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Religious Freedom Restoration Act of 1991

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Religious Freedom Restoration Act of 1991 RELIGIOUS FREEDOM RESTORATION ACT OF 1991 HEARINGS BEFORE THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SECOND CONGRESS SECOND SESSION ON H.R. 2797 RELIGIOUS FREEDOM RESTORATION ACT OF 1991 MAY 13 AND 14, 1992 Serial No. 99 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 60-944 CC WASHINGTON : 1993 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-040701-X COMMITTEE ON THE JUDICIARY JACK BROOKS, Texas, Chairman DON EDWARDS, California HAMILTON FISH, JR., New York JOHN CONYERS, JR., Michigan CARLOS J. MOORHEAD, California ROMANO L. MAZZOLI, Kentucky HENRY J. HYDE, Illinois WILLIAM J. HUGHES, New Jersey F. JAMES SENSENBRENNER, JR., MIKE SYNAR, Oklahoma Wisconsin PATRICIA SCHROEDER, Colorado BILL McCOLLUM, Florida DAN GLICKMAN, Kansas GEORGE W. GEKAS, Pennsylvania BARNEY FRANK, Massachusetts HOWARD COBLE, North Carolina CHARLES E. SCHUMER, New York LAMAR S. SMITH, Texas EDWARD F. FEIGHAN, Ohio CRAIG T. JAMES, Florida HOWARD L. BERMAN, California TOM CAMPBELL, California RICK BOUCHER, Virginia STEVEN SCHIFF, New Mexico HARLEY O. STAGGERS, JR., West Virginia JIM RAMSTAD, Minnesota JOHN BRYANT, Texas GEORGE ALLEN, Virginia MEL LEVINE, California GEORGE E. SANGMEISTER, Illinois CRAIG A. WASHINGTON, Texas PETER HOAGLAND, Nebraska MICHAEL J. KOPETSKI, Oregon JACK REED, Rhode Island JONATHAN R. YAROWSKY, General Counsel ROBERT H. BRINK, Deputy General Counsel ALAN F. COFFEY, JR., Minority Chief Counsel SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS DON EDWARDS, California, Chairman JOHN CONYERS, JR., Michigan HENRY J. HYDE, Illinois PATRICIA SCHROEDER, Colorado HOWARD COBLE, North Carolina CRAIG A. WASHINGTON, Texas BILL McCOLLUM, Florida MICHAEL J. KOPETSKI, Oregon CATHERINE LEROY, Counsel IVY DAVIS-FOX, Assistant Counsel JAMES X. DEMPSEY, Assistant Counsel VIRGINIA SLOAN, Assistant Counsel MELODY C. BARNES, Assistant Counsel KATHRYN HAZEEM, Minority Counsel (II) CONTENTS HEARINGS DATES Page May 13, 1992 1 May 14, 1992 117 TEXT OF BILL H.R. 2797 2 OPENING STATEMENT Edwards, Hon. Don, a Representative in Congress from the State of Califor­ nia, and chairman, Subcommittee on Civil and Constitutional Rights 1 WITNESSES Bopp, James, general counsel, National Right to Life Committee, Washington, DC 270 Chopko, Mark E., general counsel, on behalf of the United States Catholic Conference 33 Destro, Robert A., associate professor of law, the Catholic University of America 302 Dugan, Robert, Jr., director, Office of Public Affairs, National Association of Evangelicals 10 Gaffney, Edward, dean and professor of law, Valparaiso University School of Law, Valparaiso, IN 147 Laycock, Douglas, professor of law, University of Texas, Austin, TX 326 Lupu, Ira C., national law center, George Washington University 372 Oaks, Elder Dallin H., Quorum of the Twelve Apostles, the Church of Jesus Christ of Latter-day Saints 23 Smith, Hon. Christopher M., a Representative in Congress from the State of New Jersey 139 Solarz, Stephen J., a Representative in Congress from the State of New York 117 Strossen, Nadine, president, national board of directors, American Civil Lib­ erties Union, New York, NY, accompanied by Robert S. Peck, legislative counsel, ACLU 63 Titus, Herbert W., dean, Regent University School of Law, Virginia Beach, VA : 87 Yang, William, Worcester, MA, accompanied by Robert Peck, legislative coun­ sel, American Civil Liberties Union 107 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINGS Bopp, James, general counsel, National Right to Life Committee, Washington, DC: Prepared statement 273 Chopko, Mark E., general counsel, on behalf of the United States Catholic Conference: Prepared statement 36 Destro, Robert A., associate professor of law, the Catholic University of America: Prepared statement 305 Dugan, Robert, Jr., director, Office of Public Affairs, National Association of Evangelicals: Prepared statement 13 Gaffney, Edward, dean and professor of law, Valparaiso University School of Law, Valparaiso, IN: Prepared statement 152 (III) IV Page Laycock, Douglas, professor of law, University of Texas, Austin, TX: "Cases Rejecting Free Exercise Claims for Lack of Religious Compulsion," appendix 2 to testimony of Prof. Douglas Laycock 370 Prepared statement 330 "Recent Cases Involving Religious Liberty of Roman Catholics," appendix 1 to testimony of Prof. Douglas Laycock 361 Lupu, Ira C, national law center, George Washington University: Prepared statement 375 Oaks, Elder Dallin H., Quorum of the Twelve Apostles, the Church of Jesus Christ of Latter-day Saints: Prepared statement 26 Peck, Robert, legislative counsel, American Civil Liberties Union: Submission of new decision on Smith, dated November 9, 1990 112 Smith, Hon. Christopher M., a Representative in Congress from the State of New Jersey: Prepared statement 142 Solarz, Stephen J., a Representative in Congress from the State of New York: Letter from Representative Solarz to Don Edwards 128 Prepared statement and other submissions 121 "Supreme Court Descriptions of Conduct Constituting the Exercise of Religion," memorandum, submitted by Congressional Research Service, American Law Division, Library of Congress 131 Strossen, Nadine, president, national board of directors, American Civil Lib­ erties Union, New York, NY: Prepared statement 65 Titus, Herbert W., dean, Regent University School of Law, Virginia Beach, VA: Prepared statement 90 Yang, William, Worcester, MA: Prepared statement 109 APPENDIX Statement submitted by Wintley A. Phipps, president, International Institute for Religious Freedom 401 Statement submitted by Ruth Flower and Joanna P. McMann, Friends Committee on National Legislation 406 Statement submitted by David Zweibel, director of government affairs, Agudath Israel of America 411 Statement submitted by coalition of Indian Tribes and other organizations 421 Letter and article, submitted by the Rutherford Institute 444 Affidavit of plaintiff Jane Liberty in States of Utah abortion case Jane Liberty v. Bangeter 454 Legal memorandum submitted by Americans United for Life 464 Lettersubmitted by Gary L. Bauer, president, Family Research Council 471 Memorandum submitted by Marc Stern, counsel, American Jewish Congress.. 472 Article, "Bill to Restore Religious Guarantees Faces Right From Anti-Abortion Groups," submitted by Howard Rosenberg 477 RELIGIOUS FREEDOM RESTORATION ACT OF 1991 WEDNESDAY, MAY 13, 1992 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 9:36 a.m., in room 2237, Rayburn House Office Building, Hon. Don Edwards (chairman of the subcommittee) presiding. Present: Representatives Don Edwards, Patricia Schroeder, Michael J. Kopetski, Craig A. Washington, Henry J. Hyde, Howard Coble, and Bill McCollum. Also present: Melody C. Barnes, assistant counsel, and Kathryn Hazeem, minority counsel. OPENING STATEMENT OF CHAIRMAN EDWARDS Mr. EDWARDS. The subcommittee will come to order. The first amendment free exercise clause is one of the most im­ portant rights granted to Americans. We are here today because that right has been threatened. In April 1990, the U.S. Supreme Court decided the Employment Division against Smith case. In that decision the Court rejected the use of the "compelling governmental interest" test, which is the most stringent test applied to constitutional questions, and the Court announced a fundamentally different and lower standard. The majority of the Court determined that the use of this impor­ tant test in the free exercise claims is a luxury—that is the word of the Court—that could not be afforded interest in the highest order. This decision has had a far-reaching and disturbing effect upon the exercise of religion in America. H.R. 2797, the Religious Freedom Restoration Act, was drafted to respond to the void left by the Supreme Court's decision. The bill simply restores the compelling governmental interest test. How- ever, there are opponents to this legislation, and we're going to hear from some today and tomorrow. The opponents claim that the bill does more than meets the eye. I believe they are wrong. I think we drew the bill very carefully. I believe that the bill is neutral with respect to all issues and determinations. Its intent is simply to protect what we believe is one of the most important freedoms in our Constitution. [The bill, H.R. 2797, follows:] (1) 2 I 102D CONGRESS 1ST SESSION H.R. 2797 To protect the free exercise of religion. IN THE HOUSE OF REPRESENTATIVES JUNE 26, 1991 Mr. SOLARZ (for himself, Mr. AUCOIN, Mr. ACKERMAN, Mr. BERMAN, Mr. BRYANT, Mr. CARDIN, Mr. Cox of Illinois, Mr. DREIER of California, Mr. DEFAZIO, Mr. EDWARDS of California, Mr. FEIGHAN, Mr. FOGLIETTA, Mr. FROST, Mr. GEREN of Texas, Mr. HOCHBRUECKNER, Mr. HUGHES, Mr. JAMES, Mr. JEFFERSON, Mr. KOPETSKY, Mr. LAGOMARSINO, Mr. LEHMAN of Florida, Mr. LENT, Mr. MARKEY, Mr. MATSUI, Mr. MCMILLEN of Maryland, Mr. MOODY, Mr. MRAZEK, Mr. NEAL of North Carolina, Mr. OWENS of New York, Mr. OWENS of Utah, Mr. PRICE, Mr. SCHEUER, Mr. SCHIFF, Mr. SHAYS, Mr. SMITH of Texas, Mr. STAL­ LINGS, Mr. STUDDS, Mr. TRAFICANT, Mr. TORRICELLI, Mr. TOWNS, Mr. YATES, and Mr. WOLPE) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To protect the free exercise of religion. 1 Be it enacted by the Senate and House of Representa- 2 tives
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