Professor Marci A. Hamilton, TESTIMONY TO THE SENATE COMMITTEE ON THE JUDICIARY S. 1248, The Religious Liberty Protection Act of 1998


1998 WL 354837

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June 23, 1998



Religious Liberty




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) 790-0215

(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

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



RLPA’s Most Severe Constitutional Defects


[1] 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.


[2] 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.


[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.


[3] 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.


[4] 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.


[5] 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).


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

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



[5] 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


[6] Departments of correction and prison officials attempting to

ensure order in prisons populated by increasingly violent



[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



[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.”


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,

16 Cardozo L. Rev. 357 (1994).


The Constitutional Rhetoric of Religion, U. Ark. Little Rock L.J.

(forthcoming 1998).



Professor of Law

Yeshiva University