TESTIMONY SUBMITTED TO THE HOUSE JUDICIARY COMMITTEE, SUB-COMMITTEE ON THE CONSTITUTION
REGARDING H.R. 1691 (THE "RELIGIOUS LIBERTY PROTECTION ACT OF 1999")
Lawrence G. Sager
Robert B. McKay Professor of Law, New York University School of Law
Christopher L. Eisgruber
Professor of Law, New York University School of Law
Wednesday, May 12, 1999
We thank the Chair and the Committee for providing us with the opportunity to submit our views regarding the the "Religious Liberty Protection Act" (H.R.1691) (hereafter, "RLPA").
RLPA is a response to the Supreme Court's decision in City of Boerne v. Flores, 117 S.Ct. 2157 (1997). There, the Supreme Court held that the Religious Freedom Restoration Act ("RFRA"), was unconstitutional, at least as applied to the conduct of state and local governmental entities.(1)
RLPA tries to replicate many of the results that RFRA would have secured; indeed, RLPA is in some key respects more sweeping than RFRA. We think that RLPA is unnecessary, unwise, and unconstitutional - indeed, in some respects, we think it is more blatantly unconstitutional than was RFRA. We strongly encourage the Members of the House of Representatives to abandon RLPA, and return to more conventional, efficacious and constitutional means of protecting religious liberty.
I. Congress, Religious Liberty and the Mistaken Turn to RFRA and RLPA.
Religious liberty is a constitutional value of the highest order. Many of the members of the generation that founded the Constitution were deeply aware of the vulnerability of religious believers to persecution and denigration targeted at the very fact of their belief and its nonconformity with other more widely-held beliefs. Today, the threat of religious persecution is far less great; in general, public officials in the United States are sensitive to religious interests, and they often make attractive and successful efforts to accommodate the needs of religious persons and practices. But in one sense, the need for vigilance in protecting members of our political community from thoughtless, insensitive or discriminatory behavior with regard to their deep religious commitments has grown: In the United States today, there is a vast range of spiritual and moral commitment. Some of these commitments are widely-shared and broadly familiar; but others are less widely-shared, somewhat exotic or even personally idiosyncratic.
Congress has played a commendable role in protecting these more vulnerable commitments. Thus for example: Congress directed the armed forces to make reasonable accommodation for the wearing of religiously mandated apparel (see 10 U.S.C. §774); and thus, Congress withdrew funding for a Forest Service road that would have harmed a sacred Native American site (see House Committee on Appropriations, Dept. of the Interior and Related Agencies Appropriations Bill, 1989, H.R. Rep. No. 713, 100th Congress, 2d Sess. 72 (1988)); and thus, Congress has provided church employers with exemptions from certain tax obligations that are inconsistent with their religious beliefs (see 26 U.S.C. §3121(w)(1)); and thus, Congress acted to specifically make it possible for members of the Native American Church to use Peyote as part of their sacrament of worship (see 42 U.S.C. §1996). In each of these cases, Congress had reason to believe that the concerns of minority religious believers were being slighted; and in each, Congress moved to accommodate those concerns in a way that was entirely consistent with the general capacity of state, local and federal governmental entities to govern fairly and well.
But RFRA and now RLPA represent a sharp and mistaken turning away from this traditional congressional role of vigilant and nuanced oversight. They both involve a radical, sweeping and dangerous invocation of the "compelling state interest test" whenever religiously-motivated persons find their projects blocked or substantially burdened by perfectly legitimate, thoroughly even-handed, entirely reasonable laws. RLPA goes even further - and in the process amends whatever survives of RFRA in this regard as well - by insisting that the projects of religiously-motivated persons need not be compelled by or central to the beliefs of those persons in order to qualify for protection under the act.
If enacted, the effects of RLPA would be harrowing. The objections to RLPA are substantial, and easily rise to the level of constitutional complaint. RLPA'a constitutional difficulties fall into three broad categories:
RLPA would create two classes of citizens: those who have religious reasons of just the right sort for their actions and those whose reasons for acting - however laudable and heartfelt - do not so qualify. The former would be entitled by RLPA to defy otherwise perfectly valid governmental regulations which the latter would be required to obey. In some cases the selective conferral of this privilege to defy the law would be especially inequitable: RLPA could, for example, be invoked by landlords who would justify their violation of some anti-discrimination laws on the basis of their religiously-inspired objections to would-be tenants, even when those objections were neither compelled by nor central to their religious beliefs. RLPA would undermine the capacity of governmental entities at every level to pursue perfectly legitimate, democratically-endorsed goals; and RLPA would do so on behalf of persons privileged by virtue of the content of their systems of belief. This would be in stark violation of the establishment clause of the First Amendment.
RLPA reaches in desperation for a source of congressional authority to replace section 5 of the Fourteenth Amendment; it would surely be struck down by the Supreme Court on enumerated powers grounds, and would invite the Supreme Court to place new inhibitions on the capacity of Congress to act as the Court's partner in addressing questions of constitutional justice. No one believes that RLPA is addressed to increasing interstate commerce, to the control of interstate commerce, or to the benefit of the economy generally. RLPA seizes on the entirely coincidental fact that some laws which regulate religiously motivated conduct will thereby have some effect on interstate commerce in order to find a commerce clause rationale for the blanket exemption from the force of such laws that it grants religiously-motivated persons. This flies in the face of the Supreme Court's decision in United States v. Lopez, 115 S.Ct. 1624 (1995). Alternately, RLPA restricts itself to programs or activities that receive Federal monies, and relies on Congress's broad spending power authority. But even the spending power requires a nexus between Federal restrictions and the goals of any particular spending program, and RLPA is unsupported by any such connection. Finally in what are likely its most important provisions, involving land use regulation, RLPA, like RFRA before it, depends upon section 5 of the Fourteenth Amendment. Especially given RLPA's insistence that religiously-motivated behavior need not be central to or required by an individual or group's religious commitments, the land use provisions are plainly and flagrantly in violation of the Supreme Court's ruling in the Flores case.
RLPA tells the federal judiciary how it is to proceed in hearing claims that arise directly under the free exercise provisions of the Constitution, as well as those that arise under RLPA itself. RLPA's effort to choreograph constitutional adjudication is an obvious, back-door attempt to accomplish precisely what the Flores decision prohibits, and would violate settled principles of separation of powers.
In the discussion which follows, we will elaborate upon each of these observations.
II. RLPA'S CREATION OF TWO CLASSES OF PERSONS DISTINGUISHED ONLY BY THE DEEP STRUCTURE OF THEIR PERSONAL BELIEFS VIOLATES THE ESTABLISHMENT CLAUSE
RLPA, even more so than RFRA, indefensibly favors religious commitments over the other deep concerns and interests of member of our society - concerns and interests like the welfare and integrity of one's family, deep moral and political commitments not recognizably grounded in religious beliefs, and a myriad of human projects to which individuals may be deeply and passionately committed. Imagine two sets of parents, both of whom have deep and conscientious reasons for wanting to exempt their children from sex education classes; or two groups of people who are profoundly upset by the thought of the homeless and the hungry, and who wish to open shelters and food kitchens in residential neighborhoods but are barred by zoning law from so doing; or two landlords, each of whom is deeply offended by the sexual relationship between two unmarried persons who wish to share an apartment; or two persons on the brink of bankruptcy, each of whom badly wishes to contribute what remains of their resources to charitable causes that occupy a central place in their life.
None of these is an easy case. But what seems clear about them is this: It is profoundly wrong to treat one set of parents, one group that wishes to feed and house the homeless, one landlord, or one debtor, more favorably than the other and to make the gravamen of the preference turn upon the deep structure of the belief systems of the implicated persons or groups. But RLPA makes it matter and matter crucially whether the parents, the person running the soup kitchen, the landlord, or the soon-to-be-bankrupt person are motivated to act by what we recognize to be religious principles. RLPA selectively distributes liberty between the recognizably religious and those whose are merely motivated by their abiding passion for and commitment to good works, sound parenting, or what they deem to be moral behavior.
The idea that some persons are entitled to ignore the laws that others are required to obey, and that this privilege depends upon the actor's system of beliefs, is both extraordinary and transparently inconsistent with our constitutional values. Indeed, in two cases, the Supreme Court has held laws unconstitutional precisely because they granted special privileges to religiously-motivated persons. In Texas Monthly, inc. v. Bullock,(2) the Court struck down a Texas law that exempted religious publications from a sales tax applicable to other publications; and in Thorton v Caldor,(3) the Court held unconstitutional a Connecticut law which gave all religious employees the right not to work on their Sabbath.
Of course, Congress and state legislatures have the authority to see that religiously-motivated persons and groups are dealt with fairly and reasonably. Congress may - and as we observed at the outset of this testimony, often has - act to "accommodate religious needs by alleviating special burdens"(4) occasioned by religious belief. When doing so, however, legislators must respect the "neutrality" commanded by the Religion Clauses.(5) Often, the appropriate form of accommodation will benefit religious and comparable non-religious interests alike - as is the case, for example, with tax exemptions that extend to both religious and non-religious non-profit organizations. On rare occasions, religious organizations and persons may be uniquely burdened, or uniquely susceptible to prejudice or insensitivity; then and only then may legislatures craft exemptions that are specific to religious motivation.(6)
But RLPA's blunt invocation of the compelling state interest test fits neither of these constitutionally permissible models. RLPA sharply discriminates between religious and non-religious behavior. And RLPA applies indiscriminately to all of the objects of governmental regulation, making no effort at all to confine its reach to those few cases where religious persons and institutions may have genuinely special needs.
In this regard, RLPA perpetuates the mistaken understanding of RFRA as to the state of religious liberty jurisprudence prior to the Supreme Court's decision in Department of Employment Services v. Smith, 474 U.S. 872 (1990). In the three decades of religious liberty jurisprudence prior to Smith, the Court paid lip-service to the proposition that government behavior that penalized persons for doing that which was essential to their religious commitments should be measured against the rigors of the compelling state interest test. But while the Court spoke broadly, it acted extremely narrowly. Only one isolated group was ever permitted to defy a general legal rule on the basis of the compelling interest test. That was the Amish, who were permitted to direct the development of their teenage children outside the framework of what the State of Wisconsin recognized as a school. One other group prevailed in the Court's many pre-Smith exemptions cases. The Court protected people who were presumptively entitled to claim unemployment insurance benefits; who had deep religious reasons for refusing an available job; and who faced a serious danger that those reasons might be treated with hostility by state bureaucrats. Outside of these two small groups, every other attempt by any religious person or group to invoke the compelling state interest test failed. In every other branch of constitutional jurisprudence, the compelling state interest test was strict in theory, but fatal in fact; here it was strict in theory but notoriously feeble in fact. The Smith Court did not cause or even precipitate the compelling state interest test's demise in the area of religious liberty. The Smith Court merely announced what had always been true.
And true for good reason. If honestly applied, the "compelling state interest test" is the most demanding standard known to constitutional law. Accordingly, the test is suitable only where it is appropriate to entertain a broad presumption of unconstitutionality--where, in other words, almost all of the cases that trigger the test will be abhorrent to the best standards of government behavior. Such a presumption rightly applies, for example, to laws intended to censor speech or to discriminate against racial or religious minorities. This presumption is badly suited to religious exemption cases, however. Many perfectly sound, even-handed laws will impose incidental burdens on some religious practices. The breadth and variety of religious belief make such collisions inevitable; but this does not offer a reason for depriving ourselves of the capacity to govern. Nor does the mere fact that a person's conduct is motivated by religious belief offer a good reason for permitting that person to defy reasonable, even-handed laws. The broad dictum of Sherbert would have created an unrecognizable, unmanageable and unjust world. The Court had the best of reasons for treating that dictum as rhetorical rather than operational.
For the Court in the Flores case it was precisely the use of the compelling
state interest test which made RFRA so poorly suited to the enterprise of protecting
religious liberty test. The blunt, extreme and unfocused demands of that test created,
in the words of the Court, "a lack of proportionality or congruence between
the means adopted and the legitimate end to be achieved." (7)
RLPA exacerbates RFRA's Establishment Clause problems. Section 8(1) of RLPA insists
that "religious exercise...need not be compelled by, or central to a system
of religious belief" in order to enjoy protection under its provisions. RLPA
also amends RFRA to incorporate this new language. Section 7(a)(3). Even in its strongest,
most rhetorically-heated form, the Supreme Court's pre-Smith jurisprudence
was keyed to cases in which the religiously-motivated claimant was compelled by the
dictates of her belief to act in the manner for which she sought the protection of
the Court. And, while, under RFRA, few courts had insisted that religious exercise
be "compulsory" in order to trigger the statute's provisions, most courts
held, in effect, that RFRA applied only to "substantial burdens" upon beliefs
which were in some significant way and to some significant degree "important"
to religious believers.(8)
RLPA's definition of religious exercise threatens to increase the extent to which RFRA favored religion over non-religion. Under RFRA, it was possible to argue that a burden upon religious exercise was not "substantial" if it affected only optional practices for which adequate substitutes were available. For example, under RFRA, several churches running soup-kitchens in residential neighborhoods sought zoning exemptions which, they conceded, were unavailable to comparably situated secular charities. In these cases, it was possible to argue that no "substantial burden" upon religious practice existed: the churches were free to run soup-kitchens in other locations, and they were free to engage in other charitable practices which, as a matter of their own religious doctrine, were equally worthy. See, e.g., Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554, 1560 (MD Fla. 1995). When successful, arguments of this kind mitigated the RFRA's favoritism for religion.
It is unlikely that these arguments would remain available under RLPA. To be sure, Sections 8(1) and 7(a)(3) define "religious exercise," not "substantial burden." Courts might find burdens upon religious exercise insubstantial if they affected only unimportant practices or if they left religious believers other, equally acceptable means by which to pursue their religious convictions. That construction of the "substantial burden" test, however, would render both provision -- especially Section 7(a)(3) - essentially meaningless. If, as appears to be the case, RLPA makes the invocation of religious motivation talismanic, and directs attention away from the particularized and extreme burdens on religious believers, RLPA exacerbates RFRA's already troubling disparity between the treatment of religious and non-religious commitments and concerns. RLPA would violate the establishment clause even on the hypothesis that RFRA does not.
III. RLPA EXCEEDED CONGRESS'S ENUMERATED POWERS AND IN SO DOING VIOLATES SOUND PRINCIPLES OF FEDERALISM.
Not surprisingly, Congress has no power to create the kind of special and arbitrary privileges that would result if RLPA were to become law. RLPA's peculiar statutory architecture amounts to a tacit admission of this problem: Congress has broad license to act under its commerce clause and spending powers; but RLPA stands out as depending upon a tenuous and improbable connection between those powers and the subject of religious liberty. Congress has an important and generous role to play as the Court's partner in enforcing the rights and liberties of members of our political community, but RLPA plainly lies outside the scope of that authority as well. Far from curing the constitutional vices of RFRA, RLPA's somewhat desperate hunt for constitutional authority proliferates such difficulties.
Spending Power Issues. Section 2(a)(1) of RLPA attempts to regulate the ability of state and local governments to "substantially burden ... religious exercise ... in a program or activity ... that receives federal financial assistance." That Section is an effort to draw upon Congress' spending power. The Supreme Court has held that Congress has broad discretion to impose conditions upon the use of federal money by state and local governments. The leading case is South Dakota v. Dole, 483 U.S. 203 (1987). In Dole, the Court upheld a statute which provided that states would lose federal highway funds if they did not raise the drinking age to 21. South Dakota objected to the statute on the ground that, under the Twenty-First Amendment, liquor laws were a matter of state rather than national control. The Supreme Court rejected this argument, reasoning that states could retain control over their drinking ages if they were willing to reject the offer of federal funds.
The Court's construction of the spending power in Dole was generous, but it was not unlimited. The Court emphasized that "our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" In Dole, the Court reasoned that "the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended--safe interstate travel." By raising the drinking age, the Court suggested, states would further the purposes of federal transportation law. Yet, unless Dole's nexus requirement is entirely meaningless, RLPA cannot possibly satisfy it. RLPA applies to all religious conduct and it applies to all federal spending programs. It defies belief to think that accommodating religious conduct, regardless of its nature, supports the goals of every federal expenditure, regardless of its purpose. Indeed, RLPA's compelling state interest test is blatantly inconsistent with that idea: it would require states to accommodate religious conduct even at the expense of the core goals of any given program unless those goals rose to the level of a "compelling state interest."
In effect, RLPA assumes that once federal dollars touch some activity or program, the activity or program is federalized top-to-bottom: it then becomes fair game for congressional regulation regardless of whether the regulation has anything to do with the federal government's initial spending program. That is not what the Supreme Court said in Dole, and it is not a sensible reading of the Constitution.
These considerations are sufficient to scuttle Section 2(a)(1) of RLPA, but it
suffers from an additional constitutional defect. In Dole, states remained
free to legislate whatever drinking age they preferred. If they departed from the
federal standard, the penalty was forfeiture of federal funding. RLPA is not written
that way. It does not provide that states will forfeit federal funds unless they
enact state-law versions of RFRA or RLPA; instead, it subjects the states directly
to private rights of action under federal law. This objection is somewhat technical
in character, and there are ways around it. For example, the Court might construe
RFRA as imposing conditions on every offer of funding which the national government
makes to the states; on this theory, RLPA's regulation would effectively result from
a "contract" between the states and the federal government, rather than
from direct regulation by the federal government. It is not obvious, however, that
this theory would or should succeed.(9)
Supporters of RLPA point to the example of Title VI, which stipulates in effect that no program receiving federal funds may engage in racial discrimination. But RLPA differs from Title VI in two crucial respects. First, under South Dakota v. Dole, 483 U.S. 203 (1987), Congress may impose conditions upon the receipt of federal funds only if those conditions are related "to the federal interest in particular national projects or programs." (internal quotations omitted). Because Title VI is an anti-discrimination measure, it bears an obvious relationship to the goals of every federal spending program. Congress has an interest in seeing that all persons are able to participate fairly and equally in federal programs. Title VI facilitates that goal. Title VI therefore satisfies Dole's nexus requirement: it bears a relationship to the federal interest in national projects and programs.
No comparable claim can be made on behalf of RLPA. RLPA is not an anti-discrimination statute. It does not ensure that all Americans will be able to participate in federally funded programs on equal terms; on the contrary, it creates special privileges for some religiously motivated participants and denies those privileges to participants with interests that are non-religious but equally dignified and important.
Second, precisely because Title VI is an anti-discrimination statute, it does not tell us anything about the scope of congressional power under the Spending Clause. Title VI is fully defensible as an exercise of the power granted Congress by Section Five of the Fourteenth Amendment. Title VI would therefore remain constitutional even under very restrictive readings of the Spending Clause (readings much more restrictive, for example, than the Supreme Court's decision in South Dakota v. Dole). The fact that Congress has the power to enact Title VI does not permit one to draw any conclusions about the scope of congressional power under the Spending Clause.
Commerce Clause Issues. Section 2(a)(2) of RLPA attempts to substantially limit the ability of state and local governments to regulate religious exercise in any case where the presence or absence of such regulation "would affect" interstate commerce. That Section is an effort to draw upon Congress' commerce power. The Court has construed the commerce power generously including, of course, in connection with congressional efforts to prohibit discrimination. The case most often cited in this connection is Katzenbach v. McClung, 379 U.S. 294 (1964). In McClung, the Court upheld application of Title II of the Civil Rights Act of 1964 to Ollie's Barbecue, a restaurant in Birmingham, Alabama. The Court said Congress had power to prohibit race discrimination by Ollie's Barbecue on the following theory: by refusing to serve African-Americans, Ollie's Barbecue diminished the volume of business it did, and it thereby diminished demand for food products that moved in interstate commerce. The effect of one restaurant's actions might be small, but Congress was entitled to consider the aggregate effects of all restaurants similarly situated.
McClung grants Congress expansive authority, but that authority is not unlimited. Even in McClung, the Court insisted that Congress must identify some "connection between discrimination and the movement of interstate commerce." The Court upheld Title II only because the legislative record included "ample basis for the conclusion that ... restaurants ... sold less interstate goods because of ... discrimination." It is impossible to imagine, much less substantiate, any such basis for RLPA. Religious conduct varies tremendously and unpredictably. From the standpoint of interstate commerce, religious activity is a random vector. There is no reason to believe that it promotes, diminishes, obstructs, or facilitates interstate commerce. Nor is there any reason to think that requiring government to accommodate religion would have any predictable effect whatsoever upon interstate commerce.
The theory of Section 2(a)(2) of RLPA is largely parallel to the theory of Section 2(a)(1): it presupposes that once the congressional commerce power touches some activity or practice, that activity or practice becomes federalized top-to-bottom: it becomes fair game for congressional regulation regardless of whether the regulation has anything to do with promoting interstate commerce. That is not what the Supreme Court said in McClung.
RLPA is flatly inconsistent with the Supreme Court's recent decision in United States v. Lopez, 115 S.Ct. 1624 (1995), which held, inter alia, that Congress cannot regulate guns simply because they at one time entered the stream of interstate commerce. In Lopez, the Court emphasized that a "'general regulatory statute'" is defensible under the Commerce Clause only if it "'bears a substantial relation to commerce ....'" Id. at 1629, quoting Maryland v. Wirtz, 392 U.S. 183, 197, n. 27). To make this principle concrete, the Court identified "three broad categories of activity that Congress may regulate under its commerce power." The first two categories cover only laws with either "regulate the use of the channels of interstate commerce," or "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." Ibid. These categories apply to laws which regulate (for example) highways, interstate telecommunications, shipping companies, interstate packages and interstate travelers. RLPA sweeps too broadly to fit within either of these categories.
RLPA's constitutionality therefore depends upon the third and final category identified by the Lopez Court. The Court described that category as follows: "Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce." 115 S. Ct. at 1629-30. This is the broadest of the three headings of congressional power under the Commerce Clause. As the Lopez Court acknowledged, "'the de minimis character of individual instances arising under the statute is of no consequence'" provided that the sum of all such instances, considered in the aggregate, has a substantial effect upon interstate commerce. 115 S. Ct. at 1629, citing Wirtz, 392 U.S. at 197, n. 27. The Court has accordingly upheld a wide range of statutes that regulate, among other things, "intrastate coal mining; ... intrastate extortionate credit transactions; ... restaurants utilizing substantial interstate supplies; ... inns and hotels catering to interstate guests; and production and consumption of home-grown wheat." 115 S. Ct. at 1630.
The Lopez Court made clear that this category of congressional authority, although broad, is not unlimited. Lopez involved the constitutionality of the Gun Free School Zones Act of 1990. That Act made it a crime for individuals to possess a firearm within 1000 feet of a school. The Justice Department defended the Act on the ground that the possession of guns near schools substantially affected interstate commerce. The Department argued, for example, that the possession of guns near schools would interfere with education, and that poorly educated students would be less likely to make valuable contributions to the interstate economy. The Lopez Court rejected this rationale, and others like it, on the ground that they piled "inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. at 1634.
RLPA is a far more extreme example of what worried the Court in Lopez. RLPA does not emerge from or reflect any honest concern with interstate commerce. Congress' purpose is not, for example, to encourage churches and religious persons to participate more extensively in interstate commerce. Nor is Congress concerned that churches are harmed by the effects of interstate commerce. Nor has anybody suggested any reason to believe that states are trying to exclude churches from commercial intercourse, or that states are more likely to discriminate against those churches that happen to be involved in commercial activities. Nor, finally, is RLPA comprehensible as an effort to promote interstate commerce; RLPA addresses any regulation of religious conduct that affects interstate commerce, whether it affects such commerce beneficially, adversely, or in some random, oscillating way.
In sum, the point of RLPA is to promote religious conduct, and to do so regardless of what effect that conduct has upon commerce, or commerce upon it. The connection between religious activity and commerce is being used as a constitutional excuse for a regulatory program which Congress wishes to enact for reasons having nothing at all to do with commerce. The nexus between RLPA and legitimate Commerce Clause goals is thus weaker than the nexus between the Gun Free School Zones Act and legitimate Commerce Clause goals.
Moreover, RLPA's Commerce Clause provisions sweep much more broadly than did the Gun Free School Zones Act. Those provisions have the potential to invade nearly every imaginable domain of local government. For example, the law would affect zoning (insofar as church activities substantially affect interstate commerce), education (insofar as public and private schools substantially affect interstate commerce), and family law (insofar as separation decrees and child support orders substantially affect interstate commerce). To the extent that the Court is worried about "convert[ing] congressional authority under the Commerce Clause to a general police power of the sort retained by the States," Id. at 1634, RLPA poses this threat much more vividly than did the Gun Free Schools Zone Act.
RLPA's defenders do not really claim that its goals have anything to do with commerce. Nor do they deny that RLPA amounts to a sweeping invasion of traditionally local domains. Instead, they suggest that RLPA's jurisdictional proviso will save the statute. Section 2(a)(2) limits RLPA's application to regulations of religious exercise whose presence or removal would "affect" interstate commerce. The Gun Free Schools Zone contained no comparable stipulation. The Lopez Court drew attention to this fact; the Court pointed out that the Act "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." 115 S. Ct. at 1631.
Surely, though, the requirements imposed by Lopez are not so formal and hollow as to be circumvented in this way. Suppose, for example, that the Gun Free School Zones Act had applied only to possession of a gun within 1000 feet of a school "substantially affecting interstate commerce." Would that have been sufficient to save the Act? It seems unlikely, to say the least. A jurisdictional proviso will bring a statute within the scope of the Commerce Power only if it creates a reasonable relationship between the goals of the statute and the goals of the Commerce Clause. The statute in Lopez contained no jurisdictional proviso whatsoever; the Court accordingly had no occasion to analyze which provisos would create an adequate nexus between a challenged statute and the goals of the Commerce Clause. It would be a mistake to think that boilerplate references to commerce give Congress a free hand to regulate can save an otherwise unconstitutional statute.
In the scramble to find some jurisdictional base, however improbable, RLPA's supporters have ignored the unintended, undesireable, but quite probable by-products of the Commerce Clause approach. First, RLPA invites religious groups and religious persons who wish to duck the burdens of otherwise valid and reasonable regulations to distort their conduct in order to qualify for attention under Section 2(a)(1). No law which distorts the focus of religious efforts in this way should be welcome.
Second, by flying in the face of the Supreme Court's concerns in Lopez, RLPA could well provoke the Court to attempt the creation of clearer boundaries on Congress's Commerce Clause authority. Lopez was viewed by many commentators as a "shot across bow", which was intended to remind Congress that the Commerce is not infinitely elastic, but which was intended to leave the superintendence of the Commerce Clause in Congress's hands, where it belongs. The rather stark manipulation of the Commerce Clause threatened by RLPA could easily undo what is an entirely desirable posture of restraint by the Supreme Court in this area.
ssues Pertaining to Section Five of the Fourteenth Amendment. In Section 3(b), RLPA purports to limit the zoning authority of state and local governments. This provision is freestanding, proceeds under the general heading in Section 3 of "Enforcement of Constitutional Rights", and is not limited to programs which receive federal monies or to regulations that affect interstate commerce. Apparently, Section 3(b), like RFRA before it, depends for its validity on Congress' power to enforce the Fourteenth Amendment. That power was, of course, the focus of the Supreme Court's decision in Flores. There, the Court emphasized that Section Five does not permit Congress to displace the Court's judgments about the content of constitutional rights. Exercises of power under Section Five are valid only so long as they serve to put in place a scheme of remedies for rights which the Court itself is willing to recognize. Flores, 117 S. Ct. at 2163-64, 2171-72.
In Flores, the Court emphasized that "Congress must have wide latitude in determining" what measures are well-suited to remedy constitutional violations. Id., at 2164. Nevertheless, Section 3(b)(1)(A) of RLPA unquestionably repeats the vices that proved fatal to RFRA. Section 3(b)(1)(A) involves a sweeping and unwarranted federalization of local decision-making. It is no exaggeration to say that, under this provision, any contentious encounter between a religious organization and a local zoning authority would become a matter for federal adjudication. This remarkable preemption of local authority cannot be defended as a reasonable mechanism to remedy or prevent discrimination against religious interests. No doubt zoning administrators sometimes abuse their authority to harm unpopular churches. But that problem is not reasonably attacked by extending all churches--no matter how rich, how powerful, or how favored in law--a blanket writ to challenge the zoning ordinances which every other citizen and institution must respect. What the Court said about RFRA is equally true of Section 3(b)(1)(A) of RLPA: "The stringent test [it] demands of state law reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved." 117 S. Ct. at 2171. Section 3(b)(1)(A) of RLPA is therefore clearly unconstitutional under Flores.
Supporters of RLPA might respond by invoking the example of the four Supreme Court decisions which applied the compelling state interest test to the decisions of state administrative tribunals. In each of the cases in the "Sherbert quartet", the claimant was an individual who fully qualified for unemployment insurance save only that he or she was required by the tenets of his or her faith to refuse to work in particular, narrowly-defined conditions (the claimant could not work on Saturdays, or could not participate directly in the manufacture of weapons of war). And in each case, a state administrative tribunal ruled that the observation of the applicable religious commandment did not constitute "good cause" for refusing to accept or for leaving particular employment. Some commentators, ourselves included, are inclined to understand these cases - which are unique in free exercise clause jurisprudence - as plausible efforts by the Supreme Court to protect against the very high risk that the tribunals in question were indifferent or insensitive to the powerful commands of religious belief under which the claimants were acting. Supporters of Section 3(b)(1)(A) might be tempted to invoke the principle of the Shebert Quartet on behalf of that provision.
But there are two radical differences between Section 3(b)(1)(A) and the circumstances of each of these four unemployment insurance cases. First, in each of these cases, the claimant fully satisfied the requirements for insurance eligibility, save only a narrow inability to accept or maintain a limited group of job opportunities - an inability that in no way threatened the integrity or purpose of the eligibility standards. And second, in each of these cases, the claimant was unable to take advantage of this limited group of opportunities because of a sharp and nonnegotiable demand of their religious faith. Under these circumstances, it was perfectly reasonable to presume that a refusal to find "good cause" was the product of indifference, insensitivity or bald discrimination. But Section 3(b)(1)(A) is not limited to claimants who fully satisfy the purposes and requirements of the land use regime they are contesting, save only some limited circumstance that does not threaten the integrity or purpose of the zoning requirement at issue. And Section 3(b)(1)(A) is not limited to circumstances in which the claimant is operating under the compulsion of a religious command; on the contrary, Section 8(1) refers specifically to land use cases in the course of disavowing that conduct need be compelled by, or central to a system of religious belief in order to qualify as "religious exercise" under RLPA.
What was a reasonable prophylaxis in the four unemployment insurance cases thus becomes an entirely indefensible privilege to disregard all but the most critical of land use restraints in RLPA. This is precisely what the Court in Flores decried as a lack of proportionality.
IV. RLPA IS AN UNCONSTITUTIONAL ASSUALT ON THE INDEPENDENCE OF THE JUDICIARY.
Section 3(a) contains a remarkable assault on the judiciary's authority to make independent
judgments about the meaning of the Constitution. It presumes, under the guise of
enforcing the Fourteenth Amendment, to articulate "presumptions" which
courts must respect when applying its First Amendment jurisprudence. In particular,
the Section purports to increase the government's burden of persuasion in Free Exercise
Clause cases. Because Section 3(a) attempts to deprive the courts of the authority
to interpret the Constitution, it is patently unconstitutional. There are two doctrinal
paths to that conclusion. The simplest runs through Flores. The Court said
clearly in Flores that Congress may not use its Fourteenth Amendment powers
to alter the substance of the Court's interpretations of the Fourteenth Amendment.
Section 3(a) of RLPA offends this conclusion more blatantly than RFRA did, and the
Court would undoubtedly find it unconstitutional.
There is, however, an even more fundamental doctrinal objection to Section 3(a). In United States v. Klein, 80 U.S. (3 Wall.) 128 (1871), the Supreme Court held that Congress may not specify a "rule of decision" for courts. Courts must be able to decide for themselves how to apply statutes or the Constitution. In the realm of statutory interpretation, Klein is difficult to apply: in some sense, of course, Congress specifies a "rule of decision" for courts every time it writes a statute. Christopher L. Eisgruber and Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437, 470 (1994). RLPA, however, is a text-book violation of Klein. See Klein's First Principle: A Proposed Solution, 86 Georgetown L.J. 2525 (1998). It attempts to compel judges to respect Congress' judgment, rather than their own, when interpreting the Constitution. And it forces judges to act as though they and adopted Congress' constitutional judgment as their own. Congress has the power and responsibility to arrive at its own view of constitutional substance, of course. But Congress is obliged to permit the Court this same independence of judgment.
CONCLUSION
RLPA's constitutional defects are not technicalities. On the contrary, they all reflect strong claims on the judgment of the members of Congress who wish to act on behalf of religious liberty. Congress may well want to assure that religiously-motivated persons are treated fairly and that their interests are reasonably accommodated. But Congress surely does not want to sweepingly favor religiously-motivated persons over the vast majority of citizens conscientiously leading their lives, and to do so at the expense of the democratically-shaped rule of law. Likewise, Congress surely does not want to generate what Justice Kennedy in Flores correctly characterized as "... a considerable intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." And finally, Congress should want to act as the Supreme Court's partner in the pursuit of political justice for American citizens, not as its adversary. That is the admirable tradition into which, for example, Title VII and the Voting Rights Act fall. RFRA was a false start, and Congress need not and should not perpetuate RFRA's mistakes.
Of course, RFRA was motivated by a legitimate and important goal: the goal of assuring that religiously-motivated conduct is reasonably accommodated, that governmental actors are not insensitive or hostile to religious beliefs and commitments. Congress has an extremely important role to play in pursuing that goal. It can play that role in two different ways.
First, Congress can continue to police state and federal conduct for egregious failures of the duty of reasonable accommodation and correct those failures. This is a role that Congress has traditionally played to the great benefit of constitutional justice in the United States. This effort requires ongoing vigilance and nuance of legislative response, and Congress' performance in this context has been superb.
Second, Congress can enact more general legislation that offers broad protection to religiously-motivated persons against the possibility that their beliefs and commitments will be treated with insensitivity or hostility. This memorandum is not a good setting in which to explore the content of such legislation, but we would be glad to pursue the question with the Committee or any of its members.
What is critical to recognize for the moment is that RLPA is not such legislation. RLPA offers a distorted and untenable view of what religious liberty is, a view that Congress on reflection should not endorse; and RLPA streches notions of congressional authority to their breaking point, inviting the judicial articulation of constitutional limitations that Congress should not welcome. RLPA is unconstitutional, and if it were enacted, the Court would find it so to be. Congress has good reasons at the outset to choose a different vehicle to realize its altogether laudable concern for religious liberty.
Lawrence G. Sager
Robert B. McKay Professor of Law
New York University School of Law
Christopher L. Eisgruber
Professor of Law
New York University School OF Law
1. 0 Flores clearly invalidated RFRA with respect to the regulation of state and local government behavior. Courts have divided about whether Flores should be understood to invalidate RFRA with regard to regulation of federal behavior. Yet, regardless of whether RFRA's federal applications survived Flores, we expect that the federal courts should, and will, ultimately declare them to be unconstitutional. For reasons that are equally applicable to RLPA and so are discussed in this memorandum, we believe that RFRA is unconstitutional under the Supreme Court's Establishment Clause doctrine.
4. Kiryas Joel Bd. Of Education v. Grument, 512 U.S. 687, 705 (1994).
6. This is the best understanding of Corporation of Presiding Bishops v Amos, 483 U.S. 327 (1987), which permitted the exemption of churches and other religious employers from federal anti-discrimination in employment provisions.
7. 117 S.Ct at 2171. We have criticized this use of the compelling state interest test extensively. Christopher L. Eisgruber and Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994); see also Christopher L. Eisgruber and Lawrence G. Sager, Congressional Power and Religious Liberty after City of Boerne v. Flores, 1997 S. Ct. Rev. 79 (1997).
8. 0 See, e.g., Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir. 1996) ("a substantial burden on the free exercise of religion ... is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that maintains a central tenet of a person's religious belief, or compels conduct or expression that is contrary to those beliefs"); Bryant v. Gomez, 46 F. 3d 948, 949 (9th Cir. 1995) (to meet the substantial burden standard, plaintiffs must point to a burden that is "'more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.'" (quoting Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir. 1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680 (1988)); Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir. 1996) ("To exceed the 'substantial burden' threshold, government regulation 'must significantly inhibit or constrain conduct or expression that manifests some central tenet of ... [an individual's] beliefs; must meaningfully curtail [an individual's] ability to express adherence to his or her faith; or must deny [an individual] reasonable opportunities to engage in those activities that are fundamental to [an individual's] religion'" (quoting Werner v. McCotter, 49 F. 3d 1476, 1480 (10th Cir. 1995) (brackets and ellisions added by the Thiry Court)); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995) (no substantial burden results if a government action "leaves ample avenues open for plaintiffs to express their deeply held belief[s]").
9. 0 RLPA's use of the Spending Power may also raise additional Establishment Clause problems beyond those discussed above. RLPA in effect uses every federal spending program as a device to favor religion. The use of spending programs to favor religion (and only religion) has always been regarded as a paradigmatic example of an Establishment Clause violation. We believe that Section 2(a)(1) of RLPA would be clearly unconstitutional on this ground alone. This point is in fact related to the absence of any nexus between RLPA and the purposes of particular government spending programs. Were there such a nexus, it might be difficult to say that RLPA was designed only to benefit religion: it could be regarded as incidental to the goals of some particular program (say, an anti-discrimination program or a cultural affairs program) which bore a plausible relationship to some forms of religious conduct. Absent that nexus, however, RLPA is nothing more than a naked effort to use government spending to improve the position of religious persons and institutions.
