Amicus Curiae Brief — Gonzales v. O Centro Espírita Beneficente União Do Vegetal

cs | - ar? cmos.

No. 04-1084 |

ne a

In The |_OFFICE OF THE CLERK _

Supreme Court of the United States

¢

ALBERTO R. GONZALES, Attorney General

of the United States, et al.,

Petitioners,

V.

O CENTRO ESPIRITA BENEFICIENTE

UNIAO DO VEGETAL, et al.,

Respondents.

°

On Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

BRIEF OF AMICUS CURIAE

THE TORT CLAIMANTS’ COMMITTEE,

In Re Roman Catholic Archbishop

Of Portland In Oregon,

And Successors, A Corporation Sole,

AND THE OFFICIAL COMMITTEE

OF TORT LITIGANTS,

In Re Catholic Bishop Of Spokane

IN SUPPORT OF NEITHER

PARTY URGING REVERSAL

e

MaARc! A. HAMILTON

Counsel of Record

36 Timber Knoll Drive

Washington Crossing, PA 18977

(215) 353-8984

. (215) 493-1094 (fax)

. hamilton02@aol.com

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............ccscccsescsescsesesesesesesees ii

STATEMENT OF INTEREST ...........ccccccccscsssseesseeeeeees 1

[REPRESS Meee ees ie ae ee eC 3

I. THE RELIGIOUS FREEDOM RESTORATION

ACT VIOLATES THE SEPARATION OF POW-

EEEEED sccnscsunesonesscesenuensemipnranesenousinsmencousesengsnanunvenss 6

II. THE RELIGIOUS FREEDOM RESTORATION

ACT IS BEYOND CONGRESS'S POWER......... 13

Ill. THE RELIGIOUS FREEDOM RESTORATION

ACT VIOLATES THE ESTABLISHMENT

i

TABLE OF AUTHORITIES

Page

CASES

Bowen v. Roy, 476 U.S. 693 (1986)...........ccccccceecceeeeseeeeeeees 28

Carey v. Brown, 447 U.S. 455 (1980) ............ccccecceeeeseeeeeees 11

Christians v. Crystal Evangelical Free Church (In

re Young), 141 F.3d 854 (8th Cir. 1998)................. 3, 5, 27

City of Boerne v. Flores, 521 U.S. 507 (1997)............. passim

City of Richmond v. J. A. Croson Co., 488 U.S. 469

(1989)...........2 ET NN 11

Clinton v. City of New York, 524 U.S. 417 (1998) ............. 12

Close v. Glenwood Cemetery, 107 U.S. 466 (1883)............ 11

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos, 483 U.S. 327

CBI ) .coccccccccccoverssesesenenesesedenassnniensanainiinnnnnnnnnnnnnEEE 22

Cutter v. Wilkinson, No. 03-9877, 2005 U.S. LEXIS

4346 (U.S. May 31, 2006) .......cccccccscsccssscccccscesccvccees passim

Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct.

| EN 29

Employment Div. v. Smith, 494 U.S. 872 (1990) ... 6, 22, 23, 25

Freedom Baptist Church v. Township of Middle-

town, 204 F. Supp. 2d 857 (E.D. Pa. 2002)............... ..... 4

Gary S. v. Manchester School District, 241 F. Supp.

2d 111 (D.N.H. 2003), aff’d, 374 F.3d 15 (1st Cir.

| NT 4

Goldman v. Weinberger, 475 U.S. 503 (1986) ..............00. 28

Gonzales v. Raich, No. 03-1454, 2005 U.S. LEXIS

4656 (U.S. June 6, 2005) 0.0.0.0... eeeeeeeeees 9, 14, 16,17

Greer v. Spock, 424 U.S. 828 (1976)..........ccccccccccsseseeseeeeees 20

TABLE OF AUTHORITIES — Continued

Page

Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002)....... 3, 5,9

Hodge v. Magic Valley Evangelical Free Church,

220 B.R. 386 (D. Idaho 1996) ............ccccccesesccccccccecccceeseees 4

INS v. Chadha, 462 U.S. 919 (1983)...............cccccceceeeeeeeees 11

Jama v. United States, 343 F. Supp. 2d 338 (D.N.J.

EEE ELL TEE 4

Jones v. United States, 529 U.S. 848 (2000)..................... 16

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ....... 3,9

La Voz Radio de la Communidad v. FCC, 223 F.3d

a 3

Lemon v. Kurtzman, 403 U.S. 602 (1971)....................0006 27

Locke v. Davey, 540 U.S. 712 (2004) .0.........ccccceceeeeeeeee 11, 12

Lyng v. Northwest Indian Cemetery Protective Ass'n,

I eres 28

Marbury v. Madison, 5 U.S. 137 (1803)................ 6, 7, 8, 10

McCreary County v. ACLU of Kentucky, No. 03-

1693, 545 U.S. __ (2005), slip op. (U.S. June 27,

EE LSS LETTE 26, 27

McCulloch v. Maryland, 17 U.S. 316 (1819)............... 18, 19

Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976).................. 5

New York v. United States, 505 U.S. 144 (1992)............... 12

O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir.

a ccerrrcenssnnssnsnnessseeeneeeeets 3,8

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ............ 28

Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999)............ 5

Printz v. United States, 521 U.S. 898 (1997) .................0.. 16

iv

TABLE OF AUTHORITIES -— Continued

Page

R. A. V. v. St. Paul, 505 U.S. 377 (1992) ............cccccccceeeees 11

Reno v. Condon, 528 U.S. 141 (2000)............0.0000... 11, 14, 16

Sabri v. United States, 541 U.S. 600 (2004) ..0.........ccceceeee 9

Sherbert v. Verner, 374 U.S. 398 (1963) ............ccccccce0ee 7, 28

Southern Pacific Terminal Co. v. Interstate

Commerce Comm’n, 219 U.S. 498 (1911) .0.0.........0ccccceee 5

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

eS Ciee i rctcriancsisainasiisticbusennncitndeinicdipenitaisiaeeietiaiiee 3

Tennessee v. Lane, 541 U.S. 509 (2004)... ccccccccceeeee eee 8

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)............. 28

United States v. Bass, 404 U.S. 336 (1971)............ccccccec0es 16

United States v. Grace, 461 U.S. 171 (1983)............0...000.. 20

United States v. Hardman, 297 F.3d 1116 (10th Cir.

STITT cxenensenconsnntsnnnmnennsunsnennnmnenmeinninunipenmeiatenaniimianesiaiiaites 4

United States v. Lopez, 514 U.S. 549 (1995).............. passim

United States v. McCoy, 323 F.3d 1114 (9th Cir.

SUITE crvarenenseuseneensnamnnenedeninsnemestnnieiamumniiiinaatbaaiesticasien 15, 18

United States v. Morrison, 529 U.S. 598 (2000)......... passim

United States v. O’Brien, 391 U.S. 367 (1968)............ 11, 20

United States v. Ramon, 86 F. Supp. 2d 665 (W.D.

Tees cerinocnencenncanenmmennsesatenisaicstinianiaiinieauaiiiiiasiiesiusinaiaiaiad 4

United States v. Sandia, 6 F.Supp. 2d 1278

(D.N.M. 1997), aff’d, 188 F.3d 1215 (10th Cir.

United States Nat'l Bank v. Independent Ins. Agents

OF Bing TED GE, Fa Ci ccncccccccencsccenssscsnsssnsssenssenssnsnes 5

Vv

TABLE OF AUTHORITIES — Continued

| Page

Virginia v. Black, 538 U.S. 343 (2003)...........cc0ccecceeeeeeees 11

Waguespack v. Rodriguez, 220 B.R. 31 (W.D. La.

Re 4

Wickard v. Filburn, 317 U.S. 111 (1942). .............cc000 17, 18

Wisconsin v. Yoder, 406 U.S. 205 (1972) .........cccccccceeeeee 7, 28

STATUTES

CN xx———————————————— 7, 20, 21

GB UG. 8 BTID OB GOD, ceccscecescsssescscencscscssccncscesccssenssssess 14

GBA. 6 BRB 60 CI ercccecscssnsnenenssssnssesenscssssssmsmsesssssinn 22

71 Pa. Const. Stat.-Ann. 2406 (2004) ............ccccccceeeeseeeeeees 29

775 Ill. Comp. Stat. Ann. § 35/30 (2005)..............ccccseeeeees 29

Ariz. Rev. Stat. Ann. § 41-1493 (2004) .000..........cccccceeeeeeeees 29

Conn. Gen Stat. Ann. § 52-571 b (2004)....0......cccceeeeeeneees 29

Fla. Stat. Ann. § 761.05(4) (2005) ............cccccccceceeeeeeeereeees 29

Idaho Code § 73-403(2) (2004).............ccccccssseeeeeeeenereeneees 29

Mont. Code § 1.307 (2005).............scsssessssssesesesensnensenenenneess 29

N.M. Stat. Ann. § 28-22-3 (2005) ............:cccccccccceeseeneeeeneees 29

Okla. Stat. tit. 51, § 254 (Supp. 2004)....00..........cccccceeeeeeees 29

R.L. Gen. Laws § 42-80.1-3 (2005).............:ccccceeeseeeeeeeeeenees 29

Religious Liberty Protection Act of 1998, S. 2148,

21H.R. 4019, 105th Cong. (1998) .............ccccceceeeeeeeeeeeees 21

S.C. Code Ann. § 1-32-45 (2004).............ccccccccseerereeeeeeeeeenes 29

Tex. Civ. Prac. & Rem. Code § 110.010 (2004)................... 29

vi

TABLE OF AUTHORITIES -— Continued

Page

CONSTITUTIONAL PROVISIONS

CE eee en Le a 29

EE eT 9, 10

Re ID, Ti iaiiicrieccinsisiinteacsintatsitnenibinnimadatiiiidiiad passim

Fe 8 | ae passim

8 ne a OE ETE 14

a a eee 18

OTHER AUTHORITIES

137 Cong. Rec. E2422 (daily ed. June 27, 1991)

(statement of Rep. Stephen Solarz) ..................cccccc0ee00s 25

139 Cong. Rec. H2359 (daily ed. May 11, 1993)

Nr I IIIT cocesicrisneninisiinitsecicinininisectinssiteiasiantiian 25

139 Cong. Rec. H2361 (daily ed. May 11, 1993)

(statement of Rep. Hoyer) ......00:ccccsseccccssssscscssscsscsccsseees 25

139 Cong. Rec. S14464 (daily ed. October 27, 1993)

eT 25

139 Cong. Rec. H2360 (daily ed. May 11, 1993)

(statement of Rep. Schumer)...................:ccccssssssscssseseees 25

Edward J. W. Blatnik, Note, No RFRAF Allowed:

The Status of the Religious Freedom Restoration

Act’s Federal Application in the Wake of Boerne v.

Flores, 98 Colum. L. Rev. 1410 (1998)..............ccccccceeeee 10

Christopher L. Eisgruber & Lawrence G. Sager,

The Vulnerability of Conscience: The Constitu-

tional Basis for Protecting Religious Conduct, 61

Ge, Bh, BO BE Ci ccccnccccscncscccesccscesesececcscsecsnnecs 28

Vii

TABLE OF AUTHORITIES — Continued

Eugene Gressman, Symposium, RFRA: A Comedy

of Necessary and Proper Errors, 21 Cardozo L.

CQ ee 18, 19

Marci A. Hamilton, Federalism and the Public

Good: The True Story Behind the Religious Land

Use and Institutionalized Persons Act, 78 Ind.

a, Sa seatandciae dei caseianerie cranial tiieaaiiaatield 21

Marci A. Hamilton, The Religious Freedom

Restoration Act Is Unconstitutional, Period, 1 U.

SS ee 28

Ira C. Lupu, The Trouble With Accommodation, 60

Geo. Waaghs. L. Rev. 743 (1908) ....ccccccccccccccccccccccssesesseseres 28

The Religious Freedom Restoration Act of 1990:

Hearings on H.R. 5377 Before the Subcomm. on

Civil and Constitutional Rights of the House

Comm. on the Judiciary, 101st Cong., 2d Sess. 2,

8, 9, 11, 22, 28-29, 31-32, 35, 38, 41, 48, 49, 51, 61

The Religious Freedom Restoration Act of 1991:

Hearings on H.R. 2797 Before the Subcomm. on

Civil and Constitutional Rights of the House

Comm. on the Judiciary, 102d Cong., 2d Sess. 7,

8, 19, 23, 32, 39, 45, 63, 99, 136, 160, 175, 193,

BBA, BRA, BED, BHA, BE CRITE ccccecccccccccscccccccespsccsccssecsses 25

Remarks on Signing the Religious Freedom

Restoration Act of 1993, II Pub. Papers 2000

ee 25

Eugene Volokh, A Common-Law Model for

Religious Exemptions, 46 UCLA L. Rev. 1465

ee 28

1

STATEMENT OF INTEREST"

Each Amicus is a committee of tort claimants com-

posed of individuals who were sexually abused as children

by clergy. Each Committee was constituted within the

context of a federal bankruptcy proceeding filed by the

relevant Archdiocese or Diocese in response to its liability

for clergy abuse. In both cases, the Archdiocese or Diocese

has invoked the Religious Freedom Restoration Act

(RFRA) to argue either that it does not own parish prop-

erty or to argue that the federal bankruptcy laws should

be read to reduce their obligations to the victims.

The Tort Claimants’ Committee was appointed pursu-

ant to 11 U.S.C. § 1102. In re Roman Catholic Archbishop

of Portland in Oregon, and Successors, A Corporation Sole,

United States Bankruptcy Court for the District of Ore-

gon, Case No. 04-37154-ELP11. The Committee is ap-

pointed to represent the interests of all tort claimants in

the bankruptcy case of the Archdiocese. Consequently, it

has an interest in ensuring that the Bankruptcy Code is

applied to the Archdiocese in the same manner that it is

applied to all debtors. The generally applicable process of

developing and confirming a plan of reorganization should

be applicable to the Archdiocese. The Archdiocese has

raised RFRA in multiple contexts in the bankruptcy, most

recently in connection with a motion to extend the exclu-

sivity period during which the Debtor alone has the right

to file a plan of reorganization. The Archdiocese argued

that a refusal by the bankruptcy court to extend the

exclusivity period would violate RFRA.

* Counsel for amici are the sole authors of this brief. No person or

entity other than amici, its members, or its counsel made a monetary

contribution to the preparation or submission of the brief.

2

The Official Committee of Tort Litigants was ap-

pointed pursuant to 11 U.S.C. § 1102. In Re Catholic

Bishop of Spokane, United States Bankruptcy Court for

the Eastern District of Washington, Case No. 04-08822

PCW11. The Committee is appointed to represent the

interests of all creditors who commenced sex abuse litiga-

tion against the Diocese prior to December 6, 2004. Conse-

quently, it has an interest in ensuring that the Bankruptcy

Code is applied to the Diocese in the same manner that it

is applied to all debtors, including but not limited to the

standards for determining the scope of the property of the

bankruptcy estate and the generally applicable process of

developing and confirming a plan of reorganization. The

Diocese has raised RFRA in multiple contexts in the

bankruptcy, including a reservation of rights under RFRA

in the bankruptcy petition itself, its Schedules of Assets

and Liabilities and Statement of Financial Affairs (the

basic financial disclosure documents required of all debt-

ors) and, most recently, in a declaratory relief action

seeking a determination of the scope of the Diocese’s

interest in property for the purpose of ascertaining the

size of the bankruptcy estate.

The Committees have an interest in having this Court

address the constitutionality of RFRA. Despite RFRA’s

violation of the separation of powers and the Establish-

ment Clause, and the fact it exceeds Congress’s power, the

constitutional issues have deen raised by parties in the

federal courts of appeals only twice in twelve years. RFRA

is a threat to the orderly application of federal bankruptcy

law. It is being invoked in the relevant bankruptcies in a

way that threatens the evenlianded, predictable, and

stable application of bankruptcy law for creditors, tort

victims, and property owners. As the legislative record

3

makes clear, RFRA is a wholesale rejection of this Court’s

free exercise jurisprudence, not legitimate accommodation.

In fact, it never occurred to members of Congress that

RFRA might become a tool for religious institutions to

avoid or reduce claims by tort victims forced through

federal bankruptcies. The Committees respectfully request

this Court find RFRA unconstitutional.

¢

ARGUMENT

This case presents the first opportunity for this Court

to consider the Religious Freedom Restoration Act

(“RFRA”) since it was declared unconstitutional in City of

Boerne v. Flores, 521 U.S. 507 (1997). In the interim, those

invoking RFRA have argued that Boerne held only that

RFRA was unconstitutional as applied to the states, and

therefore it remains constitutional as applied to the

federal government. The four circuit courts to reach the

issue have upheld its constitutionality. O'Bryan v. Bureau

of Prisons, 349 F.3d 399, 401 (7th Cir. 2003); Guam v.

Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002); Kikumura v.

Hurley, 242 F.3d 950, 959 (10th Cir. 2001); Christians v.

Crystal Evangelical Free Church (In re Young), 141 F.3d

854, 860 (8th Cir. 1998); but see La Voz Radio de la Com-

munidad v. FCC, 223 F.3d 313, 319 (6th Cir. 2000) (doubt-

ing the continued constitutionality of RFRA).

* In O'Bryan and In re Young, the circuit courts reversed the

district court findings that RFRA was unconstitutional as applied to the

federal government. Other district courts considering the issue of

RFR4A’s continued constitutionality in light of Boerne have been split on

the issue. Compare Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

826 (9th Cir. 1999) (reversing district court decision that RFRA was

(Continued on following page)

4

Amici respectfully argue that RFRA is not constitu-

tional as applied to federal law, and that this Court should

declare it unconstitutional at this time. Amici are aware

that this Court generally does not consider issues that

have not been considered below, but think that the Court

would be justified in considering RFRA’s constitutionality

sua sponte for three reasons.

First, the federal courts have considered constitu-

tional issues sua sponte, and particularly in circumstances

where the issue would have a dispositive effect on the

litigation, as here. In United States v. Hardman, 297 F.3d

1116 (10th Cir. 2002), the circuit court, recognizing the

general rule that a court “not consider issues not raised by

the parties on appeal,” still considered the application of

RFRA sua sponte as to two defendants who had not prop-

erly preserved the issue in an appeal challenging their

convictions for possessing prohibited eagle feathers.

Hardman, 297 F.3d at 1123. There was no hardship in that

case, because all parties were given an opportunity to brief

the issue. There is ample time for the parties to brief the

unconstitutional as applied to the federal government) and United

States v. Sandia, 6 F. Supp. 2d 1278 (D.N.M. 1997), aff’d, 188 F.3d 1215

(10th Cir. 1999) (holding RFRA unconstitutional after Boerne) and

Waguespack v. Rodriguez, 220 B.R. 31 (W.D. La. 1998) (holding RFRA

unconstitutional after Boerne) and Hodge v. Magic Valley Evangelical

Free Church, 220 B.R. 386 (D. Idaho 1998) (reversing bankruptcy

judge’s finding that RFRA was unconstitutional after Boerne) with Gary

S. v. Manchester School District, 241 F. Supp. 2d 111 (D.N.H. 2003),

aff'd, 374 F.3d 15 (1st Cir. 2004) (finding RFRA claim viable after

Boerne) and Freedom Baptist Church v. Township of Middletown, 204 F.

Supp. 2d 857 (E.D. Pa. 2002) (holding RFRA claim viable after Boerne)

and United States v. Ramon, 86 F. Supp. 2d 665 (W.D. Tex. 2000)

(assuming RFRA claim viable after Boerne) and Jama v. United States,

343 F. Supp. 2d 338 (D.N.J. 2004) (holding RFRA claim viable after

Boerne).

5

issue before this Court, and the government, at least, has

argued the constitutionality of RFRA many times in the

past.

Even where the parties have not briefed an issue

because there was no divergence in their positions, this

Court has held that it was not improper to consider the

validity of a law if such a determination would be disposi-

tive. See United States Nat'l Bank v. Independent Ins.

Agents of Am., 508 U.S. 439, 447-48 (1993). To do other-

wise, would allow litigants in these cases to keep this issue

from the Court, and lead courts to engage in extensive

statutory interpretation involving a law that has no basis

in Congress’s powers. Id. at 447.

Second, the issue of RFRA’s constitutionality, as

important as it is, is difficult to get before a court. In the

vast majority of cases, neither party has an interest in

challenging its constitutionality. The federal government

is obliged to defend it, and the religious entity seeks

RFRA’s privileges. It is a classic example of an important

constitutional question that is “capable of repetition, yet of

evading review.” See, e.g., Olmstead v. L. C. by Zimring,

527 U.S. 581, 594 n.6 (1999); Neb. Press Ass’n v. Stuart,

427 U.S. 539, 546-57 (1976); Southern Pacific Terminal Co.

v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911).

In the twelve years since its enactment, only two parties

have challenged its constitutionality in the federal courts

of appeals, and one of those involved a territory. See

Guerrero, 290 F.3d at 1219 (territory challenged RFRA’s

constitutionality as applied to its laws forbidding the

importation of marijuana, which were applied to a Rasta-

farian); In re Young, 141 F.3d at 857 (bankruptcy trustee).

RFRA blankets all federal laws, and it is apparent that in

-_

6

the vast majority of cases, its constitutionality — even

though highly questionable — has been ignored.

Third, the question of Congress’s power is an issue of

overriding importance. Boerne, 521 U.S. at 516 (“The

powers of the legislature are defined, and limited... . The

distinction, between a government with limited and

unlimited powers, is abolished, if those limits do not

confine the persons on whom they are imposed, and if acts

prohibited and acts allowed, are of equal obligation.”)

(quoting Marbury v. Madison, 5 U.S. 137, 176-77 (1803));

United States v. Lopez, 514 U.S. 549, 552 (1995) (“Because

of the importance of the [Commerce Clause] issue,” the

Court granted certiorari and affirmed the Fifth Circuit’s

decision). Where, as here, review of that question is

difficult, it makes sense for this Court to address this

fundamental question of Congress’s power to enact RFRA

before applying the statute to this narrow set of facts.

For the foregoing reasons, Amici urge this Court to

consider and reach the issue of RFRA’s constitutionality. If

this Court were not to determine RFRA’s constitutionality

in this case, Amici respectfully urge this Court to reserve

expressly the question of its constitutionality.

I. THE RELIGIOUS FREEDOM RESTORATION

ACT VIOLATES THE SEPARATION OF POWERS

With RFRA, Congress intended to step into this

Court’s shoes and to become the final word on the meaning

of the Free Exercise Clause. RFRA’s stated purpose is to

displace this Court’s controlling free exercise precedent in

Employment Div. v. Smith, 494 U.S. 872 (1990), with

constitutional standards preferred by Congress. By its

terms, it is intended “to restore the compelling interest

7

test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)

and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guaran-

tee its application in all cases where free exercise of religion

is substantially burdened[.]” 42 U.S.C. § 2000bb(b)(1) (2005).

This is a frank usurpation of this Court’s critical role in

interpreting the meaning of the Constitution. As the Court

stated in Boerne:

Our national experience teaches that the Consti-

tution is preserved best when each part of the

government respects both the Constitution and

the proper actions and determinations of the

other branches. When the Court has interpreted

the Constitution, it has acted within the province

of the Judicial Branch, which embraces the duty

to say what the law is. Marbury v. Madison, 1

Cranch at 177. When the political branches of

the Government act against the background of a

judicial interpretation of the Constitution al-

ready issued, it must be understood that in later

cases and controversies the Court will treat its

precedents with the respect due them under set-

tled principles, including stare decisis, and con-

trary expectations must be disappointed. RFRA

was designed to control cases and controversies,

such as the one before us; but as the provisions of

the federal statute here invoked are beyond con-

gressional authority, it is this Court’s precedent,

not RFRA, which must control.

Boerne, 521 U.S. at 536.

It is hard to understand how the discussion in Boerne

regarding Marbury v. Madison can mean anything other

than that Congress exceeded its power in all of RFRA’s

applications. As this Court made quite clear in Boerne,

Congress wandered far out of bounds when it arrogated to

8

itself the power to reverse a Supreme Court interpretation

of the First Amendment. Jd. at 535-36. That logic applies

whether Congress was usurping this Court’s power to

interpret the First Amendment as applied to state law or

to federal law.

Those courts upholding RFRA against a separation of

powers attack have reasoned that the separation of powers

reascning in Boerne does not apply to federal law. Their

reasoning is not persuasive. Without a doubt, Boerne held

that the separation of powers was violated when Congress

acted pursuant to Section 5 of the Fourteenth Amendment

to enact RFRA. Jd. Under Section 5, Congress is empow-

ered to enact remedial statutes to redress constitutional

violations that are widespread and persisting in the states.

See, e.g., Tennessee v. Lane, 541 U.S. 509, 518-19 (2004).

This is the one provision of the Constitution that gives

Congress the power to regulate the states directly and to

police the Constitution. But even with this explicit de-

lineation of power, this Court held that Section 5 grants no

power to Congress to take over the Court’s role. Boerne,

521 U.S. at 536. The enumerated powers give no more

authority to overtake this Court’s role than would Section

5. Contrary to the faulty reasoning of some courts, the

“Necessary and Proper Clause” is not an independent

provision that permits Congress to alter at will its role in

the federal scheme. See, e.g., O'Bryan, 349 F.3d at 401

(“legislation affecting the internal operations of the na-

tional government does not depend on § 5; it rests securely

on Art. I § 8 cl. 18, which authorizes Congress ‘to make all

Laws which shall be necessary and proper for carrying

into Execution ... all other Powers vested by this Consti-

tution in the Government of the United States, or in any

Department or Officer thereof.’ This permits Congress to

9

determine how the national government will conduct its

own affairs.”); Guerrero, 290 F.3d at 1220 (“Congress

derives its ability to protect the free exercise of religion

from its plenary authority found in Article I of the Consti-

tution; it can carve out a religious exemption from other-

wise neutral, generally applicable laws based on its power

to enact the underlying statute in the first place.”); Kiku-

mura, 242 F.3d at 959 (10th Cir. 2001) (“These separation

of powers concerns the Court expres zed in Flores, however,

do not apply to RFRA as applied to the federal govern-

ment. Congress’ power to apply RFRA to the federal

government comes not from its ability to enforce the

Fourteenth Amendment but rather from its Article I

powers.”). Rather, the Necessary and Proper Clause only

hands Congress the power to effectively exercise one of its

enumerated powers. See, e.g., Gonzales v. Raich, No. 03-

1454, 2005 U.S. LEXIS 4656, at *59-60 (U.S. June 6,

2005); Sabri v. United States, 541 U.S. 600, 606-07 (2004).

RFRA has the scope of a constitutional rule, and is in

fact a constitutional amendment by fiat in contravention

of Article V, which requires Congress and the states to

obtain supermajorities to amend the Constitution.” RFRA

puts the Free Exercise Clause,

* “The Congress, whenever two thirds of both Houses shall deem it

necessary, shall propose Amendments to this Constitution, or, on the

Application of the Legislatures of two thirds of the severa] States, shall

call a Convention for proposing Amendments, which, in either Case,

shall be valid to all Intents and Purposes, as Part of this Constitution,

when ratified by the Legislatures of three fourths of the several States,

or by Conventions in three fourths thereof, as the one or the other Mode

of Ratification may be proposed by the Congress; Provided that no

Amendment which may be made prior to the Year One thousand eight

hundred and eight shall in any Manner affect the first and fourth

Clauses in the Ninth Section of the first Article; and that no State,

(Continued on following page)

10

on a level with ordinary legislative acts, and, like

other acts, ... alterable when the legislature

shall please to alter it. Marbury v. Madison, 1

Cranch at 177.... [If RFRA were good law,

s)hifting legislative majorities could change the

Constitution and effectively circumvent the diffi-

cult and detailed amendment process contained

in Article V.

Boerne, 521 U.S. at 529.

Instead of following Article Vs onerous procedures to

amend the Constitution, Congress decided that it would

alter the meaning of the Free Exercise Clause through its

simple majority procedures. There is absolutely no evi-

dence that it was passed with anywhere near the numbers

required to initiate the amendment process, because it was

passed pursuant to the “unanimous consent” procedure in

both Houses of Congress, which, ironically enough, does

not mean it was passed unanimously. Rather, “unanimous

consent” is an oral vote typically within virtually empty

chambers. No member’s vote was recorded and no member

needed to be present during the voice vote. By enacting

RFRA, Congress — the body expressly limited by the First

Amendment — arrogated to itself the power to dictate by

fiat free exercise rights. See Edward J. W. Blatnik, Note,

No RFRAF Allowed: The Status of the Religious Freedom

Restoration Act’s Federal Application in the Wake of Boerne

v. Flores, 98 Colum. L. Rev. 1410, 1452-60 (1998).

RFRA also violates the separation of powers because

it imposes strict scrutiny on neutral, generally applicable

without its Consent, shall be deprived of its equal Suffrage in the

Senate.” U.S. Const. art. V.

11

laws, which, in any other circumstance, are laws that are

presumptively constitutional. Locke v. Davey, 540 U‘S.

712, 720 (2004). RFRA directs the courts to treat all

legislative acts as though they are probably illegal, and

therefore dramatically shifts the balance of power toward

the courts. It subverts the usual presumption that con-

gressional acts are constitutional. See, e.g., Reno v. Con-

don, 528 U.S. 141, 148 (2000) (“We of course begin with

the time-honored presumption that the [statute] is a

‘constitutional exercise of legislative power.’”) (quoting

Close v. Glenwood Cemetery, 107 U.S. 466, 475 (1883));

INS v. Chadha, 462 U.S. 919, 944 (1983).

In general, the courts’ use of such a “highly suspect

tool” to examine legislative action is justified only if there

is good reason to suspect the law is unconstitutional. Strict

scrutiny under the First Amendment traditionally has

been reserved for laws that are presumptively unconsti.u-

tional, because they have suspect features. For example, in

the speech context, strict scrutiny has been reserved for

laws that engage in content or viewpoint discrimination.

See, e.g., R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992);

Carey v. Brown, 447 U.S. 455, 462 (1980); see also City of

Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989)

(“[T]he purpose of strict scrutiny is to ‘smoke out’ illegiti-

mate uses of race by assuring that the legislative body is

pursuing a goal important enough to warrant use of a

highly suspect tool.”). Laws that are neutral toward speech

receive considerably lower level scrutiny. See, e.g., Virginia

v. Black, 538 U.S. 343, 362 (2003); United States v.

O’Brien, 391 U.S. 367, 376-77 (1968). As this Court ex-

plained recently, the Free Exercise Clause mandates strict

scrutiny only where a law is appropriately treated as

presumptively unconstitutional because it evidences

12

“hostility or animus” against religion. Locke, 540 U.S. at

724. Despite the absence of hostility or animus in a neu-

tral, generally applicable statute, RFRA forces courts to

treat legislative enactments with deep suspicion.‘ That is a

dramatic alteration in the constitutionally established

relationship between this Court and the Congress.

Some might argue that Congress can order the courts

to treat its enactments as though they are presumptively

illegal, because it is, after all, impacting only its own work.

How could Congress be overstepping it bounds when it is

in fact reducing its own power, they might argue. But the

separation of powers draws a boundary line between the

branches, and Congress may no more hand the courts

power they lack than it may overstep its own power. “The

Constitution’s division of power among the three branches

is violated where one branch invades the territory of

another, whether or not the encroached-upon branch

approves the encroachment.” New York v. United States,

505 U.S. 144, 182 (1992); see also Clinton v. City of New

York, 524 U.S. 417, 451-52 (1998) (Kennedy, J., concurring)

(“It is no answer, of course, to say that Congress surren-

dered its authority by its own hand; nor does it suffice to

point out that a new statute, signed by the President or

enacted over his veto, could restore to Congress the power

* RFRA on this score is unlike the institutional provisions of

RLUIPA recently upheld in Cutter. There, the statutory standard is not

the equivalent of strict scrutiny in the constitutional context. Rather,

this Court interpreted the statutory terms in light of their legislative

history to conclude that RLUIPA requires a high degree of deference to

institutional expertise and interests. The courts, under RLUIPA,

therefore, are to treat prison regulations as though they are presump-

tively legal. Cutter, No. 03-9877, 2005 U.S. LEXIS 4346, at *4, 25, 28

n.13.

13

it now seeks to relinquish. That a congressional cession of

power is voluntary does not make it innocuous. The

Constitution is a compact enduring for more than our

time, and one Congress cannot yield up its own powers,

much less those of other Congresses to follow. ... Abdica-

tion of responsibility is not part of the constitutional

design.”) (citations omitted).

Il. THE RELIGIOUS FREEDOM RESTORATION

ACT IS BEYOND CONGRESS’S POWER

“‘Universal’ in its coverage, RFRA ‘applied to all

Federal and State law,’ [citation], but notably lacked a

Commerce Clause underpinning or a Spending Clause

limitation to recipients of federal funds.” Cutter, No. 03-

9877, 2005 U.S. LEXIS 4346, at *11 (quoting Boerne, 521

U.S. at 516); Id. at *31 n.2 (Thomas, J., concurring). Under

United States v. Lopez, 514 U.S. 549 (1995), Congress is

required, at a minimum, to consider the constitutional

base of its authority to enact a law, especially where, as

here, its power is not readily apparent on its face. Lopez,

514 U.S. at 562-63. Congress assumed that its power

under Section 5 of the Fourteenth Amendment covered

RFRA in toto, as it never considered what its power might

be beyond Section 5. This is a severe misunderstanding of

its power; Section 5, by its terms, permits Congress to

regulate state law for the purpose of enforcing constitu-

tional rights. It does not provide the power to regulate

federal law. Rather, with respect to federal law, its power

must be derived from one of its enumerated powers. And

Congress never considered what power might support

RFRA as applied to federal law. Id.; United States v.

Morrison, 529 U.S. 598, 612 (2000).

14

The only remotely arguable base for RFRA’s regula-

tion of federal law is the Commerce Clause, as no other

Clause, e.g., the Spending Clause, is implicated by its

provisions. Cf. RLUIPA, 42 U.S.C. §§ 2000cc(a)(2)(A);

2000cc-2(b\1) (2005); Cutter v. Wilkinson, No. 03-9877,

2005 U.S. LEXIS 4346, at *31 (U.S. May 31, 2005) (Tho-

mas, J., concurring).

The Commerce Clause, by its terms, provides Con-

gress with the authority to enact legislation to regulate

commerce with foreign nations, among the states and with

the Indian tribes. U.S. Const. art. I § 8, cl.3.

This Court has identified three broad categories of

activity that Congress may regulate under the Commerce

Clause. See Lopez, 514 U.S. 549. The first two categories

involve laws that either “regulate the use of the channels of

interstate commerce” or “regulate and protect the instru-

mentalities of interstate commerce, and the persons or

things in interstate commerce, even though the threat may

come only from intrastate activities,” such as interstate

highways, telecommunications, shipping, etc. Jd. at 561.

RLUIPA does not fit into either of these two categories. The

third category includes the power to regulate intrastate

activities where the activity has a substantial effect on

interstate commerce. Jd. at 559. The Court has stated that

this last category includes only those activities that are

economic in nature. Raich, No. 03-1454, 2005 U.S. LEXIS

4656, at *29-32 (“Our case law firmly establishes Congress’

power to regulate purely local activities that are part of an

economic ‘class of activities’ that have a substantial effect

on interstate commerce.”); Morrison, 529 U.S. at 619

(“Gender-motivated crimes of violence are not, in any sense

of the phrase, economic activity.”); Reno v. Condon, 528 U.S.

141, 148 (2000) (“Because drivers’ information is, in this

context, an article of commerce, its sale or release into the

15

interstate stream of business is sufficient to support congres-

sional regulation.”); Lopez, 514 U.S. at 561 (The Gun-Free

School Zones Act “is a criminal statute that by its terms has

nothing to do with ‘commerce’ or any sort of economic enter-

prise, however broadly one might define those terms.”).

Five years after Lopez, the Supreme Court overturned

the Violence Against Women Act in United States v.

Morrison, 529 U.S. 598 (2000), and “established what is

now the controlling four-factor test for determining

whether a regulated activity ‘substantially affects’ inter-

state commerce.” United States v. McCoy, 323 F.3d 1114,

1119 (9th Cir. 2003). When considering whether a statute

is consistent with the Commerce Clause Power, the deter-

minative factors have been:

1) [Whhether the statute in question regulates

commerce ‘or any sort of economic enterprise’; 2)

whether the statute contains any ‘express juris-

dictional element which might limit its reach to a

discrete set’ of cases; 3) whether the statute or its

legislative history contains ‘express congres-

sional findings’ that the regulated activity affects

interstate commerce; and 4) whether the link be-

tween the regulated activity and substantial ef-

fect on interstate commerce is ‘attenuated’.

Id. (quoting Morrison, 529 U.S. 598, 610-12 (2000).

RFRA fails all four of these factors. A» liscussed in

more detail below, it regulates non-ecow* nic activity.

Moreover, it goes without saying that it has no jurisdic-

tional element; it provides no “express congressional

findings” that the free exercise of religion substantially

affects commerce; and any link between the free exercise

of religion, especially as considered by Congress, and a

substantial effect on commerce is attenuated, to say the

least.

16

RFRA regulates that which is not economic in nature,

and therefore cannot be valid legislation under the Com-

merce Clause. Raich, No. 03-1454, 2005 U.S. LEXIS 4656,

at *45; Morrison, 529 U.S. at 610; Jones v. United States,

529 U.S. 848, 850-51 (2000); Lopez, 514 U.S. at 551. RFRA

replicates a constitutional standard of judicial review — it

regulates the free exercise of religion, just as a court

would. When a court applies constitutional standards of

review, it is applying the standard to a law. It is not

regulating private conduct, as Congress is permitted

under its enumerated powers, but rather regulating law.

Law is not economic in nature. See Condon, 528 U.S. at

149-51. RFRA, therefore, lacks any “nexus with interstate

commerce.” Lopez, 514 U.S. at 562 (quoting United States

v. Bass, 404 U.S. 336, 347 (1971)); Morrison, 529 U.S. at

615-16; Printz v. United States, 521 U.S. 898, 924 (1997).

RFRA directly regulates federal law and, therefore,

does not regulate that which is economic. It indirectly

affects private, religiously motivated conduct, which,

again, is not economic in nature. The only examples

Congress considered do not begin to account for a “sub-

stantial” effect om commerce. For example, the few anec-

dotes of religious conduct in RFRA’s legislative history,

involving mandatory autopsies and land use requirements,

do not substantially affect commerce individually or in the

aggregate. They are non-economic actions undertaken by

individual members of nonprofit institutions and moti-

vated by faith, not economic gain. See Boerne, 521 U.S. at

530-31 (documenting legislative history of RFRA).

Like the Gun-Free School Zones Act at issue in Lopez

and the Violence Against Women Act in Morrison, RFRA,

—s

17

by its terms has nothing to do with ‘commerce’ or

any sort of economic enterprise, however broadly

one might define those terms. [RFRA] is not an

essential part of a larger regulation of economic

activity, in which the regulatory scheme could be

undercut unless the intrastate activity were

regulated. It cannot, therefore, be sustained un-

der our cases upholding regulations of activities

that arise out of or are connected with a commer-

cial transaction, which viewed in the aggregate,

substantially affects interstate commerce.

Lopez, 514 U.S. at 561 (footnote omitted); see also Mor-

rison, 529 U.S. at 617-18.

\

Because the activity regulated by RFRA is non-economic

in nature, its aggregation cannot “substantially affect”

interstate commerce.

The universe of that which may be regulated permis-

sibly pursuant to the Commerce Clause must “substan-

tially affect” interstate commerce. Lopez, 514 U.S. at 558.

Although individual instances of economic activity may

not by themselves substantially affect interstate com-

merce, their aggregation may. Wickard v. Filburn, 317 U.S.

111 (1942). As this Court recently held, this is particularly

true where that which is being regulated impacts upon a

larger federal scheme affecting commerce. Raich, No. 03-

1454, 2005 U.S. LEXIS 4656, at *31-32 (holding that state

law permitting medical marijuana interfered with the

federal government’s comprehensiv# federal regulation of

illegal drugs and therefore could be regulated under the

Commerce Clause). Here, there is nu comprehensive

federal scheme to regulate religious conduct, in no small

part because the First Amendment is a limitation -on

Congress’s power to regulate religious belief, not an

enumerated power. Cutter, 2005 U.S. LEXIS 4346, at

18

*34-35 (Thomas, J., ¢ concurring). Moreover, RFRA’s indirect

regulation of religiously motivated conduct is not economic

in nature and therefore any aggregation does not result in

a substantial effect on commerce. See Morrison, 529 U.S.

at 617-18; see also McCoy, 323 F.3d at 1122 (possession of

a single pornographic picture of a child “was purely non-

economic and non-ccmmercial” and was not analogous to

the aggregation in Wickard).

Any effect on commerce regulated by RFRA is so

attenuated that it simply cannot be a sufficient basis on

which to justify RFRA as a legitimate exercise of Con-

gress’s power under the Commerce Clause. Here are the

targets of RFRA, according to Congress: religious beliefs

that conflict with mandatory autopsies; local zoning; and

historic preservation laws. See Boerne, 521 U.S. at 530-31.

For this Court to find an economic element in RFRA, it can

do nothing other than “pile inference upon inference in a

manner that would bid fair to convert congressional

authority under the Commerce Clause to a general police

power of the sort retained by the States.” Lopez, 514 U.S.

at 567.

Those seeking to justify RFRA argue that it was a

proper exercise of Congress’s power under the Necessary

and Proper Clause. U.S. Const. art. I § 8, cl. 18. However,

this Court’s holding in Boerne illustrates how this legisla-

tion fails under this Clause. See Eugene Gressman,

Symposium, RFRA: A Comedy of Necessary and Proper

Errors, 21 Cardozo L. Rev. 507 (1999). In McCulloch v.

Maryland, 17 U.S. 316 (1819), Chief Justice Marshall set

forth the following test:

[T]he sound construction of the constitution must

allow to the national legislature that discretion,

with respect to the means by which the powers it

19

confers are to be carried into execution, which

will enable that body to perform the high duties

assigned to it, in the manner most beneficial to

the people. Let the end be legitimate, let it be

within the scope of the constitution, and all

means which are appropriate, which are plainly

adapted to that end, which are not prohibited,

but consist with the letter and spirit of the con-

stitution, are constitutional.

McCulloch, 17 U.S. at 421.

As Professor Gressman points out, RFRA does not satisfy

this test:

The Supreme Court long warned that any federal

statute, or any amendment to a federal statute,

emanating from the Necessary and Proper

Clause power to ‘carry[] into Execution the fore-

going [Article I] Powers,’ must heed and comply

with all other relevant constitutional provisions.

Since RFRA still contains all the elements of a

separation of powers violation, RFRA cannot be

considered a valid or ‘proper’ amendment to...

any other federal law enacted in execution of an

Article I power of Congress.

Gressman, supra, at 528 (quoting McCulloch, 17 U.S.

at 421).

If this Court were to uphold RFRA as a valid exercise

of Congress’s Commerce power, it would open new doors

for Congress to takeover this Court’s authority to interpret

constitutional requirements in a wide array of cases. For

example, if RFRA is good law, then Congress may enact

the Ultimate Free Speech Act, which would impose strict

scrutiny on every federal law with an impact on speech,

and thereby, open military bases to dissenting speakers,

20

Greer v. Spock, 424 U.S. 828 (1976), not to mention this

Court’s grounds. United States v. Grace, 461 U.S. 171

(1983) (holding law prohibiting speech in front of Supreme

Court building unconstitutional because the sidewalks,

which were public forums, were included in the ban). Such

a law would overturn, at a minimum, this Court’s decision

involving expressive conduct in United States v. O’Brien,

391 U.S. 367 (1968), where this Court applied intermedi-

ate scrutiny to government regulation of the burning of

draft cards. The setting of these constitutional standards

of review simply is not Congress’s role in the federal

scheme.

Il. THE RELIGIOUS FREEDOM RESTORATION

ACT VIOLATES THE ESTABLISHMENT CLAUSE

Unlike any accommodation statute ever upheld by

this Court, RFRA has no boundaries. Rather, by its terms,

it blankets every law in the country. When enacted,

RFRA’s “mandate applie[d] to any ‘branch, department,

agency, instrumentality, and official (or other person

acting under color of law) of the United States,’ as well as

to any ‘State, or ... subdivision of a State.’” Boerne, 521

U.S. at 516 (quoting 42 U.S.C. § 2000bb-2(1) as enacted).

After this Court in Boerne held RFRA unconstitutional,

Congress amended RFRA to clarify that it intended RFRA,

nevertheless, to apply to every federal government action:

“Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule

of general applicability .. .” unless the restriction “(1) is in

furtherance of a compelling governmental interest; and (2)

is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. §2000bb-1 (2005).

“(The term ‘government’ includes a branch, department,

21

agency, instrumentality, and official (or other person

acting under color of law) of the United States, or of a

covered entity.” 42 U.S.C. § 2000bb-2 (2005). Assuming

that Boerne is limited to its constitutionality as applied to

state law, the reenacted RFRA still blankets all federal

law. It forces accommodation on every conceivable federal

statute, executive action, or judicial order. ““Universal’ in

its coverage, RFRA ‘applied to all Federal and State law,’

[citation], but notably lacked a Commerce Clause under-

pinning or a Spending Clause limitation to recipients of

federal funds.” Cutter, No. 03-9877, 2005 U.S. LEXIS

4346, at *11 (quoting Boerne, 521 U.S. at 516); Id. at *31

n.2 (Thomas, J., concurring).

This Court recently upheld the most expansive legis-

lative accommodation it has ever considered, the prison

provisions of the Religious Land Use and Institutionalized

Persons Act (RLUIPA) in Cutter v. Wilkinson, 125 S. Ct.

2113 (2005). Yet, that legislative accommodation pales in

comparison to the scope of RFRA. Almost immediately

after this Court’s decision in Boerne, Congress introduced

the Religious Liberty Protection Act (RLPA), which at-

tempted to enact a law with RFRA’s scope under the

Commerce Clause. See Religious Liberty Protection Act of

1998, S. 2148, H.R. 4019, 105th Cong. (1998). In the end,

however, Congress was unwilling to enact another law

with RFRA’s scope. Instead, it enacted a law invoking

RFRA’s standard, but limited to two categories of law, local

land use law and government institutions such as prisons

and government-run health institutions. See Marci A.

Hamilton, Federalism and the Public Good: The True Story

Behind the Religious Land Use and Institutionalized

Persons Act, 78 ind. L.J. 311, 332-34 (2003).

22

Under RLUIPA’s institutional persons provisions,

Congress mandated accommodation within a _ single

category of regulation — government-run institutions. In

strong contrast, RFRA covers every conceivable category of

regulation. This Court has never upheld an accommoda-

tion that sweeps so broadly, nor should it.

Before Cutter, this Court upheld a considerably

narrower accommodation: the exemption to Title VII that

permits religious entities to discriminate on the basis of

religieus belief in their hiring decisions.’ Corporation of

Presiding Bishop of Church of Jesus Christ of Latter-day

Saints v. Amos, 483 U.S. 327 (1987). This Court also has

approved in dictum a practice-specific accommodation,

which permits religious believers to use peyote during

religious exercises. Smith, 494 U.S. at 890. None of the

accommodations upheld to date begins to approximate

RFRA’s reach. Quite literally, it is blind accommodation, -

that is, with RFRA, Congress mandated accommodation

without any apparent knowledge of the actual operation of

the accommodation in the vast majority of its applications.

It is far closer to a blind handout intended to privilege

religious entities above neutral, generally applicable laws

than an accommodation crafted to lift any known burden

on religious exercise. As the legislative history reveals,

* Title VII permits religious entities to hire only co-religionists. 42

U.S.C. § 2000e-1 (2005) (“This title shall not apply ... to a religious

corporation, association, educational institution, or society with respect

to the employment of individuals of a particular religion to perform

work connected with the carrying on by such corporation, association,

educational institution, or society of its activities.”). Religious entities

are stil] required to abide by Title VII's other prohibitions on discrimi-

eation on the basis of “race, color, . . . sex, or national origin.” 42 U.S.C.

§ 2000e-2 (2005).

23

Congress enacted RFRA for the purpose of overturning

this Court’s decision in Employment Div. v. Smith, and not

because it had any knowledge regarding the likely impact

of the Smith rule on state or federal law. It considered, at

most, a handful of anecdotes, most of which involved state,

and not federal, law. As this Court stated:

RFRA’s legislative record lacks examples of mod-

ern instances of generally applicable laws passed

because of religious bigotry. The history of perse-

cution in this country detailed in the hearings

mentions no episodes occurring in the past 40

years. See, e.g., Religious Freedom Restoration

Act of 1991, Hearings on H. R. 2797 before the

Subcommittee on Civil and Constitutional Rights

of the House Committee on the Judiciary, 102d

Cong., 2d Sess., 331-334 (1993) (statement of

Douglas Laycock) (House Hearings); The Reli-

gious Freedom Restoration Act, Hearing on S.

2969 before the Senate Committee on the Judici-

ary, 102d Cong., 2d Sess., 30-31 (1993) (statement

of Dallin H. Oaks) (Senate Hearing); Senate Hear-

ing 68-76 (statement of Douglas Laycock); Reli-

gious Freedom Restoration Act of 1990, Hearing

on H. R. 5377 before the Subcommittee on Civil

and Constitutional Rights of the House Commit-

tee on the Judiciary, 10lst Cong., 2d Sess., 49

(1991) (statement of John H. Buchanan, Jr.) (1990

House Hearing). The absence of more recent epi-

sodes stems from the fact that, as one witness tes-

tified, ‘deliberate persecution is not the usual

problem in this country.’ House Hearings 334

(statement of Douglas Laycock). See also House

Report 2 (‘Laws directly targeting religious prac-

tices have become increasingly rare’). Rather, the

emphasis of the hearings was on laws of general

applicability which place incidental burdens on

religion. Much of the discussion centered upon

24

anecdotal evidence of autopsies performed on

Jewish individuals and Hmong immigrants in

violation of their religious beliefs, see, e.g., House

Hearings 81 (statement of Nadine Strossen); id.,

at 107-110 (statement of William Yang); id., at

118 (statement of Rep. Stephen J. Solarz); id., at

336 (statement of Douglas Laycock); Senate

Hearing 5-6, 14-26 (statement of William Yang);

id., at 27-28 (statement of Hmong-Lao Unity

Assn., Inc.); id., at 50 (statement of Baptist Joint

Committee); see also Senate Report 8; House Re-

port 5-6, and n.14, and on zoning regulations and

historic preservation laws (like the one at issue

here), which as an incident of their normal op-

eration, have adverse effects on churches and

synagogues. See, e.g. House Hearings 17, 57

(statement of Robert P. Dugan, Jr.); id., at 81

(statement of Nadine Strossen); id., at 122-123

(statement of Rep. Stephen J. Solarz); id., at 157

(statement of Edward M. Gaffney, Jr.); id., at 327

(statement of Douglas Laycock); Senate Hearing

143-144 (statement of Forest D. Montgomery);

1990 House Hearing 39 (statement of Robert P.

Dugan, Jr.); see also Senate Report 8; House Re-

port 5-6, and n.14. It is difficult to maintain that

they are examples of legislation enacted or en-

forced due to animus or hostility to the burdened

religious practices or that they indicate some

widespread pattern of religious discrimination in

this country. Congress’ concern was with the in-

cidental burdens imposed, not the object or pur-

pose of the legislation. See House Report 2;

Senate Report 4-5; House Hearings 64 (statement

of Nadine Strossen); id., at 117-118 (statement of

Rep. Stephen J. Solarz); 1990 House Hearing at

14 (statement of Rep. Stephen J. Solarz).

Boerne, 521 U.S. at 530-31.

25

The vast majority of the legislative history is in fact

invective against this Court’s interpretation of the Free

Exercise Clause. For example: The Smith decision was “a

dastardly and unprovoked attack on our first freedom.” 137

Cong. Rec. E2422 (daily ed. June 27, 1991) (statement of

Rep. Stephen Solarz). “Smith was a devastating blow to

religious freedom, and we are trying to undo it.” 139

Cong. Rec. H2360 (daily ed. May 11, 1993) (statement of

Rep. Schumer). “This landmark legislation will overturn

the Supreme Court’s disastrous decision, Employment

Division versus Smith, which virtually eliminated the

first amendment’s protection of the free exercise of

religion.” 139 Cong. Rec. H2359 (daily ed. May 11, 1993)

(statement of Rep. Nadler). See also 139 Cong. Rec.

H2361 (daily ed. May 11, 1993) (statement of Rep.

Hoyer) (“This ruling did great mischief to the rights of

all Americans. Religious liberty [is] no longer a funda-

mental constitutional right.”); 139 Cong. Rec. S$14464

(daily ed. October 27, 1993) (statement of Seri. Coats)

(“The Court has effectively turned religious Americans

into second class citizens.”). RFRA’s legislative history

contains no less than 405 pages explicitly referencing

Smith. See, e.g., The Religious Freedom Restoration Act

of 1990: Hearings on H.R. 5377 Before the Subcomm. on

Civil and Constitutional Rights of the House Comm. on

the Judiciary, 101st Cong., 2d Sess. 2, 8, 9, 11, 22, 28-29,

31-32, 35, 38, 41, 48, 49, 51, 61 (1990); The Religious

Freedom Restoration Act of 1991: Hearings on H.R. 2797

Before the Subcomm. on Civil and Constitutional Rights

of the House Comm. on the Judiciary, 102d Cong., 2d

Sess. 7, 8, 19, 23, 32, 39, 45, 63, 99, 136, 160, 175, 193,

201, 214, 249, 251, 271 (1992); Remarks on Signing the

Religious Freedom Restoration Act of 1993, II Pub.

Papers 2000 (Nov. 16, 1993).

26

The institutionalized persons provisions of RLUIPA

are readily distinguishable, as this Court noted in the

Cutter opinion. While RFRA’s scope is breathtaking,

RLUIPA’s prison provisions address a significantly more

defined category of regulation. Moreover, RLUIPA’s prison

provisions passed muster under the Establishment

Clause, because they addressed “exceptional government-

created burdens,” where the state held complete control

over whether an individual would even be permitted to

engage in worship. Cutter, at *19; McCreary County v.

ACLU of Kentucky, No. 03-1693, 545 U.S. ___ (2005), slip

op. at 27 (U.S. June 27, 2005). That is not true of the few

anecdotes considered by Congress, or of the vast majority

of the laws affected by RFRA. RFRA sweeps much more

broadly as it brings under its umbrella any religious

conduct that may be substantially burdened by a federal

law, a category that far exceeds the question whether

worship will occur in any form at all. For example, RFRA

is being invoked in the Portland Archdiocese and Spokane

Diocese bankruptcies by the Debtors, to argue that the

ownership of parish property must be determined accord-

ing to canon law. The issue there is not whether the

Archdiocese will be able to worship, but whether it will be

able to avoid including parish properties within the

Debtor’s estate.

This Court further read RLUIPA’s statutory language

in light of its legislative history and as requiring strong

deference to prison authorities’ “expertise” and institutional

interests. Cutter, at *24-28, n.13 (“deference is due to

institutional officials’ expertise in this area.”); id. at *29-30.

(“Should inmate requests for religious accommodations

become excessive, impose unjustified burdens on other

institutionaiized persons, or jeopardize the effective

27

functioning of an institution, the facility would be free te

resist the imposition [of RLUIPA).”).

RFRA does not contain in its legislative history the

sort of limiting language that satisfied the Court in

Cutter that the accommodation was adequately tailored

to the known threat to religious exercise. Therefore, the

most expansive legislative accommodation yet upheld —

Section 3 of RLUIPA — cannot begin to justify RFRA’s

sweep through every federal law, executive decision, or

judicial determination.

The one court to have upheld RFRA as applied to

federal law against Establishment Clause challenge

followed specious reasoning by assuming that RFRA

does no more than “preserve First Amendment values.”

In re Young, 141 F.3d at 862-63. The truth, of course, is

that it does not “preserve” such values, but rather

radically expands them, well beyond constitutional

requirements. The purpose and effect are unconstitu-

tional. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

As this Court recently reaffirmed, “purpose needs to

be taken seriously under the Establishment Clause and

needs to be understood in light of context... .”

McCreary, slip op. at 26. “When the government acts

with the ostensible and predominant purpose of advanc-

ing religion, it violates that central Establishment

Clause value of official religious neutrality, there being

no neutrality when the government’s ostensible object is

to take sides.” Jd. at 11. The effect of RFRA is to advance

religion across all policies, the vast majority of which

Congress never considered. It is not permissible accom-

modation, but rather a blind handout.

28

The fact that RFRA is a self-imposed limitation on

Congress does not solve its Establishment Clause

infirmities. No government has immunity to Establish-

ment Clause analysis simply because the law itself also

places a burden on the government. For example, the

sales tax exemption for religious periodicals addressed

by this Court in Texas Monthly, Inc. v. Bullock, 489 U.S.

1 (1989), limited the state’s ability to collect taxes, but

that willingness to forego taxes was not sufficient to

validate the tax exemption. Under existing Establish-

ment Clause precedents, as discussed above, RFRA

simply cannot pass muster.

Neither the state supreme courts nor this Court have

applied strict scrutiny to every law in the jurisdiction.

Marci A. Hamilton, The Religious Freedom Restoration Act

Is Unconstitutional, Period, 1 U. Pa. J. Const. L. 1, 6-7

(1998); Eugene Volokh, A Common-Law Model for Reli-

gious Exemptions, 46 UCLA L. Rev. 1465, 1494-1503

(1999); Christopher L. Eisgruber & Lawrence G. Sager,

The Vulnerability of Conscience: The Constitutional Basis

for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245,

1247 (1994) (calling strict scrutiny “strict in theory but

feeble in fact”); Ira C. Lupu, The Trouble With Accommo-

dation, 60 Geo. Wash. L. Rev. 743, 756 (1992) (“strict in

theory, but ever-so-gentle in fact.”). This Court declined to

apply strict serutiny, even during the Sherbert and Yoder

era covering 1963 to 1990, to cases involving the military,

Goldman v. Weinberger, 475 U.S. 503 (1986), prison

regulations, O’Lone v. Estate of Shabazz, 482 U.S. 342

(1987), federal regulation, including land use, Lyng v.

_ Northwest Indian ( metery Protective Ass'n, 485 U.S. 439

(1988), and administration of social services. Bowen v. Roy,

476 U.S. 693 (1986). A holding in this case that RFRA’s

29

legislative mandate to apply strict scrutiny to every

neutral, generally applicable law ever enacted by Congress

would be irrelevant to the way in which strict scrutiny has

been applied, in fact, under the state and federal free

exercise clauses.”

* If this Court were to hold that RFRA as applied to federal law

violates the Establishment Clause, some might argue it will endanger

some of the state religious freedom acts patterned after the federal

RFRA. But it would only affect those few that apply strict scrutiny

across all laws, with no exceptions. There are only a handful that mimic

RFRA by subjecting every law in the state to strict scrutiny. See Ariz.

Rev. Stat. Ann. § 41-1493 (2004); Conn. Gen Stat. Ann. § 52-571b

(2004); R.I. Gen. Laws § 42-80.1-3 (2005); N.M. Stat. Ann. § 28-22-3

(2005); Ala. Const. amend. 622. Cf Fla. Stat. Ann. § 761.05(4) (2005)

(exception for drug laws); Idaho Code § 73-403(2) (2004) (allows for

prospective exceptions in laws passed after effective date); 775 Il.

Comp. Stat. Ann. § 35/30 (2005) (exception for O’Hare zoning); Okla.

Stat. tit. 51, § 254 (Supp. 2004) (compelling state interest presumed in

correctional facilities); S.C. Code Ann. § 1-32-45 (2004) (exception for

inmate litigation); Mont. Code § 1.307 (2005) (exception for physical

injury, possession of a weapon, child support, and medical neglect), Tex.

Civ. Prac. & Rem. Code § 110.010 (2004) (exception for zoning); 71 Pa.

Const. Stat. Ann. 2406 (2004) (exception for criminal offenses, con-

trolled substances, and motor vehicle laws). Two such state laws are

obviously unconstitutional under the Establishment Clause, because

they mandate strict scrutiny to the benefit of religious entities against

every generally applicable law even when there is no substantial

burden on religious conduct. Rather, they trigger strict scrutiny on the

basis of de minimis burdens on religious conduct. See, e.g., Conn. Gen.

Stat. Ann. § 52-571b (2004); Ala. Const. amend. 622. Of course, these

state laws might be constitutional, regardless of this Court's ruling on

the federal RFRA, under Justice Thomas’s view that the Establishment

Clause is not incorporated into the Fourteenth Amendment. See, e.g.,

Elk Grove Unified Sch. Dist. v. Newdow, 124 8. Ct. 2301, 2330-31 (2004)

(Thomas, J., concurring).

30

~ CONCLUSION

For the foregoing reasons, Amici respectfully request

that this Court declare the Religious Freedom Restoration

Act as applied to federal law unconstitutional.

Respectfully submitted,

Marc! A. HAMILTON

36 Timber Knoll Drive

Washington Crossing, PA 18977

(215) 353-8984

(215) 493-1094 (fax)