Statement of Orrin G. Hatch (R-UT)
in Judiciary Committee Hearings on
S. 2148, the Religious Liberty Protection Act
Washington, D.C.
June 23, 1998
Good morning and welcome to these hearings on S. 2148, The Religious Liberty Protection Act of 1998. This legislation seeks to protect the right of religious freedom in cooperation with the Supreme Court. We have reached this point through a dialogue with the Court about the appropriate method of protecting the rights guaranteed by the Free Exercise Clause of the Constitution. Clearly, it would be preferable if the Court returned to its previous solicitude for religious liberty claims. But, until it does, this Congress will do what it can to protect religious freedom in cooperation with the Court.
Indeed, it seems odd that we would need legislation at all to protect the first freedom guaranteed by the Bill of Rights. But faced with this second-best situation we must do our best to ensure that in America, priests and confessors need not fear that the sanctity of the confessional will be violated to help a plaintiff or prosecutor win their case. To ensure that in America, Bible study will not be zoned out of believers’ own homes, and their places of worship not zoned out of their neighborhoods. To ensure that the Founders’ Free Exercise guarantee will at least mean that government will have a good reason before it outlaws or punishes a religious practice.
This legislation works to protect religious freedom in two ways. First, the Religious Liberty Protection Act builds on the Religious Freedom Restoration Act, which continues to be valid as a matter of federal statutory law after City of Boerne v. Flores, by extending RFRA’s rule of protection to the full extent of Congress’s statutory authority. The Religious Liberty Protection Act establishes the rule of strict scrutiny review for rules that burden religious practice in interstate commerce or in federally funded programs. In areas where Congress has plenary authority to legislate, religious practice cannot be substantially burdened except for the most compelling reasons, as a matter of federal statutory right.
Second, in addition to this federal substantive right, the Religious Liberty Protection Act seeks to assist the Courts in enforcing the Free Exercise clause of the Constitution by enacting enforcement measures under the 14th Amendment in the manner suggested by the Court in Boerne. Under this legislation, when a claimant shows a violation of his or her constitutional rights as interpreted by the courts, the burden of proof will shift to the government to disprove the violation. In this manner, violations of constitutional rights that might otherwise go unredressed can more readily be remedied. This procedural support for underenforced constitutional rights is consistent with other civil rights law.
Additionally, the Boerne court suggested that where Congress found a serious or widespread problem, it could enact stronger rules to remedy the situation. We have found such a problem in the land-use context, as will be explained today, and as our colleagues in the House have also heard. Too often local zoning and landmarking rules work to the disadvantage of religion generally, and minority religions in particular. To deal with the specific problem in this area, the Religious Liberty Protection Act establishes special rules for land use cases. Together, these enforcement mechanisms will help protect the Free Exercise rights guaranteed by the Constitution with the appropriate congruence and proportionality to the problem required by Boerne.
These protections are necessary, not because there are systematic pogroms against certain sects now as there had been earlier in our history. No, hostility to religious freedom comes more subtly from the blind, bureaucratic behemoth of the regulatory state. As it imposes its arbitrary rules into every corner of our lives, it seems unable somehow to cope with the infinite variety of religious experience in America. Rule-bound, and often overcautious to avoid aiding religion, government clings to its creed that “rules are rules,” no matter the damage done to the individual soul. So, perhaps certain religious sects are no longer driven from state to state, and their extermination is no longer an explicit state policy, we have witnessed in our own history, but they are still told they cannot build their temples in certain towns.
This morning we will hear from a small cross section of the exceptionally broad range of religious and civil liberties groups that see a need for federal legislation protecting religious liberty, and we will have a lively debate about the constitutional merits of the legislation with some of the leading constitutional scholars in the field. I look forward to this discussion. The freedom to practice one’s religion is the most fundamental of rights. And the discussion we are having about protecting that right is one we need to have here in Congress, and across the nation.
Good morning and welcome to these hearings on S. 2148, The Religious Liberty Protection Act of 1998. This legislation seeks to protect the right of religious freedom in cooperation with the Supreme Court. We have reached this point through a dialogue with the Court about the appropriate method of protecting the rights guaranteed by the Free Exercise Clause of the Constitution. Clearly, it would be preferable if the Court returned to its previous solicitude for religious liberty claims. But, until it does, this Congress will do what it can to protect religious freedom in cooperation with the Court.
Indeed, it seems odd that we would need legislation at all to protect the first freedom guaranteed by the Bill of Rights. But faced with this second-best situation we must do our best to ensure that in America, priests and confessors need not fear that the sanctity of the confessional will be violated to help a plaintiff or prosecutor win their case. To ensure that in America, Bible study will not be zoned out of believers’ own homes, and their places of worship not zoned out of their neighborhoods. To ensure that the Founders’ Free Exercise guarantee will at least mean that government will have a good reason before it outlaws or punishes a religious practice.
This legislation works to protect religious freedom in two ways. First, the Religious Liberty Protection Act builds on the Religious Freedom Restoration Act, which continues to be valid as a matter of federal statutory law after City of Boerne v. Flores, by extending RFRA’s rule of protection to the full extent of Congress’s statutory authority. The Religious Liberty Protection Act establishes the rule of strict scrutiny review for rules that burden religious practice in interstate commerce or in federally funded programs. In areas where Congress has plenary authority to legislate, religious practice cannot be substantially burdened except for the most compelling reasons, as a matter of federal statutory right.
Second, in addition to this federal substantive right, the Religious Liberty Protection Act seeks to assist the Courts in enforcing the Free Exercise clause of the Constitution by enacting enforcement measures under the 14th Amendment in the manner suggested by the Court in Boerne. Under this legislation, when a claimant shows a violation of his or her constitutional rights as interpreted by the courts, the burden of proof will shift to the government to disprove the violation. In this manner, violations of constitutional rights that might otherwise go unredressed can more readily be remedied. This procedural support for underenforced constitutional rights is consistent with other civil rights law.
Additionally, the Boerne court suggested that where Congress found a serious or widespread problem, it could enact stronger rules to remedy the situation. We have found such a problem in the land-use context, as will be explained today, and as our colleagues in the House have also heard. Too often local zoning and landmarking rules work to the disadvantage of religion generally, and minority religions in particular. To deal with the specific problem in this area, the Religious Liberty Protection Act establishes special rules for land use cases. Together, these enforcement mechanisms will help protect the Free Exercise rights guaranteed by the Constitution with the appropriate congruence and proportionality to the problem required by Boerne.
These protections are necessary, not because there are systematic pogroms against certain sects now as there had been earlier in our history. No, hostility to religious freedom comes more subtly from the blind, bureaucratic behemoth of the regulatory state. As it imposes its arbitrary rules into every corner of our lives, it seems unable somehow to cope with the infinite variety of religious experience in America. Rule-bound, and often overcautious to avoid aiding religion, government clings to its creed that “rules are rules,” no matter the damage done to the individual soul. So, perhaps certain religious sects are no longer driven from state to state, and their extermination is no longer an explicit state policy, we have witnessed in our own history, but they are still told they cannot build their temples in certain towns.
This morning we will hear from a small cross section of the exceptionally broad range of religious and civil liberties groups that see a need for federal legislation protecting religious liberty, and we will have a lively debate about the constitutional merits of the legislation with some of the leading constitutional scholars in the field. I look forward to this discussion. The freedom to practice one’s religion is the most fundamental of rights. And the discussion we are having about protecting that right is one we need to have here in Congress, and across the nation.