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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0070%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 418

## Text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0070%3A11. Public record. Not legal advice.