Thank you, Mr. Chairman and members of the Committee, 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.

Today I am here to tell you that I believe that RLPA violates the Constitution.

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.1 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

ÿ 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.

ÿ 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.

ÿ RLPA Is an Assault on States’ Rights. Despite its rote recitation of language from cases addressing 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 one of the final stronghold’s of local government. 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 micromanagement of local land use law would set the pace for an expansive invasion of state and local government authority.

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

ÿ 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. See Hearings, H.R. 4019, The Religious Liberty Protection Act, Subcommittee on the Constitution, House Committee on the Judiciary (June 16, 1998). 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.

The specious argument that Congress may grant religion this windfall under the Commerce Clause because religion generates commerce attempts to transform the First Amendment, a limitation on congressional power, into an enumerated power.

ÿ 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. RLPA, 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 consequences. This is a zero-sum game: by granting religion expansive new power against generally applicable, neutral laws, Congress inevitably subtracts from the liberty accorded other societal interests.

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:

ÿChildren in religions that advocate and practice abuse

ÿWomen in religions that advocate male domination

ÿChildren in religions that refuse medical treatment, including immunizations

ÿPediatricians, who have lobbied vigorously for mandatory immunizations

ÿThe 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

ÿDepartments of correction and prison officials attempting to ensure order in prisons populated by increasingly violent criminals

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

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

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

ÿState, 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 cross-section 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).

City of 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. Little Rock L.J. -- (forthcoming 1998).