Amicus Curiae Brief — City of Boerne v. Flores

ss [REST AVAILARIE COPY

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT .......0ccccceccscess l

PEE Pr et ee er eee 2

I. THE LARGE NUMBER OF PRISONER

LAWSUITS UNDER RFRA MAY BE A

SERIOUS PROBLEM, BUT IT IS NOT A

REASON TO DECLARE RFRA

UNCONSTITUTIONAL .............. 2

Il. THE STATES’ AMICI BRIEF DISTORTS

THE RFRA CASE LAW TO PAINT A FALSE

PICTURE THAT COURTS HAVE USED

RFRA TO INTRUDE ON OTHER AREAS OF

ye Poses 8s 5 ea 5

Ai, TET DOROGE, oc vc cccesvevesess 6

PO Cb vabenodecs DS sasendens 7

C. Traffic and Hunting Laws ........... 10

Ill. IF THIS COURT FINDS~ RFRA

UNCONSTITUTIONAL, THIS COURT

SHOULDREOPEN THE QUESTION OF

WHETHER THE COMPELLING STATE

INTEREST TEST SHOULD APPLY IN FREE

BARE CASES 2... cc ccc ccccescess 14

CONCLUSION ...ccvccsstccvtsccssceuservesenes 19

DESCRIPTION OF AMICI CURIAE................ la

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Cases:

Abordo v. Hawaii,

938 F.Supp. 656 (D.Hawaii 1996) .............. 3

Arlington County Board v. Richards,

ke Po oy eee 13

Baldwin v. Montana Fish and Game Commission,

— i Bo 0 i 3. | eer 13

Battles v. Anne Arundel County Board of Education,

904 F.Supp. 471 (D. Md. 1995) ............-4-. 6

Bauchman v. West High School,

900 F.Supp. 254 (D.Utah 1995) .............. 7,8

Brown v. Board of Education,

RIED 5 ccncccccnccetesvevesces 12

Cheema v. Thompson,

67 F.3d 883 (9th Cir. 1995) ........-...-445- 8,9

Cleburne v. Cleburne Living Center, Inc.,

Et MEM MEEE CEDUED occ cccesccscvcesccesenes 13

Diaz v. Collins,

872 F.Supp. 353 (E.D.Tex. 1994) ...........+.-.- 3

Emel v. Mensinger,

1996 WL 468673 (E.D. Pa. 1996) .............. 3

Employment Division v. Smith,

ee 2, 14, 15,18, 19

Estelle v. Gamble,

Se ees OE CP cc cdavckabeces ch eenenees 4

First Lutheran Church v. Los Angeles County,

ee SI Ps ev dnd Gain vd ena kee an bac 13

Florence County School District Four v. Carter,

Fe ee eo cae oA 0 asee b4 shan kaewies 13

Florey v. Sioux Falls School District,

619 F240 1311 (Oth Cir. 1980) .. 2... eee eee 7,8

Franklin v. Gwinnett County Public Schools,

pk A ee re ee 13

George v. Sullivan,

896 F.Supp. 895 (W.D.Wis. 1995) ............. 3

Hamilton v. Schriro,

pope Pe fe | PT erTT TT TT Tere 3

Helland v. South Bend Community School Corporation,

Fe ee BAF CPE Gs ED nik ccenbeucidececees 8

Hudson v. Mc Millian,

4 RT.) Re orca eo eee ..4

Hunafa v. Murphy,

ge | te, ie | rer 15

Jeffrey v. O'Donnell,

702 F.Supp. 513 (M.D.Pa. 1988) .............. 6

iv

Kassel v. Consolidated Freightways Corp.,

450 US. GEZCIGED) 6s ic ccasaceccsecsscces 13

Lamb's Chapel v. Center Moriches School District,

SOR US. SES CUFFS) ww cccccccducavtscssives 12

McGowan v. Maryland,

366 U.S. 420, 423 (1961) . cnc ccnrccccccess 13

Michigan v. DeJonge,

501 N.W.2d 127 (Mich. 1993) ..........--0055: 6

Minnesota v. Newstrom,

371 N.W.2d 533 (Minn. 1985) .....--eeecccess 6

Moore v. East Cleveland,

435 UD. GRO CISTT) ow cc cccccsccseussewceren 13

New Mexico v. Mescalero Apache Tribe,

4G2 UD. SB4 (IFES) «0 vc ccc csesecceeesseans 13

O'Lone v. Estate of Shabazz,

482 U.S. 342, 349 (IDET) 2 cc cceccaccvcsvvces 16

Ochs v. Thalacker,

90 F.3d 293 (8th Cir. 1996) ........-- eee eee eee 2

Osborne v. Power,

890 S.W.2d 570 (Ark. 1994) .......- 0c eee eee 10

People v. Swartzentruber,

170 Mich.App. 682, 429 N.W.2d 225 (1988) .... 12

Roemhild v. Georgia,

251 Ga. 569, 308 S.E.2d 154 (1983) ..........-. 6

v

Rust v. Clarke,

883 F.Supp. 1293 (D.Neb. 1995),

affd., 84 F.3d 841 (8th Cir. 1996) .............. 3

Salaam v. Lockhart,

905 F.2d. 1168 (Sth Cir. 1990) .........c cece: 14

Schad v. Mount Ephraim,

GIe Vee Te RO herbs cccdivcesceubeteahs 13

Shuttlesworth v. Birmingham,

SPO Uae POE CHE ce ccsesencteccseer ete 13

State v. Bontrager,

1996 WL 612397 (Ohio App., Oct. 19, 1996) .... 11

State v. Hershberger,

462 N.W.2d 393 (Minn. 1990) ..............5- 12

State v. Miller,

549 N.W.2d 235 (Wis. 1996) .............456. 11

Tinker v. Des Moines School District,

es Bs.) ere errr 12

Thomas v. Review Board,

GS Ts FET CESS bic evncteneenevegeenanen 18

Turner v. Safley,

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Two Guys v. McGinley,

DOD Us Fes DUT CHDOED 0 ch bkcdeececcenesees 13

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United States v. Meyers,

906 F.Supp. 1494 (D.Wyo. 1995),

aff'd., 95 F.3d 1475 (10th Cir. 1996) ............ 3

Wisconsin v. Popanz,

112 Wis.2d 166, 332 N.W.2d 750 (1983) ........ 6

Wisconsin v. Yoder,

nee ec cater ead ne & hoes 17

Wooley v. Maynard,

ies eek tesa wale sh a4s 13

Statutes:

Individuals with Disabilities Education Act, ........... 13

Prison Litigation Reform Act of 1996

(PL104-134, codified at 18 U.S.C. §3626). ...... 4

Religious Freedom Restoration Act,

42 U.S.C. §2000bb ef seg. ...........-.. passim

Title IX of the Education Amendments of 1972 ........ 12

Other Authorities:

Justice William J. Brennan, Jr., Text and Teaching Symposium,

Georgetown University, Washington, D.C. October 12, 1985,

printed in The Great Debate: Interpreting Our Written .. 18

M. McConnell, The Origins and Historical Understanding of

the Free Exercise of Religion, 103 Harvard L.Rev. 1409

SE. sWdceucdusemaveusuwau’ oc 6untkeatunkeekst 14

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INTEREST OF AMICI

Amici are a group of statewide nonprofit organizations

that work to promote and strengthen the family through

improving public policy and educating the public. Amici view

strong protection for religious liberty through the Religious

Freedom Restoration Act (RFRA) as an important way to

protect the family. Amici are responding to the brief submitted

by the sixteen States and Territories that urges this Court to

find RFRA unconstitutional. Descriptions of the amici are in

the Appendix. Consent letters are on file at the Clerk’s Office.

SUMMARY OF ARGUMENT

Amici urge this Court to uphold the constitutionality of

the Religious Freedom Restoration Act, 42 U.S.C. §§2000bb

et seq. (RFRA). This brief responds to the amici brief filed by

the sixteen states and territories (“States’ Brief’). The amici

have great respect for the state attorneys general and the

excellent job they do generally. However, their brief in this

case mischaracterizes RFRA decisions to argue that courts have

used RFRA to impose a variety of intolerable burdens on the

states. But in all but one of the RFRA cases cited in the States’

Brief, the RFRA claimant lost.

The question before this Court in this case is whether

Congress has the constitutional authority to enact RFRA. It is

irrelevant to that question whether RFRA has burdened state

governments in a practical sense. Additionally, this brief will

show that courts have consistently rejected attempts to use

RFRA to impose sweeping or extreme requirements or

prohibitions on the states.

If this Court declares RFRA to be unconstitutional,

amici urges the Court to reexamine its decision in Employment

2

Division v. Smith, 494 U.S. 872 (1990), and give serious

consideration to restoring the compelling state interest test as

the test for Free Exercise Clause claims.

ARGUMENT

I.

THE LARGE NUMBER OF PRISONER LAWSUITS

UNDER RFRA MAY BE A SERIOUS PROBLEM,

BUT IT IS NOT A REASON

TO DECLARE RFRA UNCONSTITUTIONAL

The States’ Brief complains that RFRA has been used

to impose federal control over prisons, “disrupt[ing] core

functions of state governance.” States’ Brief at 1. But every

case cited by the States’ Brief shows that is not happening. The

prisoners lost every RFRA case cited in the States’ Brief.

Courts imposed no injunctions on prison officials because the

prisoners lost their RFRA claims. One would expect the

States’ Brief to have presented the best list of cases in which

overzealous courts are afflicting state prisons with onerous

RFRA-based injunctions. If those court decisions exist, the

States’ Brief did not refer to any of them.

The States’ Brief claims that RFRA “has been used by

racist inmates attempting to cloak their agendas in ‘religion,’

making it more difficult for corrections officials to limit the

disruption and other consequences of such activities.” States’

Brief at 4. Yet in every case the States’ Brief cites for this

point, the prisoner lost:

Ochs v. Thalacker, 90 F.3d 293 (8th Cir. 1996) (white

prisoner seeks segregation from nonwhite inmates under RFRA

due to his white supremacists religious beliefs). Prisoner lost.

George v. Sullivan, 896 F.Supp. 895 (W.D.Wis. 1995)

(white prisoner sues under RFRA seeking right to receive white

supremacist literature). Prisoner lost.

United States v. Meyers, 906 F.Supp. 1494 (D.Wyo.

1995), aff'd, 95 F.3d 1475 (10th Cir. 1996) (prison inmate

claims right under RFRA to use marijuana). Prisoner lost.

The States’ Brief also claims that prisoners have used

RFRA to “distribute weapons or engage in other dangerous

activities ...;” and “to frustrate prison restrictions on the use

of long hair, medallions and ‘colors’ - gang identifiers.”

States’ Brief at 5. But again, the prisoners who made those

claims under RFRA lost the cases cited in the States’ Brief.

Rust v. Clarke, 883 F.Supp. 1293 (D.Neb. 1995), aff'd.,

84 F.3d 841 (8th Cir: 1996) (prisoner who practices the Viking

religion of Asatru asked for various religious items that could

be used as weapons). Prisoner lost.

Emel v. Mensinger, 1996 WL 468673 (E.D. Pa. 1996)

(satanists claimed RFRA right to burn Bibles in their cells).

Prisoners lost.

Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996)

(prisoner who practices a Native American religion sought to

keep his hair long and to use a sweat lodge). Prisoner lost.

Abordo v. Hawaii, 938 F.Supp. 656 (D.Hawaii 1996)

(prisoner who practices a Native American religion objected to

being forced to cut his hair). Prisoner lost.

Diaz vy. Collins, 872 F.Supp. 353 (E.D.Tex. 1994)

(prisoner who practices a Native American religion sought to

4

wear his hair long, obtain a medicine pouch and wear a head

band). Prisoner lost.

The States’ Brief also complains about the amount of

prisoner lawsuits, that the prisoners are burdening the States by

filing large numbers of RFRA cases. States’ Brief at 2-6. The

amici are sympathetic with the States’ complaints about

numerous prisoner cases. Congress enacted on April 26, 1996

the Prison Litigation Reform Act of 1996 (PL104-134, codified

at 18 U.S.C. §3626). This law may significantly reduce the

number of frivolous lawsuits filed by prisoners, including those

filed under laws other than RFRA.

However, excessive prisoner litigation is irrelevant to

determining whether Congress has the constitutional authority

to pass RFRA or not. It is a policy concern that does not

address the constitutional question before this Court.

The problem of excessive prisoner lawsuits did not

begin with RFRA. Prisoners have successfully protected their

right to petition for redress of grievances, to be free of racial

discrimination and to have due process of law, Turner v. Safley,

482 U.S. 78, 84 (1987), as well as their Eighth Amendment

rights. Estelle v. Gamble, 429 U.S. 97 (1976) and Hudson v.

McMillian, 503 U.S. 1 (1992). If RFRA vanished, prisoners

would continue to file lawsuits under a myriad of other

constitutional provisions.

The States may find it irritating or draining to fight

these lawsuits in court, but a losing RFRA lawsuit does not

impose any court order that “disrupt[s] core functions of state

governance,”(States’ Brief at 1). When courts reject plaintiffs’

unreasonable or outlandish interpretations of RFRA, it shows

that the system is working. RFRA should not be struck down

because some people are allegedly misusing it.

5

Il.

THE STATES’ AMICI BRIEF

DISTORTS THE RFRA CASE LAW TO PAINT A

FALSE PICTURE THAT COURTS HAVE USED RFRA

TO INTRUDE ON OTHER AREAS

OF STATE AUTHORITY

The States’ Brief incorrectly paints a dark and ominous

picture of federal courts using RFRA to strip away state

authority and to command the states to act according to the

dictates of people with bizarre religious beliefs:

In the three short years since RFRA was

enacted, it has disrupted several core functions

of State governance. Whether it is running

prisons, educating children, defining criminal

laws, or exercising other police powers, RFRA

has undermined the traditional discretion given

to the States in these areas.

States’ Brief at 1. This is simply not happening. Of all

the RFRA cases cited in the States’ amici brief, the religious

plaintiff prevailed over the government with a RFRA claim

only once. If RFRA is being misused so frequently, why could

the States not find any more examples?

The States’ main complaint with RFRA is that they

have to respond to RFRA suits at all. However, even in areas

where the States have the power to impose reasonable

regulations (e.g., public schools, traffic, hunting), the States

still must obey the Constitution. Successful lawsuits ensure

that the States conform their laws to constitutional standards,

not to interfere with areas traditionally left to state control.

6

Each area of law cited in the States’ Brief shows the

two problems of 1) citing cases in which the RFRA claim lost

and 2) failing to acknowledge that state laws can violate the

Constitution or federal law.

A. Home Schooling

The States’ Brief complains that people have used

RFRA to challenge home schooling regulations that enforce

“minimal educational standards.” States’ Brief at 6. That brief

refers to a RFRA case in which a home schooling mother

unsuccessfully challenged home schooling regulations in

Maryland. Battles v. Anne Arundel County Board of Education,

904 F.Supp. 471 (D. Md. 1995).

Yet courts have struck down many state home

schooling laws because they violated the Constitution. For

example, the Michigan Supreme Court used its state Free

Exercise Clause to declare unconstitutional a state law

requiring all students to be taught by state-certified teachers.

Michigan v. DeJonge, 501 N.W.2d 127 (Mich. 1993). A

number of courts have struck down a series of state compulsory

attendance laws applied to home schooling on void for

vagueness grounds. See, e.g, Minnesota v. Newstrom, 371

N.W.2d 533 (Minn. 1985); Wisconsin v. Popanz, 112 Wis.2d

166, 332 N.W.2d 750 (1983); Roemhild v. Georgia, 251 Ga.

569, 308 S.E.2d 154 (1983) and Jeffrey v. O'Donnell, 702

F.Supp. 513 (M.D.Pa. 1988) and 702 F.Supp. 516 (M.D.Pa.

1988).

When these courts struck down state home schooling

Statutes, they were finding that the state laws violated the

Constitution. The courts were not interfering with an area

traditionally left to the States. From time to time, a legislature

will pass a law that violates the constitution, and it will be

7

challenged in court. RFRA is not the cause of that

phenomenon. If RFRA disappeared today, there would still be

challenges to state laws regulating home schooling if they are

perceived as violating the constitutional rights of the families.

te ew hey TD

B. Public Schools

| The States Brief also argues that RFRA has disrupted

| the states’ oversight of public schools. Again, their brief cites

three RFRA cases for this point. Yet in two of them, the

plaintiffs making the RFRA claim lost.

In Bauchman v. West High School, 900 F.Supp. 254

(D.Utah 1995), a high school student sought an injunction to

stop her high school choir from singing some songs with

Christian religious content. The student based her main cause

of action on the Establishment Clause, which makes this case

basically irrelevant to a discussion of RFRA. The district court

rejected the Establishment Clause claim, as the Eighth Circuit

had done in a similar case, Florey v. Sioux Falls School

District, 619 F.2d 1311 (8th Cir. 1980), cert. den. 449 U.S.

987 (1980). See Bachman, 900 F.Supp. at 267-270.

The student did make a secondary argument that the

singing of religious songs also violated her rights under RFRA.

The federal court rejected the RFRA claim because the school

district allowed the student to opt out of singing the

objectionable music. This is the normal relief granted to

someone with a religious objection to doing something required

of the government -- that the objector is exempted from the

requirement:

As discussed above, plaintiff in the instant case

was permitted to be excused from any choir

activities which she found to offend her

aeeeineieenieaeaeeail

8

religious beliefs. She declined this option, and

instead continued to participate in practicing

and performing all of the songs in the choir’s

repertoire, including those which were

explicitly Christian religious in nature. In light

of the lack of alleged facts demonstrating state

coercion in this matter, this court finds that

plaintiff has failed to state a claim that her

religious beliefs were substantially burdened in

violation of RFRA.

Bachman, 900 F.Supp. at 271. Therefore, the school

district here was already offering the student the relief (an

exemption from singing the objectionable music) that RFRA

would have provided.

A federal court again rejected an apparently extreme

interpretation of RFRA in Helland v. South Bend Community

School Corporation, 93 F.3d 327 (7th Cir. 1996). In that case,

a teacher filed a RFRA claim in court after a school district

removed him from substitute teacher list because he failed to

follow lesson plans, failed to control his students, and

improperly interjected religion into his classrooms . The courts

rejected the teachers’ arguments that he was fired because he

exercised his religion appropriately, not because he had done

a questionable job as a teacher.

The only RFRA case cited in the States’ Brief in which

the RFRA claim prevailed over the government was Cheema

v. Thompson, 67 F.3d 883 (9th Cir. 1995). The States’ Brief

misleading characterizes this case as using RFRA to create “a

federal right to carry daggers to school.” States’ Brief at 6. A

full explanation of the case reveals that the Ninth Circuit did

not apply RFRA in such a bizarre way. The plaintiffs in the

lawsuit were members of the Sikh religion from India, who

eterna ane eS AACE

9

carry ceremonial knives called kirpans. The district court

allowed the three Sikh students to carry their kirpans if they

met these conditions:

1) the kirpan will be of the type demonstrated

to the Board and to the District Court, that is: a

dull blade, approximately 3 - 3 % inches in

length with a total length of approximately 6 %

- 7 inches including its sheath;

2) the kirpan will be sewn tightly to its sheath;

3) the kirpan will be worn on a cloth strap

under the children's clothing so that it is not

readily visible;

4) a designated official of the District may

make reasonable inspections to confirm that the

conditions specified about are being adhered to;

5) if any of the conditions specified above are

violated, the student's privilege of wearing his

or her kirpan may be suspended; and

6) the District will take all reasonable steps to

prevent any harassment, intimidation or

provocation of the Cheema children by any

employee or student in the District and will take

appropriate disciplinary action to prevent and

redress such action, should it occur.

Cheema, 67 F.3d at 886.

Of course, if the school district in this case proved that

the kirpan was a dangerous weapon that threatened the safety

iil

10

of other students, then the RFRA claim by the three Sikh

students would fail. Only because the majority of the Ninth

Circuit panel was convinced that the kirpan did not pose a

threat to other students was it permitted under RFRA. This is

a case respecting the practice of an established world religion,

formed centuries ago. This is not a case of RFRA putting

weapons into the hands of youth gangs -- the Bloods, the Crips

and the Sikhs.

C. Traffic and Hunting Laws.

The States Brief also criticizes RFRA for exposing

state and local government to litigation “over such inherently

local issues as state highway improvements intended to reduce

accidents, nuisance abatement actions dealing with excessive

holiday lighting and the applicability of otherwise

unremarkable highway and hunting safety regulations.” States’

Brief at 7.

The States’ Brief once again cites only cases in which

the RFRA claim lost. This shows that the courts did not use

RFRA to impose burdensome requirements on the state or local

units of government.

In Osborne v. Power, 890 S.W.2d 570 (Ark. 1994), the

Arkansas Supreme Court rejected the RFRA challenge by a

homeowner ordered by local authorities to stop erecting huge

Christmas light displays at his home. The Arkansas Supreme

Court said “there is nothing about their religious beliefs which

dictates that they must celebrate the Christmas season by a

massive display of electric lights.” Osborne, 890 S.W.2d at

572-73.

Similarly, the Ohio Court of Appeals rejected the

RFRA argument of an Amish hunter who refused to wear

1]

bright hunter orange clothing while hunting. State v. Bontrager,

1996 WL 612397 (Ohio Ct. of App., Oct. 19, 1996). That court

found that hunting is not a central tenet of the Amish faith, that

the requirement to wear the clothing did not burden the Amish

hunter’s religious convictions, and that the state had a

compelling state interest to protect people from getting shot

accidently.

The States in their amicus brief implicitly admit the

weakness of their own arguments against RFRA by citing so

many cases in which the courts rejected the RFRA claims:

Whether the States ultimately defeat these

claims of course is only half the matter; the fact

that Congress has seized authority to legislate in

these areas and compelled States to divert

substantial resources in defending actions under

the legislation itself encroaches on State

sovereignty.

States’ Brief at 7.

Here, the States basically admit that their main

objection is that they do not like to respond to lawsuits based

on federal law. But in our federal system, states must obey the

Constitution, and litigants will argue in court that a state is

violating their federal constitutional rights. And sometimes, the

courts will agree that the states have violated the Constitution.

The States’ Brief illustrates this point when it cites

State v. Miller, 549 N.W.2d 235 (Wis. 1996).This is one of the

two cases mentioned in the States’ brief in which the religious

believer prevailed on his religious liberty claim. However, the

religious claimant did not win under RFRA, but the Wisconsin

Constitution’s Free Exercise Clause. See Miller, 549 N.W.2d

12

at 238, n.5.

In this case, the Wisconsin Supreme Court exempted

Amish buggy drivers from compliance with a state law

requiring slow moving vehicles to attach fluorescent orange

triangles to the rear of their buggies. That court found that

there was a less restrictive means to accomplish the state’s

compelling interest in maintaining traffic safety.

This was a state supreme court striking down a state law

under its state constitution. The Minnesota and Michigan

Supreme Courts have exempted Amish buggy drivers from

similar legal requirements because of the state and federal free

exercise Clauses. See State v. Hershberger, 462 N.W.2d 393

(Minn. 1990) and People v. Swartzentruber, 170 Mich.App.

682, 429 N.W.2d 225 (1988). Although the Amish won their

religious liberty exemptions in these cases, these are not

extreme intrusions into areas States normally oversee. _

Simply because such areas as education, traffic control

hunting and zoning (which is at issue in the case now before

this Court) have been regulated traditionally by the states, does

not mean the states are free ignore constitutional constraints.

RFRA is only one of many federal statutes and constitutional

provisions that states must obey. This Court has ordered the

states to obey federal law and the Constitution in the areas of

education, zoning, traffic control and hunting:

Public Education: Public schools must not violate the

freedom of speech, Tinker v. Des Moines School District, 393

U.S. 503 (1969) (student speech) and Lamb’s Chapel v. Center

Moriches School District, 508 U.S. 385 (1993) (equal access);

the Equal Protection Clause, Brown v. Board of Education, 347

U.S. 483 (1954) (racial discrimination); Title IX of the

Education Amendments of 1972, Franklin v. Gwinnett County

13

Public Schools, 503 U.S. 60 (1992); and the Individuals with

Disabilities Education Act, Florence County School District

Four v. Carter, 510 U.S. 7 (1993).

Zoning: Zoning ordinances may not violate the freedom

of speech, Schad v. Mount Ephraim, 452 U.S. 61 (1981); the

Takings Clause, First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987); Fourteenth Amendment liberty interest

in parenting and family, Moore v. East Cleveland, 431 U.S. 494

(1977); and the Equal Protection Clause, Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 432 (1985) and Arlington County

Board v. Richards, 434 U.S. 5 (1977).

Hunting - state laws regulating hunting must comply

with the Equal Protection Clause and the Privileges and

Immunities Clause, Baldwin v. Montana Fish and Game

Commission, 436 U.S. 371 (1978); and various federal laws

addressing sovereignty of Indian reservations, New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324 (1983). Some have

even argued unsuccessfully that Sunday closing laws

containing restrictions on hunting and fishing regulations

violate the Establishment Clause! McGowan v. Maryland, 366

U.S. 420, 423 (1961) and Two Guys v. McGinley, 366 U.S. 582,

587 (1961).

Traffic regulation - laws regulating traffic must conform

with the Commerce Clause, Kassel v. Consolidated

Freightways Corp., 450 U.S. 662 (1981) and the Freedom of

Speech Clause, Shuttlesworth v. Birmingham, 394 U.S. 147

(1969) and Wooley v. Maynard, 430 U.S. 705 (1977).

Therefore, the fact that States must defend their laws

and actions in court and show that they are constitutional is

nothing new. It is also appropriate under our constitutional

system. RFRA extends that national tradition.

14

Ill.

IF THIS COURT FINDS RFRA

UNCONSTITUTIONAL, THIS COURT SHOULD

REOPEN THE QUESTION OF WHETHER

THE COMPELLING STATE INTEREST TEST

SHOULD APPLY IN FREE EXERCISE CASES

If this Court declares RFRA unconstitutional, it should

revisit its decision in Employment Division v. Smith, 494 U.S.

872 (1990) and reexamine whether the compelling state interest

test most accurately reflects the protections of the Free Exercise

Clause. This issue was not briefed by the parties or the amici in

Smith.

This Court found in Smith that the Framers of the Free

Exercise Clause did not intend for it to protect people with

religious-based objections to neutral laws of general

applicability. Smith, 494 U.S. 872, 878-9 (1990).

However, such leading constitutional scholars as

Professor Michael McConnell of the University of Chicago

Law School, has argued that the Framers of the First

Amendment did intend constitutional protection for religious

adherents burdened by laws facially neutral toward religion.

See M. McConnell, The Origins and Historical Understanding

of the Free Exercise of Religion, 103 Harvard L.Rev. 1409

(1990).

During the three year period (1990-93) before RFRA

was enacted and when Employment Division v. Smith stated the

standard of protection for federal free exercise rights, lower

courts misinterpreted Smith as a signal that religious liberty

now rated as a second-class constitutional right. In Salaam v.

Lockhart, 905 F.2d. 1168 (8th Cir. 1990), a prisoners’ rights

15

case, the Eighth Circuit made the shocking statement that

Americans’ free exercise rights after Smith were no better than

those of prisoners:

We do not believe that the Supreme Court's

recent decision in Employment Div., Dep't of

Human Resources v. Smith, 494 U.S. 872, 110

S.Ct. 1595, 108 L.Ed.2d 876 (1990), affects our

analysis. Smith does not alter the rights of

prisoners; it simply brings the free exercise

rights of private citizens closer to those of

prisoners.

Salaam, 905 F.2d at 1171. In faimess to the Eighth Circuit, this

statement taken in context expresses despair over the state of

religious liberty rights of private citizens.

In another prisoners’ rights case called Hunafa v.

Murphy, 907 F.2d 46 (7th Cir. 1990), the Seventh Circuit made

a similar statement that following Smith, regular citizens had no

more religious liberty protection than inmates in prison:

The defendants have not cited to us the

Supreme Court's recent decision in Employment

Division v. Smith, 494 U.S. 872, 110 S.Ct.

1595, 108 L:Ed.2d 876 (1990), rendered after

the appeal in this case was filed. Smith cut

back, possibly to minute dimensions, the

doctrine that requires government to

accornmodate, at some cost, minority religious

preferences: the doctrine on which all the prison

religion cases are founded.

Hunafa, 907 F.2d at 48.

16

This is hardly encouraging when lower courts view

religious liberty protection in such a cramped way. Ten years

ago, this Court interpreted the Free Exercise Clause as giving

significant discretion to prison officials to restrict the religious

activities of prisoners. See O'Lone v. Estate of Shabazz, 482

U.S. 342, 349 (1987) (prison rule infringing on religious liberty

“valid if it is reasonably related to legitimate penological

interests.”). The lower courts interpreted Employment Division

v. Smith as applying that standard to the rest of society. It is

difficult to believe that the Framers of the Free Exercise

Clause, who fought for individual liberty and limited

government, would have intended the Constitution to protect

religious freedom for the common man and woman to the same

extent that it does prisoners.

The historical intent of the Framers of the Free

Exercise Clause cannot be examined in isolation from the

intent of the Framers to limit the reach of governmental power.

both federal and state. At the time the First Amendment was

ratified, federal and state authority regulated far fewer things

than they do today. Therefore, there were far fewer areas than

today where government regulation would conflict with a

person’s religious convictions.

For example, the case now before the case probably

would have never happened at the time the First Amendment

was ratified. It is doubtful that any township at the time had an

ordinance to preserve historic buildings. At that time, a church

would have no need for protection under the Free Exercise

Clause that did not extend to neutral laws of general

applicability, because the churches would have been free to

demolish and expand their sanctuaries as they saw fit, without

any governmental interference.

In another example, the conflict between the Amish and

17

the public school statutes in Wisconsin v. Yoder, 406 U.S. 205

(1972), would not have arisen at the time the First Amendment

was ratified because states did not have compulsory attendance

laws or public schools. At that time, a family might have been

adequately protected by a Free Exercise Clause that did not

extend to neutral laws of general applicability, because the

families would have been free to educate their children in the

manner they thought proper, without any governmental

interference.

Because the reach of government has expanded into so

many new areas since the drafting of the Constitution, the

compelling state interest test may today best reflect the intent

of the Framers. The need for the compelling state interest test

has increased over the years because individuals need

protection from the growing reach of government.

Justice William Brennan made this point about the

expanding presence of government in the lives of individuals

in a speech in 1985 to Georgetown University Law School:

But the days when common law property

relationships dominated litigation and legal

practice are past. To a growing extent

economic existence now depends on less certain

relationships with government -- licenses,

employment, contracts, subsidies,

unemployment benefits, tax exemptions,

welfare and the like. Government participation

in the economic existence of individuals is

pervasive and deep. Administrative matters and

other dealings with government are at the

epicenter of the exploding law. We turn to

government and to the law for controls which

would never have been expected or tolerated

18

before this century. . .

Justice William J. Brennan, Jr., Text and Teaching Symposium,

Georgetown University, Washington, D.C. October 12, 1985,

printed in The Great Debate: Interpreting Our Written

Constitution, published by the Federalist Society, 1986, p. 19.

Then-Justice Rehnquist, in his dissent in Thomas v.

Review Board, 450 U.S. 707 (1981), made a similar point:

. . . the growth of social welfare legislation

during the latter part of the 20th century has

greatly magnified the potential for conflict

between the two clauses, since such legislation

touches the individual at so many points in his

life.

Thomas, 450 U.S. at 721.

In other words, government has grown so large that it

collides with the lives of individuals much more than it did at

the time of the framing of the Constitution.

Assuming that Employment Division v. Smith accurately

lays out the test the Framers of the First Amendment

envisioned for the Free Exercise Clause—we are still left with

the fact that other parts of the Constitution have changed to

allow government to grow far beyond the boundaries

envisioned by the Framers.

It is highly unlikely that the reach of governmental

power will shrink back to its boundaries of two centuries ago.

That means that the Smith test leaves individuals defenseless

and vulnerable in the face of the oversized governmental

behemoth. During the period 1990-1993, after Smith was

19

handed down and before RFRA became law, federal courts

almost always ruled against the religious adherent. Unless

government gets out of many areas it regulates now, (which

probably will not happen), the compelling state interest test

offers the individual significant protection from the reach of big

government.

CONCLUSION

Amici curiae urges this Court to affirm the Fifth

Circuit’s decision and uphold the constitutionality of the

Religious Freedom Restoration Act, or, to reexamine and

expand the protections for religious liberty provided for under

the Free Exercise Clause as interpreted by Employment

Division v. Smith, 494 U.S. 872 (1990).

Date: January 10, 1997

Respectfully submitted,

Jordan W. Lorence Jane E. Hadro

NORTHSTAR LEGAL CENTER ATTORNEY ATLAW

Box 2074 Box 6701

Fairfax, Virginia 22031 Falls Church, Virginia 22046

(703) 359-8619 (703) 532-0599

Counsel of Record