S 14350 CONGRESSIONAL RECORD — SENATE October 26, 1993 did, neither do I. That is precisely the Proponents of the Babbitt-Reid lan­ The PRESIDING OFFICER. Under point. guage have argued that we do not have the previous order, the clerk will state The Babbitt-Reid proposal represents any choice but to accept the conference the bill by title. a sweeping change in Federal policy report, and that to refuse to invoke The assistant legislative clerk read governing public lands, and yet there cloture is to endanger funding for any as follows: has not been a single hearing on the number of important items included A bill (S. 578) a bill to protect the free ex­ issue in this body. There is no commit- elsewhere in the bill. Mr. President, ercise of religion. tee report, no testimony, and no legis­ this is nonsense. Particularly offensive The Senate proceeded to consider the lative history. Members of this body is the notion that we are somehow bill. have had no opportunity to offer compelled to accept the position of the Mr. MITCHELL. Madam President, I amendments or clarify particular pro- House authorizing committee, despite understand that there are likely to be visions. This proposal was instead ne­ the fact that the House itself has been two votes as a result of the consider­ gotiated by the administration with a roundly chastising this body all year ation of this measure, pursuant to this small, exclusive group of Members and long for including any authorizing lan­ order. presented to the Senate as a fait guage in appropriations bills. I now state that there will be no fur­ accompli. I would remind my col­ If we fail to pass this bill, it will be ther rollcall votes this evening, and leagues that this provision appeared in the fault of those who are so doggedly that the two votes on this measure will neither the House nor the Senate bill. insisting upon including all 19 pages of occur no earlier than 10 a.m. tomorrow. There are a number of reasons why the Babbitt-Reid compromise. We have And I expect they will be at 10 a.m., this Senator wants a more thorough already had two cloture votes on this but I will consult with the staffs, both hearing of this measure. First, I am bill, and it is clear that it is going no- Democratic and Republican, with re­ very concerned about the potential im­ where unless the Babbitt-Reid lan­ spect to setting that precise time, and pacts of the water rights language in guage is dropped. In this case, the I will have an announcement on that the Babbitt-Reid proposal. Particularly "guardians of gridlock" are those who shortly, either directly or through the worrisome is the provision in the bill insist that the language be maintained. managers. that directs the United States to "as­ I have every confidence that if con­ So there will be no further votes this sert its claims and exercise its rights cerned parties begin earnest negotia­ evening. I am advised that a request to water developed on public lands to tions aimed at giving the authorizing has been made by our colleagues that benefit the public lands and resources committees an opportunity to consider the vote tomorrow morning occur at thereon." Rarely have I seen such a de­ the administration's rangeland reform 10. I want to check that with the staffs, ceptively expansive sentence in a piece proposal, we can pass the conference and I will announce that shortly. of legislation. report by Thursday evening. If we fail Mr. KENNEDY. Madam President, I This and other provisions in the bill to do so, the blame will lie not with yield myself 10 minutes. could impact all manner of develop­ those Senators opposing cloture, but Mr. KENNEDY. Madam President, ment, and even prevent use of water with those who insist upon ramrodding many of the first settlers in America derived from public lands. The Energy this provision through Congress on this fled persecution abroad in search of re­ Committee has provided a partial list appropriations bill. ligious freedom. The Nation founded by of just the hydroelectric projects that those courageous pioneers holds as one could be affected, and I note that the ORDER OF PROCEDURE of its most basic rights the guarantee list includes two projects in Washing- Mr. KENNEDY. Madam President, I of that freedom. ton State. One of these projects, the understand that the majority leader Freedom of religion is the first right Rock Island Dam on the Columbia. will be here momentarily to place be- protected by the first amendment. River, is a massive 600-plus-megawatt fore the Senate the Religious Freedom Even before freedom of speech or free­ facility that contributes a great deal of Restoration Act. When he does, as I un­ dom of the press, the first amendment nonpolluting, renewable energy for the derstand it, the only amendments in prohibits government itself from estab­ Northwest region. I would like to think order will be the Kennedy-Hatch clari­ lishing any form of state religion, or I could trust the Interior Department fying technical amendments on which from interfering with any citizen's free not to use provisions of the Babbitt- there will be a time limitation of 10 exercise of religion. Reid proposal to impose operating con­ minutes: a Reid amendment on ex­ The Supreme Court's 1990 decision in ditions on the Rock Island project, but empting prisons from the bill's provi­ Oregon Employment Division versus I can not. I have the greatest respect sions, 21/2hours. There will be 30 min­ Smith dealt a serious setback to this for Bruce Babbitt, but it is clear that utes for debate on the bill, with all first amendment freedom. Before that we view public land use issues dif­ time to be equally divided and con- decision, under long-established doc- ferently. It is also clear that there will trolled in the usual form; and that at trines of constitutional law, actions by be many other Interior Secretaries the disposition of the aforementioned Federal, State, or local governments after Mr. Babbitt, and that neither the amendments and the use or yielding that interfered with a citizen's ability proponents nor opponents of this legis­ back of the time, the bill, as amended, to practice religion were prohibited, lation know how future administra­ if amended, be advanced to third read­ unless the restriction met a strict two- tions may interpret this language. ing. part test—first, that it was necessary Mr. President, if we are given the That, as I understand it, is the cur- to achieve a compelling governmental chance to consider this issue in the rent situation. We look forward to the interest; and second, that there was no proper legislative process, we will have opportunity to begin this extremely less burdensome way to accomplish the the opportunity to seek answers to important and significant debate on goal. these questions. We will have an oppor­ one of the most basic and fundamental The compelling interest test has been tunity to clearly establish congres­ rights and liberties of our country. I the prevailing legal standard protect- sional intent, and can avoid the endless see the majority leader on the floor. ing the free exercise of religion for stream of lawsuits that will result I yield the floor. nearly 30 years, and the standard had from the Babbitt-Reid proposal if it is worked well. Yet, the Court in the adopted. Smith case saw fit to overrule that This is not gridlock, Mr. President. RELIGIOUS FREEDOM test. Instead, it declared that there is This is a bipartisan group of concerned RESTORATION ACT OF 1993 no special constitutional protection for Senators that is insisting that Con­ Mr. MITCHELL. Madam President, religious liberty, as long as the law in gress do its job properly. I do not gen­ pursuant to the authority vested in me question is neutral on its face as to re­ erally have an objection to including under order No. 163, regarding S. 578, I ligion and is a law of general applica­ authorizing language in appropriations now ask the chair to lay before the tion. bills when necessary, but it is absurd Senate S. 578, the Religious Freedom It is clear, however, that some gen­ to include some 19 pages of such lan­ Restoration Act, subject to the terms eral laws can burden the exercise of re­ guage without any compelling reason. as set forth in that order. ligion every bit as much as laws that October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14351 are directed specifically at religious mittee on Public Affairs, the American adopted a standard that is plainly less ac- activity. As Justice Sandra Day O'Con­ Civil Liberties Union, Concerned commodating to the prisoners' exercise of re- nor stated in her separate opinion in Women for America, People for the ligious rights. During that period, prisoners the Smith case, which sharply criti­ American Way, the American Jewish attempted to gain privileges based on fab- cized the Court's ruling: Committee, and the U.S. Catholic Con- ricated free exercise claims. Not surpris­ ingly, those types of claims have continued [F]ew States would be so naive as to enact ference. These organizations don't even under the standard of O'Lone and Turn- a law directly prohibiting or burdening a re­ agree on much—but they do agree on er. They will doubtless continue whether S. ligious practice as such. Our free exercise the need to pass the Religious Freedom 578 becomes law or not. cases have all concerned generally applicable Restoration Act. laws that had the effect of significantly bur­ In my view, the four dissenters in O'Lone dening a religious practice. If the First I commend my colleague Senator had the better of the argument. They would Amendment is to have any vitality, it ought HATCH for his leadership and his com­ have required prison administrators to dem­ not to be construed to cover only the ex­ mitment to this legislation. We are onstrate that the restrictions imposed in treme and hypothetical situation in which a pleased to be joined by 59 of our col­ that case—preventing certain Muslims from State directly targets a religious practice. leagues in sponsoring this bill. attending a religious service central to their faith—furthered a compelling government The reasoning of the Smith decision President Clinton has endorsed the interest and were no greater than necessary was also sharply criticized by Justice legislation, and Attorney General Reno to achieve legitimate penological objectives. Souter in his concurring opinion last has written to express her strong sup- This standard parallels that incorporated in June in Church of Lukumi Babalu Aye port. The House of Representatives S. 578. versus Hialeah. Justice Souter urged passed the bill by voice vote on the Certainly, the strong interest that prison the Court to reconsider the Smith rule, Suspension Calendar in May. I urge my administrators and society in general have stating: colleagues to support this important in preserving security, order, and discipline and needed legislation. in prison will receive great weight in the de- "Neutral, generally applicable" laws, termination whether the government meets drafted as they are from the perspective of Madam President, just before we begin the debate of our friend and col­ the compelling interest test when there is a the non-adherent, have the unavoidable po­ claim that exercise of religious rights is bur­ tential of putting the believer to a choice be­ league, Senator REID, on an important dened and whether it has pursued the least tweenGodand government. provision relating to prisons, I would restrictive means of doing so. Activities that In other words, a church denied the like to make just some comments on are presumptively dangerous or carry a de­ right to use wine in a communion serv­ that matter which we will have further monstrable likelihood of jeopardizing dis­ ice is just as adversely affected if the opportunity to discuss this evening and cipline within a prison will continue to be restriction is brought about by a gen­ perhaps for a brief time tomorrow be- subject to regulation after enactment of S. eral prohibition on alcohol consump­ fore the vote. 578. tion as by a specific law banning alco­ The guarantee of freedom of religion Likewise, prison administrators will retain hol in religious services. protected by the first amendment con­ authority, in many instances, to regulate tains no exemptions, and this legisla­ the time, place, and manner of an inmate's The Smith decision has created a cli­ exercise of religion. Restrictions that do not mate in which the free exercise of reli­ tion should contain no exemptions. We deny inmates the opportunity to engage in gion is jeopardized. At the Judiciary would encourage prisoners to be reli­ otherwise permissible religious practice, but Committee hearings on this legisla­ gious. There is every reason to believe merely require them to pursue such activi­ tion, the Reverend Oliver S. Thomas, that doing so will increase the likeli­ ties within the context of prison life, likely appearing on behalf of the Baptist hood that a prisoner will be rehabilita­ will not substantially burden inmates' free Joint Committee on Public Affairs and tion. exercise rights and will be permissible. the American Jewish Committee, testi­ The U.S. Department of Justice This is the essential part of the At­ fied as follows: through the Bureau of Prisons operates torney General's letter— Since Smith was decided, governments 73 correctional facilities which house I, therefore, strongly urge the Committee throughout the U.S. have run roughshod over more than 84,000 inmates. to approve S. 578 without amendment. Attorney General Reno wrote to the religious conviction. Churches have been Similarly a total of 13 State attor­ zoned even out of commercial areas. Jews Judiciary Committee to state that an have been subjected to autopsies in violation amendment would be unwarranted and neys general have signed a letter ex- of their families' faith. * * * In time, every that the Senate should approve the bill pressing the opposition to the Reid religion in America will suffer. without an amendment to exempt pris­ amendment. The Religious Freedom Restoration ons from the legislation. I would like I ask unanimous consent that that Act is designed to restore the compel- to read from that letter from the At­ letter be printed at the appropriate ling interest test for deciding free exer­ torney General: place in the RECORD. cise claims. It does so by establishing a Concerns have been expressed that the There being no objection, the letters statutory right that adopts the stand­ standard of review of S. 578 will unduly bur- were ordered to be printed in the ard previously used by the Supreme den the operation of prisons and that the bill RECORD, as follows: Court. In essence, the act codifies the should be amended to adopt a standard more STATE OF NEW YORK, favorable to prison administrators when con- DEPARTMENT OF LAW, requirement for the Government to fronted with the religious claims of pris­ demonstrate that any law burdening New York, NY, October 19, 1993. oners. These concerns have been presented DEAR SENATOR: The undersigned Attorneys the free exercise of religion furthers a by knowledgeable and sincere individuals for General support the passage of the Religious compelling governmental interest, and whom I have great respect, but I respectfully Freedom Restoration Act ("RFRA"), S. 578, is the least restrictive means of achiev­ disagree with their position and urge the without amendment. ing that goal. committee to approve the bill without We oppose Senator Reid's amendment ex­ The act creates no new rights for any amendment. empting prisons from RFRA and believe that religious practice or for any potential Prior to 1987, the Supreme Court had not the Senate Judiciary Committee's report litigant. Not every free exercise claim distinguished explicitly between the stand­ language regarding RFRA's effect on pris­ will prevail, just as not every claim ard of review applicable to the religious oner claims strikes a proper balance between claims of prisoners and those of others. In the right of free religious expression and the prevailed prior to the Smith decision. that year, for the first time, it held that a critical need for cost effective security and The bill simply restores the long-estab­ prison regulation that impinges on an in- order in our nation's penal institutions. lished standard of review that had mate's right of free exercise "is valid if it is Based on past experience with RFRA's worked well for many years, and that reasonably related to legitimate penological legal standard, the bill will neither jeopard­ requires courts to weight free exercise interests." O'Lone v. Estate of Shabazz, 482 ize prison security nor produce significant claims against the compelling-state-in­ U.S. 342, 349 (1987), quoting Turner v. Safley, increases in costs. Although prisoner litiga­ terest test. 483 U.S. 78, 89 (1987). Thus, the Court had tion is indeed an enormous and growing abandoned the compelling interest standard problem, free exercise of religion claims are The act is supported by a broad coali­ regarding inmate claims only a few years made in only a tiny fraction of these cases. tion of organizations with differing prior to doing so for the general population In New York, for example, only 1% of all views on many issues of our day, in­ in Smith. cases involve free exercise claims, and the cluding the National Association of Prisons had operated under Sherbert for a percentage of such cases has remained essen­ Evangelicals, the Baptist Joint Com­ number of years before O'Lone and Turner tially constant in recent years even as Su- S 14352 CONGRESSIONAL RECORD — SENATE October 26, 1993 preme Court decisions were substantially handles all related litigation, has advocated On page 2, line 14, insert "substantially" changing the applicable legal standard. adoption of RFRA without amendment. before "burden". We concur with U.S. Attorney General I have the greatest respect for the men and On page 3, line 5, insert "substantially" be- Janet Reno in advocating adoption of RFRA women who face the unique difficulties and fore "burdened". without amendment. pressures associated with managing a prison. On page 3, line 7, insert "substantially" be- Sincerely, I also share your conviction in the central fore "burdened". Robert Abrams, Attorney General of New importance of religious liberty in our con­ On page 3, line 9, insert "substantially" be- York; Hubert H. Humphrey III, Attor­ stitutional system. Because I believe that fore "burden". ney General of Minnesota; James E. RFRA strikes the right balance between On page 3, line 13, insert "substantially" Doyle, Attorney General of Wisconsin: both interests, I applaud your efforts and before "burden". Scott Harshbarger, Attorney General hope that the Senate acts promptly to pass The PRESIDING OFFICER. The Sen­ of Massachusetts; Larry EchoHawk, RFRA without a prison amendment. ator from Utah is recognized. Attorney General of Idaho; Roland W. Sincerely, Mr. HATCH. Mr. President, let me Burris, Attorney General of Illinois; ROBERT ABRAMS. John Payton, Corporation Counsel, say a few words about the technical District of Columbia; Michael E. Car­ Mr. KENNEDY. Madam President, I amendment, and if I could talk about penter, Attorney General of Maine; point out there are a number of State the bill itself I would appreciate it. Winston Bryant, Attorney General of attorneys general who feel the other The distinguished Senator from Mas­ Arkansas; Richard Blumenthal, Attor­ way. sachusetts has said the technical ney General of Connecticut; J. Joseph Madam President, if I could yield amendment is intended to clarify the Curran, Jr., Attorney General of Mary- myself just 3 minutes on the clarifying compelling interest required by the Re­ land; Dan Morales, Attorney General of amendment. Texas; Jeffrey B. Pine, Attorney Gen­ ligious Freedom Act applies only where eral of Rhode Island. The PRESIDING OFFICER. The Sen­ there is a substantial burden placed on ator has 4 minutes remaining. the individual free exercise of religion. STATE OF NEW YORK, Mr. KENNEDY. I think there is a des­ This is consistent with the case law DEPARTMENT OF LAW, ignated 10 minutes on that, and I would developed by the Court prior to the New York, NY September 13, 1993. like to yield myself from that time. Smith decision, as thus stated in the Hon. EDWARD M. KENNEDY, The PRESIDING OFFICER. The Sen­ committee report. U.S. Senate, Russell Senate Office Building, ator has 10 minutes on the amendment. It does not require the Government Washington, DC. If there is no objection, the Senator to justify every action that has some Hon. ORRIN G. HATCH, can use his time. U.S. Senate, Russell Senate Office Building, effect on religious exercise. Only ac­ Washington, DC. Mr. KENNEDY. I will proceed for 3 tion that places a substantial burden DEAR SENATORS KENNEDY AND HATCH: I minutes. I thank the Chair. on the exercise of religion must meet write to express my support for passage of Madam President, this amendment I the compelling State interest set forth the Religious Freedom Restoration Act will offer on behalf of Senator HATCH in the Religious Freedom Restoration ["RFRA"] without amendment. I applaud and myself is intended to make it clear Act. your efforts for passage of this important that the compelling interest standards With the permission of the distin­ legislation. set forth in the act provides only to guished Senator from Massachusetts, I The bill you drafted promises to restore re­ Government actions to place a substan­ ligious freedom to its proper place as a cor­ urge adoption of the amendment. nerstone of our country's best traditions of tial burden on the exercise of substan­ Mr. KENNEDY. Mr. President, I yield liberty, equality and faith. In addition, the tial liberty. Pre-Smith case law which back the remainder of my time. Senate Judiciary Committee report language makes it clear governmental action Mr. HATCH. I yield back the remain­ regarding RFRA's effect on prisoner claims places a substantial burden on the ex­ der of my time on the amendment. strikes a proper balance between interests of ercise of religion and must meet the The PRESIDING OFFICER. The religious liberty and religious rehabilitation compelling interest test set out in the question is on agreeing to the amend­ of prisoners, on the one hand, and prison ad- act. ministration, on the other. ment. The principal assertion advanced by pro­ The act would not require such a jus­ The amendment (No. 1082) was agreed ponents of a prison amendment is that RFRA tification for every governmental ac­ to. will lead to a significant expansion of pris­ tions that have an incidental effect on Mr. KENNEDY. Mr. President, I oner litigation. This is a serious charge. As religious institutions. The amendment move to reconsider the vote. Attorney General of New York, the second we will offer today is intended to make Mr. HATCH. I move to lay that mo­ largest state, I defend prisoner claims it clear that the pre-Smith law is ap­ tion on the table. against one of the largest and most diverse plied under the RFRA in determining prison systems in our nation. Prisoner litiga­ The motion to lay on the table was tion as a whole is a drain on the resources of whether Government action burden agreed to. attorney general's offices, and prisoners under the freedom of religion must The PRESIDING OFFICER. The Sen­ bring a significant number of frivolous meet the test. ator from Utah is recognized for 15 claims. We would certainly be concerned Mr. President, I ask unanimous con- minutes under his control. about a large-scale expansion of such claims. sent that it be in order to consider that Mr. HATCH. Mr. President, I am However, the significant increase in the clarifying amendment at the present number of prisoner cases in recent years has pleased to join Senator KENNEDY as not been due to the standard that RFRA time. principal sponsor of the Religious Free­ seeks to restore. While I believe that some- The PRESIDING OFFICER (Mr. dom Restoration Act of 1993. I urge its thing must be done to address the serious CAMPBELL). Without objection, it is so adoption without amendment. problems caused by the explosion of prisoner ordered. The Religious Freedom Restoration litigation, this bill will, in fact, have little AMENDMENT NO. 1082 Act restores to all Americans a fun­ impact on the number of prisoner claims. Mr. KENNEDY. Mr. President, I send Claims dealing with religious exercise con­ damental right guaranteed by the first stitute only about one percent of all prisoner an amendment to the desk and ask for amendment: the free exercise of reli­ claims in New York State. its immediate consideration. gion. This act is one of the most sig­ The PRESIDING OFFICER. The I cannot speak directly for other State At­ nificant pieces of legislation in support torneys General, but I am aware that a num­ clerk will report the amendment. of religious freedom to every come be- ber of those who signed a May 5 letter en­ The assistant legislative clerk read fore Congress. It has the backing of one dorsing a prison amendment have subse­ as follows: of the broadest coalitions ever assem­ quently indicated, either privately or pub­ The Senator from Massachusetts [Mr. KEN­ bled to support a bill before Congress. licly, that the letter no longer represents NEDY], for himself and Mr. HATCH, proposes This coalition encompasses a wide their point of view on the issue. I would also an amendment numbered 1082. range of religious faiths and an ideo­ point out that, at its Summer Meeting in July, the National Association of Attorneys Mr. HATCH. Mr. President, I ask logical spectrum ranging from the General considered, but declined to adopt, a unanimous consent that the reading of American Civil Liberties Union to the resolution endorsing a prison amendment to the amendment be dispensed with. Coalitions for America. RFRA. Also, as you know, U.S. Attorney The PRESIDING OFFICER. Without Our Nation was founded, in large General Janet Reno, whose department ad- objection, it is so ordered. part, by individuals fleeing religious ministers the Federal prison system and The amendment is as follows: persecution and seeking tolerance, October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14353 safety, and protection in the exercise regulations which infringe on the ligious freedom ought to be encouraged of their religion. Through the wisdom rights to the free exercise of religion. in this country. It is the first freedom and foresight of the Founding Fathers, This is really an important bill. mentioned in the Bill of Rights. And, the Bill of Rights was drafted and rati­ In still another case, Cornerstone frankly, that is what Senator KENNEDY fied in the first Congress to protect the Bible Church v. City of Hastings, 948 F.2d and I are arguing for here today with a rights of individuals in our newly 464 (8th Cir. 1991), a court upheld zoning wide, vast coalition across the country formed Republic. laws excluding all religious organiza­ that believes in restoring religious Our forefathers fully understood the tions from engaging in church-related freedom to the point where it was be- need to protect religious minorities. In activities in a city's central business fore the Supreme Court decision in the very first amendment to the Con­ district. The churches' claims which Smith. stitution, they choose to limit the relied on the free exercise clause were Mr. President, I reserve the remain­ power of Government and the will of summarily dismissed, reaffirming that der of our time. We are prepared to the majority from unnecessarily bur­ this clause in the first amendment has move to the amendment of the distin­ dening an individual. The first amend­ been seriously eroded after the Smith guished Senator from Nevada. ment provides: decision. Mr. REID. Mr. President, how much Congress shall make no law respecting an In yet another example of the devas­ time do the proponents of the bill establishment of religion, or prohibiting the tation Smith continues to spread on have? free exercise thereof; those dependent on the free exercise of The PRESIDING OFFICER. The Sen­ Recently, in Employment Division religion, Mr. You Vang Yang suffered a ator from Massachusetts has 3 minutes versus Smith, the Court departed from terrible experience when State govern­ 56 seconds, and the Senator from Utah ment officials performed an autopsy on has 7 minutes and 12 seconds. well established principles embodied in his son despite his deeply held religious the first amendment when the Court There are 2½ hours on the Reid beliefs prohibiting the mutilation of amendment. ruled that any valid State interest the body through an autopsy. Govern­ would supersede an individual's right AMENDMENT NO. 1083 ment officials, acting primarily out of (Purpose: To prohibit the application of this of free exercise of religion. In a prac­ medical curiosity, callously ignored tical sense, the decision eliminated any Act, or any amendment made by this Act, the decedent's and his family's firmly to an individual who is incarcerated in a real protection for religious exercise held religious beliefs. Once again, after Federal, State, or local correctional, de­ whenever a law of general applicability the Smith decision, the victims were tention, or penal facility) burdens such exercise. In my view, the left without recourse to challenge ef­ Mr. REID. Mr. President, I send an Smith decision does not adequately fectively the presumptively valid gov­ amendment to the desk and ask for its protect the religious privileges envi­ ernmental regulations. immediate consideration. sioned by our founding fathers and em- Originally, senior district court The PRESIDING OFFICER. The bodied in the first amendment. Judge Pettine ruled in favor of Mr. clerk will report. The elimination of the compelling in­ Yang. In his subsequent opinion, senior The assistant legislative clerk read terest standard has led to a string of district court Judge Pettine explained as follows: lower court decisions eroding freedom how the Smith decision left him power- The Senator from Nevada [Mr.REID],for of religion in a wide variety of areas. less to protect those asserting their re­ himself, Mr. SIMPSON, Mr. BRYAN, Mr. SAS­ To date, the lower courts, relying on ligious liberty. He expressed his deep SER, Mr. MATHEWS, Mr. BURNS, and Mr. Smith, have overridden religious lib­ regret that the Employment Division HELMS, proposes an amendment numbered erty interests in over 60 cases. case mandated the recall of his prior 1083. For example, in a Minnesota case, opinion. He stated: Mr. REID. Mr. President, I ask unan­ Matter of Welfare of T.K., 475 N.W.2d 88 My regret stems from the fact that I have imous consent that reading of the (Minn. App. 1991), county government the deepest sympathy for the Yangs. I was amendment be dispensed with. officials were comfortable in seeking moved by their tearful outburst in the court- The PRESIDING OFFICER. Without room during the hearing on damages. I have objection, it is so ordered. the removal of two minor children seldom in twenty-four years on the bench, from their homes and parents when the seen such a sincere instance of emotion dis­ The amendment is as follows: minors' parents refused to allow their played. I could not help but also notice the At the end of the bill, add the following: children to take a standardized test in reaction of a large number of Hmongs who SEC. CONSTRUCTION. violation of their religious beliefs. The had gathered to witness the hearing. The si­ Notwithstanding any other provision of childrens' mother had been home lent tears shed in the still courtroom as they this Act, nothing in this Act or any amend­ teaching her children in several sub­ heard the Yangs testimony provided stark ment made by this Act shall be construed to jects including reading, writing, lit­ support for the depth of the Yangs' grief. affect, interpret, or in any way address that portion of the First Amendment regarding erature, fine arts, mathematics, That is a judge speaking, who had no laws prohibiting the free exercise of religion, science, history, geography, health, choice, because of the Smith decision, with respect to any individual who is incar­ and physical education. The county other than to rule the way he did in his cerated in a Federal, State, or local correc­ government, however, sought and won opinion. tional, detention, or penal facility (including court approval to remove the children This bill is important to our country any correctional, detention, or penal facility relying on neutral State laws permit­ because it restores to every American that is operated by a private entity under a ting the removal of children deter- the precious balance conceived by our contract with a government). mined to be in need of the Govern­ Founding Fathers between the inter­ Mr. REID. Mr. President, this amend­ ment's protection. ests of our government and the reli­ ment is being offered on my behalf, In another case, Greater New York gious liberties of our citizens. It is im­ that of Senator SIMPSON, Senator Health Care Facilities v. Axelrod, 770 portant because it restores protection BRYAN, Senator SASSER, Senator F.Supp. 183 (S.D.N.Y. 1991), the court to individuals like the Yangs and oth­ MATHEWS, Senator BURNS, and Senator summarily rejected challenges to ers who have suffered needlessly. This HELMS. health regulations limiting the service bill will restore religious freedom to First, let me say I am proud to be a of volunteers in nursing homes despite every American whose free exercise of cosponsor of this important legislation. the fact the services represented a ful­ religion has been infringed upon unnec­ I congratulate the authors and the fillment of Biblical commandments to essarily by our Government. committee for creating a fine bill. This honor one's father and mother. Thus, Mr. President, this is an important bill will reestablish the judicial test re­ an individual who, because of his bill. This bill involves the rights of garding any Federal or State law im­ strong religious beliefs, desires to vol­ every American citizen. pacting the freedom of religion. That unteer his service to his convalescent The Smith case was wrongly decided test is that the Government must put parents can be prohibited from doing and the only way to change it is with forth a compelling interest, narrowly so. More important, if this legislation this legislation. tailored, regarding any rule, regulation is not enacted, an individual would Mr. President, I hope this legislation of law impacting the free exercise of have no basis to challenge Government is not amended in any way, because re- religion. S 14354 CONGRESSIONAL RECORD — SENATE October 26, 1993 The Government must also show that by asserting it was religious material, who practice the Moslem religion, it this rule is the least restrictive alter- protected by the first amendment. has nothing to do with my thinking native. In society at large, this is as it There were gruesome cartoon illustra­ that the religion is not a good one. I should be. tions of African-Americans being muti­ believe it is a wonderful religion. I am concerned, however, because I lated, tortured, and generally op­ Recently we watched the life threat­ have come to realize last year in our pressed by whites. And what accom­ ening situation in Lucasville, OH, federal system we had 48,538 criminal panied this was a text preaching racial where some Moslem inmates de­ cases filed. I also learned that in that hatred and the need for separation, manded, as a condition to the release same Federal system we had 49,939 civil which formed the basis of the religious of their hostages, an exemption from cases brought by prisoners. We had tracts contained in this material. the requirement they be tested for tu­ more cases filed by prisoners than the The U.S. District Court for the berculosis, asserting religious reasons. Government filed cases against crimi­ Southern District of Florida, applying We cannot allow that to happen. Prison nals. I am concerned the criminals are the compelling State interest test and is a closed society with prisoners living ahead in our Federal court system by the strict scrutiny analysis, ordered very close. They must be tested for 1,401 cases. Florida to provide this literature to contagious disease. Testing is abso­ What my amendment would do is rec­ the inmate population. lutely, unequivocally necessary. Such a ognize that the situation in prisons is Hard to comprehend, but true. The group might win a case like this if this different. Prisoners should be treated final outcome of this case is still pend­ bill is adopted without my amendment. differently. ing because it is on appeal. Obviously All I am saying is we have to treat I have become concerned with what the passage of this bill, without my prisoners differently than the general this bill will mean in a prison setting. amendment and that of Senator SIMP- populous. I do not think that is really Putting prisons under the compelling SON and others, will affect the final out of line. State interest test would permit the outcome. Under the least restrictive means courts to second guess prison officials In Indiana a religious group, at clause of RFRA, such a group might be on virtually every decision of prison Westville Correctional Center, has de­ able to win other costly arrangements administration—virtually every deci­ manded to meet in groups combining to separate them from the rest of the sion. The prisoners brag about how inmates who have been separated for prison population. Not only would that many lawsuits they file. There are security reasons. Though in an ideal be costly to the State, but creates a some jailhouse lawyers who have filed world we would say the congregations dangerous situation with jealous pris­ hundreds and hundreds of these cases. should be able to worship together, oners seeing others get special privi­ Inmates are litigious by nature, espe­ there are certain very bad people in leges. It is the prisoner who can think cially with the new rules. They have to prisons that should not be in the same up the religion of the week or the day be supplied with law libraries with the room together. that gets treated the best. ability to perform legal services. So ap­ I had a case once—I can still remem­ I could go on and on with all kinds of plying the compelling State interest ber the name of it—involving a murder- other cases. The cases only get more test would only exacerbate an already, by-hire case. In that case we brought bizarre, and under RFRA they would I believe, deplorable situation. Pris­ inmates from the Nevada State prison, become even more bizarre and more oners would challenge every aspect of from Carson City, to Las Vegas to tes- winnable by the inmates. We have had their incarceration by merely stating tify. There were two of them, so bad all kinds of cases in Nevada. their desires are part of their religious that they had to testify on the witness The one I think I should report to the expression, and the lawsuits will be stand shackled, arms and legs. Senate is, some man said he was in more easily won than in the past. There are certain people in our pris- prison for child abuse but he should not Courts will no longer be able to dis­ on system that for lack of a better be because it was his religion. He be- miss cases by summary procedures, for word are just bad people. This religious lieved in abusing children. That was example, a motion for summary judg­ group wanted to meet in groups saying his religion and they should leave him ment. Rather, there will have to be they had no right to separate inmates alone. full-blown evidentiary hearings to de­ for security reasons. It is just a fact of Suits brought by prisoners in my termine whether the prisons have any prison life; RFRA will create this dan- State have already cost our State over other means available to accommodate gerous situation unless we amend this $1 million a year and the price is going the inmate. bill. up. These are only the cases dealing This is going to cause significant fi­ In Tennessee, four white inmates with religion. nancial hardship to a State like Ne­ convinced prison officials that they Passage of this bill without my vada, a State like Colorado, a State were converted Moslems, thereby gain­ amendment would increase the cost like New Hampshire—any State. Al­ ing assignment to a special scheduled across this country. Prisons already do ready prisoner litigation is the most labor line the prison had created just a good job of accommodating Jewish rapidly increasing type of litigation in to accommodate Moslems. This al­ and Moslem prisoners by providing our whole country and makes up as lowed outside accomplices to place pork-free meals, and other accommoda­ much as 40 percent of the docket of guns at the work site, which allowed tions similar to this have been made. some Federal district courts. the inmates to escape, where they For example, several prisons have built Let me give a few examples to the killed a nearby resident. sweat lodges for Native American in- Senate to illustrate some of the prob­ I am going to talk about a couple of mates. The reason for that is they can lems faced by prison administrators cases here involving the Moslem reli­ do it; it is felt it is the right thing to when religion is used as a means of ob­ gion. Having done this, I am only doing do. So we have, especially in the west- taining special privileges or exemp­ this because these are some of the re- ern part of the United States, a number tions from the requirement of neutral ported cases. I want the record to be of prisons that have sweat lodges which prison facilities and regulations. spread—I have the highest regard for is part of the exercise of religion of Mr. President, I ask I be advised those who follow that faith. My man­ some Native Americans. when I have used 30 minutes. ager of my Las Vegas office until just A case in 1989, when an orthodox Jew­ The PRESIDING OFFICER. The a short time ago was a Moslem, a man ish leader was put in jail in Rochester, Chair will so advise the Senator. who is devoutly religious, a tremen­ MN, demonstrates how far prison sys­ Mr. REID. In the case of Lawson ver­ dous family man, a person whom we tems will go to accommodate religious sus Dugger, the "Temple of Love," could all learn a lot from as to moral­ practice. Talmudic law, according to founded by Yahweh Ben Yahweh—he ity. He left my office and went to the this Jewish leader who was in prison, was recently convicted of conspiracy to State to be its drug czar and now has a forbids carrying anything outside the commit murder and racketeering. He very important job with the State in a home on the Sabbath, including attempted to send this Temple of labor program. toiletries and food. So prison officials Love's racially inflammatory lit­ So, even though I mention a number sold part of the prison to this Jewish erature into the State prison system of reported cases dealing with people inmate for $1, making it technically October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14355 his home and allowing him to carry his tion, litigation under this test will impose the tremendous impact on security and state toiletries to his restroom. unnecessary costs on the taxpayers of our and local governments'finances,we urge you This is how far prison officials have states and ignores the realities of prison to support the Reid amendment and preserve gone to accommodate people's religion, management. the existing legal standards enunciated by While we applaud your efforts to extend the Supreme Court in the prison area. but where do we draw the line? Is every protection to legitimate religious groups in Sincerely, prisoner thereafter entitled to his own society at large, we ask that you recognize Norm Carlson, Director, Federal Bureau of room that he purchases? Where do we the unique nature of the closed society of Prisons (Ret.), 1970-1987. draw the line? I do not believe that the prisons, as the United States Supreme Court J. Michael Quinlan, Director, Federal Bu­ test should be whether the request is has long done. The legal standards promul­ reau of Prisons (Ret.), 1987-1992. reasonable or not. I do not believe the gated by the Supreme Court in the prison Howard A. Peters III, Director, Illinois authors of this bill intend the con- context should be preserved. The existing Dept. of Corrections Inmate population: standard requires prison administrators to 33,500. sequences that I have outlined briefly. accommodate the religious practices of in- James H. Gomes, Director. California De­ The courts, for the most part, have mates in our care and custody. However, it partment of Corrections. Inmate population: long given great deference to prison of­ permits individual rights to be balanced 116,200. ficials when it comes to constitutional against the needs of the prison community Larry Norris, Acting Director, Arkansas rights of prisoners. My amendment is as a whole and the overriding need for secu­ Dept. of Corrections. Inmate population: supported by every warden, every pris­ rity and order. 7,900. on director in every State in the Leaders of illicit prison organizations are Thomas A. Coughlin, Commissioner, New Union. I ask unanimous consent that a sophisticated individuals who will readily York Department of Corr. Services. Inmate letter signed by all 50, including those manipulate the new standards RFRA would population: 64,500. create to perpetuate illegal and dangerous Kenneth L. McGinnis, Director, Michigan from the Virgin Islands, all 50 State activities under the guise of "religion." Dept. of Corrections. Inmate population: prison directors be printed in the Because of our responsibilities and experi­ 39,300. RECORD in support of this amendment. ence as prison administrators, we are aware Harry Singletary. Secretary, Florida Dept. There being no objection, the mate- that there are thousands of gangs and racial of Corrections. Inmate population: 51,500. rial was ordered to be printed in the supremacist groups housed in this country's Andy Collins, Director, Texas Institutional RECORD, as follows: prisons, who claim to be members of reli­ Division—TDCJ. Inmate population: 60,400. gious organizations. Often, we have faced at- Allen L. Ault, Commissioner, Georgia ILLINOIS DEPARTMENT tempts to spread racial hatred and incite ra­ Dept. of Corrections. Inmate population: OF CORRECTIONS, cial violence through "religious" materials. 28,000. Chicago, September17,1993. Further, religious claims have been used to Hon. HARRY REID, attempt to gain special privileges. Inmates Reginald Wilkinson, Director. Ohio Dept. U.S. Senate, Washington, DC. even have devised their own new religions of Rehabilitation and Corrections. Inmate DEAR SENATOR REID: As directors and com­ population: 39,400. with tenets tailored to obtain special favors Joseph D. Lehman, Commissioner, Penn­ missioners of every state prison in the Unit­ and circumvent security regulations. How- sylvania Dept. of Corrections. Inmate popu­ ed States, the District of Columbia, the ever, courts are extremely loathe to find lation: 25,800. United States Virgin Islands, and various that a group claiming to be a religion is, in Franklin Freeman, Secretary, North Caro­ jail systems throughout the country, as well fact, not a religion. Courts have found that lina Dept. of Corrections. Inmate population: as Norman Carlson, former Director of the the Church of the New Song (CONS for 21,100. Federal Bureau of Prisons for seventeen abort), the El Rukns, Satanic cults, and Richard A. Lanham, Sr., Commissioner, years and J. Michael Quinlan, Director from other groups are "religious." Thus, each re­ Maryland Division of Corrections. Inmate 1887-1992, we are writing to thank you for striction on their activities will need to be population: 19,900. proposing the amendment of Senate Bill 578 the "least restrictive" and supported by Edward W. Murray. Director, Virginia (the Religious Freedom Restoration Act, compelling reasons. Dept. of Corrections. Inmate population: RFRA). The undersigned prison and jail offi­ If prisons are not exempted from RFRA 17,000. cials represent systems which employ over and the existing legal standard preserved, William H. Fauvar, Commissioner, New 305,000 people and have custody of nearly such groups will be able to conduct con­ Jersey Dept. of Corrections. Inmate popu­ 834,000 incarcerated persons. gregate services, distribute hate literature, lation: 23,700. This bill will have a devastating affect on organize, and conduct and promote activities Thomas Herring, Commissioner, Alabama prison safety and security at an enormous which are now banned. Activities including Dept. of Corrections. Inmate population: fiscal price, unless the Reid amendment is drug trafficking, racial violence, and gang 18,238. adopted. Rather than a "restoration," RFRA organizing would be made easier under Samuel A. Lewis, Director, Arizona Dept. would dramatically change the law with re­ RFRA. These activities negatively impact on of Corrections. Inmate population: 17,200. spect to free exercise claims brought to chal­ prison order as well as the free community. Parker Evatt, Commissioner, South Caro­ lenge prison regulations. A dramatic change Correctional facilities are operating with lina Dept. of Corrections. Inmate population: in the legal standard applied in prison litiga­ diminished economic resources and the in- 17,100. tion will necessarily result in a dramatic in- mate population is exploding. Prison litiga­ Richard Stalder, Secretary, Louisiana crease in the amount and cost of litigation tion is already placing a tremendous drain Dept. of Public Safety & Corrections. Inmate and will have a deleterious impact on secu­ on those limited resources. While inmates population: 16,500. rity and limited prison resources. litigate at no or little cost to themselves, H. Christian DeBruyn, Commissioner, Indi­ During consideration of this bill in com­ taxpayers are required to subsidize the filing ana Dept. of Corrections. Inmate population: mittee, not one single prison administrator fees of inmates, pay for paper, law books, 14,800. was given an opportunity to testify as to the legal assistance, postage, Xeroxing, and wit­ Christine Bradley, Commissioner, Ten­ substantial negative impacts of imposing a ness production for prisoners' suits. Out of nessee Dept. of Corrections. Inmate popu­ "compelling state interest" standard and already strained prison budgets, we must pay lation: 11,350. "least restrictive means" test on local, state for transportation of witnesses, additional Chase Riveland, Secretary, Washington and federal correctional and detention facili­ security and transportation of inmates to Dept. of Corrections. Inmate population: ties. Some proponents of the bill argue that court appearances, legal assistance for cor­ 10,000. the "compelling state interest" standard rectional officers, and significant amounts of Dora Schriro, Director, Missouri Dept. of will not be a difficult standard for prison of­ lost staff time spent responding to inmate Corrections. Inmate population: 16,337. ficials to meet. In the absence of any testi­ claims, most of which are spurious. Prison Walter B. Ridley, Director, Washington, mony from individuals with experience in officials cannot afford to divert limited re- D.C., Dept. of Corrections. Inmate popu­ this area, it is difficult to imagine how these sources to litigate the staggering number of lation: 12,000. proponents can reach this conclusion. inmate cases which would be spawned by cre­ Larry DuBois, Commissioner, Massachu­ More importantly, this argument ignores ating a new cause of action, under a more setts Dept. of Corrections. Inmate popu­ the fact that imposition of the "least restric­ stringent standard, as RFRA proposes to do. lation: 10,000. tive means" test will subject the day-to-day In addition, we may be forced to re-litigate Jack Lewis, Commissioner, Kentucky judgment of prison officials to an inflexible all of the cases in which we have already pre­ Dept. of Corrections. Inmate population: strict scrutiny analysis by federal courts vailed under the existing constitutional 10,000. which are ill-equipped to administer the se­ standard. Eddie Lucas, Commissioner, Mississippi curity of our prisons and jails. This test does RFRA would provide inmates with rights Dept. of Corrections. Inmate population: not allow for a balancing of individual rights even greater than the Constitution guaran­ 9,670. and institutional needs. Rather, it elevates tees. RFRA would be used by inmates to Frank Hall, Director, Oregon Dept. of Cor­ asserted individual inmate rights over the cripple correctional authorities' efforts to rections. Inmate population: 6,500. operational needs of prisons and the rights of contain illegitimate organizations and to re- Ron Angelone, Director, Nevada Dept. of the inmate population as a whole. In addi­ strict their nefarious activities. Because of Prisons. Inmate population: 6,400. S 14356 CONGRESSIONAL RECORD — SENATE October 26, 1993 Sally Chandler Halford, Director, Iowa and that is wrong. We should go with An incident that happened in a pris­ Dept. of Corrections. Inmate population: 4,700. what we already have. on in Tallahassee. FL, demonstrates Patrick Fiedler, Secretary, Wisconsin These cases establish a four-part test how heated religious issues can get in Dept. of Corrections. Inmate population: for evaluation of prison regulations close quarters of a prison. Mr. Presi­ 8,500. which allegedly infringe upon inmates' dent, a group of inmates formed a Gary Stotts, Secretary, Kansas Dept. of constitutional rights. They are: pagan religious group which wor­ Corrections. Inmate population: 6,200. First, a logical connection between shipped the Sun and Moon and held J. Patrick Gallagher, Commissioner, the correctional institution's regula­ elaborate rituals at the vernal and au­ Philadelphia Prison System. Inmate popu­ tion and the legitimate Government in­ tumnal equinox. They requested a lation: 4,900. terest asserted as justification for the round wooden altar, a sword, and a Robert J. Watson, Commissioner, Delaware regulation. naked woman to dance in the moon- Dept. of Corrections. Inmate population: light. 4,300. Second, if alternative means of exer­ J.W. Fairman, Executive Director, Cook cising the right are available, more You will have to admit this religion County Dept. of Corrections. Inmate popu­ deference is owed to prison officials is interesting, to say the least. Prison lation: 9,141. when gauging the validity of the regu­ officials refused the sword and the Eloy Mondragon, Secretary, New Mexico lation than to the prisoners. woman, but they agreed to the altar Corrections Department. Inmate population: Third, consideration must be given to and had the prisoners in the woodshop 3,500. the impact that accommodation will build it. But it turned out that the in- George ———, Director. Hawaii Depart­ have on prison personnel, other in- mates building the altars were fun­ ment of Public Safety. Inmate population: damentalist Christians, who decided to 2,674. mates, and on allocation of prison re- Ari Zavaras, Executive Director, Colorado sources. hide a Bible in the altar's base. After Dept. of Corrections. Inmate population: And fourth, the absence of ready al­ several rituals, the pagans discovered 7,535. ternative means to fully accommodate the Bible and a riot ensued. James Gamble, Administrator, Montana inmates' asserted constitutional rights This shows that inmates' individual Corrections Division. Inmate population: is evidence of the reasonableness of the rights must be balanced against those 1,521. regulation. of the prison community as a whole O.L. McCottar, Director, Utah Dept. of Four simple standards, and that is all and must yield where security and Corrections. Inmate population: 2,110. order reasonably demand. Larry Fields, Director, Oklahoma Dept. of this amendment does is maintain these Corrections. Inmate population. four standards. I am at a loss as to why In Turner, one of the cases my Orville B. Pung, Commissioner, Minnesota the authors of this bill will not accept amendment maintains, the Supreme Dept. of Corrections. Inmate population: this amendment. Senator SIMPSON filed Court summarized the impact of hold­ 4,000. a minority report which I think was ing corrections to the "compelling George A. Vose, Jr., Director, Rhode Island very lucid and pointed, and I think the State interest" test and the "least re­ Dept. of Corrections. Inmate population: committee should have followed him. I strictive means" standard: 3,000. think this amendment will be adopted Subjecting the day-to-day judgments of Harold Clarke, Director, Nebraska Dept. of by the Senate because it is the right prison officials to an inflexible, strict secu­ Corrections. Inmate population: 2,700. thing to do. rity analysis would seriously hamper their N.E. Pishon, Acting Commissioner, New ability to anticipate security problems and Hampshire Dept. of Corrections. Inmate pop­ This standard that I have established to adopt innovative solutions to the intrac­ ulation: 1,700. in my statement to the Senate tonight table problems of prison administration. The Richard A. Vernon, Director, Idaho Dept. and also the amendment I offered gives rule would also distort the decisionmaking of Corrections. Inmate population: 2,400. prison officials clear guidelines on process, for every administrative judgment J. Frank Prewitt, Jr., Commissioner, Alas­ which to base regulations. Under these would be subject to the possibility that some ka Department of Corrections. Inmate popu­ court somewhere would conclude that it had lation: 2,878. guidelines, prison regulations which a lees restrictive way of solving; the problem Nicholas Thin, Commissioner, West Vir­ impact on the exercise of first amend- at hand. Courts inevitably would become the ginia Department of Corrections. Inmate ment rights will pass constitutional primary arbitrators of what constitutes the population: 2,000. muster if they are—and this is a key best solution to every administrative prob­ Elaine Little, Director, North Dakota phrase—"reasonably related to legiti­ lem, thereby unnecessarily perpetuating the Dept. of Corrections. Inmate population: mate penological interests." Very sim­ involvement of the Federal courts in the af­ 1,500. ple. fairs of prison administration. Lynne DeLano, Secretary, South Dakota Dept. of Corrections. Inmate population: If these Supreme Court decisions are RFRA establishes the same standard 1,550. overturned by this legislation—and for everyone, including prisoners. That Judith Uphoff, Director, Wyoming Dept. of this is the stated purpose in the com­ is what I object to, and that is what my Corrections. Inmate population: 900. mittee report—these clearly stated amendment would resolve. Though in­ John Gorczyk, Commissioner, Vermont guidelines will no longer exist. My carceration does not terminate the free Dept. of Corrections. Inmate population: 900. amendment contains these clearly ar­ exercise of religion, it is necessarily re­ Larry R. Meachum, Commissioner, Con­ ticulated guidelines in the prison situa­ stricted. That is not asking too much. necticut Dept. of Corrections. Inmate popu­ tion by stating that it is not the intent According to O'Lone, another of the lation: 12,200. of this legislation to overturn the three Donald L. Allen, Commissioner, Maine cases my amendment maintains, these Dept. of Corrections. Inmate population: Supreme Court cases I have mentioned. restrictions arise from incarceration 1,519. The "reasonably related to penolog­ itself and from valid penal objectives, James E. Aiken, Director, U.S. Virgin Is- ical interests standard," which my including deterrence of crime, rehabili­ lands. Inmate population: 502 local, 144 main- amendment maintains, is appropriate tation of prisoners, and institutional land; Total 646 in the prison context, due to the closed security. The committee report clearly Mr. REID. Mr. President, as I said, nature of a society where prisoners states that it intends to overturn the the courts have long given great def­ live. In prison, the balance between the O'Lone case. I object to that. My erence to prison officials when it comes State's interest and the individual's amendment would correct that. Re- to constitutional rights of prisoners. rights must consider factors far dif­ member, we are talking about last year There are three cases that provide the ferent than those considered in society the prisoners being ahead. They are test currently applied to the prison sit­ at large. For instance, drugs, violent ahead by 1,401 cases. We have 48,538 uation: The Turner case, the O'Lone behavior, gangs, racism, and bigotry cases filed against prisoners, against case, and the Thornburgh case. All this are much more pernicious in prison. In- criminals, but the prisoners beat us. amendment does is make these cases mates are unable to walk away or They filed 49,939 civil cases in the Fed­ the law of the land. Prisoners still have avoid offensive conduct. Jews, Catho­ eral court system. We have to put a rights. They still can exercise their re­ lics, Muslims, white supremacists, limit to this and give the court some ligion, but the standard set is now one Protestants, cultists of all kinds are direction and guidelines. already in law. What the bill would do packed together in close quarters, very According to the standards of is have that evaporate, start all over, close quarters. O'Lone, we know what they are, we can October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14357 follow what they are, and it should be Nevada and I will now speak on that ism, now we can add the misuse of reli­ maintained in law. amendment. gion to the list. In 1940, the Supreme Court held in Mr. President, this is very interest­ The Religious Freedom Restoration Cantwell that although the first ing business, this issue of the restora­ Act, RFRA—despite its lofty title—has amendment guarantee of free religious tion of the religious freedom. The Reli­ much less to do with the historical and belief is absolute, the free exercise of gious Freedom Restoration Act—with a constitutional concepts of religious religion is necessarily subject to regu­ name like that, how can you possibly freedom than with the creation of new lation for the protection of society. turn your back on it? rights—ones that could prove particu­ There can be no better illustration of I had serious concerns on it when it larly helpful and useful to hardened this than the prison situation. came before the Judiciary Committee. criminals and prisoners. It would, Again, in O'Lone, the Supreme Court I continue to have the most grave con­ therefore, deeply frustrate prison offi­ stated that the right to free exercise of cerns about both the bill's scope and cials, prison discipline, and the courts. religion does not terminate at the pris­ its potential breadth, and its impact, if Rather than protecting religious on gates but is necessarily restricted it is enacted into law. I commend my freedom, RFRA would create another due to one's incarceration. friend from Nevada on his amendment. series of rights, private rights that As stated by Mary Schnabel in an ar­ This is a fascinating place, we are ad­ would ignore generally applicable ticle in the Willamette Law Review, versaries one day, and allies the next. criminal law and otherwise reasonable That is what makes it such a unique restrictions on behavior in the prison subjecting prison regulations to the and remarkable institution. I do not same high standard of review as the environment. think laymen understand that. But For example: Under the proposed leg­ laws generally applicable outside cor­ certainly anyone who has legislated rectional institutions is impractical understands that. That is why it is a islation prisoners may be able to con- and contrary to two decades of case pleasure to work with my colleague, duct animal sacrifices in the name of law. religious freedom. We are beginning Senator REID, and to join him on this now to hear from the animal rights I could not agree more with this Law amendment. people. They have finally entered the Review article. I hear clearly the arguments about realm of recognition in what we are So I am asking the Senate tonight to this bill. But I am still not convinced doing here. We certainly have heard not do that. We must recognize incar- in any way that Congress should prop­ from the prison administrators who ceration is a special situation. We must erly be inserting itself into the process have been fully aware of what is hap­ keep in mind that my amendment does of judicial review of constitutional pening here. not take away from prisoners the right challenges to State criminal laws even If I am totally over the wall on this to free exercise of religion. It merely in an area as vital to our way of life as one, then six Justices of the U.S. Su­ maintains the status quo which has the freedom to exercise our religion. preme Court must be just as wrong- been long established by case law. There are a couple of important headed and misguided as I am. For that The intent of the amendment is to points to discuss. I hope someone out was the vote in the Smith decision, 6 to head off the rapid increase in religion- there will hear me. I think my col­ 3. related litigation that prisoners will leagues are perhaps not attentively lis­ Key law enforcement personnel, bring if the bill passes without amend- tening to the remarks on the floor at whose duty it is to be sensitive to pris­ ment. Whether the suits are frivolous the present time. ons, share my concerns about this law. or not, they still take up the court's Let us remember that the underlying Half of the attorneys general of the time and cost the taxpayers money. issue of the Smith decision which cre- United States, including Wyoming's This amendment is supported by all 50 ated the Supreme Court decision was own fine attorney general, Joe Meyer, State prison directors. It is supported Oregon's criminal law, which prohib­ a Democrat, not of my particular polit­ by a majority of the State attorneys ited the possession and use of peyote, ical faith, but a man for whom I have general. It is supported by the Amer­ with no exception for legitimate reli­ great respect and regard, sent me a let­ ican Federation of State, County, and gious use—even possession by members ter outlining their fears. Municipal Employees, and it is sup- of the Native American church. I heeded their views in my vote. So it ported by many, many Governors. I would add that I have notified my is a great pleasure to join with Sen­ Mr. President, why send an invita­ fine Native American constituents, the ators REID, BRYAN, SASSER, MATHEWS, tion to prisoners for more suits? Pass- Shoshone Tribe, and the Arapaho and BURNS, to exempt State and Fed­ ing RFRA without my amendment Tribes of Wyoming, that I would indeed eral prisons from the bill's application. would just be another unfunded man- support a statute properly constructed That will remove a very significant date for the States. creating an exemption for the religious budget and prison security impact on I reserve the remainder of my time. use of peyote. our Federal, State, and local criminal Prior to doing so, though, I would like I am sensitive to their concerns on justice systems imposed by the bill. to commend and congratulate and ap­ that issue, always have been. I am Pursuant to the amendment, I expect plaud the Senator from Wyoming, who ready to support such an appropriate that other uses of rituals disruptive to is a member of the Judiciary Commit- bill. I have relatives who worked on the prison management will not be allowed tee. Shoshone reservation, my grand- in prisons, and the courts will not over- As I indicated before he came to the mother's brother married a full-blood­ rule the prison administrator's prohibi­ floor, the minority report which was ed Shoshone. In my family, Richard tion on such behavior. filed out of the Judiciary Committee Brunett, a Native American, and I I think we want to remember that was a very fine piece of work, an I am share a common great grandfather. what we are talking about here is a proud to join with the Senator from These are very sensitive things to me. very narrow issue. We are talking Wyoming in sponsoring this amend­ But we are not talking about that here. about legislation which will make it ment. The strangest part of our work here possible for litigants of many different Mr. SIMPSON addressed the Chair. is that we do things, you either kill or religious beliefs to challenge these The PRESIDING OFFICER. The Sen­ pass a bill based on a death blend—I State and Federal laws that somehow ator from Wyoming, Mr. [SIMPSON] is have said this about 150 times—a death burden some of the acts that are en- recognized. blend of emotion, fear, guilt, or racism. gaged in as part of their unique and in­ Mr. SIMPSON. Mr. President, now What a poor way to do the Nation's dividual religious beliefs. We must al­ the item of business before the floor is business. ways be mindful that we are not con­ the amendment of the Senator from I support religious freedom. Who does cerned in any way here with the Su­ Nevada. not? I always, have. Any thoughtful preme Court ruling addressing restric­ The PRESIDING OFFICER. That is person does. Yet, I have serious doubts tions or regulation of beliefs. We are correct. about this bill. talking about acts. That is a crucial Mr. SIMPSON. I am a cosponsor of So now not only do we have a death distinction that was missed in Judici­ that amendment with the Senator from blend of guilt, fear, emotion, and rac- ary, and it was obviously missed on S 14358 CONGRESSIONAL RECORD — SENATE October 26, 1993 this floor in many other issues raised the arguments for the passage of the not familiar with the Odinists' reli­ by the legislation. bill are sometimes often so shrill—that gion, but that is a right to firepits, I have many, many questions. In indeed we must correct this hideous sheepskins, and lances. committee, I did not delay action, but and extraordinary thing "in the inter­ These are not fanciful or imagined I am certainly opposed to it. I was the est of justice" and so on. worst case scenarios, but rather are only one that, voted against it in Judi­ But let us just take a quick review of factual cases that have been filed by ciary, and since then, people around the history. Fifty years ago, the U.S. inmates and considered by the courts the country have awakened from their Supreme Court ruled that the Govern­ and by prison administrators. I became slumbers with regard to at least this ment could restrict a prison's inmate's very concerned that RFRA will add amendment. acts in furtherance of a religious belief even greater credibility and likely con­ We have an extraordinary array of if the Government regulation served a stitutional sanction to these types of State attorneys general and prison ad­ legitimate prison interest. The RFRA claims. ministrators, who were never consulted would overrule this clear directive and So all may understand, so that you nor present at the single hearing—that elevate this inmate's claim to the do not miss how we got here and what is all there was, a single hearing. While much higher standard of review of the Supreme Court did by a 6-3 deci­ I am not aware of whether any of these "compelling State interest and least sion, remember that this bill, this mis­ prison officials had the opportunity to restrictive means." This sounds to the guided bill, was drafted solely to over- give testimony. I do not believe the laymen like head-of-the-pin stuff, and rule the U.S. Supreme Court decision prison officials really were allowed to it should because it is bizarre. in a case which held—do not miss these be involved in the issue. I do not think This means that prison administra­ facts, because it was narrow—that un­ people had the benefit of their thought­ tors would be required to adjust cur- employment benefits could be denied ful views. I said at the time in the Ju­ rent practices in order to accommodate to two individuals in Oregon named diciary Committee that I thought an- disruptive and even totally bizarre ac­ Smith and Black. The two were dis­ other hearing was in order. But remem­ tivities by inmates if these "acts" were missed from their jobs with a nonprofit ber the distraction here—the Smith couched in terms of a religious exer­ drug rehabilitation organization be- case involved a law which prohibited cise. cause they took part in a peyote cere­ an act not a belief, and that prohibi­ There are so many examples of what mony with a native American church tion burdened the exercise of a reli­ happened in prisoner litigation, when of which they are a member. This was gion. the RFRA type standard review has a violation of the written terms of If the intent of this legislation was to been applied. Here are a couple. In their employment—that they would ab­ require strict scrutiny—an almost in- Florida —do not miss this one—an in- stain from the use of drugs or alcohol. surmountable burden of proof—of laws mate convicted of racketeering and There was no Oregon State criminal which prohibit acts in furtherance of a conspiracy to commit murder sued the law exemption for religious use and religious belief, why does the legisla­ prison to permit him to distribute ra­ possession of peyote. If you do it, you tion not say that? It occurs to me that cially inflammatory literature within are guilty. So they were fired and then this language—the burdening of the ex­ the State prison system. I think my they applied for unemployment com­ ercise of religion—would serve to ele­ good colleague from Nevada touched on pensation benefits. vate an act, even a repugnant act, to this. He presented this as a religious Their claim was denied by the State. that of a protected belief or a thought. expression by the Temple of Love, They appealed that decision to the Or­ That is certainly a far, far ranging and which he had founded. His literature egon Court of Appeals, which ruled in weird interpretation. But there are included gruesome cartoons of African- their favor. The State of Oregon then other religious followers who have acts Americans being mutilated, tortured appealed that decision to the state Su- as part of their rituals which are con- and oppressed by whites. Using the preme Court where Smith and Black sidered equally important. standard of review that this remark- won again, and that State appealed the Consider, if you will, a group of peo­ able piece of legislation would now re- decision to the U.S. Supreme Court in ple who happen to practice Satanism quire, the Florida District Court ruled which a 6-to-3 decision in 1990 ruled in and believe they can only commu­ that this material was protected as re- the State's favor and against Smith nicate with their deity through animal ligious speech. and Black. And in the wake of that ac- sacrifice. It occurs to me that a law of In other States, prisoners have sued tion RFRA was born. general applicability prohibiting cru­ prison officials under the cloak of reli- I will stick with the U.S. Supreme elty to animals would be easily chal­ gious freedom in order to promote ac- Court. lenged under this legislation. I think it tivities such as racial and ethnic geno- So these are some of the things I would, without question. Either that, cide, witchcraft, Satanism. I under- wanted to share with you with regard or there would have to be an exception stand that followers of both witchcraft to this measure. written into those laws for satanic and Satanism engage in animal sac- I join with my colleague from Ne­ practice. rifice. I am not totally aware of some vada. I think the amendment, which It is easy to envision a great many of the aspects of that religion, but I exempts prisoners from the bill's appli­ situations where regulations that our have gathered that. cation, removes the significant budget society has always accepted could be In Wyoming, an inmate of Asian an­ and prison security impacts on the called into question under this legisla­ cestry—do not miss this one—in the Federal, State, and local criminal jus­ tion. Prisoners could demand such Wyoming penitentiary, who is consid­ tice systems imposed by the bill. things as specially prepared food; the ered by prison officials to be one of the Who would not agree that prisoners right to pray three times a day; certain highest escape risk prisoners at do and must have first amendment types of clothing—indeed the list is Rawlins, WY, claimed to be a member rights, including the right to exercise endless. Likewise, the military could of an American Indian religion and de­ their religion. But there are limits to be challenged to adopt special prac­ mands a religious right to participate those rights. Numerous State attor­ tices for preparation of food, opportu­ in a sweat lodge ceremony outside of neys general, including Wyoming's nities to pray on various different sab­ his maximum security confines. There own, the correctional directors of all 50 baths, clothing, not to mention the ex­ is a reason for that. The sweat lodge is States, Norman Carlson, the former Di­ treme situation of an individual, for located at the fringes of the peniten­ rector of the Federal Bureau of Pris­ whatever reason, who wanted to engage tiary. That is just where this person ons; J. Michael Quinlan, the former Di­ in a practice involving a ritual—an would like to be—near the fringes—be­ rector of the Federal Bureau of Pris­ act—that would be repugnant offen­ cause he has already had eight violent ons; the American Federation of State, sive, or disruptive to a majority of ob­ escape attempts to his credit. Some es­ County, and Municipal Employees, servers. capes were from the Federal facilities which represents correctional officers So I shared those views, and I at Marion and Levenworth. and other prison personnel, and the Na­ thought—and still think—we should There are others in Rawlings, WY, tional Sheriffs' Association support to- proceed very carefully and, of course, who are claimed to be Odinists. I am tally this amendment to exempt pris- October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14359 oners. Prison interests should be given crippling impact of prisoner litigation on our be done by "the least restrictive means" and considerable deference. My friend from criminal justice system and further erode Congress should not permit this social engi­ Nevada touched on that. Prison au­ our courts' ability to deal with more urgent neering sought by the executive. issues of crime. Inmates who lead illicit prison gangs and thority should not be required to ac­ Last year, 48,538 criminal cases were organizations are sophisticated and will ma­ commodate practices which signifi­ brought in federal court. During the same nipulate S. 578 with its new standard to fa­ cantly interfere with the security and period, inmates in federal, state and local de­ cilitate this illegal activity under the guise operation of the prisons. tention facilities filed 49,939 civil suits of "religion". Racial hatred in the prison At a time when each State and Fed­ against the government in the same court setting is often spread and violence incited eral jurisdiction in the country is faced system. While civil filings dropped by 5 per- through "religious" materials. with overcrowded prison facilities and cent overall, there was a 16.2 percent in- Further, religious claims have been used to an unrelenting barrage of inmate law- crease in inmate petitions. attempt to gain special privileges. Inmates Perspective into this explosion of inmate even have devised their own new religions suits, this bill would allow prison in- litigation can be found by looking at the his­ with tenets tailored to obtain special favors mates to sue prison administrators toric rise in this type of litigation over the and circumvent security regulations. How- with greater frequency and, obviously, past 27 years. In 1966, 218 civil rights peti­ ever, courts are extremely loathe to find greater success. Corrections adminis­ tions were filed by prisoners in federal that a group claiming to be a religion is, in trators state that prisoners who hear courts. In 1984, there were 18,634 such suits fact, not a religion. Courts have found that that the standard now will be lowered filed. In 1992, there were 31,580 filed. Surely, the Church of the New Song (CONS for will use the opportunity to bring law- no one could reasonably argue that condi­ short), the El Rukns, Satanic cults, and suits to manipulate the system to get tions in our prisons and jails were better in other groups are "religions". Thus, each re­ 1966 than today. Rather, as federal courts striction on their activities will now need to special benefits. across this nation have repeatedly observed, be the "least restrictive" and supported by Mr. President, I ask unanimous con- this rise in filing is attributable to inmates compelling reasons. sent that a letter from the Utah De­ abusing the rights afforded them by the Con­ If prisons are not exempted from S. 578 and partment of Corrections, dated August stitution. Litigation has provided them a ve­ the existing legal standard preserved, such 5—and that is in there for the benefit hicle to manipulate those charged with their groups will be able to conduct congregate of my colleague, the Senator from lawful incarceration, at taxpayer expense. services, distribute hate literature, organize, Utah—and a letter from Frederick The current legal standards mandate that and conduct and promote activities which prison administrators reasonably accommo­ are now banned. Activities including drug Hess, former U.S. attorney for the date the fee exercise rights of individual in- trafficking, racial violence, and gang orga­ Southern District of Illinois—for my mates, but permits a balance to be struck be- nizing would be made easier under RFRA. other colleague on the Judiciary Com­ tween such individual rights and institu­ These activities negatively impact on prison mittee—be printed in the RECORD. tional needs. S. 578 would not permit these order as well as the free community while There being no objection, the letters interests to be balanced; rather, it would ele­ these disputes consume court time and costs vate asserted individual inmate rights over of administration of our prisons rise. were ordered to be printed in the the operational needs of prisons. This is not RECORD, as follows: Correctional facilities are operating with the time to impose additional and unneces­ diminished economic resources and the in- LEWIS, RICE & FINGERSH, sary costs for incarcerating felons on a crime mate population is exploding. Prison litiga­ Belleville, IL, September 7, 1993. weary public by imposing additional, heavy tion is already placing a tremendous drain Hon. ROBERT MICHEL, burdens on the professionals on whom we de­ on those limited resources. While inmates House of Representatives, Washington, DC, pend to operate our prisons. Nor is it time to litigate at no or little cost to themselves, DEAR CONGRESSMAN MICHEL: Under current increase the burden on our courts. taxpayers are required to subsidize the filing law, a unit of local, state, or federal govern­ The Congressional Budget Officer should fees of inmates, pay for paper, law books, ment can infringe upon a person's exercise of acknowledge that the enhanced test and legal assistance postage, Xeroxing, and wit­ religion if such infringement bears a rational standard for religious cases would increase ness production for prisoners' suits. Out of relationship to furthering a governmental the time and process necessary to defend already strained prison budgets, we must pay interest. S. 578 would allow a unit of govern­ against cases in which a religious claim is for transportation of witnesses, additional ment to infringe upon a person's exercise of raised. Specifically, the ability to obtain a security and transportation of inmates to religion only if such infringement furthers a judgment by summary judgment motion court appearances, legal assistance for cor­ "compelling government interest" and is the would be reduced and the need for jury trials rectional officers, and significant amounts of "least restrictive means" of furthering that will be substantially increased. This would lost staff time spent responding to inmate interest. have a significant impact on the percent of claims, most of which are spurious. Prison Attorney General Reno supports S. 578 to judicial time consumed by review of inmate officials cannot afford to divert limited re- overturn Employment v. Smith, 110 S.Ct. 1596 cases and would create a need for more law sources to litigate the staggering number of (1990) which held that application of a neu­ clerks, magistrate judges, district judges, inmate cases which would be spawned by cre­ tral law of general applicability—even if it and circuit judges to address the increased ating a new cause of action, under a more has the effect of burdening religious prac­ number of these more complex and time-con­ stringent standard, as RFRA purposes to do; tice—does not run afoul of the Free Exercise suming cases. U.S. Attorneys would have to and to re-litigate all of the cases in which we Clause of the First Amendment. hire additional assistants to deal with the have already prevailed under the existing We seem to have come full circle in the increase of religious suits brought by the constitutional standard. Justice Department back to the seventies as rapidly increasing federal inmate popu­ At a time when Congress is grappling with we prepare to expand the judiciary and relax lation. The Bureau of Prisons would have habeas corpus reform and ways to reduce norms accompanied by social engineering. It many additional costs associated with ac­ frivolous inmate litigation, with its toll on took more than a decade to protect the commodation of idiosyncratic religious te­ our state and federal justice systems, it strong interest which society and prison ad­ nets. At the state and local level, taxpayers seems inconceivable that anyone would en­ ministrators have in preserving security, would have to bear the burden of additional dorse the creation of a new cause of action order and discipline in prison. While I hope litigation costs. Attorneys would be required for inmates which provides rights even the government/prison administrator will to expend additional time litigating each greater than the constitutional protections prove "compelling interest", I am sure the case currently pending under the new height­ they already enjoy. additional "least restrictive means" test is ened standard and to respond to the new bar- Sincerely, joined to undermine the clear meaning for rage of litigation under this new cause of ac­ FREDERICKJ.HESS. the former. tion. S. 578 will subject prisons to the precise re­ While one must applaud efforts to extend STATE OF UTAH, sult the Supreme Court sought to avoid in protection to legitimate religious groups in DEPARTMENT OF CORRECTIONS, its earlier rulings in prison cases, by provid­ society at large, please recognize the unique Murray, UT, August 5, 1993. ing inmates far greater latitude to attack nature of the closed society of prisons, as the Hon. ALAN K. SIMPSON, and undermine legitimate prison authority, United States Supreme Court has long done. U.S. Senator, Senate Office Building, necessary to maintain security and order. The legal standards promulgated by the Su­ Washington, DC. The risk and expense of litigation under this preme Court in the prison context should be DEAR SENATOR SIMPSON: AS Director of the Act will leave governments vulnerable to preserved. The existing standard requires Utah Department of Corrections, I am writ­ manipulaton by inmates. Pro se prisoner liti­ prison administrators to accommodate the ing to express concern regarding S. 578. Al­ gation is already the most rapidly increasing religious practices of inmates in their care though I support the general principles of type of litigation in our country and makes and custody; however, it permits individual the Bill, the broad language raises some sub­ up more than a third of the docket of some rights to be balanced against the needs of stantial concerns for correctional facilities. federal district courts. The increase in cases the prison community as a whole and the If passed, a plethora of litigation will follow, resulting from the creation of this new cause overriding need for security and order. The substantial management problems will arise, of action under RFRA would only add to the Supreme Court has not also required that it and safety and security will be jeopardized. I S 14360 CONGRESSIONAL RECORD—SENATE October 26, 1993 encourage amending the legislation to ex­ toration Act, a marvelous phrase, will free exercise-of-religion claims, the clude correctional facilities from S. 578. make it extremely difficult to quickly Smith case and the case of O'Lone ver­ Case law currently allows a correctional institution to restrict an inmate's constitu­ dismiss frivolous or undeserving in- sus Estate of Shabazz. tional rights if the restriction is reasonably mate challenges. Frivolous challenges In overturning those two cases, the related to a legitimate penological interest. will no longer be resolved by summary bill's sponsors tell us, they intend to The proposed legislation will heighten the judgment motions but will require full- reinstate the standard by which free­ standard of review from a "reasonable rela­ blown evidentiary hearings, a much dom-of-religion claims are evaluated tion" to a "compelling interest" standard. more expensive and time-consuming prior to these decisions. As Director of corrections, I am responsible process. Oh, were that the case. I have been for managing efficiently operated state insti­ tutions. A significant portion of Corrections' The Congressional Budget Office is- here 14 years, and I have seen so many budget goes toward litigation initiated by in- sued a letter on May 7—which was not pieces of legislation that just said all mates. If this legislation passes, without delivered until over a month later— we are doing is taking this case back to change, the Department will likely have to which stated that the bill "would re­ where it was before the Supreme Court relitigate cases that have already been de­ sult in no significant cost to the Fed­ changed something. We did that on cided. Litigious inmates will challenge the eral or to State or local governments." civil rights. We do it on everything. previously established case law pursuant to In response to the CBO conclusion, sev­ And then we get into the grinder of S. 578. Consequently, the overall budget of eral States communicated with the emotion, fear, guilt, and racism. I Corrections will suffer. CBO stating that there was a very sig­ know the groups that are out cranking Religion plays an important role in manag­ nificant impact on their budgets, both it up on this one. Some have lees than ing a correctional institution. The positive effect that religion can have on an inmate is in litigation costs and in facilitating charitable things to say, even though immeasurable. However, some inmates will religious activities. The CBO, at last they represent religious concerns. use any opportunity to manipulate the sys­ check, was reevaluating their letter to However, unfortunately, the standard tem, thereby, creating management prob­ include costs to the States caused by prior to the O'Lone case—which ad- lems. Take for example an inmate whose re­ this bill. dressed prison free-exercise claims—de­ ligious beliefs require a variance from recog­ In a July 30 letter Attorneys General pends on the court in which the claim nized grooming standards. Other inmates Lungren of California and Del Papa of is brought. At least seven different have proffered religious beliefs that require a Nevada state: "* * * CBO would be standards existed before the Supreme special attire that deviate from recognized dress standards. In the case of the Church of hard-pressed to find a single correc­ Court decided the O'Lone case in 1986. the New Song ("CONS") their religion re­ tions professional who would agree For anyone who wants to go back to quired a special diet of Porterhouse steak with this position," being that no sig­ the seven previous standards, that is and Bristol Cream Sherry. These are the nificant cost would result to State gov­ how it came about. types of management problems that arise ernments. So, specifically, the bill that is pre­ frequently in a prison setting. If the legisla­ On September 7, Frederick Hess, a sented to us with such highly lauda­ tion passes as drafted, inmates will take the former U.S. attorney for 11 years, tory spirit requires that the govern­ religious freedom argument to a new pin­ wrote that inmate litigation will in- ment shall not burden a person's exer­ nacle, causing substantial management crease, unmerited litigation will be cise of religion." The only way that a problems. In addition, safety and security will be more difficult to resolve quickly, and Federal, State, or local government, jeopardized. If inmate dress standards are al­ costs to the taxpayers will escalate. He including prison administrators—will tered due to religious claims, creative in- wrote: be permitted to burden an individual's mates will use the variance to smuggle con­ S. 578 will subject prisons to the precise re­ exercise of religion is: First, if it has a traband into correctional institutions. A sult the Supreme Court sought to avoid in compelling governmental interest; and variance in grooming standards will facili­ its earlier rulings in prison cases, by provid­ second, if its actions are the "least re­ tate an inmate to alter his appearance, mak­ ing inmates far greater latitude to attack strictive means of furthering that com­ ing escape easier. Furthermore, if litigation and undermine legitimate prison authority, pelling governmental interest." ensues and inmates are transported to and necessary to maintain security and order. from court the possibility of escape is en­ The risk and expense of litigation under this Practically speaking, and getting all hanced. Communities across the country de­ act will leave governments vulnerable to ma­ the legal jumbo out of there, what does pend on the safety and security of correc­ nipulation by inmates. Pro se prisoner litiga­ this mean? First, for prisons, if a pris­ tional institutions. I strongly oppose any tion is already the most rapidly increasing on institutes a measure which affects legislation that would jeopardize the safety type of litigation in our country and makes religion, an individual may sue the and security of a correctional institution or up more than a third of the docket of some government for burdening his or her the community at large. Federal district courts. The increase in cases ability to freely exercise his or her re­ As Director of the Department of Correc­ resulting from the creation of this new cause ligion. The measure does not have to tions I would be remiss in my responsibil­ of action under RFRA would only add to the expressly or indirectly prohibit reli­ ities if I did not express my concerns. I rec­ crippling impact of prisoner litigation on our ognize that amending legislation can be a criminal justice system and further erode gious activity, it merely has to affect tremendous task. However, it has come to our courts' ability to deal with more urgent the activity. The more significant the my attention that Senator Simpson of Wyo­ issues of crime. burden on religious activities, the stronger an individual's claim will be. ming has agreed to offer an amendment that We are going to be working on a will exempt prisoners from the act. Con­ Second, the court must determine gressman Hansen's office has faxed a copy of crime bill soon, and one of the greatest dangers in the criminal justice system whether the prison has a compelling the proposed amendment for my review. I re­ governmental interest in taking its spectfully request that you support the is in prisoners cranking out lawsuits Simpson amendment on the Senate floor. by the metric ton—habeas corpus, measure. This is the most difficult test Sincerely, delays of all types, lockerroom law­ that the courts use to evaluate the O. LANE MCCOTTER, yers, litigious luggerheads—and that is government's laws or actions. In gen­ Executive Director, what taxpayers are paying for. A third eral, it is very difficult for a govern­ Utah Department of Corrections. of the docket—imagine what this bill ment to meet this test. P.S.—I have just returned from the annual will do for the other two-thirds of the Prof. Laurence Tribe is a man whom congress of the American Correctional Asso­ docket. I regard highly—even though I have ciation and the Association of State Correc­ The increase in cases resulting from the challenged him severely in some of his tional Administrators. This issue is a major creation of this new cause of action under activities in nominations before the concern for all 50 states. A report has been Judiciary Committee. He is a fine legal compiled for the Congress and the US Attor­ RFRA would only add to the crippling im­ ney General which points out all our major pact of prisoner litigation on our criminal mind, just as Robert Bork was a fine problems and concerns if corrections is not justice system and further erode our courts'- legal mind. Professor Tribe recognizes exempted by amendment to the act. It will, ability to deal with more argent issues of that regulations burdening constitu­ no doubt, cost us millions in litigation if not crime. tional liberties rarely survive strict amended. Thanks for your support. That is the part of the commentary scrutiny analysis—the standard which Mr. SIMPSON. Mr. President, not of the gentleman that I quote. the bill will place on prison adminis­ only will the raw number of lawsuits This bill effectively overturns two trators. Professor Tribe noted, "The increase, the Religious Freedom Res­ Supreme Court cases on the subject of Supreme Court rarely finds such com­ October 26, 1993 CONGRESSIONAL RECORD—SENATE S 14361 pelling necessity, so the choice of American religious services. At least of prisons. Let me initially point out, which test to apply usually resolves one prison has two sweat lodges—one as Senator SIMPSON mentioned in his the case." (Tribe, "Abortion: The Clash that faces east and one that faces additional views to the committee re- of Absolutes," page 11, 1990.) west—to accommodate differing reli­ port, a long series of cases has recog­ Third, pursuant to this bill, a court gious views. nized that prisoners are entitled to must look at all free exercise claims Those are very valid views. I have first amendment protection, including and determine whether or not the pris­ talked about those views with my Na­ the right to the free exercise of their on used the least restrictive means to tive American constituents. religion. While we agree that prisoner's achieve its goal. In other words, was But prisons today are also over- are entitled to first amendment rights, there another way to achieve the goal crowded. They are unruly. There are we differ on the applicable standard of that does not burden religious activ­ people in prison who are vicious and review where a prisoner's limited ity? When applying the least restric­ uncaring of their fellow man and rights collides with the responsibility tive means standard, the courts are not woman, making order and safety more of a prison administrator to maintain required to look at the cost of the al­ difficult to maintain. order and security in the prison. ternatives. The challenges of prison administra­ In my view, this act carefully bal­ For prison administrators, in many tors are extreme. If one group of in- ances these religious free exercise cases alternatives are available but at mates is perceived by others as getting rights against the compelling interests great cost to the State government. In special benefits, even if they are reli­ of prison administrators. The first other cases, the least restrictive means gious in nature, then others want spe­ amendment should protect the rights can disrupt the security and order of cial benefits. of every citizen, including prisoners, to the prisons and do it in a grotesque I remember when I practiced law, practice their faith. Let us all be mind­ way. Under the bill, if the prison could several of my clients went to the peni­ ful of exactly what we are seeking to accommodate a prisoner's activities— tentiary. That is quite a testimonial, I protect in this act. We are seeking to even if it required 100 more prison realize. When I went to the pen to visit guards or building new facilities—the with the warden and some others, they protect the right to exercise one's faith prison could be required to do so. said, "Don't go in there, because if the as a Baptist, Catholic, Episcopalian, I agree with the Supreme Court when people you represented at one time who Jew, Lutheran, Methodist, Mormon, it expressly rejected the idea that got short sentences see you and say Moslem, Presbyterian, Protestant, and "prison officials * * * have to set up hello, the other prisoners will really other of the diverse religions practiced and then shoot down every conceivable take it out on them." in our society. alternative method of accommodating So I had to creep through the com­ It is clearly not our intention, as the claimant's constitutional com­ plex—which is difficult when you are 6 some might suggest, to protect the de- plaint," (Turner v. Safley, 482 U.S. 76 foot 7—and they would say, "Hey, Al, sires of those prisoners seeking every- (1987)). That is the very standard, the how are you?" And I would ignore them thing and anything imaginable, like "least restrictive means," which the because then the other prisoners would prostitutes, nunchucks, or Harveys bill applies. "Running a prison is an in­ say, "Aha, you're getting special fa­ Bristol Cream, under the guise of the ordinately difficult undertaking that vors." free exercise clause, and this bill does requires expertise, planning, and the Do not think that anyone who is not create the right to any such things. commitment of resources, all of which given an extraordinary benefit of some We seek only a well-reasoned balance are peculiarly within the province of special favor does not keep a list. of this fundamental right to practice the legislative and executive branches Prisoners manufacture religions, just one's religion against the significant of government." (Turner, at 84-85.) to see what they can get. I would too. responsibility of our prison administra­ This amendment specifically exempts I could be wholly creative in manufac­ tors in the supevision of our prisons. prisons from this change in the stand­ turing a religion. Because of the special circumstances of ard for evaluating governmental ac­ Many have heard of the case of the incarceration, and the unique interest tions. The courts, especially the Su­ prisoners beginning a religion called the Government has in maintaining preme Court, have recognized the need Church of the New Song. Its followers order and control in the prison envi­ to give great deference to prison ad­ requested chateaubriand and wine, ronment, the Government will nec­ ministrators, due to need of prisons to among other things, as part of their essarily be able to show its interest is maintain order, security, and dis­ ceremonial activity. While the pris­ compelling far more readily than in cipline. By exempting the prisons, the oners did not prevail in this case, the the civilian arena, and I do not know amendment would allow the courts to State spent thousands of dollars de- how anybody could argue against that. use the current Supreme Court stand­ fending the denial of these items to the Supporters of an amendment insist ard, as stated in O'Lone—which evalu­ prisoners. If the prisons are not ex­ this bill, without amendment, will ates prison practices with a reasonable­ empted from this bill, it will be even raise havoc in our prisons. However, ness standard. Under a reasonableness more difficult to quickly dismiss such Attorney General Janet Reno, in a let­ test, incidental burdens on the free ex­ frivolous cases. ter dated May 5, 1993, addressed to ercise of religion of prisoners are le­ I ask my colleagues to recognize the chairman of the committee confirmed gitimate, so long as the regulations are unique and precarious situation that her enactment without amendment. reasonably related to legitimate prison prisons are in and support an exemp­ Attorney General Reno, who admin­ interests. tion for prisons from this bill. isters one of the largest prison systems The reasonableness standard has That is what the Reid amendment in the country, wrote: been applied by the Supreme Court in does. I am very proud to be a cosponsor Concerns have been expressed that the the prison context for all other first of it. I urge our colleagues to support standard of review of S.578will unduly bur- amendment challenges. In each case, the amendment. den the operation of prisons and that the bill the Court has refused to apply the very should be amended to adopt a standard more I thank the Chair. favorable to prison administrators when con- standard which this bill seeks to apply, Mr. HATCH addressed the Chair. fronted with the religions claims of pris­ and has instead adopted a reasonable­ The PRESIDING OFFICER (Mr. GRA­ oners. These concerns have been presented ness standard. Without this amend­ HAM). The Senator from Utah. by knowledgeable and sincere individuals for ment, this bill would require a higher Mr. HATCH. Mr. President, I have en- whom I have great respect, but I respectfully standard for prisons than the Supreme joyed listening to my two colleagues, disagree with their position and urge the Court has said is required by the Con­ both from Nevada and Wyoming. They Committee to approve the bill without stitution. are very thoughtful, reflective people. I amendment. Prisons today are not like prisons 30 have a great deal of respect for both of The PRESIDING OFFICER. Will the years ago or 40 years ago. Today, pris­ them and I understand their argu­ Senator please yield? ons have chapels, special meals, recre­ ments. Will the Senator indicate if his time ation areas—some of the prisons in the I appreciate the concern about how is being charged against the amend­ West have built sweat lodges for native this act will impact the administration ment or against the bill? S 14362 CONGRESSIONAL RECORD—SENATE October 26, 1993 Mr. HATCH. This will be charged Finally, the Coalition for the Free continue to reject these abusive against the bill—actually, no, this will Exercise of Religion, a diverse group of claims. The fifth circuit observed in a be charged against the amendment—let interested civil rights and religious or­ prison case: us split it equally. ganizations have also loudly voiced While it is difficult for the courts to estab­ The PRESIDING OFFICER. On the their opposition to the Reid Amend­ lish precise standards by which the bona time of Senator KENNEDY? ment. The coalition, which includes fides of a religion may be judged, such dif­ Mr. HATCH. Senator KENNEDY and I Agudath Israel of America, American ficulties have proved to be no hinderance to are one on this issue. Association of Christian Schools, denials of first amendment protections to so- The PRESIDING OFFICER. On Sen­ American Civil Liberties Union, Amer­ called religions which tend to mock estab­ ator KENNEDY'S time. ican Conference of Religious Move­ lished institutions and are obviously shams ments, American Humanist Associa­ and absurdities and whose members are pa­ Mr. HATCH. It is on both of our time. tently devoid of religions sincerity. Mr. SIMPSON. On the amendment. tion, American Jewish Committee, [Theriault v. Carlson, 496F.2d390, 396 (5th Mr. HATCH. The bottom line is that American Jewish Congress, American Cir.). cert, denied,419U.S. 1003 (1974) (foot- prison administrators' interests in Muslim Council. Americans for Demo­ note omitted).]. order, safety, security, and discipline cratic Action, Americans for Religious are compelling, and the courts have Liberty, Americans United for Separa­ The courts' existing analytical tools certainly treated them as such, and tion of Church & State, Anti-Defama­ are adequate to detect these unfounded have always done so. More important, tion League, Association of Christian religious demands and distinguished the courts have a well-established his- Schools International, Association of them from legitimate religious inter­ tory of evaluating these competing in­ American Indian Affairs, Concerned ests. The courts have, for example, re­ terests fairly under the compelling Women For America, Episcopal jected religious status, under the first State interest standard. Church, Church of Scientology, Evan­ amendment, for a number of prisoner- This amendment, in essence, asks us gelical Lutheran Church, Conference of devised belief systems. (See. e.g., John- to deny prisoners the ability to adhere Seventh-day Adventists, Jesuit Social son v. PA. Bureau of Corrections, 661 F. to their faiths, a liberty we otherwise Ministries, Mennonite Central Com­ Supp. 425, 436-37 (M.D. Pa. 1987) (reject­ deem fundamental, and one that fur­ mittee, National Association of ing "The Spiritual Order of Universal thers the goal of prisoner rehabilita­ Evangelicals, Presbyterian Church, Beings"); See also Jacques v. Hilton, 569 tion. Recently, Charles Colson, the Traditional Values Coalition, Union of F. Supp. 730, 736 (D.N.J. 1983), aff'd, 738 chairman of Prison Fellowship, a min­ American Hebrew Congregations, F.2d 422 (3d Cir. 1984) (rejecting "United istry involved with prisoners, wrote to Union of Orthodox Jewish Congrega­ Church of Saint Dennis").) Moreover, me and reported that the Institute for tions, United Methodist Church, and 40 when a prisoner attempted to object to Religious Research at Loyola College other member organizations have writ- participation in an anti-alcoholism studied and compared two groups of ex- ten to oppose an amendment to exempt program as compelling a belief because offenders. The study found that, over- prisons. It suffices to say, numerous re­ it referred to "the care of God as we all, offenders who attended Prison Fel­ ligious institutions in America have re- understand him," a court had little dif­ lowship programs were less likely to be viewed and studied this issue and have ficulty in finding that the Chemical re-arrested than those who had not at- overwhelmingly rejected this amend- Dependency Recovery Program was not tended the ministry. Even more, im­ ment. a religion. (Stafford v. Harrison, 766 F. pressive, women who attended were 60 I, too, urge my colleagues to reject Supp. 1014, 1017 (D. Kan. 1991).) percent less likely to be re-arrested. this amendment because I believe it is These tools are also adequate to un­ The importance of religion, espe­ the right thing to do, and I do not have cover false religious claims that are ac­ cially in prisons, cannot be overstated. the same fear as my two colleagues tually attempts to gain special privi­ Rather than an across-the-board denial from Nevada and Wyoming have about leges or to disrupt prison life. For ex- of religion, many courts prior to Smith the abuse of these privileges in prison. ample, in Green v. White, ((526 F. Supp. proposed that prison administrators By the way, do not tell me that they 81, 83 (E.D. Mo. 1981), aff'd 693 F.2d 45 should outline their security concerns will not file just as many lawsuits even (8th Cir. 1982), cert. denied, 462 U.S. 1111 and demonstrate the connection be- if the Reid amendment is enacted. (1983),)] the courts rejected the claim tween this concern and the regulations. They are going to do that anyway. Peo­ that the Human Awareness Life Church I do not think this is too much to ask ple will know there is a distinction be- was a religion and focused on the pris­ in protecting against unnecessary Gov­ tween lawsuits filed by people who oner's demands, under a religious ernment infringement on the free exer­ have observed the laws and are not liv­ guise, for conjugal visits, banquets, and cise of religion. ing in prison and lawsuits filed by payment as a chaplain. (See also, Unit­ Indeed, I would rather have prisoners those living in prison. Frankly, over ed States ex rel. Goings v. Aaron, 350 F. trying to practice their faith than the long run. I think we will save Supp. 1 (D. Minn. 1972) (rejecting claim learning how to become better crimi­ money by adopting the bill without the for religious rights that prisoners has nals once released. Obviously, when the amendment. never practiced before)). Indeed, courts practice of religion conflicts with the SPECIAL PRIVILEGES AND BONA FIDE RELIGIOUS have been blunt enough in their exami­ need to maintain order, the prison ad­ PRACTICES nations to find that a claimed religion, ministrator will prevail under this act. Much has been said and written such as the Church of the New Song, is, I should also mention, recently I re­ about the opportunities this act cre­ in reality, "a masquerade designed to ceived letters from the Church of Jesus ates for abusive and litigious prisoners obtain first amendment protection." Christ of Latter-day Saints, American to extract special benefits from prison (Theriault v. Silber, 453 F. Supp. 254, 260 Baptist Churches, American Jewish administrators. Some have suggested (W.D. Tex. 1978), appeal dismissed, 579 Committee, Church of Brethren, Men­ this act may even protect prisoners F.2d 302 (5th Cir. 1978), cert. denied, 440 nonite Central Committee, Pres­ who form new religions to gain special U.S. 917 (1979).) byterian Church, Church of Scien­ treatment or privileges. While it is cer­ The act has no effect on our settled tology, American Jewish Congress, tainly possible some prisoners will at- jurisprudence with respect to prisoner- Christian Life Commission, Unitarian tempt to abuse this act, nothing con­ created efforts to seek special privi­ Universalist Association, Evangelical tained in the act will protect these de­ leges, thus permitting the courts to Lutheran Church, Friends Committee ceptive efforts. To be perfectly clear, make these assessments as they have on National Legislation. Baptist Joint our courts are well suited to detect the in the past. Those cases most often Committee, National Council of Jewish abusive tendencies of our litigious pris­ cited as abusive requests by prisoners, Women, Center for Law and Religious oners. including those listed in the additional Freedom, American Civil Liberties I would add, the courts have tradi­ views to the committee report have Union, People for the American Way, tionally denied first amendment pro­ been routinely dismissed by the courts. expressing their strong opposition to tection for purported religious activity I would expect the courts will continue any amendment to the Religious Free­ conceived by prisoners simply to gain to deny protection to prisoners in­ dom Restoration Act. special benefits. I trust the courts will volved in this deceitful activity. October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14363 I can say that I know that the pris­ I agree that prisoner litigation is a ficials who are denying them the right oners will continue to make the claims significant problem for prison adminis­ to pray in their prison cell may well regardless of whether this amendment trators. I am not convinced, however, have their case quickly thrown out of is adopted or not. I think we have made that this amendment adequately ad- court. clear that there is a different way of dresses this issue. I am surely not con­ The inmate who files a frivolous law- applying the compelling interest test vinced that passing this amendment suit against his jailer because he does in prison than there is in the lives of will reduce the number of cases not like the color of his prison uniform those who abide by the law. brought by prisoners. In short, pris­ can fully litigate his claim in the The Religious Freedom Restoration oners are going to institute a large courts. In contrast, the Jewish inmate Act does not disturb established juris­ number of lawsuits regardless of the who may want to challenge the denial prudence as it relates to abusive pris­ standard of review applicable to prison of his right to kosher meals, again, oners. I have every confidence that lawsuits. Why? Because prisoners do would be afforded no better a chance to Federal judges will continue to exer­ not have many other things to do— prevail than the claimant making such cise their good judgment in discerning they will always seek a way out of pris­ a frivolous claim about the color of his those abusive claims for special privi­ on or a means to challenge authority. clothing. Indeed, if the Reid amend­ leges from our legitimate religious Thus, I have concluded, the prisoner ment passes, the religious claimant practices. litigation issue is one that we must ad- may have less rights. INCREASE IN PRISONER LITIGATION dress legislatively. I am currently un­ These cases clearly demonstrate the Let me address the concerns raised dertaking efforts to review this serious absurd results we would see as a con by those who argue an amendment is problem and I welcome the rec­ sequence of this amendment. necessary to curb the endless prisoner ommendations of those attorneys gen­ Let me make my position on prisoner litigation inundating our State and eral and prison administrators seeking litigation very clear. Like all of you, I Federal courts. Those who favor this to address their concerns. I believe, do not condone the stream of frivolous Reid-Simpson amendment suggest pris­ however, that we should not deprive lawsuits currently being brought by oner litigation will somehow miracu­ those individuals most in need of reli­ many prisoners. To the contrary, I find lously decline or be curbed should we gion their right to practice it because most prisoner lawsuits to be petty, deprive prisoners of the right to chal­ of the litigious practices of some pris­ frivolous, and offensive. However, I am lenge government action denying them oners. extremely concerned that this amend­ their religious liberty. This amend­ ABSURD RESULTS OF THE PRISON EXEMPTION ment allows our frustration in dealing ment will hardly stop prisoner litiga­ AMENDMENT with a prisoner litigation crisis dictate tion. This amendment will not reduce Let me also point out some of the ab­ how we respond to prisoners whose le­ the cost of defending our prison admin­ solutely absurd results which will fol­ gitimate religious beliefs may be seri­ istrators. This amendment will prob­ low this piecemeal approach to pris­ ously offended. ably not even curb prisoner litigation oner litigation reform, an approach I have previously suggested that we and we should not fool ourselves into embraced in this prisoner exemption need to overhaul thoroughly prisoner believing it will. This amendment will amendment. Currently, prisoners can access to the courts. deprive many prisoners of their reli­ and do sue prison administrators for Our approach must be comprehensive gion in a misguided attempt to address any reason. They sue because they re­ and well conceived. Simply depriving the prisoner litigation crisis. ceived only one dinner roll, or because prisoners of a real right to advance Proponents of this amendment have they disliked the shape of their cake, their religious free exercise claims is suggested this bill will greatly expand or because they are denied illegal not the way to go. More importantly, the number of prisoner lawsuits. They drugs. our approach must be equitable. cite statistics showing the number of Nothing contained in this amend- This amendment should fall because prisoner lawsuits is increasing at an ment will stop these lawsuits. The ef­ it is not fair to those prisoners who are alarming rate. What they fail to men­ fect of this amendment is simply to deprived of their legitimate religious tion is that the increase in lawsuits is preclude those prisoners with lawsuits exercise and have no real recourse to not a result of religious claims. Re­ asserting first amendment free exercise challenge an arbitrary prison adminis­ cently, New York attorney general rights from advancing those rights. trator who has abused his authority. pointed out that only I percent of all Thus, for example, the prisoner who Once again, I ask you to oppose this prisoner claims deal with religious ex­ sued prison administrators in Nevada exemption to first amendment free ex­ ercise claims. Ironically, this reported for serving him creamy peanut butter ercise rights we are restoring in this increase in the raw numbers of prisoner rather than the chunky peanut butter act. Those prisoners with legitimate lawsuits filed followed the 1990 Smith he requested may still bring his case religious claims are the only real los­ decision, where prisoners' rights to free against prison administrators before a ers if this amendment succeeds. The exercise of religion were virtually judge. That horror story is not pre­ abusive and litigious prisoner will still eliminated. (Annual Report of the Di­ cluded by the Reid amendment. bring his frivolous lawsuits. rector of the Administrative Office of However, if this amendment is COST OF RELIGIOUS ACCOMMODATION the U.S. Courts.) passed, the Catholic prisoner who may Mr. President, we have heard some Based on information gathered from want to challenge the denial of com­ horror stories about what will happen State attorneys generals offices from munion would be given short shrift in if the Reid amendment is defeated. throughout this country, I concluded contesting such an arbitrary prison Some have argued that it would be too that prison officials were not really policy in the courts. At best, the expensive for prison administrators to concerned with the ultimate result Catholic prisoner asserting the right to accommodate every religious practice. under the compelling State interest exercise a fundamental aspect of his or Others have suggested that the cost standard or its impact on prison ad- her faith is given no more consider­ and expense associated with religious ministration and order, but with the ation under the Reid amendment than exercise is not a consideration under prisoner litigation that they believe the prisoners complaining about what RFRA. I appreciate the concerns which will result with a return to a compel- kind of peanut butter is being served. have been expressed. I believe many of ling State interest standard. Thus, I It is absurd to treat the religious them will not remotely be realized and am convinced, the real concern those claim so cavalierly. Likewise, the pris­ others are exaggerated. offering this amendment are attempt­ oner in Illinois who sued prison au­ I certainly do not claim that no pris­ ing to address is the exploding growth thorities for depriving him of the use of on in the country will incur an added of prisoner litigation. Most officials his jail cell for drug trafficking will cost under RFRA. I believe that such my staff and I have consulted with still have standing to sue prison offi­ added cost, it occurs, will be far, far agree, the genuine concern of prison of­ cials. less than some supporters of the ficials is this act's impact on prisoner However, if this amendment is adopt­ amendment are suggesting. Indeed, I do litigation, and not the compelling ed, a Protestant or an Episcopalian believe courts will continue to consider State interest standard itself. who might want to challenge prison of- the costs of religious accommodation S 14364 CONGRESSIONAL RECORD—SENATE October 26, 1993 in evaluating lawsuits. That is the in­ this area before the late 1980's. In 1987, plicable standard of review for first tention of the principal sponsors of the the Supreme Court addressed prisoners' amendment claims. We feel the Su­ bill. free exercise claims in O'Lone v. Estate preme Court ruling in O'Lone departed While prison officials must reason- of Shabazz, 482 U.S. 340 (1987). from the generally acceptable stand­ ably accommodate a prisoner's exercise In O'Lone, the Court ruled that so ards of review where important con­ of religion, the cost associated with the long as a prison regulation "reasonably stitutional rights were violated, even accommodation is an important con­ relates to legitimate penalogical inter­ where the more limited constitutional sideration. The courts have long recog­ ests" it will not offend the free exercise rights of prisoners were infringed upon. nized the budgetary limitations of pris­ clause of the first amendment. Prior to This act will reinstate a standard the on administrators and have extended O'Lone, some circuit courts basically Supreme Court has traditionally uti­ to them reasonable discretion. See for applied the well recognized compelling lized in cases implicating fundamental example, Kahane v. Carlson, 527 F.2d 492 State interest standard to test the con­ constitutional rights. The act will re- (2d. Cir. 1975), reaffirmed in Boss v. stitutionality of prison regulations in- turn us to a sensible balance struck by Coughlin, 800 F.Supp. 1066 (N.D. N.Y. fringing on prisoners' free exercise a number of lower courts prior to 1991), affirmed, 976 F.2d 98 (2d Cir. 1992); rights. The compelling State interest O'Lone between one of our most cher­ Walker v. Blackwell, 411 F.2d 23, 26 (5th standard is well understood and used ished freedoms secured by the first Cir. 1969). by the courts in a variety of cir­ amendment and the Government's Moreover, the committee report ad- cumstances where fundamental rights compelling interests in security, order, dresses the issue of costs directly at are tested. safety, and discipline in the operation page 10, where the report states: Some have expressed concern that of our prisons. The imposition of the Accordingly, the committee expects that prison administrators will find it dif­ act's compelling State interest stand­ the courts will continue the tradition of giv­ ficult, if not impossible, to satisfy the ard in prisoner free exercise cases ing due deference to the experience and ex­ compelling State interest standard of strikes a sound and reasonable balance pertise of prison and jail administrators in this act. I do not believe this to be the between these competing interests. establishing necessary regulations and pro­ case. To the contrary, circuit courts cedures to maintain good order, security and have successfully applied the compel- LEAST RESTRICTIVE MEANS TEST discipline, consistent with consideration of ling State interest/least restrictive Let me respond to the criticisms of costs and limited resources. means test in appropriate cases to up- the least restrictive means test. Some But even assuming some added cost hold prison regulations. For example, have argued that imposing the least re­ is imposed on prison administrators, I in Walker v. Blackwell. 411 F.2d 23 (5th strictive means standard on prisons urge my colleagues to balance that Cir. 1969), the court denied requests for will force judges to second guess our cost against the interest being as­ specified food items. In so ruling, the prison administrators on every prison serted. That interest, religious liberty, court wrote: security issue and to establish their own vision of how prisons should be is the most fundamental liberty any [C]onsiderations of security and adminis­ human being can claim. Religious lib­ trative expense outweigh whatever constitu­ run. I do not believe the standard will erty is a cornerstone of the foundation tional deprivation petitioners may claim. In lead us to this aberration. of our country and its evolution into this regard, the courts holds that the govern­ The courts in many circuits have the greatest country on earth. Even ment has demonstrated a substantial and used this well recognized standard, the the most scorned in our society, prison compelling interest, that of security, which compelling interest standard. In apply- inmates, have a legitimate interest in compels the deprivation of these after-sunset ing the least restrictive alternative religious liberty. meals. * * * prong, the courts have uniformly given Is the Senate of the United States Further, just 8 days before the "wide-ranging deference to the expert really prepared to say that a Jewish O'Lone decision, the eleven circuit, judgment of prison administrators." prisoner should always be denied ko­ using a similar standard, the substan- (See, e.g., Martinelli v. Bugger, 817 F.2d sher food solely because of its cost? Is tial government interest/least restric- 1499,1506 (11th Cir. 1987).) Moreover, the the Senate of the United States really tive means test, ruled that a prisoner courts have consistently recognized prepared to say that a Jewish prisoner was not entitled to an exemption from prison authorities' wide latitude to re- or a Moslem prisoner must eat pork in the prison shaving and hair length reg­ strict religious liberties on the basis of violation of his or her faith or go hun­ ulations. (Martinelli v. Dugger, 817 F.2d probable, rather than actual or certain gry because the State government will 1499 (11th Cir., 1987).) It can fairly be dangers. (O'Malley v. Brierly, 477 F 2d not prepare pork-free food for such a said that the standard contained in 785, 796 n. 10 (3rd Cir. 1973).) There is in prisoner? If so, vote for the Reid this act does not impose an insur­ my view, absolutely no reason to be­ amendment. mountable burden on prison authori­ lieve the courts will become indifferent ties. The test has proven to be a work- to the thoughtful expert opinion of Is the Senate of the United States able balance between compelling inter­ those individuals ultimately respon­ really prepared to say that cost and ad­ ests of prison administrators and the sible for the safety and security of our ministrative inconvenience should pre­ limited religious rights of prisoners. prisons. clude a Catholic prisoner from the op­ portunity to see a priest other than at A government operating a prison The additional views to the commit- those times when the State, at its clearly has a compelling interest in tee report cites only one case, a case whim, decides to make a priest avail- maintaining order, safety, and dis­ out of the California State Appeals able? If that is the standard we wish to cipline. Walker v. Blackwell, 411 F.2d 23, Court, as reflective of how the least re­ 24-25 (5th Cir., 1969); See also, e.g., strictive means test will be abused by have, vote for the Reid amendment. Barnett v. Rodgers, 410 F.2d 995, 1000 I believe that in striking the balance the courts. The California trial court (D.C. Cir., 1969), Fortune Society v. ruling is not reflective of the estab­ in such matters, the religious liberty McGinnis, 319 F. Supp. 901, 904 (S.D.N.Y. interest of prisoners should count for lished deference our Federal courts 1970). The sponsors of this bill empha­ have given to prison administrators. more than the Reid amendment will sized this point repeatedly during this permit. Moreover, the ruling was apparently bill's consideration. Moreover, as the also an aberration to the California COMPELLING STATE INTEREST STANDARD IS AP­ committee report states: Court of Appeals which reversed it on PROPRIATE FOR PRISONERS' FREE EXERCISE The committee expects that the courts will appeal. CLAIMS continue the tradition of giving due def- I appreciate the desire to restrict erence to the experience and expertise of ADEQUATE TIME TO STUDY ISSUES prisoners' religious exercise rights to a prison and jail administrators in establish­ Over 3 years have elapsed since we reasonableness standard. I do not ing necessary regulations and procedures to first introduced the Religious Freedom agree, however, that this is the appro­ maintain good order, security and discipline Restoration Act, in form and substance priate standard of review. As I under- consistent with consideration of costs and almost identical to the bill we are de- stand prisoner's free exercise jurispru­ limited resources. (p. 10) bating today. I strongly disagree with dence, the Supreme Court did not out- In my view, the compelling State in­ any suggestion we have not satisfac­ line a definitive standard of review in terest standard is the traditionally ap- torily studied this bill. October 26, 1993 CONGRESSIONAL RECORD—SENATE S 14365 We have thoroughly studied the Act's the hopelessness shared by most pris­ one's free exercise of religion. In Lyng, impact on prisons, and discussed these oners. Most frustrating for him, pacify­ the court ruled that the way in which concerns of some attorneys general and ing an inmate with television was the Government manages its affairs and prison administrators. Ultimately, most favored approach to rehabilita­ uses its own property does not con­ based on the input of many concerned tion. stitute a burden on religious exercise. officials, many directly responsible for Fortunately, prison also taught Rick Thus, the construction of mining or the administration of our prisons, oth­ Templeton a valuable lesson he had timber roads over Government land, ers responsible for defending prison ad­ never fully known before and never ex­ land sacred to native American reli­ ministrators being sued by prisoners, pected to learn in prison. It was in pris­ gion, did not burden their free exercise we formulated committee report lan­ on that he truly found religion. He rights. Unless a burden is dem­ guage addressing their concerns. prayed frequently while incarcerated. onstrated, there can be no free exercise Earlier this year, at the Judiciary As a result of his prison experience, he violation. The statutory language in Committee markup, some critics of the came to appropriate the role religion RFRA was drafted to include protec­ bill argued that the State attorneys could play in his life. Equally impor­ tion against laws which impose a bur- general were not given adequate notice tant, he came to understand the role den on religious exercise. and opportunity to officially comment religion could play in the lives of fel­ INCIDENTAL IMPACT CASES BOWEN CASE on the act's impact on prisons. At that low prisoners. RFRA would have no effect on cases time it was suggested we delay action Once released, Mr. Templeton joined like Bowen v. Roy, 476 U.S. 673 (1986), on the bill until the National Associa­ Prison Fellowship and has been reach­ involving the use of social security tion of Attorneys General, an organiza­ ing out to prisoners ever since. He con­ numbers, because the incidental im­ tion concerned and impacted by the tinues to work with prisoners because pact on a religious practice does not act, had the opportunity to study the religion is the only hope for salvation constitute a cognizable burden on any- act and make a recommendation at he sees for them. While many prsioners one's free exercise of religion. Unless their annual meeting. will never be saved, he has assisted such a burden is demonstrated, there In July, in Chicago, at their annual many more who have turned their life can be no free exercise violation. Thus, meeting, the National Association of around. He points out that 98 percent a claimant never gets to the compel- Attorneys General reviewed an amend­ of the prisoner population will eventu­ ling interest test where there is no bur- ment very similar to Senator REID'S. ally be released into society. Like it or den. RFRA language intentionally in­ They also had the opportunity to re- not, they will be returning to our com­ cludes terminology requiring a burden view the proposed committee report munities. A point that is well taken. In on one's exercise of religion. language we drafted and circulated, in my opinion, there is much comfort in Both Lyng and Roy are burden cases consultation with many experts, to al­ knowing that a prisoner has been af­ and were not decided under either the leviate their concerns regarding the forded the opportunity to receive Mr. compelling State interest test set forth act's application to prisons. While I Templeton's counsel, to share ideas in RFRA or even the reasonableness cannot be certain of their reasoning in about interpersonal relations and fam­ test announced in Smith. Under the act failing to request that our body enact a ily, and hopefully, to learn more about only governmental actions that place a prison exemption amendment such as religion while in prison. We should ac­ substantial burden on the exercise of the one before us, the association did, commodate efforts to bring religion to religion must meet the compelling in­ in fact, decide to endorse such an prisoners in the hopes of turning some terest test. amendment. This official action, I lives around, not stifle those efforts. Mr. President, I do not want to keep might add, was made subsequent to By supporting the Reid amendment my colleagues any longer this evening, their letter of May 5, 1993, wherein we embark on a journey down the most but I think it is really important that some attorneys general had expressed dangerous path, the path that subjects we not buy off on this argument that it concern about the act. the protection of our religious liberty is going to be a lot rougher on the pris­ I also want to emphasize these same to a double standard. Religion deserves ons if we do not adopt this amendment. concerns raised about the need for a a single standard. I ask you not to set The fact is the prison administrators' prisoner exemption amendment were a double standard for the protection of interest in order, security, and dis­ presented to the National Association religion. I ask you to restore religious cipline will be found compelling in al­ of Attorneys General Civil Rights Com­ liberty. I ask you to defeat the Reid most all of these cases. I do not think mittee earlier this year. They too, de­ amendment. anybody really doubts that who knows clined to support an amendment strik­ VIOLENCE/CRIMINAL ACTS about the State of the law prior to ingly similar to Senator REID'S amend- RFRA neither permits nor invites Smith or the State of the law if this ment. the violation of our criminal laws. The bill passes without amendment. I hope I have thoroughly studied the issues, State's interest in regulating criminal our colleagues realize that. consulted with numerous religious activity is a compelling interest and One of the things we ought to be en­ leaders and prison officials and am con- the courts have offered great deference couraging more than anything else is vinced a prison administration exemp- to our criminal statutes. religious activity in the prisons. We tion is unnecessary. I ask my distin- It is inconceivable to me that RFRA ought to be encouraging these men and guished colleagues to reject this will protect acts of violence, purport- women and these young boys and girls amendment. edly motivated by religion, under any to get involved in religious activity in PRISON FELLOWSHIP circumstances. Our clear societal in­ the prisons. We ought to be encourag­ Last week, at a Senate staff briefing terest in protecting our public safety, ing religious influence in the prisons. I cosponsored along with Senator KEN­ even if the violence is purportedly reli­ After all, if we are going to rehabili­ NEDY, Rick Templeton of Prison Fel­ giously motivated, is by its very na­ tate these people, there is nothing bet­ lowship offered some valuable insight ture a compelling interest. Nothing ter that would help them to be reha­ into the Reid amendment. In his intro­ contained in RFRA is intended to offer bilitated than religious beliefs. duction Mr. Templeton noted that he or extend any protection for this type So, Mr. President, I hope that our served in a position very similar to of criminal activity and our govern- colleagues will defeat this amendment. many of staff members present. He ob­ mental interest in combating this vio­ This bill is very, very important. It in­ served that he invariably wrote the lence is undoubtedly superior. volves our first amendment rights and "tough on crime" speeches for his boss INCIDENTAL IMPACT CASES LYNG CASE privileges; it involves the first freedom and considered himself a staunch law RFRA does not effect Lyng v. North- mentioned in our first amendment and order advocate. He still believes he west Indian Cemetery Protective Assn., rights and privileges. I do not think serves the cause of law and order. 485 U.S. 439 (1987), a case concerning there is any call to be that concerned Mr. Templeton then went on to ex- the use and management of Govern­ or that worried that this is really plain how he went to prison, and how ment resources, because the incidental going to place an even greater burden his life was changed forever. It was in impact on a religious practice does not on the prisons and prison administra­ prison where he experienced firsthand constitute a cognizable burden on any- tors than is already placed there. S 14366 CONGRESSIONAL RECORD—SENATE October 26, 1993 Mr. President, if the other side is of what constitutes the best solution to tems as their way of life now, who willing to yield back the time. I am, every administrative problem, thereby "un­ think of it as their society and really necessarily perpetuating the involvement of too, otherwise I have a lot more I the Federal courts in affairs of prison admin­ do not want to be released. They have would like to say on this subject. istration." nowhere to go—the temptations of so­ Mr. REID addressed the Chair. ciety are too great for them. The PRESIDING OFFICER. The Sen­ I certainly concur with Justice O'Con­ If you put those types of people, the ator from Nevada. nor in her comments there. wasted of society, those who have Mr. REID. Mr. President, I will take Then finally, Mr. President, this bill given up society, and mix them up with less than 1 minute to say what I want without the amendment will force the a few creative prisoners who are decid­ to say. And that is basically no one, in­ courts to determine which religions are ing what kind of religion they can con­ cluding sponsors of this amendment, good and noble and which religions are coct to drive prison administrators intends or does the amendment cause shams, certainly something which I do goofy. Governors goofy, and the legis­ anyone from practicing their religion not wish the courts to do. And that is latures goofy, and the sky is the limit. in prison any reasonable way. We never exactly what will have to happen under By challenging a bill that sounds so claimed that this amendment would re­ this. Senator REID and I have presented magnificent, you are noted as an evil, duce lawsuits. We simply said that this some absurd and bizarre "religions." uncaring rascal of indescribable dimen­ legislation, unless it is amended, will Well, now, who is going to make that sion. increase claims and further burden the decision? The Supreme Court upheld by a 6-to- courts because they will find them Think how many well-established re­ 3 decision a totally isolated case of a more winnable, and that is what we do ligions would never have survived that couple of guys who were fired from not want, is prisoners who file these type of scrutiny 40 years ago. There their job because they broke their em­ specious lawsuits and win them. were religions 40 years ago that were ployment contract for doing peyote. Mr. SIMPSON addressed the Chair. made fun of in America, which now That is all. And this bill is the result of The PRESIDING OFFICER. The Sen­ have huge memberships, headquarters, it—a great big bill which is all out of ator from Wyoming. tracts that they distribute. Who is to context as to what we really should be Mr. SIMPSON. Mr. President, Sen­ decide whether they were sham or doing if we wanted to put it back to ator HATCH tells us that the interests whether they were real at the time? where it was before. of security and discipline and safety My colleague from Utah says that I will stand here for 5 days without are compelling interests and that we courts will see through sham religions. leaving the floor if you want to put it have nothing to fear here. Courts do Do not believe it. How long will it take back to where it was before. But this not always find that prison interests prison administrators to defend their bill is bizarre, absolutely bizarre—com­ are compelling interests. It depends position against these sham religions? pelling interests and least restrictive upon the Court. That is how we got to Only you can guess. means test. Someone made a mockery the O'Lone decision: the Supreme The bill's change in standard will of putting the law back to where it Court decided to clarify the standard— force prison administrators into long was—this bill has overdone it and all in at least seven decisions, were then and costly evidentiary hearings and the name of religious freedom. No won­ available—confusing the interests of numerous appeals, instead of swift dis­ der the mail pours in. society. position by summary judgment mo­ The PRESIDING OFFICER. The Sen­ Courts do not always find that the tions, as is usually the case today. ator from Utah. prison interests are compelling inter­ As I heard the long list of those who Mr. HATCH. Mr. President, I do not ests. It depends, as I say, on the Court. support this bill. I thought to myself, I want to prolong this, but I do have to But the second part of the test, the wonder how many members of the var- say, let us just be honest about this. least restrictive means test, would ious organizations ever read the bill—I Had the compelling interest test been allow courts to look for alternatives to always say when everything else fails, in effect when the Smith case was de­ accommodate prisoners' requests. why not read the bill. cided, the compelling interest test There are always alternatives: More When everything else fails, why not would have upheld the final result in guards can be hired; new facilities can read the amendment that is being pre­ that case anyway. Justice O'Connor be constructed. But at what cost? Does sented by my colleague, and of which I came out that way. anybody answer that question? Cer­ am the cosponsor. I remember a few years back when tainly, the CBO did not. Here is what it says. One paragraph: the military was not permitting mem­ Prison officials can allow satanists to Notwithstanding any other provision of bers of the Jewish faith, sincere ortho­ draw pentagrams on the floor of their this Act, nothing in this Act or any amend­ dox members to wear a yarmulke. I cells, but at what cost? Neo-Nazis can ment made by this Act, shall be construed to was one of the Senators who came to circulate racially inflammatory mate- affect, interpret, or in any way address that the floor and forced the military to let rials in the name of their religion, but portion of the First Amendment regarding: laws prohibiting the free exercise of religion, them be able to do that. We had to at what cost to the prison system? with respect to any individual who is incar­ enact a statute. We had to enact a stat- Those are very real questions. This is cerated in a Federal, State, or local correc­ ute in order to provide for this simple not some hobgoblin activity that we tional, detention, or penal facility—includ­ expression of religious freedom. are involved in here. ing any correctional, detention, or penal fa­ Now, if there are sham religions that Then the Senator has argued that no cility that is operated by a private entity arise, that has to be determined with matter what the standard is, prisoners under a contract with a government. or without this bill. If this bill is not will always make claims. The standard The amendment is not really too sin­ enacted, you would still have to deter- does matter, and Justice O'Connor said ister, not one bit. mine that the religious action was a that in Turner versus Safely. Here is No wonder the religious groups write sham, or that the claimed religious be- what she said—I think this is a very in, send mail by the metric ton—they lief was a sham, or that the religion apt description: are saying "you would not want to pre- they claimed to be following was a sham. That is before you even get into Subjecting the day-to-day judgments of vent the practice of religion in prison." prison officials to an inflexible, strict scru­ That is not what this amendment the question of a compelling interest tiny analysis would seriously hamper their does—it does not prohibit religion in test. ability to anticipate security problems and the prisons. So do not listen to that So in many, many cases these cases to adopt innovative solutions to the intrac­ one. would be automatically thrown out as table problems of the prison administration. We are talking about people who shams. So do not come and tell me that The compelling State interest rule would prisoners are somehow or other going distort the decisionmaking process, for every have to go out and administer the pris­ administrative judgment would be subject to ons of the United States—which must to be able to gain privileges based on the possibility that some court somewhere be about the most thankless job in so­ the sham nature of some prisoners' would conclude that it had a less restrictive ciety—with a bunch of creative pris­ claims in Federal and State prisons. way of solving the problem at hand. Courts oners who, in many cases, become The fact of the matter is courts are inevitably would become the primary arbiter spoiled, who look upon the prison sys­ going to have to make that determina- October 26, 1993 CONGRESSIONAL RECORD — SENATE S 14367 tion anyway. But to the extent that we that the Senate will vote down this This prison amendment will retain deny anybody, including prisoners, amendment and uphold these fun­ the current U.S. Supreme Court stand­ their first amendment rights to wor­ damental rights. There are a lot of ard for the evaluation of prison actions ship freely, it would be a shame. That Senators here who would uphold var­ affecting religious activities. That is what we are fighting for here; to es­ ious fundamental rights. I think most standard looks to whether prison offi­ tablish once and for all that this is the would want to uphold all fundamental cials, in light of security, discipline first mentioned freedom in the Bill of rights. But there is nothing more fun­ and safety concerns, have acted reason- Rights, and that it has been given damental in my eyes than the religious ably in the measures they have taken short shrift by the Supreme Court and freedoms mentioned in the first amend­ which may impact religious activities. by one of my dear friends in the major­ ment of the Constitution. In the past, the U.S. Supreme Court ity opinion. Justice Scalia. Short I am prepared to yield back the re­ has required courts to give great def­ shrift. mainder of my time if my colleagues erence to decisions made by prison offi­ We want to correct that. I have no are prepared to do so. I understand that cials regarding how their prisons are doubt in my mind that almost all pris­ there will be 20 minutes equally di­ administered. Without this prison on regulations will be held to be fulfill­ vided tomorrow morning. I would like amendment, it is not clear such def­ ing the compelling interest test. But to make that a half hour if we can be- erence would be continued. where they are not, as the distin­ cause if Senator KENNEDY is here, I Many attorneys general supporting guished colleague from Wyoming and want to make sure there is enough this prison amendment, including Ne­ very dear friend of mine says, where time. vada Attorney General Frankie Sue they uphold the compelling interest Mr. BRYAN. Mr. President, as an Del Papa, are concerned that without test and find the religious activity pro­ original cosponsor, I today join Sen­ the amendment, the Religious Freedom tected under the Constitution, by gosh, ators REID, SIMPSON, BURNS, and SAS- that is a good thing. Restoration Act will overturn stand­ SER in supporting the amendment to ards that have existed for approxi­ We want religion in the prisons. It is the Religious Freedom Restoration Act mately 45 years for prison settings. The one of the best rehabilitative influ­ to exempt prisons from the act's appli­ result not only increasing the number ences we can have. Just because they cation through establishment of a dif­ of prisoner generated lawsuits, but per­ are prisoners does not mean all of their ferent legal standard for review of reli­ mitting courts to second guess prison rights should go down the drain, their gious freedom cases brought by prison inmates. administrators' decisionmaking by fundamental religious rights. And they looking beyond concerns for security are fundamental rights. I support the Religious Freedom Res­ and conditions of confinement in the This amendment protects fundamen­ toration Act, and its purpose to estab­ prisons. For example, the recent tal rights, fundamental constitutional lish the compelling interest test as a Santeria religion case upholding reli­ rights. It says once and for all that the statutory legal standard for evaluating gious ritual animal sacrifices could Supreme Court should not misconstrue free exercise of religion claims; the create immense problems if such sac­ the intent of Congress. It should not same legal standard that prevailed prior to the 1990 U.S. Supreme Court rifices were upheld in a prison setting. misconstrue the Constitution. This is a I ask my colleagues to join with the red herring amendment as far as I am decision in Employment Division ver­ sus Smith. cosponsors of this amendment to en- concerned. I am not meaning to be crit­ sure our prisons and their administra­ ical of my colleagues because they are One can sincerely only be amazed by tors are allowed to exercise their judg­ both thoughtful, both very sincere, and the diversity of the religious and civil ment to maintain the security and of they are both very dear friends. rights groups who have joined together their facilities, and to have that judg­ But in all honesty, these are impor­ as a coalition to strongly support this ment given due deference by our court tant rights. And all of these groups important legislation. However, I am system. supporting the bill and opposing this very concerned about the possible im­ amendment have come together be- pact of the Religious Freedom Act if an Mr. REID. Mr. President, if I could cause they want these rights protected. exception is not included for free exer­ just make a very brief statement, I And we as Senators ought to keep that cise challenges to prison regulations. want the record to be spread of the in mind. We are talking about fun­ As proposed, the Religious Freedom facts that the amendment offered by damental rights that should not be in- Restoration Act would require prison Senators REID and SIMPSON does not fringed. And, yes, even prisoners in in­ officials to justify any actions involv­ change fundamental religious rights. It stitutions should have those fundamen­ ing prisoner's exercise of their reli­ very simply maintains the present tal rights. gious belief by showing there was a standard that the courts have used. But even in prisons, there has to be a compelling governmental interest for And the courts have always given great different application of the compelling the action, and that any action taken deference to prison officials when it interest test and prison administrators was the least restrictive alternative in comes to constitutional rights of pris­ will be upheld in most instances be- burdening the prisoner's exercise of re­ oners. We simply maintain those stand­ cause of the nature of incarceration, ligion. ards. the nature of the penal institution, and As a former Attorney General, I am I will be happy if my friend from Wy­ the nature of our governmental laws in well aware of the amount of prisoner oming would agree to yield back the trying to uphold the penal institutions, generated litigation, oftentimes reminder of our time tonight. It is my and their rules and regulations. amounting to purely frivolous claims, understanding that in the morning But if prison administrators are that tie up our State and Federal legal there is some morning business that found to not meet the compelling in­ resources. As a former Governor, I am starts at 8:30. They have already agreed terest test, then, by gosh, religious ex­ also well aware of the difficult deci­ to give those people an hour and 10 ercise should be upheld. And the fun­ sions facing our prison administrators minutes. So we would only have 20 damental rights of these prisoners day in and day out as they strive to minutes in the morning evenly divided. should not be taken away. They are not maintain the security of their facili­ Mr. HATCH. Mr. President, that is animals. Nobody is any tougher on ties, for both staff and inmates. fine with me. As I understand it, we crime than I am around here, and I Also as a member of the Nevada will have debate between 9:45 and 10 want toughness in prisons. But these State Prisons Board during my tenures o'clock. There will be a vote at 10 are not animals. These are human as Governor and attorney general, I ex­ o'clock. beings, and we ought to consider their perienced first hand the burdens placed Mr. REID. It is my understanding it rights to religious exercise. on State governments as a result of would be on this amendment. We could debate this for hours and Federal court actions. These burdens Mr. HATCH. On this amendment. hours. I think excellent remarks have impacted State governments' mone­ Then we will have some additional been made by my colleagues. I just tarily and administratively through in- time before. We will vote on them back happen to disagree with them. I hope creased costs, time, and effort to com­ to back. that tomorrow when we vote on this ply with required legal holdings. Mr. REID. Yes. S 14368 CONGRESSIONAL RECORD—SENATE October 26, 1993 Mr. HATCH. I understand that is OK prisoners could wear baseball caps, sin­ Let me make my position on prisoner with Senator KENNEDY. cere Orthodox Jews could not wear litigation clear. Like all of you, I do Mr. REID. With the permission of the yarmulkes, precisely because of the not condone this stream of frivolous Senator from Wyoming, I yield back standards that would be set by this lawsuits currently being brought by the remainder of our time. amendment. many prisoners. To the contrary, I find Mr. SIMPSON. Mr. President, what is Look, there are going to be sham re­ most prisoner's lawsuits to be petty, the situation with regard to time? ligious beliefs and sham religions no frivolous, and offensive. However, I am The PRESIDING OFFICER. The Sen­ matter what we do here. And they are extremely concerned that this amend­ ator from Utah controls 52 minutes 18 going to have to be reviewed by a ment continues our frustration in deal­ seconds; the Senator from Nevada 7 court. A decision on those will have to ing with the prisoner litigation crisis minutes and 2 seconds. be reached before you even get to the and dictates how we respond to pris­ Mr. SIMPSON. Mr. President, I will question of compelling interest which oners whose legitimate religious beliefs not use the entire 7 minutes. But I of course is important. may be seriously offended. would like to respond to my friend Let me also point out some of the ab­ I previously suggested that we need from Utah. We do serve together on the solutely absurd results which follow to overhaul thoroughly prisoners' ac­ Judiciary Committee and he has been a this piecemeal approach to prisoner cess to the courts. Our approach must great help to me in my time in the litigation reform; an approach em- be comprehensive and well conceived. Senate. braced by this prisoner exemption Simply depriving prisoners of a real I regard him highly. Everything he amendment. right to advance their religious free ex- said in his moving remarks I agree Currently prisoners can and do sue ercise claims is not the way to go. with, with the exception of how the prison administrations for any reason More important, our approach must courts should treat prisoner claims. at all. They sue because they received be equitable. This amendment should Not one of us is challenging the pre- only one dinner roll, or because they fall because it is not fair to those pris­ cious right of religious freedom in a disliked the shape of their cake, or be- oners who are deprived of their legiti­ prison population, as long as you do cause they are denied illegal drugs. mate exercise and have no real re- not do it in a way which forces the Nothing contained in this amendment source to challenge an arbitrary prison State and Federal Governments to ac- is going to stop these frivolous law­ administrator who has abused his au­ commodate frivolous claims and sham suits. thority. religions. That is what we are talking Once again, I nave to ask our col­ about. The effect of this amendment is sim­ leagues to oppose this exemption to I do not want for force courts to de­ ply to preclude those prisoners with first amendment free exercise rights, cide for me what kind of religion is lawsuits asserting first amendment because in this act, we are restoring sham and what kind of religion is good. free exercise of rights from advancing those first amendment rights. Those That is exactly what you are doing if those rights. Thus, for example, the prisoners with legitimate religious you leave this bill as it is, without this prisoner who sued the prison adminis­ claims are the only real losers if this amendment. trator in Nevada for serving him amendment succeeds. The abusive and The Church of Scientology, where creamy peanut butter rather than the contentious prisoners will still bring was that 30 years ago? Was that church chunky peanut butter may still bring frivolous lawsuits, and we are going to real or a sham? We all know what has his case before a judge. That horror have them no matter what we do. If occurred in the last 30 years with re­ story is not precluded by the Reid there are shams, that has to be decided gard to making these decisions. amendment. in every instance before you can deter- There is no possible way to compare If this amendment is agreed to, the mine whether or not it applies. the free exercise of religion in the mili­ Catholic prisoner who may want to It seems to me we ought to be very tary and in the prisons. That compari­ challenge the denial of communion considerate of these first amendment son is a terribly inappropriate argu­ would be given short shrift in contest­ rights and fundamental rights that we ment. ing such an arbitrary prison policy in are talking about, even in the case of The difference between the military the courts. At best, the Catholic pris­ prisoners in prison—maybe in many in- and the prison population is poles oner asserting the right to exercise a stances, especially in the case of pris­ apart, night and day. fundamental aspect of his faith is given oners, who we are trying to rehabili­ So I can hear the argument. Who no more consideration than the pris­ tate with the best tools available, and does not agree that religion in prison is oner complaining about the peanut there is nothing better than religious a good thing? It is a stabilizing influ­ butter. It is absurd. Likewise, the pris­ belief. ence. It is a rehabilitating influence. It oner in Illinois—depriving him the use Well, Mr. President, I am prepared to is a social goal. of his jail cell for drug trafficking—will yield the remainder of my time. But that is not what we are talking still have standing to sue prison offi­ We both yield the remainder of our about. That was not what the Supreme cials. time. Court was talking about. If it had not However, if this amendment is The PRESIDING OFFICER (Mr. been for a peculiar set of facts which passed, a Protestant or Episcopalian or FEINGOLD).All time is yielded back. led us to a peculiar situation right Mormon who might want to challenge Mr. HATCH. We are prepared to do now, we may not have been here. But prison officials who are denying them the wrap-up. you cannot burden the prison systems the right to pray in their prison cell of the United States with this kind of may have their case thrown out of bill and then hide behind the first court. The inmate who files a frivolous MORNING BUSINESS amendment—that it is just the exercise lawsuit against his jailer because he Mr. REID. Mr. President, I ask unan­ of religious freedom. That is how we does not like the color of prison uni­ imous consent that there be a period pass a lot of stuff in this place, by form can fully litigate his case in for morning business with Senators using a deft blend of emotion, fear, courts—and they will; a Jewish inmate permitted to speak therein for up to 5 guilt, or racism. I have been here 14 who may want to challenge denial of minutes. years. I know them all. his right to kosher meals again would The PRESIDING OFFICER. Without Thank you. be afforded no better a chance to pre­ objection, it is so ordered. Mr. HATCH. Mr. President, the rea­ vail than the claimant making such a son I brought up the Army is because frivolous claim about the color of his the compelling interest test was not clothing. ENERGY SECRETARY O'LEARY applicable in the military, that test Indeed, if the Reid amendment Mr. DOLE. Mr. President, it has been was not considered applicable. Mem­ passes, the religious claimant may reported that the Secretary of Energy, bers of the Army, sincere Orthodox have less rights. These claims clearly Hazel O'Leary, has nearly signed a Jews, could not wear yarmulkes. There demonstrate the absurd results we see death sentence for the domestic inde­ has been a recent case where although as a consequence of this amendment. pendent oil and gas industry.