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Religious Liberty Protection Act of 1999 Hearing RELIGIOUS LIBERTY PROTECTION ACT OF 1999 HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS FIRST SESSION ON H.R. 1691 MAY 12, 1999 Serial No. 73 Legislative Office MAIN LIBRARY U.S. Dept. of Justice Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 62-491 WASHINGTON : 2000 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 COMMITTEE ON THE JUDICIARY HENRY J. HYDE, Illinois, Chairman F. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin BARNEY FRANK, Massachusetts BILL McCOLLUM, Florida HOWARD L. BERMAN, California GEORGE W. GEKAS, Pennsylvania RICK BOUCHER, Virginia HOWARD COBLE, North Carolina JERROLD NADLER, New York LAMAR S. SMITH, Texas ROBERT C. SCOTT, Virginia ELTON GALLEGLY, California MELVIN L. WAIT, North Carolina CHARLES T. CANADY, Florida ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas ED BRYANT, Tennessee MAXINE WATERS, California STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts BOB BARR, Georgia WILLIAM D. DELAHUNT, Massachusetts WILLIAM L. JENKINS, Tennessee ROBERT WEXLER, Florida ASA HUTCHINSON, Arkansas STEVEN R. ROTHMAN, New Jersey EDWARD A. PEASE, Indiana TAMMY BALDWIN, Wisconsin CHRIS CANNON, Utah ANTHONY D. WEINER, New York JAMES E. ROGAN, California LINDSEY O. GRAHAM, South Carolina MARY BONO, California SPENCER BACHUS, Alabama JOE SCARBOROUGH, Florida THOMAS E. MOONEY, SR., General Counsel-Chief of Staff JULIAN EPSTEIN, Minority Chief Counsel and Staff Director SUBCOMMITTEE ON THE CONSTITUTION CHARLES T. CANADY, Florida, Chairman HENRY J. HYDE, Illinois MELVIN L. WATT, North Carolina ASA HUTCHINSON, Arkansas MAXINE WATERS, California SPENCER BACHUS, Alabama BARNEY FRANK, Massachusetts BOB GOODLATTE, Virginia JOHN CONYERS, JR., Michigan BOB BARR, Georgia JERROLD NADLER, New York WILLIAM L. JENKINS, Tennessee LINDSEY O. GRAHAM, South Carolina CATHLEEN CLEAVER, Chief Counsel BRADLEY S. CLANTON, Counsel JONATHAN A. VOGEL, Counsel PAUL B. TAYLOR, Counsel (II) CONTENTS HEARING DATE Page May 12, 1999 1 TEXT OF BILL H.R. 1691 2 OPENING STATEMENT Canady, Hon. Charles, a Representative in Congress from the State of Flor­ ida, chariman, Subcommittee on the Constitution 1 WITNESSES Anders, Christopher E., Legislative Counsel, American Civil Liberties Union .. 81 Feldblum, Chai, Professor of Law and Director, Federal Legislation Clinic, Georgetown University Law Center 96 Hamilton, Marci, Professor of Law, Benjamin N. Cardozo School of Law 145 Hodges, Clarence E., Vice President, Seventh Day Adventist Church of North America 78 Jacob, Bradley, Provost and Dean of the College, Patrick Henry College 135 Keetch, Von G., Counsel, The Church of Jesus Christ of Latter-Day Saints 22 Land, Richard, President, Ethics and Religious Liberty Commission of the Southern Baptist Convention 6 Laycock, Douglas, Associate Dean for Research, University of Texas Law School 100 Malloy, Reverend C.J., Jr., First Baptist Church of Georgetown 134 McFarland, Steven T., Director, Center for Law and Religious Freedom, Christian Legal Society 151 Sager, Lawrence G., Robert B. McKay Professor of Law, New York University School of Law 10 Saperstein, Rabbi David, Director and Counsel, Religious Action Center of Reform Judaism 91 Thomas, Oliver S., Special Counsel for Religious and Civil Liberties, National Council of Churches 130 Walker, J. Brent, General Counsel, Baptist Joint Committee on Public Af­ fairs 54 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Anders, Christopher E., Legislative Counsel, American Civil Liberties Union: Prepared statement 82 Eisgruber, Christopher L., Professor of Law: Letter to Hon. Canady dated May 17, 1999 74 Farris, Michael P.: Prepared statement 137 Feldblum, Chai, Professor of Law and Director, Federal Legislation Clinic, Georgetown University Law Center: Prepared statement 98 Hamilton, Marci, Professor of Law, Benjamin N. Cardozo School of Law: Prepared statement 147 Hodges, Clarence E., Vice President, Seventh Day Adventist Church of North America: Prepared statement 79 Keetch, Von G., Counsel, The Church of Jesus Christ of Latter-Day Saints: Prepared statement 24 (III) IV Page Land, Richard, President, Ethics and Religious Liberty Commission of the Southern Baptist Convention: Prepared statement 8 Laycock, Douglas, Associate Dean for Research, University of Texas Law School: Prepared statement 104 Malloy, Reverend C.J., Jr., First Baptist Church of Georgetown: Prepared statement 135 McFarland, Steven T., Director, Center for Law and Religious Freedom, Christian Legal Society: Prepared statement 152 Nadler, Hon. Jerrold, a Representative in Congress from the State of New York: Prepared statement : 71 Sager, Lawrence G., Robert B. McKay Professor of Law, New York University School of Law: Prepared statement 13 Letter to Hon. Canady dated May 17, 1999 74 Saperstein, Rabbi David, Director and Counsel, Religious Action Center of Reform Judaism: Prepared statement 93 Thomas, Oliver S., Special Counsel for Religious and Civil Liberties, National Council of Churches: Prepared statement 132 Walker, J. Brent, General Counsel, Baptist Joint Committee on Public Af­ fairs: Prepared statement 56 RELIGIOUS LIBERTY PROTECTION ACT OF 1999 WEDNESDAY, MAY 12, 1999 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 1:10 p.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chair- man of the subcommittee] presiding. Present: Representatives Charles Canady, Asa Hutchinson, Bob Barr, Melvin L. Watt, Barney Frank, Lindsey O. Graham, and Jerrold Nadler. Staff present: Cathleen Cleaver, Chief Counsel, Subcommittee on the Constitution; Bradley S. Clanton, Counsel, Subcommittee on the Constitution; Susana Gutierrez, Clerk, Subcommittee on the Constitution; Anthony Foxx, Minority Counsel, Subcommittee on the Constitution, and David Lachmann, Minority Counsel, Commit- tee on the Judiciary. OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY [presiding]. The Subcommittee on the Constitution convenes today to consider the Religious Liberty Protection Act, which is a bipartisan bill that protects the free exercise of religion against burdensome State and local laws and regulations by put­ ting them to the most rigorous legal test. The Religious Liberty Protection Act will help people, like the adult children in New York who have been prevented by health regulations from volunteering to care for their elderly parents in government-run nursing homes despite the fact that their desired service was to fulfill their Fifth Commandment obligation to honor one's father and mother. They have been forced to choose between practicing their faith and obeying the restrictive regulations of the law. Sadly, their case is just one of a growing number of instances in which the religious freedom of Americans is not respected. I will mention two other examples which illustrate the nature of the problem. In recent years, Catholic churches have had to go to court to protect the right of prisoners to practice the sacrament of confession without fear of their confidential testimony being turned over to police. And churches in Chicago with permits pending for commercial buildings have found the land under the building re- classified as a manufacturing zone by aldermen who wanted to keep them out of the neighborhood. (1) 2 Traditionally, the courts protected this type of free exercise from far-reaching government intrusion, but in 1990, the Supreme Court jeopardized the religious practices of people of all faiths by ruling that only intentional violations of free exercise were of constitu­ tional concern. As we know, Congress responded to that decision of the Supreme Court by passing in 1993 the Religious Freedom Restoration Act, also known as RFRA, but in 1997, the Supreme Court dealt its sec­ ond blow to religious liberty by ruling that the Religious Freedom Restoration Act could not be applied against State or local law on the grounds that the statute exceeded the constitutional authority of the Congress. I believe that it is time for Congress to once more act to protect religious liberty. H.R. 1691 addresses this serious situation by re- storing the general rule that State or local officials may not sub­ stantially burden religious exercise without demonstrating a com­ pelling interest in doing so. Where a religious activity or—excuse me, where a religious activity affects interstate commerce, the reli­ gious activity will be protected by the bill as will the religious exer­ cise of participants in State or local programs receiving Federal fi­ nancial assistance. H.R. 1691 will also protect religious gatherings and institutions against unjustified actions by zoning boards and includes proce­ dural help for religiously motivated people so that they will have their day in court if they can show their religious freedom has suf­ fered at the hands of State or local government. Americans deserve to have their religious beliefs and practices respected and protected. Religious freedom is too important to be trampled by the unthinking and insensitive actions of bureaucracy or as a consequence of bad public policy. That is why we are here today, and I want to thank all the witnesses that we are going to hear from for being here. We have a long list of witnesses, but this is an important issue that deserves serious
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