The Framers of the United States Constitution created this Congress to serve the Nation and the people. They made Members of Congress independent of the people. Members of Congress are not required to do what they are told; they have independent decisionmaking authority. It doesn't matter what faction or factions are in front of you; you are required by the Congress to act independently in the best interest of the Nation. James Madison, the leading structuralist framer, predicted that this experiment in democracy would not succeed if Members of Congress failed to act virtuously, and what he meant is if they failed to act for the greater good because they were captured by factions.

In this area, more than any other, this area of religious liberty, it is absolutely essential that Congress investigate and acknowledge the source of this bill, and also its huge effect.

In my written testimony, I provide a list of those groups in the society, those constituencies, that will be affected by this bill, perhaps unwittingly: Children, women in domestic violence situations, pediatricians who have labored hard for mandatory immunizations, the handicapped, women, minorities, homosexuals, departments of correction, artistic and historical preservation interests, neighborhoods, school boards, and State and local governments.

That is just the tip of the iceberg, and I urge you, this committee, to investigate the facts of the actual impact of this bill. Thank you very much.

Mr. CANADY. Thank you, Professor Hamilton.

[The prepared statement of Ms. Hamilton follows:]

PREPARED STATEMENT OF MARCI HAMILTON, PROFESSOR, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY

Thank you, Mr. Chairman, for inviting me to speak today on this important constitutional law topic. I am a Professor of Law at Benjamin N. Cardozo School of Law, Yeshiva University, where I specialize in constitutional law. I was also the lead counsel for the City of Boerne, Texas in the case that ultimately invalidated the Religious Freedom Restoration Act (RFRA). See Boerne v. Flores, 117 S. Ct. 2157 (1997). I have devoted the last five years of my life to writing about, lecturing on, and litigating the Religious Freedom Restoration Act and similar religious liberty legislation in the states. For the record, I am a religious believer.

As you know, the Boerne v. Flores decision unequivocally rejected RFRA. Not a single member of the Supreme Court defended the law in either the majority, the concurrences, or the dissents. The Court's decision was not a result of any hostility on the part of the Court toward this body. That is evident in its calm, evenhanded tone. Nor was it the result of mistaken understandings of its own precedents. The decision was inevitable. Contrary to Professor Laycock's and the Congressional Research Service's confident assurances in the RFRA legislative record, RFRA was plainly ultra vires.

I will not belabor RFRA's faults here, but rather refer you to the bibliography that follows this testimony. I also refer you to my letter of November 11, 1997 to Rep. Jerrold Nadler, which is attached, in which I explain the limited options open to Congress to aid religion.

When I first read The Religious Liberty Protection Act of 1998, I thought someone was playing a prank on me. If I had been commissioned to write a law post-Boerne v. Flores that contains multiple constitutional violations, I could not have done a better job. There is no enumerated power that would support this bill. Moreover, it violates a score of structural constitutional principles.

That this bill, which is a slap in the face of the Framers and the Constitution, is receiving a hearing indicates that what I say today may not make much difference. If Congress wants to be perceived as the savior of religious liberty and wants to defer to the most powerful coalition of religions in this country's history, there is absolutely nothing that I can do about it. Thus, I will not offer detailed critique of each of this bill's glaring constitutional errors. Instead, I will offer a summary of those errors.

Then I will share with you the interests that will be hurt by granting religion this unprecedented quantum of power against the government. I represent none of these interests, but I have heard their stories in my travels around the country these five years.

RLPA'S MOST SEVERE CONSTITUTIONAL DEFECTS

RLPA Violates the Separation of Powers. Like RFRA, RLPA is an undisguised attempt to reverse the Supreme Court's interpretation of the Free Exercise Clause in Employment Division v. Smith, 494 U.S. 872 (1990), and to take over the Court's core function of interpreting the Constitution. See Secs. 2(a) and 3(a). For a clear discussion explaining why this is beyond Congress's power, see Boerne v. Flores, 117 S. Ct. at 2172.

RLPA Violates the Constitution's Ratification Procedures. Like RFRA, RLPA attempts to amend the Constitution by a majority vote, bypassing Article V's required ratification procedures in direct violation of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). For a plain discussion in which the Court reasserts its allegiance to Marbury, see Boerne v. Flores, 117 S. Ct. at 2168.

RLPA Is an Assault on States' Rights. Despite its rote recitation of language from cases discussing federalism issues, see, e.g., Sec. 2(d) ("state policy not commandeered "), this bill federalizes local land use law and (if good law) would eviscerate this final stronghold of local government. Local land control is one of the key elements of personal liberty. It violates the letter and the spirit of the modern Court's emerging structural constitutional jurisprudence. See Printz v. United States, 117 S. Ct. 2365 (1997); United States v. Lopez, 514 U.S. 549 (1995); New York v. U.S., 505 U.S. 144 (1992). If good law, RLPA's intervention in local land use law would set the pace for the most expansive invasion of state and local government authority in this nation's history.

If RLPA becomes law, it will haunt any representative who attempts to climb onto the limited federal government platform.

RLPA Fails to Satisfy the Enumerated Power Requirement. RLPA is ultra vires. There is not a single statute that provides a model for RLPA's claim to be grounded in either the Spending Clause or the Commerce Clause. Congress has not identified any specific arena of spending or commerce. Rather, it has identified all religious conduct as its target and attempted to cover as much religious conduct as possible by casting a net over all federal spending and commerce. Like RFRA, its obvious purpose is to displace the Supreme Court's interpretation of the Free Exercise Clause in as many fora as possible. It is a transparent end-run around the Supreme Court's criticism of RFRA in Boerne v. Flores.

RLPA Violates the Establishment Clause. RLPA privileges religion over all other interests in the society. While the Supreme Court indicated in Smith that tailored exemptions from certain laws for particular religious practices might pass muster, it has never given any indication that legislatures have the power to privilege religion across-the-board in this way.

RFRA's and RLPA's defenders rely on Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987), for the proposition that government may enact exemptions en masse. This is a careless reading of the case, which stands for the proposition that religion may be exempted from a particular law (affecting employment) if such an exemption is necessary to avoid excessive entanglement between church and state. RLPÁ, like RFRA, creates, rather than solves, entanglement problems. RLPA, which was drafted by religion for the purpose of benefitting religion and has the effect of privileging religion in a vast number of scenarios, violates the Establishment Clause. For the Court's most recent explanation of the Establishment Clause, see Agostini v. Felton, 117 S. Ct. 1997 (1997).

The following is a list of interests that will be affected adversely if RLPA is adopted, because it elevates religion above all other societal interests. As Oregon recently discovered when a prosecutor attempted to prosecute a religious community for the death of three children, particular exemptions from general laws can have real con

1 Professor Douglas Laycock tilts at windmills when he attempts to argue that the test instituted by RLPA (and RFRA), the compelling interest/least restrictive means test, was the test regularly employed in all free exercise cases before 1990. He neglects to mention Turner v. Safley, 482 U.S. 78 (1987), which makes explicit that strict scrutiny does not apply in the prison context or any of other cases in which the Court demonstrated great deference to government interests. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986); Bowen v. Roy, 476 U.S. 693 (1986). Whatever Professor Laycock's interpretation of the Supreme Court's free exercise jurisprudence may be, the Supreme Court itself made absolutely clear in Boerne v. Flores that the least restrictive means test is "a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify." 117 S. Ct. at 2171.

sequences. Before blindly passing this law with its mandate to exempt religion from general laws in an infinite number of scenarios, Congress should know that it risks responsibility for harming the following constituencies:

• Children in religions that advocate and practice abuse

• Women in religions that advocate male domination

• Children in religions that refuse medical treatment, including immunizations • Pediatricians, who have lobbied vigorously for mandatory immunizations • The handicapped, women, minorities, and homosexuals, whose interests are currently protected by antidiscrimination laws and may well be trumped by religions exercising the compelling interest/least restrictive means test Departments of correction and prison officials attempting to ensure order in prisons populated by increasingly violent criminals

• Artistic and historical preservation interests, including whole communities that depend on historical districts for revenue and jobs

Neighborhoods attempting to enforce neutral rules regulating congestion, building size, lot size, and on- and off-street parking

• School boards desperately attempting to ensure order and safety in the public schools

• State, local, and municipal officials who will be forced to bear the cost of accommodating every religious request (whether from a mainstream religion or a cult) or bear the cost of litigating refusals to do so

• Last, but not least, citizens who will bear the extreme increase in litigation costs created by these new rights coupled to an attorney's fees provision (a virtual invitation to sue)

In sum, RLPA is no better than RFRA. In fact, it is worse. Congress has a duty to investigate its wide-ranging effects with care before taking this plainly unconstitutional path.

For those who take comfort from the fact that RLPA is supported by a wide crosssection of religions, I leave you with the words of Framer Rufus King, one of the youngest members of the Constitutional Convention but a Harvard graduate who was highly respected on structural issues: "[I]f the clergy combine, they will have their influence on government."

Bibliography of works by Marci A. Hamilton addressing the Religious Freedom Restoration Act and Boerne v. Flores:

The Religious Freedom Restoration Act Is Unconstitutional, Period, 1 U. PENN. J. CONSTL. L. 1 (1998).

Boerne v. Flores: A Landmark for Structural Analysis, 39 WM. & MARY L. REV. 699 (1998).

Religion's Reach, CHRISTIAN CENTURY 644 (July 16-23, 1997).

The Constitution's Pragmatic Balance of Power Between Church and State, 2 NEXUS, A JOURNAL OF OPINION 33 (1997).

The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section Five of the Fourteenth Amendment, 16 CARDOZO L. REV. 357 (1994).

The Constitutional Rhetoric of Religion,-U. ARK. AT LITTLE ROCK L. REV. (forthcoming 1998).

Hon. JERROLD NADLER,
Committee on the Judiciary,

BENJAMIN N. CARDOZO SCHOOL OF LAW,
YESHIVA UNIVERSITY,

House of Representatives, Washington, DC.

New York, NY, November 11, 1997.

DEAR REPRESENTATIVE NADLER: Thank you for asking me to comment on the measures that Congress could take to ensure religious liberty. I am a legal scholar who teaches and specializes in constitutional law and First Amendment issues at Benjamin N. Cardozo School of Law, Yeshiva University. Over the last several years, I have spent the vast majority of my time studying, writing, and speaking about the Religious Freedom Restoration Act. As lead counsel for the City of Boerne, Texas before the United States Supreme Court, I was instrumental in the invalidation of the Religious Freedom Restoration Act. See Boerne v. Flores, 117 S. Ct. 2365 (1997).

I understand that various members of Congress are now interested in providing some protection for religious liberty in ways that accord with the Constitution. I am happy to provide my insights into this difficult project.

I have divided my remarks into three sections. First, I will address the question whether current Supreme Court doctrine leaves religion unprotected and therefore justifies congressional action at this time. My answer is "no." Second, I will provide some background guidance on the structure of the Constitution and its implications for congressional regulation of religious liberty. Finally, I will turn to potential means by which Congress could effect religious liberty and explain why various proposals will face difficult constitutional challenges.

I. THE STATE OF RELIGIOUS LIBERTY UNDER EMPLOYMENT DIV. V. SMITH

The impetus for the Religious Freedom Restoration Act ("RFRA”) was the outcry against the United States Supreme Court's decision in Employment Div. v. Smith, 494 U.S. 872 (1990). The decision was met with loud complaints from religions, civil liberties groups, and some legal scholars, who claimed (erroneously, in my view) that free exercise claims were treated demonstrably better under the law preceding Smith.

In fact, the Smith standard is not as bad and the pre-Smith case law is not as good for religion as they have been depicted.

Before Smith, the Supreme Court applied a context-dependent balancing approach in free exercise cases. That is, it applied a range of standards of review, depending on the context. Different standards were applied in the military, prison, government services, government lands, and unemployment compensation cases. At no time did the Court require the compelling interest test in every free exercise case. Moreover, the Court has never applied the "least restrictive means" test in its free exercise cases. The Court says as much in the Boerne decision. 117 S. Ct. at 2171.

The legislative history of RFRA makes it abundantly clear that Congress understood that it was enacting a law that protected religion significantly more than the Supreme Court's pre-Smith case law. At one point, Representative Henry Hyde proposed an amendment to RFRA for the purpose of transforming RFRA into an actual "restoration" statute. That amendment was defeated and Congress was on plain notice that it was not simply adopting the Court's pre-Smith case law. Rather, it was giving more to religion than it had ever received under the Court's free exercise doctrine. In addition, the Congressional Research Service's Reports made it clear that RFRA would exceed the Court's pre-Smith case law.

Thus, the claim that legislative action is needed to "restore" previous federal law is a red herring. The outcry against the Smith decision was based on false presuppositions about the Court's free exercise jurisprudence. While protecting religious belief absolutely, the Court traditionally has disfavored free exercise claims impinging on religious conduct. See Marci A. Hamilton, The Belief/Conduct Paradigm in the Supreme Court's Free Exercise Jurisprudence: A Theological Account of the Failure to Protect Religious Conduct, 54 Ohio St. L.J. 713, 746-49 (1993). Indeed, the Smith decision is not demonstrably worse for religion than the preceding case law, and it certainly does not signal the end of religious liberty.

The Smith decision does not leave religion in as unprotected a position as those advocating federal regulation insist. The Court holds that the Constitution does not require exemptions for religious conduct burdened by neutral, generally applicable law, which is a fair summary of its preceding case law. The decision also provides a variety of additional theories on which one could peg a religious liberty claim. The following are the means by which current Supreme Court precedent protects religious liberty:

1. As the Supreme Court stated in its first free exercise decision, Reynolds v. United States, 98 U.S. 145 (1879), religious belief is absolutely and categorically protected. This is a principle that was reaffirmed in Smith and has never been questioned in any Supreme Court decision.

2. Discrimination against and persecution of religion is forbidden. Any law that is not neutral and generally applicable receives the strictest scrutiny under the Court's decision in Church of the Lukumi Babalu Ave, Inc. v. City of Hialeah, 508 U.S. 520 (1993). As I read that case, strict scrutiny in this context is strict in theory and fatal in fact. Moreover, even when a law looks neutral, the Court will inquire into whether it is in fact neutral and generally applica

ble. The targeting of a religion or religion in general for deleterious treatment violates the Free Exercise Clause, period.1

3. Strict scrutiny may be appropriate in instances where there is "individualized governmental assessment." Smith, 494 U.S. at 884. This notion echoes various First Amendment cases involving the freedom of speech and officials with unfettered discretion and has yet to be developed in the courts.

4. Combined, or "hybrid," constitutional claims are subject to strict scrutiny. Smith, 494 U.S. at 881-82.

5. Lawmakers are encouraged to provide exemptions for religious conduct burdened by generally applicable laws. Smith, 494 U.S. at 890.

In sum, the Court's decision in Smith is more complicated and more favorable to religious liberty than its opponents have acknowledged. Moreover, we simply do not know how the Smith rules are likely to play out in the courts. The Religious Freedom Restoration Act was passed only three years after Smith was decided, which was insufficient time for any significant number of cases to make their way through the trial and appellate courts. Under the current state of federal law, a wait-and-see attitude is the wisest course for Congress. The situation is not as dire as the legislatures are being told.

II. THE STRUCTURE OF THE CONSTITUTION AND CONGRESSIONAL POWER TO REGULATE

RELIGIOUS LIBERTY

Congress has authority to pursue national interests through a discrete set of enumerated powers found in Article I. It has also the authority to enforce constitutional rights that are violated or very likely to be violated by the states under Section 5 of the Fourteenth Amendment. The Religious Freedom Restoration Act was invalidated on separation of powers, Article V, and federalism grounds because it did not enforce constitutional guarantees but rather attempted to redefine them.

There is no constitutional provision like Section 5 of the Fourteenth Amendment that permits Congress to enforce liberty guarantees against itself. A particular federal law might have the effect of easing a burden on religious conduct, but that law will stand or fall depending on whether it is a valid exercise of an enumerated power. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). The Congress is limited to acting under a substantive, enumerated power. It is not enough for Congress to invoke the Necessary and Proper Clause, which was characterized by the Court last Term as the "last, best hope of those who defend ultra vires congressional action." Printz v. United States, 117 S. Ct. 2365, 2378 (1997). If the constitutional base of its action is not "visible to the naked eye," Congress is obligated to demonstrate through findings or by explanation the constitutional source of its action. United States v. Lopez, 514 U.Š. 549, 563 (1995).

Thus, if Congress is inclined to protect religious liberty, it has one of two options: it can identify violations of the guarantees of the Free Exercise Clause by the states and enact a law aimed at enforcing those guarantees under Section 5 of the Fourteenth Amendment or it can act pursuant to an enumerated power.

Even if Congress acts upon a constitutional base, e.g., under an enumerated power or Section 5, its enactment will still face serious constitutional challenge under the Establishment Clause of the First Amendment. Congress may not act for the purpose of benefitting (or inhibiting) religion and its actions must not have the effect of benefitting (or inhibiting) religion. See Agostini v. Felton, 117 S. Ct. 1997 (1997).

The principle that Congress must act very carefully when it is urged to act pursuant to requests from religion is evident in the story of RFRA's enactment and invalidation. RFRA bad both the purpose and the effect of benefitting religion. As Justice Stevens stated in Boerne regarding RFRA, "[t]his governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment." 117 S. Ct. at 2172 (Stevens, J., concurring).

Congress should take little comfort from the fact that other Justices did not join Justice Stevens' concurrence in Boerne. The concurrence was unnecessary to reach a decision in the case; there were six votes in the majority to invalidate RFRA on separation of powers and federalism grounds and an additional seventh vote (Justice

1One of the empirical questions left to be answered in the wake of Smith is the actual incidence of truly neutral, generally applicable,laws. Having listened to a number of very smart lawyers for various religions, I am now persuaded that the burden of proving a law is not neutral may not be particularly heavy. We do not know how this issue will be determined in the courts yet, because RFRA made the Court's doctrine superfluous from 1993 until 1997, and Smith only became the law in 1990.