S. HRG. 102-1076 THE RELIGIOUS FREEDOM RESTORATION ACT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SECOND CONGRESS SECOND SESSION ON S. 2969 A BILL TO PROTECT THE FREE EXERCISE OF RELIGION SEPTEMBER 18, 1992 Serial No. J-102-82 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 65-604 WASHINGTON : 1993 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington. DC 20402 ISBN 0-16-040725-7 COMMITTEE ON THE JUDICIARY JOSEPH R. BIDEN, JR., Delaware, Chairman EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina HOWARD M. METZENBAUM, Ohio ORRIN G. HATCH, Utah DENNIS DECONCINI, Arizona ALAN K. SIMPSON, Wyoming PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania PAUL SIMON, Illinois HANK BROWN, Colorado HERBERT KOHL, Wisconsin CYNTHIA C. HOGAN, Chief Counsel and Staff Director THADDEUS E. STROM, Minority Chief Counsel and Staff Director (II) CONTENTS STATEMENTS OF COMMITTEE MEMBERS Page Kennedy, Hon. Edward M 1 Thurmond, Hon. Strom 3 Hatch, Hon. Orrin G 7 Metzenbaum, Hon. Howard M 8 CHRONOLOGICAL LIST OF WITNESSES William Nouyi Yang, Worcester, MA, accompanied by Robert Peck, legislative counsel, American Civil Liberties Union 5 Panel consisting of: Dallin H. Oaks, quorum of the twelve apostles, Church of Jesus Christ of Latter-Day Saints, Salt Lake City, UT; Oliver S. Thomas, general counsel, Baptist Joint Committee on Public Affairs, Washington, DC; Douglas Laycock, professor, University of Texas School of Law; Mark E. Chopko, general counsel, U.S. Catholic Conference, Washington, DC; and Bruce Fein, Great Falls, VA 30 Panel consisting of: Forest D. Montgomery, counsel, office of public affairs, National Association of Evangelicals, Washington, DC; Michael P. Farris, president Home School Legal Defense Association, Paeonian Springs, VA; Nadine Strossen, president, American Civil Liberties Union; and James Bopp, Jr., general counsel, National Right to Life Committee, Inc., Wash­ ington, DC 135 ALPHABETICAL LIST AND SUBMITTED MATERIAL Bopp, James, Jr.: Testimony 203 Prepared statement 206 Chopko, Mark E.: Testimony 99 Prepared statement 101 Farris, Michael P.: Testimony 148 Prepared statement 151 An analysis of the Religious Freedom Restoration Act by the Coalitions for America 154 Fein, Bruce: Testimony 116 Prepared statement 120 Laycock, Douglas: Testimony 63 Prepared statement 66 Montgomery, Forest D.: Testimony 135 Prepared statement 138 Oaks, Dallin H.: Testimony 30 Prepared statement 33 Peck, Robert: Testimony 6 Text of opinion, Yang v. Sturner 10 Strossen, Nadine: Testimony 171 Prepared statement 174 (III) IV Strossen, Nadine—Continued Page Thomas, Oliver S.: Testimony 41 Prepared statement 44 Yang, William Nouyi: Testimony 5 Prepared statement 14 APPENDIX Prepared statement by a broad coalition of Indian tribes and organizations and religious, civil rights and environmental organizations 243 Text of S. 2969—A bill to protect the free exercise of religion 262 S. 2969—THE RELIGIOUS FREEDOM RESTORATION ACT FRIDAY, SEPTEMBER 18, 1992 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 10:15 a.m., in room SD-G-50, Dirksen Senate Office Building, Hon. Edward M. Kenne­ dy presiding. Present: Senators Kennedy, Metzenbaum, and Hatch. OPENING STATEMENT OF SENATOR KENNEDY Senator KENNEDY. We will come to order. The brave pioneers who founded America came here in large part to escape religious tyranny and to practice their faiths free from government interference. The persecution they had suffered in the old world convinced them of the need to assure for all Amer­ icans for all time the right to practice their religion unencumbered by the yoke of religious tyranny. That profound principle is embodied in the two great religion clauses of the first amendment, which provide that Congress "shall make no law respecting the establishment of religion or prohibiting the free exercise thereof." But in 1990, the Supreme Court's deci­ sion in Oregon Employment Division v. Smith produced a serious and unwarranted setback for the first amendment's guarantee of freedom of religion. Before the Smith decision, Federal, State, and local governments were prohibited from interfering with people's ability to practice their religion unless the restriction satisfied a difficult two-part test—first, that it was necessary to achieve a compelling govern­ ment interest; and, second, that there was no less burdensome way to accomplish the goal. The compelling interest test has been the legal standard protect­ ing the free exercise of religion for nearly 30 years. Yet, in one fell swoop the Supreme Court overruled that test and declared that no special constitutional protection is available for religious liberty as long as the Federal, State, or local law in question is neutral on its face as to religion and is a law of general application. Under Smith, the Government no longer had to justify burdens on the free exercise of religion as long as these burdens are "merely the incidental effect of a generally applicable and otherwise valid pro- vision." (1) 2 The Supreme Court did not have to go that far to reach its result in the Smith case. As Justice Sandra Day O'Connor wrote of the majority's ruling in her eloquent and forceful opinion concurring in the result but criticizing the majority's reasoning, Today's holding dramatically departs from well-settled first amendment jurispru­ dence, appears unnecessary to resolve the questions presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty. The Religious Freedom Restoration Act, which Senator Hatch and I, and 23 other Senators have introduced, would restore the compelling interest test for evaluating free exercise claims. It would do so by establishing a statutory right that adopts the stand­ ards previously, used by the Supreme Court. In essence, the act codifies the requirement for the Government to demonstrate that any law burdening the free exercise of religion is essential to fur­ thering a compelling governmental interest and is the least restric­ tive means of achieving that interest. The act creates no new rights for any religious practice or for any potential litigant. Not every free exercise claim will prevail. It simply restores the long-established standard of review that had worked well for many years and that requires courts to weigh free exercise claims against the compelling State interest standard. Our bill is strongly supported by an extraordinary coalition of or­ ganizations with widely differing views on many other issues. The National Association of Evangelicals, the American Civil Liberties Union, the Coalitions for America, People for the American Way, just to name a few, support the legislation. They don't often agree on much, but they do agree on the need to pass the Religious Free­ dom Restoration Act because religious freedom in America is dam- aged each day the Smith decision stands. Today, the committee will hear compelling testimony about the destructive impact of the decision. We are fortunate to have a very distinguished group of witnesses and I look forward to their testi­ mony. We have a statement from Senator Thurmond which we will enter in the record at this point. [The prepared statement of Senator Thurmond follows:] 3 STATEMENT BY SENATOR STROM THURMOND (R-S.C.) BEFORE THE SENATE JUDICIARY COMMITTEE, REFERENCE HEARING ON S. 2969, THE RELIGIOUS FREEDOM RESTORATION ACT, 226 DIRKSEN SENATE OFFICE BUILDING. FRIDAY, SEPTEMBER 18, 1992. 10:00 A.M. MR. CHAIRMAN: The hearing this morning on S. 2969, the Religious Freedom Restoration Act, brings into sharp focus the many different views on the advisability and manner of reversing the Supreme Court's 1990 decision in Employment Division of Oregon v. Smith. This opinion, as my colleagues know, concerns the Free Exercise Clause of the First Amendment to the Constitution. As stated by the Court, the respondents in this case, were fired from their jobs with a drug rehabilitation program because of their use of peyote as part of a religious ceremony. At the time, the use of peyote was a crime in Oregon for which no religious exemption existed. Respondents were denied unemployment compensation on the ground that they were dismissed for misconduct. Subsequently, the Oregon Supreme Court reversed, holding that the denial of unemployment benefits violated respondents free exercise rights under the First Amendment. Of importance to the hearing this morning is that the Court, in reversing the Oregon Supreme Court, declined to apply the compelling governmental interest test, as set forth in Sherbert v. Verner, a 1963 decision. S. 2969 would reverse the Court's holding, and would statutorily require the Court to apply the compelling governmental interest test to all challenges based on the Free Exercise Clause. Mr. Chairman, I understand the arguments in support of S. -1- 4 2969, but I am concerned that there are many aspects to this legislation which must be carefully considered before it is enacted. For example, I am concerned, as some of the witnesses suggest, that this legislation may have unintended consequences, especially as to the issue of abortion. I am also concerned that this legislation may deprive the Court of a certain amount of flexibility which is necessary in determining constitutional issues. Given the seriousness of these and many other issues, Mr. Chairman, I want to assure the witnesses that I intend to study this legislation, and their recommendations, very carefully. In my view, legislation such as this, which impacts constitutional decision-making, demands our most careful and thorough review. In conclusion, Mr. Chairman, I want to thank the witnesses for their time and effort in appearing before the Committee this morning. -2- 5 Senator KENNEDY. Our first witness this morning is Mr. William Yang of Worcester, MA. Mr. Yang, we welcome you here and we are delighted to have you before the committee.