Professor Marci A. Hamilton, TESTIMONY TO THE HOUSE COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE ON THE CONSTITUTION, H.R. 4019: The “Religious Liberty Protection Act of 1998”

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
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
(212) 790-0205 (fax)
hamilton02@aol.com
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, 117S. 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.

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 ray 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 Crarich) 137 (1803).
For a plain discussion in which the Court reasserts its
allegiance to Marbury, see Boerne v. Flores, 117S.
Ct. at 2168.

[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 (1997), 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,” 117S.
Ct. at 2171.

– 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 modem Court’s emerging structural
constitutional jurisprudence. See Printz v. United States, 117S.
Ct. 2365 (1997); United States v. Lopez, 514 U.S. 549 (1995); New
York v. US., 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, 117S. Ct. 1997 (1997).

The following is a list of interests that will be affected
adversely if RLPA is adopted, because it elevates religion above
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:

1)Children in religions that advocate and practice abuse
2) Women in religions that advocate male domination
3) Children in religions that refuse medical treatment, including
immunizations
4) Pediatricians, who have lobbied vigorously for mandatory
immunizations
5)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

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

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

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

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

10) 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 so 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.”

MARCI A. HAMILTON
Professor, Benjamin N. Cardozo School of Law
Yeshiva University

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