S. HRG. 105-405 CONGRESS' CONSTITUTIONAL ROLE IN PROTECTING RELIGIOUS LIBERTY HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED FIFTH CONGRESS FIRST SESSION ON EXAMINING CONGRESS' ROLE IN PROTECTING RELIGIOUS LIBERTY IN THE WAKE OF THE SUPREME COURT'S DECISION IN THE CASE OF CITY OF BOERNE v. FLORES IN WHICH THE COURT HELD THE RELI­ GIOUS FREEDOM RESTORATION ACT UNCONSTITUTIONAL UNDER THE 14TH AMENDMENT AS APPLIED TO THE STATES OCTOBER 1, 1997 Serial No. J-105-55 Printed for the use of the Committee on the Judiciary Legislative Office MAIN LIBRARY U.S. Dept. of Justice U.S. GOVERNMENT PRINTING OFFICE 47-217 CC WASHINGTON : 1998 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-056351-8 COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware FRED THOMPSON, Tennessee HERBERT KOHL, Wisconsin JON KYL, Arizona DIANNE FEINSTEIN, California MIKE DEWINE, Ohio RUSSELL D. FEINGOLD, Wisconsin JOHN ASHCROFT, Missouri RICHARD J. DURBIN, Illinois SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey JEFF SESSIONS, Alabama MANUS COONEY, Chief Counsel and Staff Director BRUCE COHEN, Minority Chief Counsel (II) CONTENTS STATEMENTS OF COMMITTEE MEMBERS Page Hatch, Hon. Orrin G., U.S. Senator from the State of Utah 1 Kennedy, Hon. Edward M., U.S. Senator from the State of Massachusetts 48 Ashcroft, Hon. John, U.S. Senator from the State of Missouri 51 CHRONOLOGICAL LIST OF WITNESSES Panel consisting of Douglas Laycock, Alice McKean Young regents chair in law, University of Texas, Austin, TX; Michael Stokes Paulsen, associate professor of law, University of Minnesota, Minneapolis, MN; Erwin Chemerinsky, Sydney M. Irmas professor of law and political science, Uni­ versity of Southern California, Los Angeles, CA; and Daniel O. Conkle, professor of law and Nelson Poynter senior scholar, Indiana University- Bloomington, Bloomington, IN 4 ALPHABETICAL LIST AND MATERIALS SUBMITTED Chemerinsky, Erwin: Testimony 27 Prepared statement 28 Conkle, Daniel O.: Testimony 29 Prepared statement 31 Laycock, Douglas: Testimony 4 Prepared statement 5 Paulsen, Michael Stokes: Testimony 13 Prepared statement 14 APPENDIX QUESTIONS AND ANSWERS Responses of Douglas Laycock to questions from Senators: Hatch 55 Kyl 62 Kennedy 63 Thurmond 66 Responses of Michael Stokes Paulsen to questions from Senators Hatch and Kennedy 67 Responses of Erwin Chemerinsky to questions from Senators: Hatch 69 Kyl 76 Kennedy 78 Responses of Daniel O. Conkle to questions from Senators: Hatch 79 Kyl 86 Kennedy 87 (III) CONGRESS' CONSTITUTIONAL ROLE IN PROTECTING RELIGIOUS LIBERTY WEDNESDAY, OCTOBER 1, 1997 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 10:06 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Kyl, Ashcroft, Abraham, Kennedy, and Durbin. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The CHAIRMAN. I am sorry it has taken us 5 minutes late to get this going, but we have a lot of things we have to resolve and it is the end of the session, so it is just kind of a miserable experience around here. Good morning, and welcome to all of you. We are here this morn­ ing to begin our discussion of what Congress may do to protect reli­ gious liberty in the wake of the Supreme Court's decision in the case of City of Boerne v. Flores, in which the Court held the Reli­ gious Freedom Restoration Act [RFRA] unconstitutional under the 14th amendment as applied to the States. Now, I think it is fitting to note that we open this new chapter in the constitutional dialog with the Court on the eve of Rosh Ha­ shana, when Jews will be celebrating the beginning of the new year and embarking upon a period of reflection. I hope that this will also mark a new beginning in the history of religious freedom in our country as we reflect on the recent developments in the law of reli­ gious liberty. I hope that we will begin here to make substantial steps toward greater deference to religious belief and practice, and that govern­ ment at all levels will work to increase the freedom of believers to live their religions unburdened by the heavy hand of government. At the opening of this conversation today, we should remember how we got here. We start with the fact that the first freedom guaranteed in the Bill of Rights is the freedom to believe and prac­ tice that belief as we wish without government interference. This promise of the freedom of worship is, for many, the country's found­ ing and guiding principle, the Pilgrims' reason for braving thou- sands and thousands of miles of dark and dangerous seas and countless privations just to arrive here, and privations when they got here. (1) 2 As one scholar has noted, "While only a few important immi­ grants bear the name Pilgrim in American myth, most of the new arrivals [in America] came as Pilgrims from other lands—and Pil­ grims they have remained * * *." The constitutional guarantee of the free exercise of religion for all has been a beacon to the world throughout our history. Of the relationship between religious liberty and civil govern­ ment, James Madison, the principal architect of the Bill of Rights and their prime mover in the Congress, once wrote, It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society * * *. [E]very man who be- comes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Re­ ligion, no man's right is abridged by the institution of Civil Society, and that Reli­ gion is wholly exempt from its cognizance. This acknowledgment of the precedence of duty to God over de­ mands of a civil society or government was the Founders' vision and is the source of this Nation's beacon to Pilgrims throughout the world. It stands in stark contrast to the recent pronouncements of the Supreme Court in such cases as Employment Division v. Smith. The Smith decision effected a change in the law governing free ex­ ercise claims, holding that, as a general matter, neutral and gen­ erally applicable laws will be upheld against free exercise chal­ lenges, no matter how onerous the burden on religious practice, un­ less a claimant can show his or her case falls within a number of exceptions or limitations. Now, I believe we can do better for religious liberty than this. The Supreme Court has invited us to enact legislation solicitous of the constitutional value of religious liberty in the Smith decision it- self. It said, Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the first amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. Now, in response to this invitation, the Congress passed the Reli­ gious Freedom Restoration Act, popularly known as RFRA, with only three dissenting votes in the entire Congress. In the recent City of Boerne case, however, the Court decided that RFRA went beyond Congress' power under the 14th amendment as applied to the States. The City of Boerne decision was, to say the least, a deep dis­ appointment to us in Congress and to all Americans who care about religious liberty and freedom. More disappointing was the fact that the decision was not a model of clarity, so we have sought the input of many legal scholars to assist us in divining the appro­ priate bounds of our power. Hence, we are here to discuss what options the Congress has be- fore it, given the current state of Supreme Court jurisprudence. I think we in Congress are willing to do all we can to work with the Supreme Court in fashioning appropriate protections for religious liberty, but we need to know just what options we have, given the 3 Court's current posture. We also need to continue the discussion with the Court about our respective roles as co-equal branches op­ erating under the Constitution. I think it would be best if we could ultimately work with the Court rather than against it to protect the religious liberty of our people. In addition to serious work being done in Congress to protect re­ ligious liberty with appropriate Federal legislation, I believe other parts of government should also work toward real and meaningful protections for religious liberty within their spheres of action. The Supreme Court should be given ample opportunity to rethink its decision in Smith, and I would hope that all levels of government would do their utmost to see that their actions do not impinge upon the religious liberties of our people. Now, because of time constraints, because we are going to have a vote at 11 o'clock and I have to leave then for the White House, we will submit members' statement for the record and we will ask witnesses to limit their statements to 3 minutes.