Amicus Curiae Brief — City of Boerne v. Flores

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No. 95-2074 | AV “

ae Ee DS D

IN THE JAN 19 1997

Supreme Court of the Unite} States...

OCTOBER TERM, 1996 /

CITY OF BOERNE, TEXAS,

Petitioner,

—versus—

P.F,. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

—and—

UNITED STATES OF AMERICA,

Intervenor-Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF AMICI CURIAE OF MEMBERS

OF THE VIRGINIA HOUSE OF DELEGATES

AND THE VIRGINIA SENATE

IN SUPPORT OF RESPONDENTS

* Mitchell A. Karlan

Preeta D. Bansal

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue, 47th Floor

New York, New York 10166-0193

(212) 351-4000

* Counsel of Record

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE..............

SUMMARY OF ARGUMENT ................

ARGUMENT

RFRA SUPPORTS STATE LEGISLATORS

AND ENHANCES STATE LEGISLATIVE

PROCESSES BY ENSURING THE ROLE OF

JUDICIAL INSTITUTIONS IN CRAFTING

NECESSARY EXEMPTIONS TO STATUTES

OF GENERAL APPLICABILITY TO

PROTECT RELIGIOUS FREEDOM

RANA a dakscicthccirsceeiunsszessiieeasdcases

TABLE OF AUTHORITIES

CASES

Holy Trinity Church v. United States, 143 U.S. 457

CBODOY rccsiccsn tneicooas ede ane

Iowa State Univ. Research Foundation, Inc. v.

American Broadcasting Cos., 621 F.2d 57 (2d

Cle, 100 eee oe

Natural Resources Defense Council, Inc. v. U.S.

EPA, 725 F.2d 761 (D.C. Cir. 1984) o...cccccccssscessseee

Stuart Circle Parish v. Board of Zoning Appeals of

the City of Richmond, Virginia, _ F. Supp. _,

1996 WL 685755 (E.D. Va. Nov. 26, 1996) ...........

STATUTES

HE U.S.C. 6 DODO na csi ssccecciseacsiet

BULL. (2 oS

LEGISLATIVE HISTORY

H.R. Rep. No. 88, 103d Cong., Ist Sess. (1993)..........

S. Rep. No. 111, 103d Cong., Ist Sess. (1993), -

reprinted in 1993 U.S.C.C.A.N. 1892.....0.....:ccce

139 Cong. Rec. $14353 (daily ed. Oct. 26, 1993)........

OTHER AUTHORITIES

Benjamin N. Cardozo, The Nature of the Judicial

Learned Hand, How Far Is A Judge Free In

Rendering A Decision?, in The Spirit of Liberty:

Papers and Addresses of Learned Hand (Irving

sa ie

Learned Hand, Sources of Tolerance, in The Spirit

of Liberty: Papers and Addresses of Learned

Hand (Irving Dilliard ed., 1974) 00000000000.

Thomas Jefferson, Notes on the State of Virginia, in

The Portable Thomas Jefferson (Merrill D.

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James Madison, Federalist No. 37, in The Federalist

Papers (Clinton Rossiter ed., 1961) ............00000...

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No. 95-2074

eee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

City OF BOERNE, TEXAS,

Petitioner,

- versus -

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

- and -

UNITED STATES OF AMERICA,

Intervenor-Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EEE

BRIEF AMICI CURIAE OF

MEMBERS OF THE VIRGINIA HOUSE OF DELEGATES

AND THE VIRGINIA SENATE

IN SUPPORT OF RESPONDENTS

rz » ee

INTEREST OF AMICI CURIAE

Amici Curiae are twenty-three members of the

Virginia House of Delegates and seven members of the

Virginia Senate. Members of the Virginia House of

Delegates are Kenneth R. Plum, Harvey B. Morgan, Harry J.

Parrish, Mitchell Van Yahres, Marian Van Landingham,

James M. Scott, W. Tayloe Murphy, R. Steven Landes, Julia

A. Connally, L. Karen Darner, Glenn M. Weatherholtz,

George H. Heilig, Jr., Franklin P. Hall, James F. Almand,

Linda T. Puller, John H. Tate, Jr., Vincent F. Callahan, Jr.,

James H. Dillard Il, Leo C. Wardrup, Alan A. Diamonstein,

Frank M. Ruff, Eric I. Cantor, Thomas M. Jackson, Jr., and

John J. "Butch" Davies. Members of the Virginia Senate are

W. Roscoe Reynolds, R. Edward Houck, Patricia S. Ticer,

Emmett W. Hanger, Jr., Joseph V. Gartlan, Jr., Janet D.

Howell, and Frederick M. Quayle.

The Commonwealth of Virginia has long been

committed to ensuring religious freedom of its citizens. Since

the founding of the Republic, Virginia's commitment to and

experiment in freedom of religious exercise has played an

important role in this nation's commitment to religious

freedom. In his Notes on the State of Virginia, Thomas

Jefferson wrote of the beneficial effects on the republic

created by the flourishing of numerous creeds:

Difference of opinion is advantageous in

religion. The several sects perform the office

of a Censor morum over each other. Is

uniformity attainable? Méillions of innocent

men, women, and children, since the

introduction of Christianity, have been burnt,

tortured, fined, imprisoned; yet we have not

advanced one inch toward uniformity. What

has been the effect of coercion? To make one

half the world fools, and the other half

hypocrites.

Thomas Jefferson, Notes on the State of Virginia, in The

Portable Thomas Jefferson 212 (Merrill D. Peterson ed.,

1975). In furtherance of its commitment to religious

freedom, the General Assembly of Virginia was among the

first in the Union to enact in 1786 “A Bill for Establishing

Religious Freedom." See The Portable Thomas Jefferson,

supra, at 251-253.

As legislators of the Commonwealth of Virginia,

amici curiae are committed to upholding Virginia's

commitment to religious free exercise and at the same time

are vitally concerned with preserving state legislative

prerogative to enact laws of general applicability without

undue interference from Congress or the judiciary.

Determination by the Court of the issues presented in this

case -- especially whether Congress, in enacting the Religious

Freedom Restoration Act of 1993 ("RFRA or the "Act"),

acted within its constitutional and legislative power in

creating a right of action for courts to review state legislative

enactments based on claims that such enactments ©

substantially burden religious free exercise -- thus involves

balancing of interests that are of great importance to amici.

SUMMARY OF ARGUMENT

The Religious Freedom Restoration Act of 1993

("RFRA" or the "Act") achieves the aim of preserving

freedom of religious exercise without unduly constraining

state legislative processes. Indeed, RFRA vitally supports

state legislatures in enacting statutes of general applicability

by ensuring that such statutes will be reviewed by those

institutions -- courts -- that are best suited to craft

exemptions to such laws where necessary to further

legitimate religious exercise.

State legislatures are ill-equipped and incapable of

prospectively crafting exemptions to generally applicable

Statutes that take account of all religious practices that

inadvertently may be unduly restricted. Although subsequent

legislative amendment of general laws is possible, claims that

generally applicable statutes may substantially burden

religious freedom are best reviewed by courts rather than by

legislatures. Such claims require determination of the

sincerity of religious beliefs, which often involves credibility

determinations uniquely well suited for the judicial task;

exemptions to general laws based on religious practice are

better and more efficiently crafted in the context of case-by-

case adjudications based on developed factual records, which

is the essence of the judicial function; and courts, through

their adherence to historical precedent, are uniquely well

situated to mitigate in a principled fashion against the

unforeseen and unintended harsh consequences of laws which

must be written in general terms.

Thus far from infringing on state legislative processes

or the prerogatives of state legislators, amici believe that

RFRA supports them. RFRA enables amici to do their jobs

of legislating generally without undertaking the ill-conceived

and futile task of attempting prospectively to evaluate the

effect of general laws on every known religious practice or to

make the kinds of credibility determinations concerning the

sincerity of religious belief that courts are best equipped to

make. By creating a right of judicial review, RFRA helps

ensure that legislative enactments will not result in unintended

and unremedied burdens on religious exercise, and places the

responsibility for crafting necessary exemptions to

accommodate free exercise claims on courts, which are

institutionally better situated than legislatures in performing

this function.

ARGUMENT

RFRA SUPPORTS STATE LEGISLATORS

AND ENHANCES STATE LEGISLATIVE PROCESSES

BY ENSURING THE ROLE OF JUDICIAL INSTITUTIONS

IN CRAFTING NECESSARY EXEMPTIONS TO

STATUTES OF GENERAL APPLICABILITY

TO PROTECT RELIGIOUS FREEDOM

The Religious Freedom Restoration Act of 1993

creates a private right of action "to provide a claim or defense

to persons whose religious exercise is substantially burdened

by government." 42 USC. § 2000bb(b)(2). The Act

expressly “applies to all Federal and State law, and the

implementation of that law, whether Statutory or otherwise."

42 U.S.C. § 2000bb-3(a). As such, RFRA provides an

avenue for judicial review of state and federal Statutes,

including those of general applicability, that may substantially

burden religious exercise even if they do not run afoul of the

First Amendment.

The right of action created by RFRA is necessary to

protect the fundamental value of religious free exercise. The

nature of the legislative process is such that in drafting and

enacting laws, legislatures must inevitably paint with a broad

brush. "The limitations on [the legislature's] ability to foresee

or consider particular problems that may in the future arise

under a statutory scheme often require that legislation be

drafted by reference to general categories rather than to

specific classes of activities within those categories." Natural

Resources Defense Council, Inc. v. U.S. EPA, 725 F.2d 761,

770 (D.C. Cir. 1984).

Such generally written laws, although achieving the

purpose of reaching broad variations in conduct, often have

the accompanying and unforeseen consequence of also

reaching conduct not intended to be covered by the

enactment. This is because the nature of legislation is

prospective, and lawmakers cannot a priori anticipate and

consider all possible consequences of their enactments and

specify necessary exemptions. As Judge Learned Hand

remarked over a half-century ago: "[E]ven if the law had

language of its own, it could not provide for all situations

which might come up. Nobody is so gifted with foresight

that he can divine all possible human events in advance and

prescribe the proper rule for each." Learned Hand, How Far

Is A Judge Free In Rendering A Decision? in The Spirit of

Liberty: Papers and Addresses of Learned Hand 105 (Irving

Dilliard ed., 1974).

The hazards of legislating with general and potentially

overbroad strokes are particularly acute when such general

laws burden fundamental values such as freedom of religious

exercise. Congress recognized as much when it enacted

RFRA. Throughout the legislative debates surrounding

enactment of RFRA are numerous references to unacceptable

burdens on religious free exercise imposed by laws of general

applicability. £F.g., 139 Cong. Rec. $14353 (daily ed. Oct.

26, 1993) (statement of Sen. Hatch) (criticizing neutral

Minnesota state law that allowed removal of children from

parents’ homes due to parents’ religiously motivated actions

and Michigan state officials' performance of autopsy despite

father’s religious objections).

In order to mitigate harsh and unintended-for

consequences of broad language, the need thus arises for

exemptions to be formulated as general legislation is applied

in particular cases or circumstances. This Court recognized

this abiding truth over a century ago:

"All laws should receive a_ sensible

construction. General terms should be so

limited in their application as not to lead to

injustice, oppression or an _ absurd

consequence. It will always, therefore, be

presumed that the legislature intended

exceptions to its language which would avoid

results of this character... . The common

sense of man approves the judgment

mentioned by Puffendorf, that the Bolognian

law which enacted 'that whoever drew blood

in the streets should be punished with the

utmost severity,’ did not extend to the surgeon

who opened the vein of a person that fell

down in the street in a fit."

Holy Trinity Church v. United States, 143 U.S. 457, 461

(1892) (quoting United States v. Kirby, 74 U.S. 482, 486-

487 (1868)); see also e.g., Iowa State Univ. Research

Foundation, Inc. v. American Broadcasting Cos., 621 F.2d

57, 60 (2d Cir. 1980) ("The doctrine of fair use [in copyright

law], originally created and articulated in case law, permits

courts to avoid rigid application of the copyright statute

when, on occasion, it would stifle the very creativity which

that law is designed to foster.").

Although subsequent legislative amendments could

result in statutorily enacted exemptions designed to mitigate

the unforeseen and harsh consequences of generally

applicable laws, judicial institutions are better equipped to

engage in this task of crafting exemptions for several

independent reasons.

First, the process of exempting particular conduct

from generally applicable laws is better done through case-by-

case adjudication in which a factual record is developed. "All

new laws, though penned with the greatest technical skill and

passed on the fullest and most mature deliberation, are

considered as more or less obscure and equivocal, until their

meaning be liquidated and ascertained by a series of particular

discussions and adjudications." James Madison, Federalist

No. 37, in The Federalist Papers 229 (Clinton Rossiter ed.,

1961).

Reasoning has a role to play in the deve:opment and

evolution of the law, "[b]ut as a system of case law develops,

the sordid controversies of litigants are the stuff out of which

great and shining truths will ultimately be shaped. The

accidental and the trans tory will yield the essential and the

permanent." Benjamin N. Cardozo, Zhe Nature of the

Judicial Process 35 (1921). See also e.g., lowa State Univ.

Research Foundation, Inc. v. American Broadcasting Cos.,

621 F.2d 57, 60 (2d Cir. 1980) ("The cases emphasize that

resolution of a fair use claim ‘depends on an examination of

the facts in each case [and] cannot be determined by resort to

any arbitrary rules or fixed criteria." (citation omitted)).

Because the task for case-by-case adjudication is one

for the courts, those institutions are better equipped than are

legislatures in formulating exemptions to general statutes.

Second, courts rather than legislatures are uniquely

well situated to make the kind of credibility determinations

that are often involved in determining whether exemptions to

general laws should be formulated. This is particularly true in

the context of religious free exercise claims. Such claims

inherently involve consideration of the sincerity of religious

belief, and the importance of such belief to one's practice of

religion.

In a recent case in the Commonwealth of Virginia

involving claims under RFRA, for example, the district court

granted preliminary relief in favor of plaintiffs who argued

that application to their Meal Ministry of a section of the

Richmond City Ordinance, which limited the frequency and

volume of the provision of services to the homeless, violated

their mghts to free exercise as protected by the First

et bate:

Amendment and RFRA. See Stuart Circle Parish v. Board of

Zoning Appeals of the City of Richmond, Virginia, ae ,

Supp. __, 1996 WL 685755 (E.D. Va. Nov. 26, 1996). The

court based its holding in part on its conclusion that

"[p]laintiffs have made a strong showing tt feeding the poor

constitutes a central tenet of the religion practiced at the six

churches involved in the Meal Ministry." /d. at *11.

Such credibility determinations concerning the

sincerity of religious belief form the basis of religious free

exercise claims. Because courts regularly engage in such

determinations of credibility and are institutionally better

suited to make such determinations within a particular factual

context, providing a right to obtain judicial review promotes

the process of formulating well-crafted exemptions to general

legislation.

Third, courts, through their adherence and

commitment to observing historical precedent, are uniquely

well situated to mitigate in a principled fashion against the

unforeseen and unintended harsh consequences of laws which

must be written in general terms. As Judge Learned Hand

observed, tolerance for minority faiths in this country is best

preserved and enhanced through mindfulness of the lessons of

humility and evanescence contained in the historical record.

Through knowledge and application of the lessons of history,

"the political life of a country like ours would get depth and

steadiness, would tend to escape its greatest danger, which is

the disposition to take the immediate for the eternal, to press

the ad. atage of present numbers to the full, to ignore

dissenters and regard them as heretics, by some adumbration

of what inn have thought and felt in other times and at other

places." ‘ 2arned Hand, Sources of Tolerance, in The Spirit

of Liber; Papers and Addresses of Learned Hand 80

(Irving Dilliard ed., 1974)

Courts, when crafting exemptions to general laws, are

mindful of history and are trained to proceed in a principled

fashion. "[Rjestrictions not easy to define, but felt, however

impalpable they may be, by every judge and lawyer, hedge

and circumscribe [a judge's] action. They are established by

the traditions of the centuries, by the example of other judges,

his predecessors and his colleagues, by the collective

judgment of the profession, and by the duty of adherence to

the pervading spirit of the law." Benjamin N. Cardozo, The

Nature of the Judicial Process 114 (1921).

Rather than reacting to well-organized minority

religions, courts may thus be better able to resist political

pressure in determining whether exemptions to general laws

are warranted. See generally H.R. Rep. No. 88, 103d Cong.,

Ist Sess. at 6 (1993) ("It is not feasible to combat the burdens

of generally applicable laws on religion by relying upon the

political process for the enactment of separate religious

exemptions in every Federal, State, and local statute."); S.

Rep. No. 111, 103d Cong., Ist Sess. at 8 (1993), reprinted in

1993 U.S.C.C.A.N. 1892 ("State and local legislative bodies

cannot be relied upon to craft exceptions from laws of

general application to protect the ability of the religious

minorities to practice their faiths, an explicit fundamental

constitutio:.cl nght.").

By creating a nigh? of action against legislative

enactments, RFRA thus promotes rather than constrains state

legislative processes. RFRA achieves this result by helping to

ensure that legislative enactments will not result in unintended

and unremedied burdens on religious exercise, and by placing

the responsibility for crafting necessary exemptions to

accommodate free exercise claims on courts, which are

institutionally better situated than legislatures in performing

this function.

CONCLUSION

For the reasons stated above, amici «xrlae

respectfully urge the Court to affirm the decision of the “Court

of Appeals for the Fifth Circuit upholding the Rekgious

Freedom Restoration Ac

Dated: New York, New York

January 10, 1997

Respectfully submitted,