Copyright 1999 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
June 23, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
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HEADLINE:
TESTIMONY June 23, 1999 STEVEN T. MCFARLAND SENATE JUDICIARY
PROTECTING RELIGIOUS LIBERTY
BODY:
TESTIMONY OF
STEVEN T. McFARLAND BEFORE THE COMMITTEE ON THE JUDICIARY OF THE UNITED STATES
SENATE June 23, 1999 Christian Legal Society's Center for Law and Religious
Freedom EXECUTIVE SUMMARY The Christian Legal Society (CLS) urges this committee
to use every power conferred upon the Congress by the U.S. Constitution to
restore the highest legal protection to religious liberty. The need is real and
growing. Churches can be and are being zoned out of cities because of their
social service ministries to the destitute. Parents and students in public
schools have little leverage with school officials when they object to
religiously- objectionable assignments or assemblies. Even the sanctity of the
confessional is being assaulted, and clergy sentenced to jail for refusing to
betray the confidences of those who confess sins or seek their private spiritual
counsel. We cannot afford half-measures (as Michael Farris proposes) that fail
to use all of Congress authority to remedy the problem. Neither can religious
citizens settle for a bill that is inadequate in both its scope of coverage and
its strength of protection. The Religious Liberty Protection Act (H.R. 1691) is
being sent to the House floor today by the House Judiciary Committee. The RLPA
employs all available federal powers to restore the strictest legal scrutiny
with the broadest coverage in a constitutionally defensible manner. Our
religious liberty - - the First Freedom - - deserves nothing less. TESTIMONY 1.
The Need For Statutory Relief. 1.1 Land Use Regulation Of Churches. The Refuge
Pinellas, Inc. v. City of St. Petersburg Municipal officials in this Florida
city are callously stopping an inner-city church from reaching out to the poor
and needy with the love of Jesus Christ. The Refuge is a mission church in a
rundown part of St. Petersburg, Florida. Many of those who attend its worship
services are homeless, poor, addicted, mentally ill, or alienated from society.
The Refuge seeks to minister to the whole person. Rev. Bruce Wright, the
Refuge's pastor, is almost always available to meet with and counsel hurting
people. The church feeds the hungry, sponsors counseling for alcoholics and AIDS
sufferers, and works with juvenile offenders. It spreads the message of God's
grace through music concerts and other outreach activities. The Refuge is doing
exactly what Christ calls His Church to do. But the Refuge is doing too much in
the eyes of St. Petersburg zoning officials. At about the same time the City was
trying to clean up the church's neighborhood before the new Tampa Bay Devil Rays
started the major league baseball season at nearby Tropicana Field, the City
decided that the Refuge had to go. The City announced that the Refuge was not a
shining example of what the Christian church should be. In fact, the City
proclaimed that the Refuge was not a church at all! St. Petersburg zoning
officials permit churches in the Refuge's neighborhood. But social service
agencies are banned. The City decreed that the Refuge is not a church, but
instead a social service agency. Apparently the City knows best what church
activities should look like, and they don t include reaching out to serve the
poor, the needy, and the alienated. The City ordered the Refuge to leave, to go
somewhere else. But there isn't a single zoning district in the entire city
where so-called social service agencies can locate as a matter of right.
Instead, social service agencies have to get permission to set up in one of the
three zones in the entire city where social service agencies are permitted.
Setting up somewhere else would remove the Refuge from the neighborhood where
it's most needed. And few of the church's members have cars. Other churches in
St. Petersburg offer counseling, concerts, Alcoholics Anonymous, and other forms
of outreach. But the zoning officials haven't ordered them to uproot. It appears
as though the economic poverty of those served by the Refuge makes all the
difference in the world. During his investigation, Development Review Services
Manager Robert Jeffrey required Rev. Wright to describe the clients or patrons
you serve. In a September 15, 1997, letter explaining his decision to label the
church a social service agency, Mr. Jeffrey wrote, the clients who are served by
the Refuge are more analogous with a social service agency. Apparently the
legality of Alcoholics Anonymous meetings depends upon whether the participants
drink cheap Thunderbird or fine Chardonnay. With the help of the CLS Center and
a local attorney member, the Refuge is trying to get a Florida court to relabel
it a church and permit it to stay in its present location. But the City
continues to resist. Waxing literary, the City asked in its brief, what's in a
name? . Paraphrasing Shakespeare, the City observes that a rose still smells
like a rose regardless of the name by which it is called. And here's where it
turns ugly: But if the rose begins to smell like a stink weed, it can still call
itself a rose and may look like one, but it is no longer functioning as one, and
so it is eventually going to have a negative impact on the rose garden and be
weeded out and moved to the weed patch for the sake of all those living around
the garden. Such is this case. (City's Response to Petition for Writ of
Certiorari at 3, in The Refuge Pinellas, Inc. v. City of St. Petersburg, In the
Circuit Court of the Sixth Judicial Circuit of the State of Florida, No.
97-8543-CI-88B). So there it is. A church that is serious about serving the poor
and needy is not a church. It's a stink weed that needs to be weeded out. RLPA
would avert this travesty. Section 3 would require the City of St. Petersberg to
show that forcing The Refuge to move out of town was the least restrictive means
of furthering a compelling government interest. Sec. 3(b)(1)(A). The Church
would also be able to invoke RLPA s prohibition against zoning authorities that
unreasonably exclude from the jurisdiction religious institutions. Sec.
3(b)(1)(D). This case will probably decide the Refuge's future. RLPA can keep
alive ministries to the most needy Americans. 1.2 Respect For Parental Rights
And Religious Conscience In Public Schools. Brown v. Hot, Sexy, And Safer
Productions, Inc. (1st Cir. 1995) The U.S. Court of Appeals For The First
Circuit several years ago issued a decision calling into question whether a
parent's right to direct the upbringing of his child is protected by the
Constitution. On April 8, 1992, the Chelmsford (Massachusetts) High School held
two mandatory, school-wide assemblies for ninth through twelfth grades. The
school district contracted through the chairperson of the PTO with a performer,
Suzi Landolphi, head of Hot, Sexy, and Safer Productions , to present an AIDS
awareness program for $1000. According to the Complaint, during her
presentation, Ms. Landolphi: 1) told the students that they were going to have a
'group sexual experience, with audience participation'; 2) used profane, lewd,
and lascivious language to describe body parts and excretory functions; 3)
advocated and approved oral sex, masturbation, homosexual sexual activity, and
condom use during promiscuous premarital sex; 4) simulated masturbation; 5)
characterized the loose pants worn by one minor as 'erection wear'; 6) referred
to being in 'deep shit' after anal sex; 7) had a male minor lick an oversized
condom with her, after which she had a female minor pull it over the male
minor's entire head and blow it up; 8) encouraged a male minor to display his
'orgasm face' with her for the camera; 9) informed a male minor that he was not
having enough orgasms; 10) closely inspected a minor and told him he had a 'nice
butt'; and 11) made eighteen references to orgasms, six references to male
genitals, and eight references to female genitals. 68 F. 3d at 529. Before
contracting with Ms. Landolphi, the school physician and PTO chairperson had
previewed a video showing segments of Ms. Landolphi's performance. School
officials, including the school superintendent, were present at the assemblies.
They knew in advance what she would say and how she would say it. But no advance
notification of the presentation was given to parents, despite a school policy
stating that written parental permission was a prerequisite to health classes
dealing with human sexuality. The parents of two students sued on behalf of
themselves and their children, alleging that the school district had violated
their privacy rights and their substantive due process rights under the First
and Fourteenth Amendments, their procedural due process rights under the
Fourteenth Amendment, their RFRA rights and their Free Exercise rights under the
First Amendment. The district court dismissed under FRCP 12(b)(6), and the First
Circuit affirmed. In its discussion of the substantive protection under the
Fourteenth Amendment of the parent's right to rear his children, after
discussing Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of
Sisters, 268 U.S. 510 (1925), the First Circuit stated in dictum: Nevertheless,
the Meyer and Pierce cases were decided well before the current right to privacy
jurisprudence was developed, and the Supreme Court has yet to decide whether the
right to direct the upbringing and education of one's children is among those
fundamental rights whose infringement merits heightened scrutiny. We need not
decide here whether the right to rear one's children is fundamental because we
find that, even if it were, the plaintiffs have failed to demonstrate an
intrusion of constitutional magnitude on this right. 68 F. 3d at 532 (footnote
omitted)(emphasis supplied.) The First Circuit then rejected the plaintiffs'
free exercise claim. First, the court questioned whether the Free Exercise
Clause even applies to public education. 68 F. 3d at 536. Second, the court
rejected the plaintiffs' claim that their parental rights were protected by the
Free Exercise Clause under the hybrid exception, noted in Employment Division v.
Smith, for the right of parents, acknowledged in Pierce v. Society of Sisters,
268 U.S. 510 (1925) to direct the education of their children, see Wisconsin v.
Yoder, 406 U.S. 205 (1972). Smith, 494 U.S. 872, 881 (1990). The First Circuit
stated: A s we explained, the plaintiffs' allegations of interference with
family relations and parental prerogatives do not state a privacy or substantive
due process claim. Their free exercise challenge is thus not conjoined with an
independently protected constitutional protection. 68 F. 3d at 539. Virtually
all public school districts in the U.S. receive federal funds. So the RLPA would
once again level the playing field for parents who, for reasons of religious
conscience, wish to have their child opt out of objectionable instruction such
as this. 1.3 Involuntary Conscription Of Clergy As Government InformersState v.
Martin (In re Hamlin)(Wash. Sup. Ct.)2 If you went to your pastor, rabbi or
priest for spiritual counsel, and in your conversations with him discussed
highly personal matters, would you expect him to keep your discussions
confidential? Would you trust a pastor who disclosed your confessions even when
you made them under conditions of strictest confidence? Should a rabbi be jailed
simply because he refused to disclose the confessions of a man seeking spiritual
guidance and counsel? Common sense and the tenets of major religious faiths --
Protestant, Catholic, and Jewish -- all agree: confessions heard by ordained
clergy should remain confidential. But a trial court in Tacoma, Washington
answered, No, a pastor may not maintain that confidentiality if the government
wants him to breach it. Incredibly, the court reasoned that the pastor is
obligated to violate confidentiality and disclose confessions made to him. And
worse, if a pastor refuses to disclose the confidential information, he should
be sent to jail. At stake is our right to seek spiritual guidance in private
with the candor that only springs from the confidence that it will remain
between us, our pastor, and our God. The Rev. Rich Hamlin is an ordained
minister of the Evangelical Reformed Church. He meets with anyone seeking
spiritual guidance, both members of his church and non-members. Pastor Hamlin
believes that hearing confessions and leading persons in confession are integral
parts of his ministry, a necessary component of the practice of his religion.
Indeed, the most important relationship an individual has is between himself and
his God. For many, that relationship is enhanced by discussions of private
matters with a minister, leading to repentance, reconciliation, and new resolve
to do what is right. Scott Martin sought spiritual counsel from Pastor Rich
Hamlin after the death of Martin's three-month-old son. At the invitation of
Martin's mother, the minister met with Mr. Martin at his mother's home, on two
occasions at an army hospital, and at the home of a friend. Then Martin
surrendered to police, who suspected him of homicide. Prosecutors charged him
with second degree murder in the death of his son. Pastor Hamlin continued to
meet with Martin while he was incarcerated in the Pierce County jail after
registering as his pastor with jail administrators. But prosecutors did not stop
with jailing Martin. They sought to compel Pastor Hamlin to testify about his
conversations with the defendant. A judge agreed and ordered the minister to
divulge what admissions Martin may have made in private to the Pastor. Pastor
Hamlin is convinced that Scott Martin only confided in him because he is a
minister of the Gospel and because he trusted that it would go no further than
the pastor. If Pastor Hamlin were forced to reveal matters communicated to him
in confidence, it would betray Martin s trust, undermine Hamlin s office as a
pastor, and violate the latter s right to hear confessions and provide spiritual
counsel free from state interference. When the pastor refused to testify, the
trial court judge held him in contempt of court and ordered him to jail. Pastor
Hamlin took his case to the Washington Court of Appeals. Last July the appeals
court reversed the trial court decision, reasoning that Pastor Hamlin's
religion, thus, constrains him to provide confessors with spiritual counsel and
the opportunity for redemption. It is a duty that the pastor must fulfill based
upon the tenets of his faith. Furthermore, the court held, only the communicant
(Martin) could waive the confidentiality of the conversation, not the pastor or
priest (Hamlin) who heard the communication. But the State appealed this
decision to the Supreme Court of the State of Washington. On March 23 of this
year, a local CLS attorney and I argued to the state's high court on behalf of
Pastor Hamlin. Thanks be to God, on May 6 the state supreme court ruled in favor
of Pastor Hamlin, based on the state privilege law. But the prosecutor
apparently intends to continue pursuing the pastor s testimony (arguing that the
confidentiality of the confession may have been waived by the possible presence
of the defendant s mother during portions of the counselling). If CLS and its
member attorneys charged Reverend Hamlin for their legal defense, he and his
church would be bankrupt by now. And he may yet go to jail for contempt. Pastor
Hamlin should not be forced to choose between fulfilling his religious duties as
a pastor or serving time in jail. Federal protection is sorely needed. RLPA
would extend it to many clergy, regardless of faith. 2. The Inadequacy And
Questionable Constitutionality Of The Alternative Michael Farris of the Home
School Legal Defense Association has proffered an alternative bill ( Religious
Exercise And Liberty Act or RELA). While Christian Legal Society shares most of
its goals, Mr. Farris proposal does too little for too few Americans, and does
it in a way that probably violates the federal Constitution. 2.1<
Unnecessarily Codifying Supreme Court Precedent. For the most part, RELA merely
codifies what rights religious citizens already have under the Supreme Court s
interpretation of the Free Exercise of Religion Clause of the First Amendment:
an absolute right to freedom of belief and strict scrutiny of laws that burden a
hybrid of Free Exercise combined with some other fundamental right. This hybrid
rights theory was concocted by Justice Scalia in dictum in the most universally
condemned decision ever announced by the Supreme Court in the religion area,
Employment Division v. Smith (1990). Why should Congress legitimize this
historically-, logically- and constitutionally-questionable theory? For whatever
the theory is worth, believers can already invoke it under the First Amendment.
Congress will add nothing to it by writing it into the U.S. Code. CLS urges this
subcommittee to extend existing protections for our First Freedom, not just
codify the limited rights we already have under regrettable precedent. RELA also
codifies Justice Scalia s reasoning in Smith, applying strict scrutiny to laws
that are not generally applicable, not facially neutral, or that discriminate
against religion.3 These do little to move the ball forward for Americans of
faith, for clergy like Reverend Hamlin and for students who wish to avoid
obscene school curriculum. 2.2 Anemic Land Use Protection. Mr. Farris RELA
proposal does contain several new advances for religious liberty. Borrowing from
RLPA (H.R. 1691), Mr. Farris includes language that would help churches against
unreasonable or discriminatory land use regulation. But RLPA (H.R. 1691) goes
significantly farther. Mr. Farris RELA would only provide treatment equal to
that enjoyed by government buildings; RLPA would expressly guarantee that
churches be treated at least as well as any nonreligious assembly. RLPA would
expressly prohibit zoning officials from discriminating against religious
assemblies; RELA would not ban it, but merely require a balancing of the
government s interests against the burden on the church. And RLPA would
expressly ensure reasonable inclusion of zones for religious schools and
assemblies in a jurisdiction, while RELA is silent in this regard. 2.3
Unconstitutional Prison Reform. Mr. Farris proposes to extend hybrid rights Free
Exercise theory to prison inmates. CLS strongly supports the restoration of
religious liberty to all persons, including prisoners. However, the Supreme
Court degraded prisoners Free Exercise protection in 1987, bifurcating them from
the rest of society (whose Free Exercise rights they degraded three years later
in Smith). Then in 1997, the high court struck down the Religious Freedom
Restoration Act of 1993 as it applied to state and local law. In City of Boerne
v. Flores, the court reiterated that it alone is constitutionally empowered to
interpret what the Free Exercise clause guarantees. Therefore, by bestowing far
greater protection for prisoners religious exercise than the Court has
interpreted the First Amendment to require, RELA would run afoul of the
Constitution s separation of powers, and risk the same fate as befell the 1993
RFRA under Flores. 2.4 Less Protection Of Parent And Student Religious Excusal
Rights RLPA would enable parents and their children to opt out of public school
curriculum that violates religious conscience or parental rights to direct their
children s education. But Mr. Farris RELA would confer no protection on a
student s individual religious convictions; the hybrid theory is of no avail to
a students unless their parents share their objections. Moreover, Mr. Farris
RELA denies any opt-out rights unless a parent provides a reasonable alternative
assignment without requiring substantial effort or expense by the public school.
In contrast, RLPA would not place the burden on the parents to assess what would
be an appropriate alternative to an obscene condom demonstration or to reading a
book containing graphic violence, sexual abuse or other inappropriate
depictions. Neither would RLPA allow a school district to deny a religious
excusal merely by claiming that the parent s alternative would require too much
effort or money. Congress can do much better by religious parents than RELA s
anemic opt out provision. It can enact RLPA. 2.5 Protection Of Racial
Discrimination In The Name of Religion. RELA would prohibit government from
interfering in the employment of teachers or pastors in any respect. This would
exempt from antidiscrimination laws those misguided religious assemblies that
would discriminate on the basis of race or national origin. For this reason
alone, Christian Legal Society cannot support RELA. In contrast, RLPA (H.R.
1691) would not confer religious exemptions on racist religions, because the
Supreme Court has held that government has a compelling interest in eradicating
private racial discrimination, an interest that outweighs religious freedom. Bob
Jones University v. U.S., 461 U.S. 574 (1983). 2.6 Dubious Constitutionality
Under The 14th Amendment As explained above (para. 2.3, supra), the prisoner
provisions in Mr. Farris RELA would probably violate the federal constitution s
separation of legislative from judicial powers. Equally questionable is the
constitutionality of the rest of RELA, with the possible exception of its land
use provisions. That is because in its Flores holding in 1997, the Supreme Court
held that the Fourteenth Amendment (section 5) only empowered Congress to act in
response to legislation enacted or enforced due to animus or hostility to the
burdened religious practices or some widespread pattern of religious
discrimination in this country. Such a case can only be made with respect to
regulation of land use by religious groups. On March 28 of last year, the
Constitution Subcommittee of this Committee heard extensive evidence of such
widespread discrimination across the U.S., from mainline Protestant to small
minority faiths. But it would be difficult to prove the existence of widespread
hostility or intentional discrimination in zoning regulation against religion,
e.g., application of antidiscrimination laws against churches when they hire
their preachers or select their Sunday School volunteers, or against religious
schools when they hire their classroom teachers. Neither would it be easy to
prove nationwide problems with government regulation of religious education (at
least not yet). Without such proof, Mr. Farris RELA would likely exceed Congress
power under the Fourteenth Amendment and be struck, just as the high court did
to the RFRA in Flores. 3. Congress Should Use All Of Its Powers To Protect
Religious Liberty Christian Legal Society shares the concerns of many that the
federal government should not be permitted to expand and extend its regulatory
power endlessly at the expense of our First Freedom. That is why CLS strongly
supports the Religious Liberty Protection Act - - because it uses every power of
Congress to restrict and retract federal, state and local government power where
it burdens religious exercise. This suspicion of big government also compels CLS
to refrain from endorsing Mr. Farris RELA. That proposal does too little for
religious freedom, because it fails to use Congress explicit power to regulate
interstate commerce. The Commerce power is not a figment of judicial activism;
it is expressly granted to Congress. Yes, the power has been abused in the past.
But it has also been wielded for good. The Partial Birth
Abortion Ban Act would have been based on the Commerce Clause. Many of
the nation s federal civil rights laws are too. And RLPA (H.R. 1691) would use
this express constitutional authority for an equally laudable purpose: to
restrain (not extend) governmental interference with our most important freedom.
It would be a painful irony if the First Freedom named in the First Amendment
were the only one not to be protected by federal statute, while the Commerce
power is used to promote supposed constitutional rights like abortion that are
not enumerated anywhere in the Constitution. A rope can serve as a useful
analogy. The Congress has access to a strong rope. Some have misused ropes in
the past (e.g., for lynchings). But the wise response to misuse is not to leave
Congress rope lying unused. Rather CLS urges Congress to pick up its Commerce
Clause rope and use it constructively - - to cordon off government from
legislating and acting in ways that substantially burden religious freedom. 4.
RLPA Must Protect All Persons, Without Carve-outs Or Excluded Claims According
to the testimony of Mr. Chris Anders before the House Judiciary Subcommittee On
The Constitution on May 12, 1999, the American Civil Liberties Union agrees that
the Supreme Court s 1990 decision in Employment Division v. Smith left the Free
Exercise Clause virtually toothless in all but the rarest of cases. Yet Mr.
Anders admitted under questioning by Rep. Jerrold Nadler that the ACLU would
rather leave religious believers statutorily defenseless than enact a RLPA that
would apply to all claims and all Americans. Specifically, ACLU wants the
Congress to amend the RLPA so that it could not be invoked by many believers
against an antidiscrimination law. Call it by any other name if you will - - but
this would be a carveout, a repudiation of the bedrock principles of inalienable
rights and equal protection of the laws. For the following reasons, Christian
Legal Society would vigorously oppose RLPA if it were to include any such
exclusion of a class of religious practices or claims. 4.1 Free Religious
Exercise Should Not Always Be Subordinated To Other Civil Rights. The first
freedom protected by the Framers in our Bill of Rights is religious freedom,
including protection from government prohibition on the free exercise of
religion. Religious freedom is a civil right, arguably the foundational and
preeminent one upon which all others depend. If a government will not
accommodate a citizen s fulfillment of his or her obligation to God, then no
other human right is safe from that government. This First Freedom includes
practices inside houses of worship. But it also encompasses the living out of
one s beliefs in the marketplace of ideas, of jobs, of housing. Those who
support a civil rights carveout amendment to RLPA either do not understand the
comprehensive nature of most religious devotion or else they dangerously
overweight the government s constitutional authority to burden it. The ACLU s
proposed civil rights carveout presupposes that the First Amendment s Religion
Clauses protect little more than religious beliefs, and only if such beliefs do
not infect the policies and practices of its adherents outside their houses of
worship. But, as millions of religious Americans know, they do n leave their
religion at the door to their office, at the factory punchclock, or at the
schoolhouse gate. And among religious Americans are landlords whose consciences
do not allow them to rent their private property for sinful purposes. They also
include employers who want to work with people who share their most important
values and priorities, including religious ones. Religious free exercise is not
confined to one s Sabbath, home or house of worship. Consequently, free exercise
of religion will conflict with the interests of third parties who want
employment at the believer s private workplace or want to rent the believer s
private property. As a matter of principle, should the First Freedom always
prevail over antidiscrimination law? No. Society s interest in eradicating
private racial discrimination will continue to trump claims that one s religion
compels racist practices. But neither should the opposite extreme be legislated:
that certain civil rights always outweigh the believer s interest in religious
exercise. A principled RLPA would apply the same test to all religious practices
substantially burdened by government, and leave to the courts a case-by-case
application of that uniform test. The explicit and prominent constitutional
regard for free exercise of religion admits of no exceptions, qualifiers or
disclaimers. At a minimum, Congress should follow the First Amendment s lead and
let all government interests be tested, and rise or fall on their own importance
relative to our First Freedom. 4.2 As A Political Matter, Carveouts Will
Fracture RLPA s Coalition, Spawn Other Exceptions, And Infect State Legislation
As Well. The Coalition For The Free Exercise Of Religion, an extraordinary
coalition of some 80 organizations that drafted RLPA, supports a clean bill, a
RLPA free of any kind of carveouts, exceptions or second class treatment for
particular religious claims or claimants. That support is based on principle, as
described in section 4.1, supra. But the RLPA Coalition also resists any
carveouts for a very practical reason: 80 groups could never agree on what to
carveout. The coalition is held together by one magnetic commitment: we all
agree that every sincere religious practice will be entitled to the protection
of strict scrutiny. If RLPA is amended so that it could not be raised as a
defense to, e.g., discrimination law, then the Coalition s magnetism will have
been lost. Coalition members would spin off under the centrifugal force of their
self-interest. Each of us would have our own wish-list of what religions,
religious practices, and government interests should be winners and losers. At
the end of this politcal powerplay, RLPA would only protect the politically-
correct and -powerful religious practices; minority faiths would be left in the
carveout pile, and religious freedom as a universal right in America would be a
thing of the past. Christian Legal Society serves with the AntiDefamation League
as co-chair of the Coalition s campaign to enact religious freedom legislation
in the states. In the two years since City of Boerne v. Flores, we have been
successful in passing clean RFRAs in Florida, Alabama, Illinois, Arizona and
South Carolina. But several weeks ago the Texas Legislature enacted a dirty
RFRA. Rep. Scott Hochberg pushed it through the Texas House with a civil rights
carveout. Not surprisingly, having breached the principle of protection for all,
without exceptions, Rep. Hochberg could hardly object to the Senate s version,
which contained carveouts for incarcerated persons and a special provision on
regulation of land use by religious groups. One carveout begat another. And thus
shall it be if Congress opens the Pandora s Box of stripping RLPA s protection
from disfavored religious practices and believers. Not only will the federal
RLPA collapse upon itself due to carveouts, but many state legislatures will be
tempted to follow Congress example, leaving a patchwork of laws in which
religious liberty protection varies from one state to the next. For these
reasons, the 80 organizations of the RLPA Coalition, ranging from People For The
American Way to the Southern Baptist Convention, oppose any exemptions and urge
this Committee to pass a clean RLPA. 4.3 RLPA Must Protect All Persons,
Including The Incarcerated. Perhaps the most tempting class of persons to carve
out of RLPA s protection would be those in prison, jail or detention awaiting
adjudication. They cannot vote, cannot contribute to campaigns, and have no
lobbyists. Of the eight states that have enacted state RFRAs, only Texas has
given in to that temptation. Its law says that any excuse a prison warden gives
for burdening an inmate s religion is rebuttably presumed to be in furtherance
of a compelling government interest. So prison officials can confiscate a Bible
or serve only non-Kosher meals and yet the Texas inmate gets no relief from the
Texas RFRA - - unless the inmate (probably undereducated and without a lawyer)
can rebut the warden s pretextual justification. Prisoner litigation includes a
lot of frivolous claims. But religious claims account for a tiny fraction of
them. According to Justice Fellowship, during the three and one-half years that
the federal Religious Freedom Restoration Act of 1993 was in effect, 99.9% of
reported prisoner cases were nonreligious in nature; only .12 of one percent
(277 ) of reported prisoner civil cases even mentioned RFRA. So carving out
prison inmates from RLPA will not appreciably diminish frivolous prisoner
litigation. In addition, some inmates have been unjustifiably deprived of their
inalienable right to religious freedom. For example, see the attached
handwritten letter received by Prison Fellowship recently from an inmate named
Melanie Perkins in the state prison in Lowell, Florida. Having received this
letter only yesterday, CLS has not yet had an opportunity to investigate the
letter s allegations. But Prison Fellowship tells us that it is typical of the
letters they receive from across the country about conditions in state prisons.
(The Federal Bureau Of Prisons continues to be subject to the 1993 RFRA, and
finds it quite workable in the nation s second largest prison system. See
attached letter to Rev. O. Thomas from BOP General Counsel, dated Nov. 6, 1998.)
Finally, not only do prisoner carveouts violate bedrock principles of human
rights, fracture the RLPA coalition and inexorably lead to carveouts against
other powerless classes, but they also frustrate society s penological
interests. Religion changes prisoners, cutting their recidivism rate by
two-thirds, according to Prison Fellowship. So it makes good policy to include
inmates as beneficiaries of RLPA. If their religious practice threatens the
health, safety or security of anyone in the prison, it will (and should) yield
under RLPA to those interests of the warden. But some prisoner religious claims
(probably a small minority) should prevail, but only if RLPA contains no
carveouts . . . even for least of these my brethren. (Gospel of Matthew 25:40).
The Religious Liberty Protection Act would broadly protect religious Americans
with the strictest legal standard, one that is time-tested and workable. It
would have a much firmer constitutional foundation than RELA. And RLPA would
provide significant rather than anemic protection for public schoolchildren and
churches facing land use obstacles. It would not be a cure-all. But RLPA employs
all available federal powers to restore the strictest legal scrutiny with the
broadest coverage in a constitutionally defensible manner. Our religious liberty
- - the First Freedom - - deserves nothing less. Thank you, Mr. Chairman, for
considering the views of the Christian Legal Society in this most important
matter.
LOAD-DATE: June 23, 1999
