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Religious Liberty Protection Act of 1998

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Religious Liberty Protection Act of 1998 RELIGIOUS LIBERTY PROTECTION ACT OF 1998 HEARINGS BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FIFTH CONGRESS SECOND SESSION ON H.R. 4019 JUNE 16 AND JULY 14, 1998 Serial No. 134, Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 59-929 WASHINGTON : 2000 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office. Washington. DC 20402 ISBN 0-16-060052-9 COMMITTEE ON THE JUDICIARY HENRY J. HYDE, Illinois, Chairman P. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin BARNEY FRANK, Massachusetts BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California HOWARD COBLE, North Carolina RICK BOUCHER, Virginia LAMAR SMITH, Texas JERROLD NADLER, New York ELTON GALLEGLY, California ROBERT C. SCOTT, Virginia CHARLES T. CANADY, Florida MELVIN L. WATT, North Carolina BOB INGLIS, South Carolina ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas STEPHEN E. BUYER, Indiana MAXINE WATERS, California ED BRYANT, Tennessee MARTIN T. MEEHAN, Massachusetts STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts BOB BARR, Georgia ROBERT WEXLER, Florida WILLIAM L. JENKINS, Tennessee STEVEN R. ROTHMAN, New Jersey ASA HUTCHINSON, Arkansas EDWARD A. PEASE, Indiana CHRIS CANNON, Utah JAMES E. ROGAN, California LINDSEY O. GRAHAM, South Carolina MARY BONO, California THOMAS E. MOONEY, General Counsel-Chief of Staff JULIAN EPSTEIN, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION CHARLES T. CANADY, Florida, Chairman HENRY J. HYDE, Illinois ROBERT C. SCOTT, Virginia BOB INGLIS, South Carolina MAXINE WATERS, California ED BRYANT, Tennessee JOHN CONYERS, JR., Michigan WILLIAM L. JENKINS, Tennessee JERROLD NADLER, New York BOB GOODLATTE, Virginia MELVIN L. WATT, North Carolina BOB BARR, Georgia ASA HUTCHINSON, Arkansas JOHN H. LADD, Acting Chief Counsel ROBERT J. CORRY, Counsel CATHLEEN CLEAVER, Counsel (II) CONTENTS HEARING DATES Page June 16, 1998 1 July 14, 1998 163 BILL TEXT H.R. 4019 1 OPENING STATEMENT Canady, Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution 1 WITNESSES Berg, Thomas C., Professor, Cumberland Law School, Samford University 20 Dodson, William, Director, Government Relations, Southern Baptist Conven­ tion 169 Durham, W. Cole, Jr., Brigham Young University Law School 131 Eisgruber, Christopher L., Professor, New York University School of Law 32 Farris, Michael P., President, Home School Legal Defense Association 171 Green, Steven K., Legal Director, Americans United for Separation of Church and State 207 Hamilton, Marci, Professor, Benjamin N. Cardozo School of Law, Yeshiva University 40 Ivory, Reverend Elenora Giddings, Director, Washington Office, Presbyterian Church (USA) 202 Laycock, Douglas, Professor, Associate Dean for Research, University of Texas Law School June 16, 1998 6 July 14, 1998 222 Mauck, John, Attorney, Mauck, Bellande & Cheely, Chicago, IL 91 May, Colby M., Senior Counsel, Office of Governmental Affairs, American Center for Law and Justice 175 McFarland, Steven T., Director, Center for Law and Religious Freedom 176 Nolan, Patrick, President, Justice Fellowship 165 Raskin, Jamin, Professor, Washington College of Law, American University ... 214 Schaerr, Gene, Attorney, Sidley & Austin, Washington, DC 47 Shoulson, Bruce D., Attorney at Law, Lowenstein Sandier, P.C 199 Stern, Marc, Director, Legal Department, American Jewish Congress 54 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Berg, Thomas C., Professor, Cumberland Law School, Samford University: Prepared statement 23 Durham, W. Cole, Jr., Brigham Young University Law School: Prepared state­ ment 133 Eisgruber, Christopher L., Professor, New York University School of Law: Prepared statement 34 Farris, Michael P., President, Home School Legal Defense Association: Pre- pared statement 172 Green, Steven K., Legal Director, Americans United for Separation of Church and State: Prepared statement 210 (III) IV Page Hamilton, Marci, Professor, Benjamin N. Cardozo School of Law, Yeshiva University: Prepared statement 41 Ivory, Reverend Elenora Giddings, Director, Washington Office, Presbyterian Church (USA): Prepared statement 204 Laycock, Douglas, Professor, Associate Dean for Research, University of Texas Law School: Prepared statement June 16, 1998 8 July 14, 1998 225 McFarland, Steven T., Director, Center for Law and Religious Freedom: Pre- pared statement 178 Nadler, Hon. Jerrold, a Representative in Congress from the State of New York: Prepared statement June 16, 1998 69 July 14, 1998 198 Nolan, Patrick, President, Justice Fellowship: Prepared statement 167 Raskin, Jamin, Professor, Washington College of Law, American University: Prepared statement 218 Schaerr, Gene, Attorney, Sidley & Austin, Washington, DC: Prepared state­ ment 50 Stern, Marc, Director, Legal Department, American Jewish Congress: Pre- pared statement 57 RELIGIOUS LIBERTY PROTECTION ACT OF 1998 TUESDAY, JUNE 16, 1998 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to call, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chair- man of the subcommittee] presiding. Present: Representatives Charles Canady, Robert C. Scott and Jerrold Nadler. Staff Present: John Ladd, Chief Counsel; Robert J. Corry, Coun­ sel; Cathleen Cleaver, Counsel; Michael Connolly, Staff Assistant; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel. OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY. The subcommittee will be in order. This is the fourth hearing the subcommittee has conducted over the last year concerning the protection of religious liberty in the wake of the Boerne v. Flores decision of the Supreme Court. Today's hearing will focus specifically on H.R. 4019, the Religious Liberty Protection Act of 1998, legislation which Mr. Nadler and I introduced last week. [The information referred to follows:] 105TH CONGRESS 2D SESSION H. R. 4019 To protect religious liberty. IN THE HOUSE OF REPRESENTATIVES JUNE 9, 1998 Mr. CANADY of Florida (for himself and Mr. NADLER) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To protect religious liberty. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Religious Liberty Protection Act of 1998". (1) 2 SEC. 2. PROTECTION OF RELIGIOUS EXERCISE. (a) GENERAL RULE.—Except as provided in subsection (b), a government shall not substantially burden a person's religious exercise— (1) in a program or activity, operated by a government, that receives Fed­ eral financial assistance; or (2) in or affecting commerce with foreign nations, among the several States, or with the Indian tribes; even if the burden results from a rule of general applicability. (b) EXCEPTION.—A government may substantially burden a person's religious exercise if the government demonstrates that application of the burden to the per- son— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) FUNDING NOT AFFECTED.—Nothing in this section shall be construed to au­ thorize the United States to deny or withhold Federal financial assistance as a rem­ edy for a violation of this Act. (d) STATE POLICY NOT COMMANDEERED.—A government may eliminate the sub­ stantial burden on religious exercise by changing the policy that results in the bur- den, by retaining the policy and exempting the religious exercise from that policy, or by any other means that eliminates the burden. (e) DEFINITIONS.—As used in this section— (1) the term "government" means a branch, department, agency, instrumen­ tality, subdivision, or official of a State (or other person acting under color of State law); (2) the term "program or activity" means a program or activity as defined in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a); and (3) the term "demonstrates" means meets the burdens of going forward with the evidence and of persuasion. SEC. 3. ENFORCEMENT OF THE FREE EXERCISE CLAUSE. (a) PROCEDURE.—If a claimant produces prima facie evidence to support a claim of a violation of the Free Exercise Clause, the government shall bear the burden of persuasion on all issues relating to the claim, except any issue as to the existence of the burden on religious exercise. (b) LAND USE REGULATION.— (1) LIMITATION ON LAND USE REGULATION.—No government shall impose a land use regulation that— (A) substantially burdens religious exercise, unless the burden is the least restrictive means to prevent substantial and tangible harm to neigh- boring properties or to the public health or safety; (B) denies religious assemblies a reasonable location in the jurisdiction; or (C) excludes religious assemblies from areas in which nonreligious as­ semblies are permitted. (2) FULL FAITH AND CREDIT.—Adjudication of a claim of a violation of this subsection in a non-Federal forum shall be entitled to full faith and credit in a Federal court only if the claimant had a full and fair adjudication of that claim in the non-Federal forum. (3) NONPREEMPTION.—Nothing in this subsection shall preempt State law that is equally or more protective of religious exercise. (4)
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