TESTIMONY U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON THE
SUBCOMMITTEE ON THE CONSTITUTION H.R. 1691: The “Religious
Protection Act of 1999” Marci A. Hamilton Professor of Law
Benjamin N. Cardozo School of Law, Yeshiva University
May 12, 1999
Thank you, Mr. Chairman, for inviting me to speak today on this
important topic. I am a Professor of Law at Benjamin N. Cardozo
School of Law, Yeshiva University, where I specialize in
constitutional law, especially church-state issues. I also served
as 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 six years to writing, testifying, lecturing, and
litigating on the Religious Freedom Restoration Act and similar
religious liberty legislation in the states. For the record, I am
a religious believer.
The question this bill addresses is the following: When is a
government restrained from enforcing neutral, generally
applicable laws that have been violated by religious individuals
and institutions? This bill is an unvarnished request from
religious lobbyists to permit religious individuals and
1999 HR 1691 1RG
institutions to break a wide variety of laws. H.R.1691 forces
governments to permit religious individuals and institutions to
break the law unless the government can prove that it has a
compelling interest and employed the least restrictive means to
reach that interest, the highest level of scrutiny known in
Because the bill originates from religious entities, its focus is
on providing as much protection for religious conduct that
violates the law as is humanly imaginable. The more appropriate
focus for this body, as a legislature representing the entirety
of the polity, is to ask which laws religious individuals and
institutions may violate.
Letter to House Subcommittee on the Constitution
Here are some choices for Congress. These are a few of the laws
with which religious entities and institutions have come into
1. Child abuse, endangerment, and neglect laws, including laws
that require medical treatment to prevent death or permanent
2. Civil rights laws, including fair housing laws.(1)
3. Domestic violence laws.
4. Prison regulations.
5. Land use laws:
a. On- and off-street parking, especially in residential
b. Lot and building size regulations, especially in circumstances
where the religious institution wishes to build a “megachurch” or
construct several buildings in one location, including movie
theaters, coffee houses, fitness centers, gymnasiums, schools,
and child or senior day care centers.
c. Health and safety code regulations, including fire prevention
and occupant capacity in residential and child care facilities.
d. Zoning regulations.
e. Historical and cultural preservation.
6. Public school order and safety regulations, including weapons
7. Fiduciary duty laws applicable in cases of clergy misconduct
(typically for abuse of children or impaired adults).
8. Child custody and support laws.
9. Anti-polygamy laws.
1999 HR 1691 1RG
In sum, HR 1691 asks Congress to make simultaneous policy
judgments regarding a vast array of crucial federal and state
RLPA is a blank check for religion. It took the ACLU
approximately five years to fathom that RFRA (and now RLPA) is a
threat to the civil rights laws. What other hidden agendas lie in
this across-the-board preference for religion? For example, there
are religions that hope to run day care centers without having to
satisfy the onerous health and safety regulations under which
secular day care centers operate. RLPA will make that easier.
Others hope to operate soup kitchens or hold worship services in
residential neighborhoods without having to abide by certain
zoning and land use regulations.
The Constitution counsels against handing power blindly to any
social entity, even religion. See generally Marci A. Hamilton,
The Constitution’s Pragmatic Balance of Power Between Church and
State, 2 Nexus: A J. of Opinion 33, 34-36 (1997). Instead of
RLPA, Congress would do far better to focus on individual arenas
within which actual and substantial burdens on religious conduct
exist and where accommodation is likely to be consistent with the
public good. By concentrating on those specific instances,
Congress could investigate whether such exemptions are consistent
with the public good and therefore fulfill its constitutional
duty to serve the entire polity.
The Religious Liberty Protection Act of 1999 is ultra wires. It
ostensibly rests on three powers of Congress: the Commerce Clause
Power, the Spending Power, and Section 5 of the Fourteenth
Amendment. Instead, it attempts to stretch each of these powers
beyond their proper boundaries.
1. RLPA Is Not a Valid Exercise of Congress’s Commerce Power. The
test to be applied in Commerce Clause cases is two-fold. First,
the courts must ask whether the law regulates activities that
“substantially affect” interstate commerce. United States v.
Lopez, 514 U.S. 549, 558-59 (1995). Second, the courts must
consider the inherent limits of federalism on the exercise of the
Commerce Clause. The Constitution “withhold[s] from Congress a
plenary police power that would authorize enactment of every type
of legislation.” 514 U.S. at 566.
Prong One: Substantially Affects Commerce. RLPA would subject
state and local government actions to strict scrutiny whenever a
“substantial burden on the person’s religious exercise affects”
commerce. See Sec. 2(a)(2). There are two problems with RLPA’s
formulation. In Lopez, the Court explicitly rejected the simple
“affects” test and embraced the requirement that the subject of
the law must “substantially affect” interstate commerce. 514 U.
S. at 559. RLPA is not limited to activities that substantially
affect interstate commerce and therefore exceeds Congress’s power
under the Commerce Clause.
Second, the connection between religious practices and interstate
commerce is tenuous at best. It should go without saying that the
vast majority of religious conduct has nothing to do with
commerce. Hair length, the decision to wear a particular
religious symbol, the wearing of yarmulkes, the laying on of
hands, or the construction of a sweat lodge are actions that do
not have substantial impact on interstate commerce.
Prong Two: Federalism. Congress may not employ its Commerce
Clause power in a way that would “convert congressional authority
under the Commerce Clause to a general police power of the sort
retained by the States.” 514 U.S. at 567. This bill would seem to
intervene in every situation where a local or state government
attempts to enforce its generally applicable, neutral laws that
incidentally substantially burden religious conduct. This is a
new federalization of local autonomy.
This bill is not about regulating commerce, but rather is a
handout for religion. It is a bald-faced attempt to transform a
subject matter of the First Amendment (the free exercise of
religion), which is a limitation on the Congress, into an
2. RLPA Is Not a Valid Exercise of Congress’s Spending Power.
RLPA applies to every arena that receives any federal financial
assistance. The only way for state and local governments to avoid
RLPA’s burdens is for them to forego all federal financial
Under South Dakota v. Dole, 483 U.S. 203 (1987), a federal law is
a valid exercise of Congress’s power under the Spending Clause if
there is a nexus between the spending and the condition attached
to the spending. See 483 U.S. at 207 (“[C]onditions on federal
grants might be illegitimate if they are unrelated to ‘the
federal interest in particular national projects or programs.”).
The condition attached to spending under RLPA is that the
government or governmental entity receiving federal financial
assistance will subject itself to suits (including the cost of
attorneys’ fees, see Sec. 4(b)) whenever its generally
applicable, neutral laws substantially burden any religious
claimant’s conduct within the context of any state or local
program that receives any federal funds.
The only way to avoid such liability under RLPA is to refuse the
federal financial assistance. On the current state of the record,
Congress has not begun to ask what the nexus is between its
national interest in any spending and burdens on religious
conduct. Neither House of Congress has even attempted to survey
the vast sweep of spending programs implicated by this bill.
Where the constitutional basis for congressional action is not
“visible to the naked eye” and Congress provides no
“particularized findings” to support the law, the courts
invalidate the law rather than provide the factual predicate that
they are ill-equipped to provide. See, e.g., Lopez, 514 U.S. at
Second, the “financial inducement offered by Congress might be so
coercive as to pass the point at which ‘pressure turns into
compulsion”’ and therefore exceed Congress’s power under the
Spending Clause. 483 U.S. at 211. RLPA is as coercive as it gets.
It is mandatory for all those government entities take any
federal financial assistance. The states and local governments
must choose between taking the funds with the liability or taking
no funds. RLPA is unlike the highway bill upheld in South Dakota
v. Dole, which penalized states who did not set the state’s
drinking age to a minimum of 21 only by taking a small percentage
of the federal highway funds provided.
3. RLPA Is Not a Valid Exercise of Congress’s Power to Enforce
Constitutional Rights Under Section 5 of the Fourteenth
Amendment. Section 3(b) of RLPA federalizes local land use in
every scenario where the land use authorities engage in
“individualized assessments”(2) and where religious claimants
claim burdens on their religion.
Under Boerne v. Flores, the Congress may only enforce
constitutional rights pursuant to Sec. 4 of the Fourteenth
Amendment if there is congruence between the means chosen and the
end of preventing constitutional violations. “While preventive
rules are sometimes appropriate remedial measures, there must be
a congruence between the means chosen and the ends to be
achieved. Strong measures appropriate to address one harm may be
an unwarranted response to another, lesser one.” 117 S. Ct. at
2169. RLPA is a very strong measure addressing an unproven set of
To prove congruence, two facts need to be widely recognized or
established through reliable factfinding (which can be
accomplished through general acknowledgment of a fact). First,
the states and local governments must have done something
unconstitutional or likely unconstitutional to justify the
federal intervention in their affairs. See The Civil Rights
Cases, 109 U.S. 3 (1883), cited in Flores, 117 S. Ct. at 2166.
To my knowledge, there is no evidence that the states and local
governments have engaged in a pattern of free exercise violations
through their land use laws. Religious buildings do tend to
conflict with land use regulations, but that does not mean that
religious entities’ rights under the Free Exercise Clause have
been violated. If the laws are applied generally and neutrally,
the incidental burden imposed by such laws is not
unconstitutional. Smith, 494 U.S. 872, 882 (1990).
If there were ever time when state and local governments needed
to be permitted to enforce general and neutral land use laws,
even if they burden religious institutions, now is the time.
Communities are increasingly interested in preserving open space,
historical properties, and cultural artifacts. The people seem
genuinely devoted to these causes, which have been taken up
recently by First Lady Hillary Clinton and Vice President Al
Gore. At the same time, religious institutions are turning to
ever-larger houses of worship and building complexes. There is an
unmistakable development toward all-inclusive services on one
religious entity’s property. For example, a single congregation
may build a building for worship, a movie theater, a coffee house
or restaurant, a fitness center, and a child and senior care
center on the same property. Religious entities are eager to
avoid land use laws with respect to these other buildings as well
as their houses of worship. By its terms, RLPA does not appear to
be limited to houses of worship and therefore would appear to
undermine local control over any building that is constructed by
a religious entity.
RLPA’s land use provisions take a large leap from existing
precedent to micromanage local land use decisions. They exceed
the power of Congress under Section 5 and they violate the
Constitution’s inherent principles of federalism.
Second, the means chosen must be “responsive to, or designed to
prevent, unconstitutional behavior.” Boerne, 117 S. Ct. at 2170.
In the absence of proof of unconstitutional behavior, this prong
cannot be satisfied.
4. RLPA Violates the Establishment Clause. According to the Court
in Employment Div. v. Smith, a “nondiscriminatory religious-
practice exemption is permitted.” 494 U.S. 872, 890 (1990). See,
e.g., Dep’t of Air Force, Reg. 35-10, para. 2-28 (b)(2) (Apr.
1989) (permitting wearing of religious head covering when
military headgear is not authorized and when the religious head
covering does not interfere with the function or purpose of
required military headgear); see also American Indian Religious
Freedom Act, 42 U.S.C. sec. 1996a (1994) (permitting Native
American use of peyote during religious ceremonies). RLPA,
however, is not a religious-practice exemption. Rather, it is a
readjustment of power between church and state intended to force
accommodation even when the government deems such an exemption
opposed to the general welfare.
There is no case support for the proposition that Congress has
the power to provide for or force accommodation in a wide variety
of fields simultaneously. Justice Stevens pointed out the
Establishment Clause evil in RFRA (and, therefore, RLPA) in his
concurrence in Boerne. 117 S. Ct. at 2172. Some have tried to
make a great deal out of the fact that no other Justice joined
Justice Stevens’ concurrence. Equally true is the fact that no
other Justice mentioned, let alone rejected, Justice Stevens’
reasoning. The oral argument before the Court in the Boerne case
would indicate that a significant number of Justices have sincere
concerns regarding the propriety of RFRA (and therefore RLPA)
under 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 have relied 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.
In sum, Congress lacks the power to institute this broad-ranging
attempt to privilege religion in a vast array of arenas. Even if
it held such power, this exercise of congressional power crosses
the line from permissible accommodation to the unconstitutional
establishment of religion.
Please do not hesitate to let me know if I can provide any
further information. Additional information on state and federal
religious liberty legislation can be obtained at my website:
1. Letters written to both the California and the Texas
legislatures indicate that one of the primary objectives of the
Christian Legal Society in supporting such legislation is to
permit members to trump the fair housing laws and to discriminate
2. The reference to “individualized assessments” is an attempt to
piggyback on dictum in the Smith case. The Court in Smith
indicated that individual assessments in unemployment
compensation cases might justify strict scrutiny. See 494 U.S.
884. The Court clearly did not mean that all unemployment
compensation schemes require strict scrutiny. The Smith case
itself involved an unemployment compensation claim and the Court
did not apply strict scrutiny. What the Court meant by
“individualized assessments” and whether the idea can be
analogized to the land use arena are open questions.
MARCI A. HAMILTON
Professor of Law
Benjamin N. Cardozo School of Law