TESTIMONY TO THE HOUSE COMMITTEE ON THE JUDICIARY'S

SUBCOMMITTEE ON THE CONSTITUTION

H.R. 4019: The "Religious Liberty Protection Act of 1998"

Marci A. Hamilton

Professor of Law

Benjamin N. Cardozo School of Law, Yeshiva University

June 16, 1998

Thank you, Mr. Chairman, for inviting me to speak today on this important constitutional law topic. I am a Professor of Law at Benjamin N. Cardozo School of Law, Yeshiva University, where I specialize in constitutional law. I was also the lead counsel for the City of Boerne, Texas in the case that ultimately invalidated the Religious Freedom Restoration Act (RFRA). See Boerne v. Flores, 117 S. Ct. 2157 (1997). I have devoted the last five years of my life to writing about, lecturing on, and litigating the Religious Freedom Restoration Act and similar religious liberty legislation in the states. For the record, I am a religious believer.

As you know, the Boerne v. Flores decision unequivocally rejected RFRA. Not a single member of the Supreme Court defended the law in either the majority, the concurrences, or the dissents. The Court's decision was not a result of any hostility on the part of the Court toward this body. That is evident in its calm, evenhanded tone. Nor was it the result of mistaken understandings of its own precedents. The decision was inevitable. Contrary to Professor Laycock's and the Congressional Research Service's confident assurances in the RFRA legislative record, RFRA was plainly ultra vires.

I will not belabor RFRA's faults here, but rather refer you to the bibliography that follows this testimony. I also refer you to my letter of November 11, 1997 to Rep. Jerrold Nadler, which is attached, in which I explain the limited options open to Congress to aid religion.

When I first read The Religious Liberty Protection Act of 1998, I thought someone was playing a prank on me. If I had been commissioned to write a law post-Boerne v. Flores that contains multiple constitutional violations, I could not have done a better job. There is no enumerated power that would support this bill. Moreover, it violates a score of structural constitutional principles.

Testimony of Professor Marci Hamilton

H.R. 4019 The "Religious Liberty Protection Act of 1998"

June 16, 1998

That this bill, which is a slap in the face of the Framers and the Constitution, is receiving a hearing indicates that what I say today may not make much difference. If Congress wants to be perceived as the savior of religious liberty and wants to defer to the most powerful coalition of religions in this country's history, there is absolutely nothing that I can do about it. Thus, I will not offer detailed critique of each of this bill's glaring constitutional errors. Instead, I will offer a summary of those errors.

Then I will share with you the interests that will be hurt by granting religion this unprecedented quantum of power against the government.⁽¹⁾ I represent none of these interests, but I have heard their stories in my travels around the country these five years.

RLPA's Most Severe Constitutional Defects

RLPA Violates the Separation of Powers. Like RFRA, RLPA is an undisguised attempt to reverse the Supreme Court's interpretation of the Free Exercise Clause in Employment Division v. Smith, 494 U.S. 872 (1990), and to take over the Court's core function of interpreting the Constitution. See Secs. 2(a) and 3(a). For a clear discussion explaining why this is beyond Congress's power, see Boerne v. Flores, 117 S. Ct. at 2172.

RLPA Violates the Constitution's Ratification Procedures. Like RFRA, RLPA attempts to amend the Constitution by a majority vote, bypassing Article V's required ratification procedures in direct violation of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). For a plain discussion in which the Court reasserts its allegiance to Marbury, see Boerne v. Flores, 117 S. Ct. at 2168.

Testimony of Professor Marci Hamilton

H.R. 4019 The "Religious Liberty Protection Act of 1998"

June 16, 1998

RLPA Is an Assault on States' Rights. Despite its rote recitation of language from cases discussing federalism issues, see, e.g., Sec. 2(d) ("state policy not commandeered"), this bill federalizes local land use law and (if good law) would eviscerate this final stronghold of local government. Local land control is one of the key elements of personal liberty. It violates the letter and the spirit of the modern Court's emerging structural constitutional jurisprudence. See Printz v. United States, 117 S. Ct. 2365 (1997); United States v. Lopez, 514 U.S. 549 (1995); New York v. U.S., 505 U.S. 144 (1992). If good law, RLPA's intervention in local land use law would set the pace for the most expansive invasion of state and local government authority in this nation's history.

If RLPA becomes law, it will haunt any representative who attempts to climb onto the limited federal government platform.

RLPA Fails to Satisfy the Enumerated Power Requirement. RLPA is ultra vires. There is not a single statute that provides a model for RLPA's claim to be grounded in either the Spending Clause or the Commerce Clause. Congress has not identified any specific arena of spending or commerce. Rather, it has identified all religious conduct as its target and attempted to cover as much religious conduct as possible by casting a net over all federal spending and commerce. Like RFRA, its obvious purpose is to displace the Supreme Court's interpretation of the Free Exercise Clause in as many fora as possible. It is a transparent end-run around the Supreme Court's criticism of RFRA in Boerne v. Flores.

RLPA Violates the Establishment Clause. RLPA privileges religion over all other interests in the society. While the Supreme Court indicated in Smith that tailored exemptions from certain laws for particular religious practices might pass muster, it has never given any indication that legislatures have the power to privilege religion across-the-board in this way.

RFRA's and RLPA's defenders rely on Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987), for the proposition that government may enact exemptions en masse. This is a careless reading of the case, which stands for the proposition that religion may be exempted from a particular law (affecting employment) if such an exemption is necessary to avoid excessive entanglement between church and state. RLPA, like RFRA, creates, rather than solves, entanglement problems. RLPA, which was drafted by religion for the purpose of benefitting religion and has the effect of privileging religion in a vast number of scenarios, violates the Establishment Clause. For the Court's most recent explanation of the Establishment Clause, see Agostini v. Felton, 117 S. Ct. 1997 (1997).

Testimony of Professor Marci Hamilton

H.R. 4019 The "Religious Liberty Protection Act of 1998"

June 16, 1998

The following is a list of interests that will be affected adversely if RLPA is adopted, because it elevates religion above all other societal interests. As Oregon recently discovered when a prosecutor attempted to prosecute a religious community for the death of three children, particular exemptions from general laws can have real consequences. Before blindly passing this law with its mandate to exempt religion from general laws in an infinite number of scenarios, Congress should know that it risks responsibility for harming the following constituencies:

Children in religions that advocate and practice abuse

Women in religions that advocate male domination

Children in religions that refuse medical treatment, including immunizations

Pediatricians, who have lobbied vigorously for mandatory immunizations

The handicapped, women, minorities, and homosexuals, whose interests are currently protected by antidiscrimination laws and may well be trumped by religions exercising the compelling interest/least restrictive means test

Departments of correction and prison officials attempting to ensure order in prisons populated by increasingly violent criminals

Artistic and historical preservation interests, including whole communities that depend on historical districts for revenue and jobs

Neighborhoods attempting to enforce neutral rules regulating congestion, building size, lot size, and on- and off-street parking

School boards desperately attempting to ensure order and safety in the public schools

State, local, and municipal officials who will be forced to bear the cost of accommodating every religious request (whether from a mainstream religion or a cult) or bear the cost of litigating refusals to do s

Last, but not least, citizens who will bear the extreme increase in litigation costs created by these new rights coupled to an attorney's fees provision (a virtual invitation to sue)

In sum, RLPA is no better than RFRA. In fact, it is worse. Congress has a duty to investigate its wide-ranging effects with care before taking this plainly unconstitutional path.

For those who take comfort from the fact that RLPA is supported by a wide cross-section of religions, I leave you with the words of Framer Rufus King, one of the youngest members of the Constitutional Convention but a Harvard graduate who was highly respected on structural issues: "[I]f the clergy combine, they will have their influence on government."

Testimony of Professor Marci Hamilton

H.R. 4019 The "Religious Liberty Protection Act of 1998"

June 16, 1998

Bibliography of works by Marci A. Hamilton addressing the Religious Freedom Restoration Act and Boerne v. Flores:

The Religious Freedom Restoration Act Is Unconstitutional, Period, 1 U. Penn. J. Constl. L. 1 (1998).

Boerne v. Flores: A Landmark for Structural Analysis, 39 Wm. & Mary L. Rev. 699 (1998).

Religion's Reach, Christian Century 644 (July 16-23, 1997).

The Constitution's Pragmatic Balance of Power Between Church and State, 2 Nexus, A Journal of Opinion 33 (1997).

The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section Five of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994).

The Constitutional Rhetoric of Religion, -- U. Ark. at Little Rock L. Rev. -- (forthcoming 1998).

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1. Professor Douglas Laycock tilts at windmills when he attempts to argue that the test instituted by RLPA (and RFRA), the compelling interest/least restrictive means test, was the test regularly employed in all free exercise cases before 1990. He neglects to mention Turner v. Safley, 482 U.S. 78 (1987), which makes explicit that strict scrutiny does not apply in the prison context or any of other cases in which the Court demonstrated great deference to government interests. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986); Bowen v. Roy, 476 U.S. 693 (1986). Whatever Professor Laycock's interpretation of the Supreme Court's free exercise jurisprudence may be, the Supreme Court itself made absolutely clear in Boerne v. Flores that the least restrictive means test is "a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify." 117 S. Ct. at 2171.