 1429, 1444 (W.D. Wis. 1995).

8 450 U.S. 707, 717-18 (1981) (emphasis supplied).

9 Jimmy Swaggart Ministries, 493 U.S. at 392.

10 Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 304-05 (1985). See also Lyng, 485 U.S. at 447-453; Bowen v. Roy, 476 U.S. 693, 706 (1986).

11 Daytona Rescue Mission v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fl. 1995); Goodall v. Stafford County School Board, 60 F.3d 168 (4th Cir. 1995), cert. denied, 116 S. Ct. 706 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995).

12 Smith v. Fair Employment and Housing Comm., 913 P.2d 909 (Cal. 1996).