INTRODUCTION

Mr. Chairman, I am privileged to appear before you to testify in support of Congressional enactment of S.2148, the Religious Liberty Protection Act of 1998. I am here as a representative of The Church of Jesus Christ of Latter-day Saints to present the official position of that Church.

I speak from considerable personal experience with the law of church and state. Upon graduation from law school, I served as a law clerk to Chief Justice Earl Warren. For a decade I was a professor of law at my alma mater, The University of Chicago. For nine years I was president of Brigham Young University, the nation's largest church-related university. For three and one-half years I served as a justice of the Utah Supreme Court. I have numerous professional publications on the legal relationship between church and state. Since 1984, I have served as a member of the Quorum of the Twelve Apostles. HISTORY

The history of The Church of Jesus Christ of Latter-day Saints (sometimes called Mormon or L.D.S.) illustrates why government should have a "compelling interest" before it can pass valid laws to interfere with the free exercise of religion. No other major religious group in America has endured anything comparable to the officially sanctioned persecution imposed upon members of my church in the nineteenth century by federal, state, and local governments. Mormons were driven from state to state, sometimes by direct government action, and finally expelled from the existing borders of the United States, only to be persecuted anew when those borders expanded to include the Territory of Utah.

This is not academic history to me. My third great grandmother, Catherine Prichard Oaks, lost most of her possessions when a Missouri state militia drove the Mormons out of that state in 1838. Seven years later, when state authorities stood by while a lawless element evicted the Mormons from Illinois, she lost her life from exposure on the plains of Iowa. My wife's second great grandparents, Cyril and Sally Call, hid in a cornfield as a mob burned their home in Illinois. My great-grandfather, Charles Harris, was sent to prison in the Utah Territory in 1893 for his practice of plural marriage. His oldest daughter, my great aunt, Belle Harris, was the first woman to be imprisoned during federal prosecution of Mormons in the 1880s.
THE COMPELLING GOVERNMENTAL INTEREST TEST MUST BE RESTORED

The conflict between religious-based conduct and government regulation of religious practices remains today. The free exercise of religion, enshrined in our Constitution, is in jeopardy and cries out for protection. There is nothing more sacred than a devout person’s worship of God — nothing more precious than that person’s practice of his or her religion.

With the abandonment of the "compelling governmental interest" test in the case of Employment Division v. Smith, the Supreme Court has permitted any level of government to enact laws that interfere with an individual's religious worship or practice so long as those laws are of general applicability, not overtly targeting a specific religion. This greatly increased latitude to restrict the free exercise of religion must be curtailed by restoring the compelling governmental interest test.
RELIGIOUS BURDENS UNDER SMITH

The testimony of other witnesses will show that in the half-decade since the Smith case numerous religious practices have already fallen victim to the increased government power it unleashed.

In addition, I wish to put into the record of this Committee the entire testimony given at a recent hearing of the House Judiciary Subcommittee on the Constitution by Professor W. Cole Durham of Brigham Young University. His testimony provides compelling evidence that the Smith test is burdening religious freedoms in many areas, including land use as an instrument of religious discrimination, the confiscation of voluntary tithing donations from churches when the donors suffer bankruptcy, and unfair limitations on the time and place of religious speech and activity.

Professor Durham’s testimony reported a land-use study he conducted with attorneys of the prestigious Chicago law firm of Mayer, Brown & Platt. This study examined reported cases involving free exercise challenges to land-use regulation. It started from the basic proposition that if land use laws and decisions are really being generally and neutrally applied, this should be confirmed in the relative number of legal challenges brought on behalf of various religious associations over the past several years. Stated another way, 'generally applicable' and 'neutral' land use decisions and policies should impact all religions (and other land use applicants as well) in a consistent way.

The joint study not only failed to find consistency in the application of land-use laws to different religious associations; it found a huge disparity.

Professor Durham testified:

“Minority religions representing less than 9% of the population were involved in over 49% of the cases regarding the right to locate religious buildings at a particular site, and in over 33% of the cases seeking approval of accessory uses.”

Thus, the proportion of land-use challenges to minority religions disclosed in this study is more than five times the number we would expect if minority religions experienced such challenges in the same proportion as their proportion of the total population.

Professor Durham testified:

“There may, of course, be other factors that explain some of the disparity, but the differences are so staggering that it is virtually impossible to imagine that religious discrimination is not playing a significant role.”
He concludes:

"The magnitude of the problem is reinforced when one considers that the reported cases are only the tip of the iceberg, since for the reasons discussed above, most religious groups bend over backwards to avoid conflicts with future neighbors and city officials they must deal with on a continuing basis. That is, religious groups are much more likely to give up on claims they may believe are valid in the interest of social peace than they are to aggressively litigate questionable claims. If anything, then, the study, with whatever unavoidable imperfections it may have, significantly understates the problems religious groups face.”
THE RELIGIOUS LIBERTY PROTECTION ACT OF 1998

Mr. Chairman, when I last testified before a Congressional Committee, it was to support enactment of the Religious Freedom Restoration Act (“RFRA”). We are here today because the Supreme Court held that RFRA exceeded Congress' authority and infringed on states' rights in its attempt to extend the compelling governmental interest test to state and local actions. Most legal scholars and the Justice Department believe that RFRA still applies to federal actions.

Now, Mr. Chairman, you and many of your colleagues have worked hard to develop alternative legislation, using Congress' well tested commerce and spending clause authorities to reinstate the compelling governmental interest test throughout the nation. We applaud this approach and strongly endorse the enactment of the Religious Liberty Protection Act of 1998.
CONCLUSION

The Bill of Rights protects principles, not constituencies. The worshipers who need its protection are the beleaguered minorities, not the influential constituent elements of the majority. As a Latter-day Saint, I have a feeling for that reality. Although my church is now among the five largest churches in America, we were once an obscure and unpopular group whose members, including many of my own ancestors, repeatedly fell victim to officially sanctioned persecution because of their religious beliefs and practices. We have special reason to call for Congress and the courts to reaffirm the principle that religious freedom must not be infringed unless clearly required by a "compelling governmental interest."

It is nothing short of outrageous that the Supreme Court currently extends extraordinary constitutional protection to words that cannot be found within the Constitution, such as the "right to privacy," while abandoning the vital “compelling governmental interest” requirement that is needed to ensure the effectiveness of the express Bill of Rights language guaranteeing the free exercise of religion. The fact that the Constitution has two express provisions on religion suggests that religious freedom was meant to have a preferred position, but the Supreme Court’s Smith decision has now consigned it to an inferior one. That mistake must be remedied, and S. 2148 is appropriate for that purpose.

Although we would prefer that the Supreme Court reverse the Smith case and restore the full constitutional dimensions of First Amendment protection of freedom of religion, we believe that S. 2148's statutory reapplication of the "compelling governmental interest" requirement is both a legitimate and a necessary legislative response to the circumstance I have described.

For Mormons, S. 2148 implements a vital principle of general application embodied in our church's eleventh Article of Faith, written in 1842:

"We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may."

Thank you Mr. Chairman.