1998 WL 354837
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June 23, 1998
TESTIMONY TO THE SENATE COMMITTEE ON THE JUDICIARY
S. 1248, 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) 790-0205 (fax)
June 23, 1998
Thank you, Mr. Chairman and members of the Committee, 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.
Today I am here to tell you that I believe that RLPA violates the
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
Then I will share with you the interests that will be hurt by
granting religion this unprecedented quantum of power against the
government. I represent none of these interests, but I have
heard their stories in my travels around the country these five
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,
 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.
 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.
(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.
 RLPA Is an Assault on States’Rights. Despite its rote
recitation of language from cases addressing 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
one of the final stronghold’s of local government. It violates
the letter and the spirit of the modem 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 micromanagement of local land use law would set the pace
for an expansive invasion of state and local government
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. See Hearings, H.R. 4019, The
Religious Liberty Protection Act, Subcommittee on the
Constitution, House Committee on the Judiciary (June 16, 1998).
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.
The specious argument that Congress may grant religion this
windfall under the Commerce Clause because religion generates
commerce attempts to transform the First Amendment, a limitation
on congressional power, into an enumerated power.
 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
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. This is a zero-sum game: by granting
religion expansive new power against generally applicable,
neutral laws, Congress inevitably subtracts from the liberty
accorded other societal interests.
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
 Children in religions that advocate and practice abuse
 Women in religions that advocate male domination
 Children in religions that refuse medical treatment,
 Pediatricians, who have lobbied vigorously for mandatory
 The handicapped, women, minorities, and homosexuals, whose
interests are currently protected by anti-discrimination 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
 Artistic and historical preservation interests, including
whole communities that depend on historical districts for revenue
 Neighborhoods attempting to enforce neutral rules regulating
congestion, building size, lot size, and on- and off-street
 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 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.”
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).
City of Boerne v. Flores: A Landmarkfor 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,
The Constitutional Rhetoric of Religion, U. Ark. Little Rock L.J.
MARCI A. HAMILTON
Professor of Law