Amicus Curiae Brief — City of Boerne v. Flores

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a JAN 19 1997

No. 95-2074 |

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

City OF BOERNE, TEXAS,

Petitioner,

Vv.

P.F. FLores, ARCHBISHOP OF SAN ANTONIO,

mae" Respondent,

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF AMICUS CURIAE OF

PRISON FELLOWSHIP MINISTRIES AND

THE ALEPH INSTITUTE

IN SUPPORT OF RESPONDENTS

Of Counsel: MICHAEL JosEPH WoopRUFF

ISAAC M. JAROSLAWICZ Counsel of Record

THE ALEPH INSTITUTE Scott J. WARD

9540 Collins Avenue J. MATTHEW SZYMANSKI

Surfside, Florida 33154-7127 STEPHEN M. CLARKE

(305) 864-5553 GAMMON & GRANGE, P.C.

8280 Greensboro Drive

7th Floor

McLean, Virginia 22102-3807

(708) 761-5000

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

HO >

QUESTION PRESENTED

Whether the enactment of the Religious Freedom Res-

toration Act (“RFRA”), 42 U.S.C. § 2000bb, was a

proper exercise of constitutional authority under Section

5 of the Fourteenth Amendment by Congress and the

President of the United States.

TABLE OF CONTENTS

Page

og GR 8 ye i

TABLE OF AUTHORITIES ..20000.00..0.00.0..eccececeeee wha iv

INTEREST OF AMICI CURIAE ...00200.0000000.00.ececeeeeeeeee 1

INTRODUCTION AND SUMMARY OF ARGU-

Se Sh Sts ea Ne 3

5 A Reena A AE OR saabienaeniih 6

» we ENACTING RFRA, CONGRESS

TREATED RELIGIOUS EXERCISE AS A

FUNDAMENTAL RIGHT IN PRISON SET-

TINGS, CONSISTENT WITH HISTORIC

TE -cdicenasiniiscnscntivcvnctnnadeitidtinsceemests inibdeien secicatens 6

A. However Qualified by Governmental Inter-

ests, Free Religious Exercise Is Important

To Rehabilitate Inmates and Reduce Recidi-

RR Ee 10

B. RFRA Protects Prisoners’ Fundamental

Religious Rights Without Impairing Legiti-

mate Governmental Interests... 12

II. RFRA IS A PROPER EXERCISE OF CON-

GRESS’ CONSTITUTIONAL AUTHORITY... 18

A. RFRA Directly Enforces the Equal Protec-

tion Clause of the Fourteenth Amendment... 19

B. RFRA Does Not Improperly Overrule or

RE CE Oe Ce 24

C. RFRA Was Enacted in Accordance With

AD a A RR A lt 28

CONCLUSION .................... CONG? Seta te SR OOO DT ea 30

TABLE OF AUTHORITIES

Cases: Page

Abdur-Rahman v. Michigan Dept. of Corrections,

$f F FF fs i _eerneEs 17

Abington School District v. Schempp, 374 U.S. 203

BARR re ame See ae eae ee 8

Barnett v. Rodgers, 410 F. 2d 995 (D.C. Cir.

RTE eet eRe ae Se ay ca urna EO 11

Bell v. Wolfish, 441 U.S. 520 (1979) ............-.-....... 9

Blake v. City of Los Angeles, 595 F.2d 1367 (9th

Cir. 1979), cert. denied, 446 U.S. 928 (1980)... 20 :

Brown v. Borough of Mahaffey, 35 F.3d 846 (3d

I er ae eT i 25, 27, 28

Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) ........ 27

Bush v. Vera, U.S. ——, 116 S. Ct. 1941

ITI sssscchsais se chscueindteatasesbee nahdiehiabadsage duakeniemiliaadinia ulated 22, 29

Campos v. Coughlin, 854 F. Supp. 194 (S.D.N. \ s

TRA ST GPT BELA AIT Sa BF A RA M0 BO 12

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......5, 20, 21

Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995) .. 27

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) .......... RR Sat ee 21, 24, 25, 27, 28

Church of Scientology v. City of Clearwater, 2

F.3d 1514 (llth Cir. 1993), cert. denied,

= ee or eee ane

U.S. ——, 115 S.Ct. 54 (1994) sn nnenonnsseeeeeeee 25 |

E.E.0.C. v. Catholic Univ., 83 F.3d 455 (D.C. Cir. |

WR Alea 18, 24 |

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

First United Methodist Church v. Hearing Ex-

aminer for Seattle Landmarks Preservation Bd.,

129 Wash.2d 238, 916 P.2d 374 (1996) ............... 25

First Covenant Church v. City of Seattle, 120

Wash.2d 203, 840 P.2d 174 (1992) ............0000....... 25

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) -........... 20

Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.),

rehearing and rehearing en banc denied, 83 F.3d

421, cert. granted, 117 S. Ct. 293 (1996) ........ 18, 22, 23 '

Friend v. Kolodzieczak, 65 F.3d 1514 (9th Cir.),

as amended on denial of reh’g en banc, 72 F.3d

Se Se Ba ID - sectecetsbnddccciieietdianceanstinnicnanes 27

—

TABLE OF AUTHORITIES—Continued

Page

Gallo v. Salesian Soc’y, 290 N.J. Super. 616, 676

A.3G SEO (Awe. DEV. IDBB) ........0.-cnccereccccccccccscssees 18

George v. Sullivan, 896 F. Supp. 895 (W.D. Wisc.

I ae Oe ce Ei SEE IE CE SE ca A REE Te 17

Gilbert v. Minnesota, 254 U.S. 325 (1920) ............. x

Green v. Nottingham, 90 F.3d 415 (10th Cir.

| RE IE t= CEN eR CB ae 14

Griswold v. Connecticut, 381 U.S. 479 (1965)... 9

Guardians Ass’n of NY City Police Dep’t v. Civil

Service Comm’n, 630 F.2d 79 (2d Cir. 1980),

cert. denied, 452 U.S. 940 (1981) .........000000000000... 20

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). 9

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995).. 25, 27

Heart of Atlanta Motel v. United States, 379 U.S.

Pee III ccsiestidbaiathcsiesepianatniibaniniantiad deine tk a 19

Hudson v. Palmer, 468 U.S. 517 (1984) 0.0.00... 11

In re Hodge, 200 B.R. 884 (Bankr. D. Idaho

Ee cei eitiierdiciediicdibsadicadintdiieree i a ee 26, 27

In re Nagy, 89 F.3d 115 (2d Cir. 1996) 0... 14

In re Young, 82 F.3d 1407 (8th Cir.), reh’g and

reh’g en banc denied, 89 F.2d 494, pet. for cert.

filed, 65 U.S.L.W. 3205 (Sept. 19, 1996) .............. 26

Ishmawiyl v. Vaugh, 1995 W.L. 461949 (E.D. Pa.

PS | RSs ED Pe oe ee ea a 17

James v. Lane, F. Supp. ——, 1996 WL

738957 (N.D. Ind. Dec. 13, 1996) _.........0...0000000... 14

Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)... 26

Jones v. Alfred H. Mayer Co., 392 U.S. 409

oh RIT Ee Oar Ca MAL oe oe CRE ; 21

Katzenbach v. McClung, 379 U.S. 294 (1964)... 19, 23

Katzenbach v. Morgan, 384 U.S. 641 (1966) 21

Keeler v. Mayor & City Council of Cumberland,

940 F. Supp. 879 (D. Md. 1996)... 25

Kovacs v. Cooper, 336 U.S. 77 (1949)..................... 8

Lewis v. Casey, —— U.S. ——, 116 S.Ct. 2174

be) FRR AE: F590, TE ie ree Oe) eee: oS Sele aan 7,8, 10

Mack v. O’Leary, 80 F.3d 1175 (7th Cir. 1996)... 26

Malik v. Brown, 16 F.3d 330 (9th Cir. 1994), as

amended, 65 F.3d 148 (1995) 0... hs: Beant 27

TABLE OF AUTHORITIES—Continued

Page

McKnight v. Rees, 88 F.3d 417 (6th Cir.), cert.

granted, U.S. ——, 117 S.Ct. 504 (Nov. 27,

ETE SE Ca AR AE ONY RS Se STS 13

Mississippi Republican Executive Committee v.

Brooks, 469 U.S. 1002 (1984) ..............00.0000.0ee 29

M.L.B. v. S.L.J., —— US. ——, 117 8. Ct. 555,

SEE he SE CED icinicsoenctientnitnionerintndias 8,9

Muslim v. Frame, 897 F. Supp. 215, denying re-

argument of 891 F. Supp. 226 (E.D. Pa. 1995).. 26, 27

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).. 7, 11

Palko v. Connecticut, 302 U.S. 319 (1987) —........ : 8

Rader v. Johnston, 924 F. Supp. 1540 (D. Neb.

MITT Micsctch doatiedoncbsinheinieiaidinedaiiebicstetata taadcepsadaniatbead ate lsade 25, 27

Rhinehart v. Gomez, 1995 W.L. 364339 (N.D. Cal.

SITE TIIEED coscereiicecibsinetsindatasainediatnipsadesanidatniinasohdante 17

Rouser v. White, —— F. Supp. ——, 1996 WL

631130 (E.D. Cal. 1996) ........ winkitinicabicdeaieitadidhtinses 21, 26

Santana v. United States, 98 F.3d 152 (3d Cir.

RD ;* snide bncitescatabeddddeied sdeehiasaldatiattdicieadasetiat ete 14

Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996),

aff’'g 908 F. Supp. 1429 (W.D. Wis. 1995), pet.

for cert. filed, 65 U.S.L.W. 3370 (Oct. 29, 1996).. 14, 23,

24, 26, 29

Scott v. City of Anniston, 597 F.2d 897 (5th Cir.

1979), cert. denied, 446 U.S. 917 (1980) .......... 20

Shapiro v. Thompson, 394 U.S. 618 (1969) ....... ie 9

Small v. Lehman, 98 F.3d 762 (3d Cir. 1996)........ 26

South Jersey Catholic School Teacher Ass’n v.

St. Teresa Church Elementary School, 290 N.J.

Super. 359, 675 A.2d 1155 (App. Div.), cert.

granted, 146 N.J. 567, 683 A.2d 1162 (1996)... 18

State v. Miller, 196 Wis.2d 238, 538 N.W.2d 573

(Wis. App. 1995), aff'd, 202 Wis.2d 56, 549

Ae Bt eS ee eee ed 18

Stefanow v. McFadden, —— F. 8d ——, 1996 WL

737428 (9th Cir. Dec. 27, 1996) ...............:..ccceeee 27

Storm v. Town of Woodstock, 944 F. Supp. 139

CO eee ROE wisi lacecccecsccatectvecbdiclebddlevsteeniaale 26, 28

vii

TABLE OF AUTHORITIES—Continued

Page

Stuart Circle Parish v. Bd. of Zoning Appeals of

Richmond, —— F. Supp. , 1996 WL 685755

is he | RE ee ore 26

Truaz v. Raich, 239 U.S. 33 (1915) ...... Eee eres 9

Turner v. Safley, 482 U.S. 78 (1987) ......0000 7

Turner-Bey v. Lee, 935 F. Supp. 702 (D. Md.

EE snhthsiteccnises 0 BERR. SORES ae ne A 26

United States v. Bauer, 84 F.3d 1549 (9th Cir.),

cert. denied, U.S. ——, 117 S.Ct. 267

RES Ee FO aOR TS PO Mt ee 18, 24

United States v. City of Chicago, 573 F.2d 416 (7th

8 CNRS IRR Rate ve ea 20

United States v. Commonwealth of Virginia, 620

F.2d 1018 (4th Cir.), cert. denied, 449 U.S. 1021

ee aeicerlahiascctihaiipelndacebdnnrniibalaalintaeie inc ia eile ai ar 20

Vitek v. Jones, 445 U.S. 480 (1980) ...... ial ian 8

Werner v. McCotter, 49 F.3d 1476 (10th Cir.),

cert. denied, U.S. ——, 115 S.Ct. 2625

>) ORES Ca MES Slides tiicainditediatceee, 26

Constitutional Provisions and Statutes:

8 8 |, EE passim

American Indian Religious Freedom Act Amend-

ments of 1994, 42 USCA § 1996a 22

Prison Litigation Reform Act of 1996, 18 U.S.C.

FFARR te PERSIE Ra SE a ol NC RE 14

P.L. 103-305, § 526 (Amendment No. 1804) ........ adi 22

Religious Freedom Restoration Act of 1993, 42

U.S.C. § 2000bb ........ sedihiadiene EE Ae .... passim

Legislative History:

H.R. REP. No. 88, 103d Cong., 1st Sess. (1993)... 9, 19,

23, 24

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

printed in 1993 U.S.C.C.A.N. 1892... 8, 9, 19, 24

189 CONG. Rec. S14350-01, 814364 (daily ed. Oct.

SRR ARE eS RE Sal Ea a 8, 10

139 ConG. REC, $14451-91, et seq. (daily ed. Oct.

Ee RO abide isladadlssAccenteidiiledstteati 9

Viii

TABLE OF AUTHORITIES—Continued

Page

139 CoNnG. REC. $14461-01, et seq. (daily ed. Oct.

Ait Naa kA PRATT aco» 7, 8, 12, 18, 23

139 Conc. REC. $14468 (daily ed. Oct. 27, 1993)... 9,13

140 Conc. Rec. H11193-05 (daily ed. Oct. 6,

I acca niencenteeciinerissnctnasien Chtees diteesatsiinieiatienntiiaaaadmindiln 3

Hearings Before House Committee on the Judi-

ciary, Subcommittee on the Constitution (July

NEE ae A SS Ba IS oN 22

Books and Articles:

G. DE BEAUMONT AND A. DE TOCQUEVILLE, ON THE

PENITENTIARY SYSTEM IN THE UNITED STATES

AND ITS APPLICATION IN FRANCE (1964, orig.

I, ea 6

C. Colson, Towards an Understanding of Imprison-

ment and Rehabilitation, in J. Stott & N. Miller,

eds., CRIME AND THE RESPONSIBLE COMMUNITY

) BR RA EANU RAT LAR Ee AOS Steere oie 16

R. Cruz, Comment, Animal Sacrifice and Equal

Protection Free Exercise: Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah,

17 Harv. J.L. & PuB. Pou’y. 262 (1994) ............ 21

R. Duff, Expression, Penance and Reform, in

J.G. Murphy, ed., PUNISHMENT AND REHABILI-

Se Cs SIE icchccunn nchoceicdiiscseceteessciammeeienns 11

T. Evans, et al., Religion and Crime Reexamined:

The Impact of Religion, Secular Controls, and

Social Ecology on Adult Criminology, 33 CRIM-

I eee aess 7

D. GARLAND, PUNISHMENT AND MODERN SOCIETY:

A STUDY IN SOCIAL THEORY (1990) ............0....... 6, 7

B. Johnson & D. Larson, The Potential Benefit of

the Faith Factor, IARCA J. ON COMM. CORREC-

I Te Ce Pe crercterescecutectnrscerenttpesorsverasveces 7

K. Lash, The Second Adoption of the Free Exer-

cise Clause: Religious Exemptions Under the

Fourteenth Amendment, 88 Nw. U.L. REv. 1106

allele aR RAE ese RR Nee MS TE 21

TABLE OF AUTHORITIES—Continued

D. Laycock & O. Thomas, /nterpreting the Reli-

gious Freedom Restoration Act, 73 TEx. L. REV.

209 (1994) ...... ER RE PERN! INA RN ae ROSE

M. McConnell, The Origins and Historical Under-

standing of Free Exercise of Religion, 103 HARV.

Be I SI ediknisincaltcescsestokictheduslicebsichnadioieeees

W. MOBERLY, THE ETHICS OF PUNISHMENT

BS a RN see oa Roe ee Ae eee ae

H. Morris, A Paternalistic Theory of Punishment,

in J.G. Murphy, ed., PUNISHMENT AND REHABIL-

ITATION 158 (3d ed. 1995) ....... ON al Pk in AE eta

H. Morris, Persons and Punishment, in J.G.

Murphy, ed., PUNISHMENT AND REHABILITA-

| RE RE GEE A IO

P. Nolan, Justice Spotlight, 13 JUSTICE REPORT

(Jan. 1997) ..... Pee TCM LINES ge A A OEE IIE ES TORT OG

T. O’Connor, The Impact of Religious Program-

ming on Recidivism, the Community and Prisons,

IARCA J. ON COMM. CORRECTIONS 13 (June

ECORI ER SS i Rea Ls ay Ey Ne a

M. Paulsen, A RFRA Runs Through It, 56 Mont.

RB EO ae

M. Pawa, Comment, When the Supreme Court

Restricts Constitutional Rights, Can Congress

Save Us? An Examination of Section 5 of the

Fourteenth Amendment, 141 U. PA. L. REv. 1029

(1998) ...... Br ta SS a RS eer CEA RRR

S. Rosenzweig, Comment, Restoring Religious

Freedom to the Workplace: Title VII, RFRA,

and Religious Accommodation, 144 U. PA. L.

REV. 2513 (1996) . ay

D. Solove, Note, Faith Profound: The Religious

Freedom Restoration Act and Religion in the

Prisons, 106 YALE L.J. 459 (1996) =

A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA

(Mayer ed., 1969) . ja Pi 6 AE Pe VY

W.B. Turner, When Prisoners Sue: a Study of

Prisoner Section 1983 Suits in the Federal

Courts, 92 HARV. L. REV. 610 (1979) ......0000000000000.

Page

11, 16

TABLE OF AUTHORITIES—Continued

J.B. Weinstein, Prison Need Not Be Mandatory:

There Are Options Under the New U.S. Sen-

tencing Guidelines, 28 No. 1 JUDGES’ J. 16 (Jud.

Admin. Div. Amer. Bar Ass’n 1989) .....................

M.C. Young, et al., Long-Term Recidivism Among

Federal Inmates in Volunteer Prison Ministries,

22 J. OF OFFENDER REHAB. 97 (1995) ...........-...

Other Authorities:

Inmate Litigation and the PLRA, in CORRECTIONS

COMPENDIUM: THE NATIONAL JOURNAL FOR

CORRECTIONS, Volume XXI, No. 12 (December

pe ewe ne Ee ene te AA

FLORIDA DEPARTMENT OF CORRECTIONS (“FL

DOC”), Inmate requests and responses (on file

with amici Aleph Institute) —...........-.0.....

STATE OF WASHINGTON DEPARTMENT OF CORREC-

TIONS, Handbook of Religious Beliefs and Prac-

I Ces ee IE ices theiasiaccicet ict a ntailaistaindin

Standing for Religious Freedom, 13 JUSTICE RE-

gf; BR en ee

Death Row Inmate Wins Fight to Wear Yarmulke,

MIAMI HERALD 11A (Apr. 4, 1996) -—...................

MISSOURI DEPARTMENT OF CORRECTIONS AND

HUMAN RESOURCES, INSTITUTIONAL SERVICES,

POLICY AND PROCEDURE MANUAL, Procedure No.

1517-1.1, Religious Programs and Activities

CRI, Sim Gam <tbih cites cdisnciteineuaihcbemaenmiicimmmaieibienetten

Religious Freedom Restoration Act, live video con-

ference (National Institute of Corrections Acad-

Ae | ERO RENE TS te RT. re

Text of President Clinton’s Memorandum on Reli-

gion in Schools, N.Y. TIMES, JULY 13, 1995, at

|. 2 RMS N ENS Ree MEET ME Soe Phe SR ace

UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL

BUREAU OF PRISONS, Program Statement No.

5360.06 (Aug. 29, 1995), Subject: Religious

Beliefs and Practices of Committed Offenders

(rules effective Sept. 6, 1995)...

Page

4,12

5, 15

INTEREST OF AMICI CURIAE

Amici Prison Fellowship Ministries (“PFM”) and The

Aleph Institute (“Aleph”) submit this brief in support of

Respondent to urge the Court to affirm the decision below

and uphold the Religious Freedom Restoration Act of

1993, 42 U.S.C. § 2000bb (“RFRA”) as constitutional.

Amici, having a direct interest in how religion is treated

in state and federal prisons, ask the Court to consider

that RFRA now enables the proper accommodation of

free exercise of religion, as a fundamental right retained

by prisoners, and helps advance important penological ob-

jectives, including the reduction of recidivism.

Prison Fellowship Ministries. PFM is a tax exempt,

charitable and religious organization founded in 1976 by

Charles W. Colson to assist the church in its ministry to

prisoners, ex-prisoners, crime victims and their families.

Coordinating its ministry through 54 area offices and the

service of more than 50,000 volunteers, PFM provided

more than 3,000 in-prison programs in 1996 to more than

250,000 inmates nationwide. It publishes many resources,

including Inside Journal, a newspaper serving a third of

the nation’s prison population, Bible studies for individ-

uals and groups, and seminar materials for prisoners and

their spouses. It sponsors an annual Christmas Angel Tree

gift program that has reached more than 2.5 million chil-

dren of inmates since 1982. Its work is now effectively

extended through affiliates Justice Fellowship (27 state

task forces on criminal justice policy and reform), Neigh-

bors Who Care (chapters in eight states sponsoring local

crime victims assistance programs), and Prison Fellow-

ship International (organizations in 76 nations working

for just and effective criminal justice systems in each

country).

The Aleph Institute. Hailed by the Rev. Charles Riggs,

former Chief Chaplaincy Administrator for the Federal

Bureau of Prisons, as “the most significant rehabilitative

program for Jewish prisoners in the history of the US.

prison system,” Aleph is a not-for-profit, national Jewish

educational, humanitarian and advocacy organization

founded in 1981 by Rabbi Sholom D. Lipskar at the

direction of Rabbi Menachem M. Schneerson, the Luba-

vitcher Rebbe, of blessed memory. Aleph helps Jewish

inmates and their families maintain essential connections

to each other and to their spiritual heritage, providing

educational materials to children of Jewish inmates, coun-

seling to spouses, parents and children, and financial

assistance to families in need.

Aleph is in the forefront of defending Jewish inmates’

religious freedom, their rights to possess essential religious

articles, books and clothing, and to properly observe the

mandated tenets of their religion. Aleph also provides

resources for Jewish inmates who would otherwise be

unable to observe daily and holy days ritual requirements.

It provides thousands of candles, prayer books, and grape

juice to enable Jewish inmates to welcome Sabbath prop-

erly at those institutions that will let them. It provides

menorahs and candles at Chanukah through its “Lights

Across America” program. It distributes thousands of

pounds of matzo, grape juice and kosher-for-Passover

foods for at least the two Passover Seder ritual celebration

meals. It provides rabbinical visits to give educational ma-

terials, counseling and spiritual support to the more than

6,000 Jewish immates at all federal, state and county

prisons.

Prison officials and chaplains across the country are

regularly informed through the Aleph Advisory newsletter

about all mandated Jewish holy days, with explanations

of the ritual items needed, and their availability without

cost." Aleph is also now publishing the J/nstitutional

1In a system in which Jewish inmates represent a minute per-

centage of the general population—and are often surrounded by

hostile forces—non-Jewish prison chaplains and administrators

often iack the personnel, specialized knowledge, or resources nec-

essary to meet the spiritual needs of Jewish inmates. Many are

unfamiliar with menorahs, Chanukah candles, matzo, kosher-for-

Passover foods and daily ritual practices, including prayer shawls,

Tefillin (phylacteries), kosher diet and facial hair restrictions.

Aleph exists to help meet such needs.

Handbook of Jewish Practice and Procedure for use by

prison officials throughout the country.

The Importance of RFRA to Inmates. Amici strongly

maintain that RFRA’s broad protection is necessary and

essential for all inmates, of whatever religious faith, to

properly observe their own religious traditions, subject

to bona fide necessities of prison discipline, security,

safety and order. Under RFRA, never again should any

inmate suffer an official but capricious excuse, denying a

proper request to accommodate religious observance; in-

deed, this is what Amici fear would recur without RFRA.

The Solicitor General of the United States’ letter of

consent to the filing of this brief is filed herewith pursuant

to Rule 37.3. The remaining parties have filed general

consents with the Clerk of the Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

Congress’ enactment of RFRA was a monumental ac-

complishment, called “among the most significant civil

rights legislation in our history.”* Nevertheless, RFRA

has detractors who belittle the problems it seeks to remedy.

Amici PFM and Aleph respond to Petitioner’s subtle

suggestion that RFRA’s effect on such matters as “prison

oversight” has been pernicious.* Amici in support of

Petitioner go so far as to offer a “parade of horribles”

relating to RFRA.* However, not only is there no case

or controversy regarding RFRA’s applicability to prison

administration, the suggestion invites the wrong result.

Contrary to Petitioner’s misreading of Employment Divi-

sion v. Smith, 494 U.S. 872 (1990), Congress acted

2 See 140 ConG. REc. H11193-05, S11195 (daily ed. Oct. 6, 1994)

(statement of Cong. Waxman). Passed by overwhelming bipartisan

majorities in Congress (House of Representatives, unanimously by

voice vote; Senate, 97-3), RFRA was signed into law by President

Clinton on November 16, 1993.

3 See Brief of Petitioner City of Boerne, Texas (hereinafter

“Pet. Br.”) at 21.

4+ See Brief of Amici States of Ohio, et al. in Support of Peti-

tioner (hereinafter “Amici States Br.”’) at 2-8.

properly under section 5 of the Fourteenth Amendment

in considering how best to protect religious liberty when

government substantially burdens its exercise. In doing

so, it reached no novel result concerning treatment tradi-

tionally accorded religious liberty in this country.° As

this Court recognized in Smith, “[vJalues that are pro-

tected against government interference through enshrine-

ment in the Bill of Rights are not thereby banished from

the political process.” Jd. at 890. Just as anticipated,

RFRA was the result of such a political process: “a

society that believes in the negative protection accorded

to religious belief can be expected to be solicitous of that

value in its legislation as well.” Jd.

Prisoners’ fundamental and constitutional right to the

free exercise of religion, i.e., to engage in acts only for

religious reasons, is generally conducive to penological

objectives. Congress sacrificed no essential governmental

interests in prison security and order when determining

that non-compelling governmental interests must yield to

prisoners’ religious accommodation claims. For inmates,

particularly minority religious adherents, RFRA is a

critical means of redressing egregious problems previously

beyond practical judicial resolution, whether due to the

time it takes to exhaust administrative remedies while

religious holidays and observances are being missed, moot-

ness resulting from arbitrary transfers, or other causes.°

5M. McConnell, The Origins and Historical Understanding of

Free Exercise of Religion, 103 HARV. L. REv. 1409 (1990).

6 See infra note 24 and accompanying text. These problems in-

cluded prison officials’ prohibiting acts engaged in only for religious

reasons—such as denying an Episcopalian inmate access to

sacramental wine at communion outside prison and barring prac-

ticing Jewish inmates from wearing beards or yarmulkes, eating

kosher food, conducting a Passover Seder, or lighting Chanukah

candles. Jewish inmates have been prohibited from congregating

for prayer, despite Muslim co-inmates being accorded such priv-

ileges as a result of having filed suit. See, e.g., State of Florida

Department of Corrections (“FL DOC”), Inmate Request form

for Gary Parker (Feb. 20, 1996) (copy on file with amicus Aleph

Institute).

Such problems, implicating this fundamental right,

called for a legislative response consistent with this Court’s

invitation in Smith for political branches of government

to provide the means of exemptions. Petitioner misunder-

stands Smith to say that if religious exemptions are not

constitutionally required. then Congress may not even

permit them as a matter of legislative grace. This stands

the Court’s reasoning on its head. Congress, exercising

its express powers under Section 5 of the Fourteenth

Amendment, responded to protect fundamental free exer-

cise rights that it determined were being violated. The

subject rights are textually located in the First Amend-

ment and incorporated into the Fourteenth Amendment

by this Court as a matter of well-established legal doc-

trine. Cantwell v. Connecticut, 310 U.S. 296, 303

(1940).

The Federal Bureau of Prisons, and many States, have

established guidelines for prisons that work well with

RFRA. Amici submit that the preparation of appropriate

guidelines for responding to requests for religious accom-

modation will ease concerns for administering the diversity

of requests that are being made.” That inmates represent

different faith groups need not be a problem for state

Officials. Facilitating religious exercise among inmates

will help to improve morale and relationships with others,

7 Several States have put in place guidelines that successfully

implement RFRA. See, e.g., STATE OF WASHINGTON DEPARTMENT

OF CORRECTIONS, Handbook of Religious Beliefs and Practices,

(1987, Rev. 1995) (which amici understand is serving as unofficial

guidelines for prison officials in approximately 40 states) ; MissourRI

DEPARTMENT OF CORRECTIONS AND HUMAN RESOURCES, INSTITU-

TIONAL SERVICES, POLICY AND PROCEDURE MANUAL, Procedure No.

1517-1.1, Religious Programs and Activities (Dec. 15, 1995), at 1

(“This procedure should ensure that inmates have access to the

requirements of their religious faith according to the Religious

Freedom Restoration Act while ensuring the good order and secu-

rity of the institution and safety of the inmates and staff.”’) ;

UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF

PRISONS, Program Statement No. 5360.06 ( Aug. 29, 1995), Subject:

Religious Beliefs and Practices of Committed Offenders (rules

effective Sept. 6, 1995).

increase inmates’ potential for reintegration into the

community upon release, and reduce recidivism. With

appropriate information, prison officials can respond posi-

tively to inmates’ diverse religious practices and requests

while maintaining all necessary penological interests.

ARGUMENT

I. BY ENACTING RFRA, CONGRESS TREATED

RELIGIOUS EXERCISE AS A FUNDAMENTAL

RIGHT IN PRISON SETTINGS, CONSISTENT

WITH HISTORIC PRACTICE.

While amici States focus on the burdens on their prison

systems purportedly caused by RFRA, they ignore the

substantial benefits that free exercise of religion brings to

the American correctional system. Alexis de Tocqueville, |

noted for his early survey of American political and social |

institutions,” examined the American penitentiary system |

with de Beaumont in 1833.° They found religion to be

an indispensable part of the rehabilitation of criminals

isolated by confinement from the general public.”® Signifi-

cantly, they concluded that in America, unlike France

where prisons were “schools for crime,” the presence of

religion worked to achieve the remarkably low recidivism

rate of one in twenty.”” This was due not only to the

influence of volunteer religious workers visiting prisoners

to provide literacy instruction and religious counseling,

but also to the prisoners’ access to religious materials and

8 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Mayer ed., 1969).

®G. DE BEAUMONT & A. DE TOCQUEVILLE, ON THE PENITENTIARY

SYSTEM IN THE UNITED STATES AND ITS APPLICATION IN FRANCE

(1964, orig. pub. 1833).

10 See D. GARLAND, PUNISHMENT AND MODERN SOCIETY: A STUDY

IN SOCIAL THEORY 269-70 (1990) (solitary confinement made

inmates amenable to moral instruction, even as reformed moral

codes presumed their subjects were “free, rational, responsible and

self-directed” persons).

11 p—E BEAUMONT AND DE TOCQUEVILLE, supra note 9, at 57, 80-102.

In those prisons where religion was not integrated into the daily

program, the rate of recidivism was more than three times greater.

Id.

—————————

the isolation of inmates from each other that afforded

each an opportunity for reading and reflection in silence.

These conditions facilitated the experience of contrition,

repentance, and a reform of life in transformative ways."

Modern day studies have upheld these conclusions.”

Congress has periodically expressed concern for the

guarantee of certain basic rights to prisoners, particularly

their religious liberty.“ As has been clearly and repeatedly

noted by members of this Court, prisoners retain their

religious liberty.°. When Congress enacted RFRA in

12 See GARLAND, supra note 10, at 136 (citing the qualitative shift

in the aims of punishment between about 1750 and 1820 throughout

Europe and America as “measures to affect the ‘soul’ of the offender

rather than just strike his body . .. [with] the concern . . . less

to avenge the crime than to transform the criminal who stands

behind it.”) ; id. at 203 (“throughout the history of penal practice

religion has been a major force in shaping the ways in which

offenders are dealt with.’”’)

13 See T. Evans, et al., Religion and Crime Reexamined: The

Impact of Religion, Secular Controls, and Social Ecology on Adult

Criminology, 33 CRIMINOLOGY 195 (1995) (research study found

participation in religious activities was a persistent and noncon-

tingent inhibiter of adult crime); B. Johnson & D. Larson, The

Potential Benefit of the Faith Factor, [ARCA J. ON ComM. CorRREC-

TIONS 28 (June 1995) (“The evidence demonstrating the benefit of

religion in terms of rehabilitation is largely anecdotal, but still

important.’”’).

4 See 139 Conc. Rec. $14461-01, S14462 (daily ed. Oct. 27,

1993) (statements of Sens. Lieberman, Hatch and Danforth) ; ef.

W. Turner, When Prisoners Sue: A Study of Prisoner Section 1988

Suits in the Federal Courts, 92 Harv. L. REV. 610, 653 n.204

(1979) (remarks on the efforts of the 95th Congress to address

prisoners’ need for enforcement of their rights).

8 See Lewis v. Casey, —— U.S. ——, 116 S.Ct. 2174, 2205 (1996)

(Souter, J., concurring and dissenting) (“prisoners do not entirely

forfeit certain fundamental rights, including . . . the right to free

exercise of religion”) ; O’Lone v. Estate of Shabazz, 482 U.S. 342,

348 (1987) (“Inmates clearly retain protections afforded by the

First Amendment, including its directive that no law shall prohibit

the free exercise of religion.”) (citations omitted); Turner v.

Safley, 482 U.S. 78, 95-96 (1987) (marriage is a fundamental right

allowed to prisoners when there is no threat to security, order, or

1993, it specifically considered the importance of religious

exercise to prisoners,’ following the time-honored recog-

nition that religion is not only among fundamental rights,

but is a “preferred” right of the “highest order.”"7 A

fundamental right literally expressed in the text of the

Constitution is, a fortiori, entitled to no less protection

than is always reserved for nonliteral rights found in the

concept of liberty."* Unlike Lewis v. Casey, 116 S.Ct.

public safety and has spiritual significance to many religious; and

marriage commitment “may be an exercise of religious faith, as

well as an expression of personal dedication.”). But cf. Lewis v.

Casey, 116 S.Ct. at 2185 (“a prison regulation impinging on in-

mates’ constitutional rights ‘is valid if it is reasonably related to

legitimate penological interests.’ ”’).

16 See, e.g., 189 ConG. REc. 814461-66 (statements of Sens. Hatch,

Lieberman, Coats, Dole, Hatfield, and Danforth).

17 See 189 Conc. REc. $14350-01, S14364 (daily ed. Oct. 26, 1993)

(statement of Sen. Hatch) (“religious liberty ... is the most

fundamental liberty any human being can claim ... Even the

most scorned in our society, prison inmates, have a legitimate

interest in religious liberty.”); S. Rep. No. 111, 103d Cong.,

Ist Sess., at 9 & n.22 (1993), reprinted in 1993 U.S.C.C.A.N. 1892

(citing cases); see also Gilbert v. Minnesota, 254 U.S. 325, 343

(1920) (Brandeis, J., dissenting) (Fourteenth Amendment guar-

antees more than the liberty to acquire and enjoy property) ; Palko

v. Connecticut, 302 U.S. 319, 325 (1937) (per Cardozo, J.) (Bill of

Rights made applicable to the states to preserve principles of

justice “so rooted in the traditions and conscience of our people

as to be ranked as fundamental”); Kovacs v. Cooper, 336 U.S. 77,

95 (1949) (Frankfurter, J., concurring) (fundamental liberties

are those “of the individual which history has attested as the

indispensable conditions of an open as against a closed society’’) ;

Abington School Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Gold-

berg, J., concurring) (“The First Amendment’s guarantees, as

applied to the States through the Fourteenth Amendment...

are to be read together . . . to promote and assure the fullest

possible scope of religious liberty and tolerance for all and to :

nurture the conditions which secure the best hope of attainment

of that end.’’).

18 See M.L.B. v. S.L.J., U.S. ——, 117 S.Ct. 555, 1996 WL

716328 (Dec. 16, 1996) (liberty interests in marriage and family

life, id. at *9, and fundamental political rights, id. at *13); Vitek

v. Jones, 445 U.S. 480, 492 (1980) (liberty interests in personal

at 2187 (Thomas, J., dissenting) where Justice Thomas

noted a weakness in constitutional analysis when courts

cannot agree upon the constitutional source of “the sup-

posed right,” in the present case religious exercise is

expressly found in the text of the First Amendment.

When Congress enacted RFRA by exercising its power

under Section 5 of the Fourteenth Amendment, it was

obligated to treat the unalienable right of free religious

exercise with the same high level of protection that has

been accorded all fundamental rights (many of which are

found only implicitly in the concept of liberty or due

process). That the exercise of the fundamental right of

religious freedom is necessarily reduced in prison, should

not lessen its significance when no governmental interest

justifies its denial in a specific instance.

When Congress considered prisoners’ rights of religious

exercise, it accepted the premise that religious exercise is

a basic or fundamental right that reaches even into prison.

By enacting RFRA, Congress safeguarded prisoners’ rights

where substantial burdens upon religious exercise give rise

to claims that may then be assessed in light of legitimate

penological interests.”

security of an inmate were implicated upon involuntary transfer

to mental institution) ; Griswold v. Connecticut, 381 U.S. 479, 508-

09 (1965) (Black, J., dissenting) (no textual basis existed in Con-

stitution for privacy right that Court found in the penumbra of

Bill of Rights) ; Truaz v. Raich, 239 U.S. 33, 41 (1915), cited with

approval in Hampton v. Mow Sun Wong, 426 U.S. 88, 102-03 & n.23

(1976) (liberty interest found in right to be eligible to work) ;

Shapiro v. Thompson, 394 U.S. 618, 629-30 (1969) (liberty interest

in interstate travel); see also M.L.B. v. S.L.J., 1996 WL 716328

at *23 nn.3-5 (Thomas, J., dissenting).

19 See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“There is no

iron curtain drawn between the Constitution and the prisons of

this country.”).

20 See H.R. Rep. No. 88, 103d Cong., Ist Sess. at 7 (1993);

S. Rep. No. 111, 103rd Cong., Ist Sess., at 9 (1993), reprinted

in 1993 U.S.C.C.A.N. 1892, 1899; 189 Conc. Rec. $14451-01,814462-

66 (daily ed. Oct. 27, 1993) (statement of Sens. Lieberman, Coats,

and Hatfield) ; see also 189 Conc. Rec. $14468 (daily ed. Oct. 27,

Congress enacted RFRA because it found that govern-

mental officials were substantially burdening religious exer-

cise without compelling justification. Congress considered

RFRA expressly remedial, by finding in past deprivations

a basis for the future protection afforded by the authority

of its law. It thereby equally protected citizens in all

states when their unalienable right to religious liberty “is

substantially burdened by government.” Congress con-

sidered religious liberty as one of those fundamental rights

this Court has time and again recognized as within the

broad sweep of the due process and equal protection pro-

visions of the Fourteenth Amendment, rights found essen-

tial to the concept of ordered liberty, inherent in human

nature, and consequently unalienable.”

A. However Qualified by Governmental! Interests, Free

Religious Exercise Is Important To Rehabilitate

Inmates and Reduce Recidivism Rates.

Despite many changes in penal theory and practice

since 1833, concern for the rehabilitation of criminals

1993) (recording rejection of proposed Senate amendment to

exempt inmates’ claims from RFRA); 139 Conc. Rec. $14364

(daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (opposing

amendment to exempt inmates’ claims and striking a reasonable

balance between competing interests).

“1 See Smith, 494 U.S. at 895 (O’Connor, J., concurring) (‘The

compelling interest test effectuates the First Amendment’s com-

mand that religious liberty is an independent liberty, that it occu-

pies a preferred position, and that the Court will not permit en-

croachment upon this liberty, whether direct or indirect, unless

required by clear and compelling governmenta! interests of the

highest order.”) ; Lewis, 116 S.Ct. at 2206 (Stevens, J., dissenting)

(“Within the residuum of liberty retained by prisoners are free-

doms identified in the First Amendment to the Constitution: free-

dom to worship according to the dictates of their conscience...

[citations] . . . While the exercise of these freedoms may of

course be regulated ... they may not be obliterated either actively

or passively. Indeed, our cases make it clear that the States must

take certain affirmative steps to protect some of the essential

aspects of liberty that might not otherwise survive in the controlled

prison environment.”) (citations omitted).

——

remains identified with moral and religious influence.”

In the experience of both amici, the greater the inmate

participation in their programs, including religious wor-

ship, educational and religious seminars, and Bible studies,

the greater the likelihood of rehabilitation, successful re-

entry into society, and restoration to their spouses, chil-

dren, and religious communities. In a preliminary study

conducted by the National Institute of Healthcare Re-

search at four New York State prisons utilizing follow-

up for two years to assess recidivism among participants

in Prison Fellowship Ministry programs, inmates attend-

ing ten or more Bible studies exhibited significantly lower

rearrest rates as compared to nonparticipants or low

participants.” If recidivism is the greatest problem facing

*2 See Hudson v. Palmer, 468 U.S. 517, 557-58 (1984) (Stevens,

J., concurring and dissenting) (“The view . . . that an inmate is

a mere slave is now totally rejected. ... [Rlestraints and the

punishment which a criminal conviction entails do not place the

citizen beyond the ethical tradition that accords respect to the

dignity and intrinsic worth of every individual. ‘Liberty’ and

‘custody’ are not mutually exclusive concepts.”); O’Lone v. Estate

of Shabazz, 482 U.S. 342, 368 n.8 (1987) (Brennan, J., dissenting)

(quoting Barnett v. Rodgers, 410 F.2d 995, 1002 (D.C. Cir. 1969)

on the rehabilitative function of religion and its importance to the

inmate’s dignity and individuality, and citing studies of the “impor-

tant role of religious commitment in penological rehabilitation”) ;

see also W. MOBERLY, THE ETHICS OF PUNISHMENT 210 (1968)

(“The object is that society should first make alive and deepen

in itself, and secondly should convey to all its members, including

the wrongdoer, a vivid sense of the wicked and destructive character

of the wrongful act.”) ; R.A. Duff, Expression, Penance and Reform,

in J.G. Murphy, ed., PUNISHMENT AND REHABILITATION 198 (3d

ed. 1995) (“We owe it to every moral agent to treat him as one

who can be brought to reform.’’); id. at 169-209; H. Morris, A

Paternalistic Theory of Punishment, in id. at 158; H. Morris,

Persons and Punishment, in id. at 98 (“Society is today sensitive

to the infringement of injustice in punishing the innocent; elabor-

ate rules exist to avoid this evil. Society should be no less sensitive

to the injustice of failing to bring back to the community of per-

sons those whom it is possible to bring back.”).

2% T. O’Connor, The Impact of Religious Programming on Re-

cidivism, the Community and Prisons, I[ARCA J. ON Comm. Cor-

RECTIONS 13 (June 1995); M.C. Young, et al., Long-Term Recidi-

corrections, and of all programs relevant to reducing the

rate of recidivism, religious programs rank among the

most effective, then these programs should be highly re-

garded by administrators as conductive to their penologi-

cal objectives. In fact, RFRA has facilitated a prolifera-

tion of religious prison programs that have had very posi-

tive effects within prisons.

B. RFRA Protects Prisoners’ Fundamental Religious

Rights Without Impairing Legitimate Governmental

Interests.

RFRA now provides a crucial legal remedy for inmates

whose religious rights have been improperly curtailed by

prison officials.* Congress had specifically considered

vism Among Federal Inmates in Volunteer Prison Ministries, 22

J. OF OFFENDER REHAB. 97 (1995) (research findings suggested

religious program content may contribute to long-term rehabilita-

tion of certain kinds of offenders).

24 Such denials provided substantial support for Congress’ enact-

ment of RFRA. For example, several Senators cited McLellan v.

Zavaras, No. 93-B-2365 (D. Colo., dismissed without prejudice,

Dec. 21, 1993) (unreported decision), where an inmate was allowed

to attend a local Episcopal church for Sunday worship services and

to serve as its organist and lay reader at the service, but was for-

bidden under the Department of Correction’s no-intoxicant rule 507

to receive consecrated communion wine at church during Holy

Eucharist. See 1389 Conc. Rec. S$14461-01, $14462-67 (daily ed. Oct.

27, 1993) (statements of Sens Danforth, Hatfield, and Lieberman) ;

see also id. at $14467 (statement of Sen. Danforth) (Catholic

inmates in California county jail denied permission to possess

rosary beads on grounds it would create an impression of favori-

tism) ; copies of FL DOC Inmate requests and responses on file

with amici Aleph Institute, e.g., Nov. 29, 1993: Jewish inmates in

Florida were denied Tefillin bindings (to be kept in the chaplain’s

office and worn only for daily prayer) as a possible security risk

when other inmates were allowed belts, shoe strings, weights, chairs,

tables, etc.

See, e.g., Death Row Inmate Wins Fight to Wear Yarmulke,

MIAMI HERALD 11A (Apr. 4, 1996) (for many years orthodox

Jewish inmate on death row was denied right to wear yarmulke

for “security reasons” until court decided in RFRA suit that the

ban on yarmulkes was “overly restrictive’ and “prison security

would not be compromised”); P. Nolan, Justice Spotlight, 13 Jus-

prisoners’ religious rights as weighed against the govern-

mental interests in the operation of prisons.” Indeed, the

application of RFRA to prisoners was one of the most

hotly-debated aspects of the deliberations. After lengthy

consideration, factfinding and debate, the Senate voted

against an amendment to exclude prison inmates from

RFRA’s protections.” In doing so, it considered—and

rejected—all of the arguments by prison officials repeated

here.

Claims arising under RFRA may have caused adminis-

trative inconvenience in determining how accommodation

could be achieved where religion, its needs and observ-

ances were not understood, or where the practices in-

volved only a small percentage of the inmate population.

RFRA now gives inmates hope that their requests will not

be summarily ignored, delayed or denied de facto by trans-

fer. RFRA now requires that sincere inmate requests for

religious exercise be respected ab initio and denied only

On proper grounds.

TICE REPORT (Jan. 1997) (prison officials interfered with religious

worship of Baptists, Catholics and other “traditional” faithful) ;

Standing for Religious Freedom, 13 Justice REPORT (Jan. 1997)

(Catholic women inmates were denied permission to hold Christ-

mas Mass at the L.A. County women’s jail, as “all activities were

cancelled during the holidays” until RFRA action was threatened).

See also Campos v. Coughlin, 854 F Supp. 194 (S.D.N.Y. 1994).

** The growing use of private prisons—now capable of incar-

cerating approximately 50,000 persons, see Testimony Regarding

Correctional Privatization: Oversight Hearing on Matters Relat-

ing to Bureau of Prisons before Subcomm. on Crime of the House

Comm. on the Judiciary, 104th Cong., 1st Sess. (June 8, 1995)

(statement of Charles Thomas) —also raises important legal ques-

tions, including whether the State can contract away inmates’

free exercise rights, whether private custodians are subject to

RFRA and other federal laws as are their state counterparts, and

whether private prison guards enjoy the same immunity as state

guards, a question pending before this Court, see McKnight v.

Rees, 88 F.3d 417 (6th Cir.), cert. granted, —— U.S. —, 117

S.Ct. 504 (Nov. 27, 1996).

#6 See 139 Conc. Rec. $14468 (daily ed. October 27, 1993).

Since RFRA’s enactment, no genuine governmental in-

terest in safety, security and order has been lost or com-

promised due to successful RFRA claims. Prisons have

not experienced disorders or breaches of security where

proper training procedures have been followed by officials.

Spurious RFRA claims have been or may in the future

be filed by inmates because such spurious claims were

also filed before RFRA. In a settling period of transition,

adjustments to new law take time and the purported

burden of adjustments is no basis to invalidate a statute.

Finally, new federal legislation that diminishes the incen-

tive and ability of inmates to press frivolous lawsuits is

alleviating administrative burdens from excessive inmate

litigation.”

27Qn April 26, 1996, Congress enacted the Prison Litigation

Reform Act of 1996, 18 U.S.C. § 3626 (“PLRA”), primarily to

curtail claims brought by prisoners under 42 U.S.C. § 1983 and the

Federal Torts Claims Act ... many of which are routinely dis-

missed as legally frivolous.” Santana v. United States, 98 F.3d

752, 755 (3d Cir. 1996). The Act applies to all civil proceed-

ings and appeals, Jn re Nagy, 89 F.3d 115, 116-17 (2d Cir. 1996),

including those raising RFRA. See, e.g., Sasnett v. Sullivan,

91 F.3d 1018, 1023 (7th Cir. 1996); James v. Lane, F.Supp.

——, 1996 WL 738957 (N.D.Ind. Dec. 13, 1996) (terminating

consent decree obtained by Muslim inmates pursuant to

RFRA). Amici share the concerns of prison officials over friv-

olous inmate litigation, but there is simply no reason to be-

lieve that RFRA’s enactment is generating any greater degree

of litigation. See Green v. Nottingham, 90 F.3d 415, 418 (10th

Cir. 1996) (“As of 1981, Mr. Green had filed between 600 and

700 complaints in state and federal courts, many of which had

been dismissed as malicious or frivolous.”) (emphasis added).

The means Congress chose to accomplish these ends—discouraging

and limiting the ability of inmates to bring malicious or frivolous

civil claims of any variety (religious or otherwise)—addresses the

underlying concerns of the States opposing RFRA without under-

mining the paramount interest of religious freedom.

Courts and prison officials are certainly aware of PLRA’s pas-

sage. As of January 3, 1997, the PLRA had helped the federal

appellate courts dispose of more than 200 appeals—almost all by

summary unpublished disposition. See Inmate Litigation and the

PLRA, in CORRECTIONS COMPENDIUM: THE NATIONAL JOURNAL

FOR CORRECTIONS, Volume XXI, No. 12 (December 1996).

As patterns of claims emerge from inmates, including

those representing a diversity of minority religions in

American culture, new procedures and administrative effi-

ciency will follow. State officials can follow their federal

counterparts in acquiring better knowledge and skill in

accommodating such claims, and can distinguish other

claims that are either insincere or that pose an unreason-

able risk to the necessary interests of prison security and

order. Indeed, the Federal Bureau of Prisons and some

states have already established working systems.” Instead

of misunderstanding or ignoring the needs of minorities

because their religious practices do not conform to the

public’s perception of what should constitute a religious

practice, state chaplains and wardens can also learn to

reach appropriate accommodations without rancor or dis-

paragement of religion.

Indeed, the brief by amici States actually illustrates that

Congress responded to an important problem with respect

to prisoners’ religious freedom. Amici States complain

that RFRA requires them to investigate religious claims

and accommodate “even the most unusual and isolated

demands,” Amici States’ Br. at 4, apparently something

they felt no need to do otherwise. They claim that RFRA

“diverts” chaplains from delivering religious services and

maintaining pastoral relationships because of increased

28 See, e.g., National Institute of Corrections Academy live video

conference, July 27, 1995, held to educate federal and state correc-

tions officials about RFRA. Rev. Bryn Carlsen, Director of Reli-

gious Services, Federal Bureau of Prisons, listed eight strategies

for the implementation of RFRA: (1) Determine specifically what

is being requested; (2) Determine what is being done elsewhere;

(3) Consult local and national religious resources: (4) Determine

what, if any, court cases have set precedent; (5) Determine what

is the least restrictive alternative available; (6) Establish an

institutional evaluation process for determining questions of com-

pelling interest and least restrictive means; (7) Institute a system-

wide administrative process for making the decisions; (8) Ensure

that decisions contribute to equity and consistency. See also the

Washington and Missouri state policies discussed supra at note 7.

demands. This claim tacitly concedes that the needs of

religious minorities have long been ignored or denied.

RFRA undoubtedly requires an adjustment for those

prison officials who are insensitive to the importance of

the spiritual dimension of inmates’ lives, affected by the

standardization and depersonalization that diminishes dig-

nity and humanity. When inmates are first incarcerated,

they relinquish driver’s licenses and watches, signifying

submission to authority, a deprivation of autonomy asso-

ciated with personal mobility and the ability to tell time.

Inmates are assigned a personal number that becomes,

instead of their name, the means of their official and

primary identification. Loss of freedom, an obligation

to “do” time, demoralizing feelings of disgrace as out-

casts, counting the days to a parole hearing or release

as a numbered individual—all become features of a pris-

oner’s life.” When a prisoner’s right to the exercise of

religion can nevertheless be successfully asserted, it signi-

fies that society does not intend incarceration to extin-

guish the human significance and meaning derived from

free religious exercise.”

Just as Congress, in effect, rejected the notion that a

prisoner’s right to religious exercise diminishes the author-

ity of state officials, so it implicitly recognized that a

prisoner’s spiritual life is not held at the sufferance of the

state or withheld as society’s retribution for crime. In-

mates can and do share with persons outside prison walls

29 See C. Colson, Towards an Understanding of Imprisonment

and Rehabilitation, in J. Stott & N. Miller, eds.. CRIME AND THE

RESPONSIBLE COMMUNITY 158, 155-158 (1980); W. MOBERLY, supra

note 22, at 264.

3° J.B. Weinstein, Prison Need Not Be Mandatory: There Are

Options Under the New U.S. Sentencing Guidelines, 28 No. 1

JUDGES’ J. 16 (Jud. Admin. Div. Amer. Bar Ass’n 1989) (statement

of the Hon. Judge Jack B. Weinstein: “Rabbi Sholom Lipskar, the

guiding force of the Aleph Institute, and his associates understand

and force us to face the fact that each person deserves to be treated

with respect as an individual personality and not as an integer,

a faceless number.”’).

a spiritual perspective on which their hope for the future

rests, a faith that transcends the difficulties of confinement,

loss of rights, poverty, physical disabilities due to age, and

even impending death. Faith’s exercise must not be

sacrificed because states may have fewer dollars to care

for rising prison populations.

No longer should it be assumed that accommodating

inmates’ religious needs can be deferred or denied by

prison officials if the requests are nominally inconvenient.

Prior to RFRA, chaplains were not encouraged to facili-

tate responses to inmates’ requests for religious accommo-

dation, which were often perceived as interfering with the

regimen, routine, and uniform order of prison life. Now,

where religious requests are involved, chaplains can obtain

further resources and education to help serve religious

traditions, process requests for religious exercise, and con-

sider each on its merits. Appropriate requests should now

receive prompt and serious consideration because of

RFRA.

Congress did not intend RFRA to result in a judicial

disregard of necessary penological interests. Courts have

upheld, against RFRA challenges, actions or policies of

prison administrators for a variety of reasons.*’ More

notably, federal prison administrators have utilized RFRA

compliance programs to assist in accommodating legiti-

mate requests for religious accommodation. As a result

of these federal efforts, the administrative burden is mini-

31 See, e.g., Abdur-Rahman v. Michigan Dept. of Corrections,

65 F.3d 489 (6th Cir. 1995) (denial of pass to attend religious

services justified on security grounds) ; Jshmawiyl v. Vaugh, 1995

WL 461949 (E.D. Pa. Aug. 1, 1995) (mother of Muslim inmate

allowed to visit and required to unveil before female corrections

officer when officer was available) ; George v. Sullivan, 896 F. Supp.

895 (W.D. Wis. 1995) (restricted literature that inmate acknowl-

edged fostered racial animosity); Rhinehart v. Gomez, 1995 WL

3643839 (N.D. Cal. June 8, 1993) (mandatory tuberculosis testing

didn’t burden religion).

mized.” RFRA’s focus on making all reasonable efforts

to meet legitimate needs benefits not only inmates, but

also society in increasing rehabilitation and reducing the

costs of recidivism.

II. RFRA IS A PROPER EXERCISE OF CONGRESS’

CONSTITUTIONAL AUTHORITY.

RFRA is before this Court with the weighty presump-

tion of constitutionality accorded to acts of Congress and

the support of every appellate court that has decided its

validity as applied to state action.” Moreover, the only

court to address RFRA’s constitutionality as applied to

federal action also upheld it.* Nevertheless, Petitioner

and its supporting amici contend that Congress lacked

32 See 1389 Conc. Rec. $14461-01, S14462 (daily ed. Oct. 27, 1993)

(statement of Sen. Lieberman) (noting absence of evidence that

without a prison exemption RFRA “will open the floodgates for

prisoners’ religion-based claims.”’).

33 See Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), rehear-

ing and rehearing en banc denied, 83 F.3d 421, cert. granted, 117

Cir. 1996), pet. for cert. filed, 65 U.S.L.W. 3370 (1996); South

Jersey Catholic School Teacher Ass'n v. St. Teresa Church

Elementary School, 290 N.J.Super. 359, 382, 675 A.2d 1155, 1167

(App.Div.), cert. granted, 146 N.J. 567, 683 A.2d 1162 (1996);

Gallo v. Salesian Soc’y, 290 N.J.Super. 616, 643 n.3, 676 A.2d

580, 593 n.3 (App. Div. 1996); State v. Miller, 196 Wis.2d 238,

247-48, 538 N.W.2d 573, 577 (Wis. App. 1995), aff'd, 202 Wis.2d

56, 549 N.W.2d 235 (1996); see also United States v. Bauer, 84

F.3d 1549, 1558-59 (9th Cir.), cert. denied, U.S. , 117

S.Ct. 267 (1996).

% See E.E.0.C. v. Catholic Univ., 83 F.8d 455, 469-70 (D.C. Cir.

1996) ; see also M. Paulsen, A RFRA Runs Through It, 56 Mont. L.

Rev. 249, 253 (1995) (“Congress possesses the same power to pass

RFRA, as RFRA concerns federal statutes, as it had to pass those

other federal statutes in the first place.”) ; D. Laycock & O. Thomas,

Interpreting the Religious Freedom Restoration Act, 73 Tex. L.

REV. 209, 211 (1994) (RFRA “is both a rule of interpretation for

future [and past] federal legislation and an exercise of general

legislative supervision over federal agencies, enacted pursuant to

each of the federal powers that gives rise to legislation or agencies

in the first place.”).

constitutional authority to enact RFRA and violated the

separation of powers by attempting to overrule or super-

sede this Court’s decision in Smith. Because Respond-

ents and other supporting amici address these arguments,

amici here focus only on aspects of the Equal Protection

Clause and Congresss’ authority to legislate in the wake of

Smith that have particular relevance to free exercise rights

of inmates under RFRA.

A. RFRA Directly Enforces the Equal Protection

Clause of the Fourteenth Amendment.

In adopting RFRA, Congress expressly relied upon its

power under the Fourteenth Amendment, the First Amend-

ment, and the Necessary and Proper Clause of Article I,

Section 8 of the Constitution.” The Fourteenth Amend.

ment authorizes Congress to enact legislation to enforce

the Amendment’s requirement that no State shall: (1)

“abridge the privileges or immunities of citizens of the

United States”; (2) “deprive any person of ... due

process of law”; or (3) “deny to any person .. . the equal

protection of the laws.”® The arguments over RFRA’s

~ 83 See §. REP. No. 111, 103d Cong., Ist Sess. at 18-14 (1993).

reprinted in 1993 U.S.C.C.A.N. 1892, 1903; H.R. REP. No. 88

103d Cong., Ist Sess. (1993).

%6 Congress’ express reliance on the Fourteenth Amendment does

not diminish any other source of legislative power that may

Support RFRA. For instance, the Article 1, Section 8 Commerce

Clause power forms the basis for other civil rights statutes, such

as the Civil Rights Act of 1964. In unanimously upholding that

Act—which prohibits discrimination on the basis of “religion” as

well as “race, color, and national origin” (and “sex,” as later

amended )—-under the Commerce Clause, this Court spoke in terms

that equally support RFRA. See Heart of Atlanta Motel v. United

States, 379 U.S. 241, 257 (1964) (“That Congress was legislating

against moral wrongs in many of these areas rendered its enact-

ments no less valid.”); Katzenbach v. McClung, 379 U.S. 294,

301 (1964) (“a number of witnesses attested to the fact that racial

discrimination was not merely a state or regional problem but was

one of nationwide scope... . [C]longress appropriately considered

the importance of that connection with the knowledge that the

discrimination was but ‘representative of many others throughout

the country, the total incidence of which if left unchecked may

validity, however, have focused almost exclusively on con-

gressional power to enforce not an express provision of

the Fourteenth Amendment but an “incorporated” right,

i.e., the right to religious freedom secured by the Free

Exercise Clause of the First Amendment. Amici agree

well become far reaching in its harm to commerce.’”’) (citation

omitted). In the prison context, a substantial effect on interstate

commerce is not difficult to conceptualize, given the increasingly

common practice of interstate transfer of inmates and the growth

market in “privatized” prisons (where fundamental rights such

as free exercise may be lost).

Because the Court in Heart of Atlanta and McClung unanimously

found the Civil Rights Act to be authorized by the Commerce Clause,

the Court found it unnecessary to also consider whether the Act

was authorized by Section 5 of the Fourteenth Amendment. None-

theless, at least two justices would have specifically held that the

Fourteenth Amendment also authorized the Act as applied to these

private businesses. See Heart of Atlanta, 379 U.S. at 281 (Douglas,

J., concurring) (“The rights protected are clearly within the pur-

view of our decisions under the Equal Protection Clause of the

Fourteenth Amendment.”); id. at 293 (Goldberg, J., concurring)

(Fourteenth Amendment “guarantees to all Americans the con-

stitutional right ‘to be treated as equal members of the com-

munity’”). The Act’s application to the states as employers is

independently authorized by Section 5 of the Fourteenth Amend-

ment. See Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n.9 (1976);

accord Guardians Ass’n of NY City Police Dep’t v. Civil Service

Comm'n, 630 F.2d 79, 88 (2d Cir. 1980), cert. denied, 452 U.S. 940

(1981); Scott v. City of Anniston, 597 F.2d 897, 900 (5th Cir.

1979), cert. denied, 446 U.S. 917 (1980); Blake v. City of Los

Angeles, 595 F.2d 1367, 1373 (9th Cir. 1979), cert. denied, 446 U.S.

928 (1980); United States v. Commonwealth of Virginia, 620 F.2d

1018, 1023-25 (4th Cir.), cert. denied, 449 U.S. 1021 (1980);

United States v. City of Chicago, 573 F.2d 416, 423 (7th Cir.

1978) (“It is undisputed that the 1972 Amendments to Title VII

are an enactment to enforce the anti-discrimination prohibitions

of the Equal Protection Clause....”).

Whether power for Title VII’s application to the States is derived

from the Commerce Clause, the Fourteenth Amendment, or a

combination thereof (e.g., Scott, supra), both lines of reasoning

support Congress’ enactment of Title VII and RFRA as anti-

discrimination statutes.

37 Cantwell, 310 U.S. at 303.

with Respondents and the appellate courts that congres-

sional power under the Fourteenth Amendment includes

the power to enforce such incorporated rights,™ particu-

larly the right of religious freedom secured by the Free

Exercise Clause,” but congressional power to enact RFRA

is not so limited. RFRA is also designed to enforce

directly the Fourteenth Amendment’s guarantee of “equal

protection,” at the heart of which, like the Free Exercise

Clause, lies the Principle of anti-discrimination or non-

persecution.” The drafters of the Fourteenth Amend-

ment intended the Amendment not only to protect against

de jure facial religious discrimination, but also to guard

against de facto discrimination evidenced by discrimina-

tory effects on religious practice,”

38 See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968) ;

Katzenbach v. Morgan, 384 U.S. 641, 651-55 (1966).

*” Free exercise of religion has long been recognized as part of

the liberty interest substantively protected by the Due Process

Clause. See Cantwell, 310 U.S. at 303. This right was also con-

sidered one of the “privileges or immunities of citizens of the

United States” when the Fourteenth Amendment was adopted.

K. Lash, The Second Adoption of the Free Exercise Clause:

Religious Exemptions Under the Fourteenth Amendment, 88 Nw.

U. L. Rev. 1106, 1146-49 (1994), and there is no apparent impedi-

ment to recognizing it as such. See, e.g., Rouser v. White, 944

F. Supp. 1447, 1996 WL 631130, *4 & n.8 (E.D. Cal. 1996) (up-

holding RFRA as a proper enforcement of Privileges or Im-

munities Clause of Fourteenth Amendment) ; cf. R. T. Cruz, Com-

ment, Animal Sacrifice and Equal Protection Free Exercise: Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 17 Harv. J. L.

& Pus. Pou’y. 262, 272 (1994) (suggesting that the Free Exercise

Clause may be incorporated through the Equal Protection Clause).

U.S. 520, 523 (1993) (Free Exercise Clause embodies “fundamental

nonpersecution principle”); id. at 532 (“historical instances of

religious persecution and intolerance .. . gave concern to those

who drafted the Free Exercise Clause”) ; id. at 540 (Kennedy, J.,

joined by Stevens, J.) (“In determining if the object of a law is

a neutral one under the Free Exercise Clause, we can also find

guidance in our equal protection cases,”’).

*! See Lash, supra note 39, at 1149 (1994) (authors of the Four-

teenth Amendment intended it to protect substantive religious ex-

Smith articulated formal neutrality of government ac-

tion as a constitutional standard of protection for religious

exercise. Post-Smith concerns about religious discrimina-

tion in America due to government insensitivity and

hostility to religious practice prompted the enactment of

RFRA ™* and related anti-discrimination measures taken

by the legislative and executive branches to protect reli-

gious exercise.“ After several rounds of hearings on

RFRA, Congress “concluded that Smith’s focus on facial

ercise against government interference); cf. Bush v. Vera, ——

U.S. ——., 116 S. Ct. 1941, 1969 (1996) (O‘Connor, J., concurring).

42 See, e.g., Flores, 73 F.3d at 1358-59 (“Witnesses at congres-

sional hearings spoke eloquently of the need for legislation to

defend individuals, particularly those from minority religions,

from generally applicable laws that burden the exercise of religion.

[Tlhe Senate Judiciary Committee found the need for legislation

to ‘assure that all Americans are free to follow their faiths free

from governmental interference.’”) (citations omitted).

43 E.g., the 103d Congress passed the American Indian Religious

Freedom Act Amendments of 1994 (“AIRFA”) to remedy long-

standing religious discrimination against Native Americans, 42

U.S.C. $ 1996a (1994). As part of its welfare reform law, the 104th

Congress included an anti-discrimination provision that allows

states to contract with private organizations to provide welfare

services but prohibits states from discriminating against religious

organizations in administering the federally funded programs. 42

U.S.C. §604a (1996). The President has not only actively sup-

ported RFRA and these other anti-discrimination provisions, he

has also issued Guidelines to help defuse the religion-hostile environ-

ment in public schools. Text of President Clinton’s Memorandum

on Religion in Schools, N.Y. Times, July 13, 1995, at B10. In

response to apparent hostility to religion evinced by the Equal

Employment Opportunity Commission’s proposed Guidelines on

Religious Harassment in public and private workplaces, the

103d Congress directed the EEOC in promulgating final regula-

tions to “make explicitly clear that symbols or expressions of

religious belief consistent with the First Amendment and the

Religious Freedom Restoration Act of 1993 are not to be restricted

and do not continue proof of harassment.” P.L. 103-305, § 526

(Amendment No. 1804). Indeed, concerns about government in-

sensitivity and hostility to religious belief and practice have led

Congress to study the need for a religious freedom amendment to

the United States Constitution (e.g., Hearings Before House Com-

neutrality and general applicability has been ineffective

in identifying laws motivated by antagonism to a religion

or to religion in general.” Flores, 73 F.3d at 1359. Dur-

ing the three years that Congress studied the need for

RFRA, it found abundant evidence that religious discrimi-

nation was, in the words of McClung, 379 US. at 301,

“not merely a state or regional problem but was one of

nationwide scope.” Congress found especially egregious

examples of discrimination against adherents of minority

religions, who are often subject to the discriminatory

effects of facially neutral laws and powerless to obtain a

political remedy.“ RFRA was designed to remedy and

prevent such instances of disguised or de facto discrimina-

tion. As stated by the court below:

Congress could reasonably conclude that more exact-

ing scrutiny of facially neutral legislation that bur-

dens a religious practice is needed to protect adher-

ents of minority religions. [R]elatedly, Congress

could reasonably conclude that seeking religious ex-

emptions in a piecemeal fashion through the political

processes, particularly at the state or local govern-

ment level, would place minority religions at a

disadvantage. See The Federalist No. 10 (James

Madison ).*

mittee on the Judiciary, Subcommittee on the Constitution (July

23, 1996) ).

*4 See, e.g., H.R. REP. No. 88, 103d Cong., Ist Sess., at 6 &

n.14 (1993) ; 189 Conga. Rec. $14461-01, 8614467 (daily ed. Oct. 27,

1993) (statement of Sen. Danforth).

* Flores, 73 F.3d at 1360 (citations omitted). Chief J udge Pos-

ner came to a similar conclusion in Sasnett v. Sullivan, 91 F.3d

1018, 1021-22 (7th Cir. 1996) :

[Clongress can properly legislate under section 5 to make

the formal right of religious freedom of persons who lack

political power in individual states (yet are somehow able to

form or benefit from the formation of an effective coalition to

obtain legislative assistance at the national level) a meaning-

ful right. ... Prisoners, Christian or otherwise, are a good

example of a group whose claims to be able to exercise a mean-

ingful freedom of religion are unlikely to be heard in state

legislatures.

B. RFRA Does Not Improperly Overrule or Supersede

Smith.

Petitioner’s arguments distort the standard for constitu-

tional review as well as RFRA’s legislative history. State-

ments of individual lawmakers critical of Smith are irrele-

vant to determining the constitutional validity of their

legislation.” Moreover, despite the motives that Petitioner

attributes to certain lawmakers, the “more natural reading

of the Act’s provisions [is] that Congress’s objective . . .

was to overturn the effects of the Smith decision, not the

decision itself.” EEOC v. Catholic Univ., 83 F.3d at

469 (emphasis added). Even assuming the motives

ascribed by Petitioner, RFRA “could still be within the

scope of section 5 if its effect is, without infringing any

constitutional rights, to make the legal remedies against

violations of the free-exercise clause more effective be-

cause requiring less proof.” Sasnett, 91 F.3d at 1021

(emphasis added).

RFRA does not negate Smith, but is its complement.

As Hialeah explains, Smith retains the most “exacting

scrutiny” of government actions in four instances—when

government regulation: (1) is not neutral, i.e., targets

religious conduct or believers either facially or as applied

in particular instances, Hialeah, 508 U.S. at 533-34;

Smith, 494 U.S. at 878-79; (2) is not generally applicable,

46 See Sasnett, 91 F.3d at 1021 (“[I]t is not the motive of the

legislators that is important ... but whether the statute they pass

is within the scope of their constitutional authority.”’).

47 Accord United States v. Bauer, 84 F.3d 1549, 1558 (9th Cir.

1996) (RFRA “does not present itself as an interpretation of the

Constitution overruling Smith; rather it consists of a command that

must be followed as a matte rof federal law.”). Indeed, properly

viewed as a whole, RFRA’s legislative history clearly demonstrates

proper congressional purposes. See, e.g., S. Rep. No. 111, 103d

Cong., lst Sess. at 14 n.48 (1993), reprinted in 1998 U.S.C.C.A.N.

1892, 1908-04 (RFRA “does not purport to legislate the standard

of review to be applied by the Federal courts in cases brought

under that constitutional provision. Instead, it creates a new

statutory prohibition on governmental] action. .. .”); H.R. Rep.

No. 88, 108d Cong., Ist Sess. at 1 (1993); id. at 15 n.3.

Ta TOPE OEE NS RM EOE ET eT eS

i.e., selectively burdens religious exercise, Hialeah, 508

U.S. at 542; Smith, 494 US. at 879-81; (3) creates a

system of individualized government assessment of the

reasons for the relevant conduct, allowing individualized

exemptions from a general requirement, Hialeah, 508 U.S.

at 537; Smith, 494 U.S. at 884: or (4) burdens religious

freedom in conjunction with other constitutional rights,

i.e., a hybrid situation, Smith, 494 U.S. at 881-82.

In each of these four instances, the government action

“is invalid unless it is justified by a compelling interest

and is narrowly tailored to advance that interest.” Hia-

leah, 508 U.S. at 533 (citing Smith, 494 US. at 878-

79).% Indeed, the lower courts have not hesitated to

invalidate government action in these instances.”

** The Court's application of the compelling state interest test

to the free exercise claim in Hialeah completely rebuts the argu-

ments of RFRA’s opponents that the compelling interest test is

“incompatible” with free exercise adjudication and that Smith

“abandoned” it due to judicial “inability” to apply it.

49 See, e.g., Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995)

(invalidating under Smith/Hialeah Army regulations directly bur-

dening religion); Brown v. Borough of Mahaffey, 35 F.3d 846

(3d Cir. 1994) (condemning under Smith/Hialeah city’s action that

partially blocked access to religious tent meeting); Church of

Scientology v. City of Clearwater, 2 F.8d 1514 (11th Cir. 1993)

(applying Smith to condemn city’s charitable solicitation law as

not generally applicable), cert. denied, U.S. ——, 115 S.Ct.

54 (1994); Rader v. Johnston, 924 F.Supp. 1540 (D. Neb. 1996)

(invalidating under Smith/Hialeah action of state university re-

fusing religion-based exemption) ; Keeler v. Mayor & City Council

of Cumberland, 940 F.Supp. 879 (D. Md. 1996) ( invalidating under

Smith/Hialeah historic landmark ordinance because city refused

to extend its system of individual exemptions to case of religious

hardship) ; First Covenant Church v. City of Seattle, 120 Wash.2d

203, 840 P.2d 174 (1992) (invalidating under Smith historic land-

mark ordinance because it singled out religious facilities, invited

individualized assessments, and burdened free speech in addition

to free religious exercise, i.e., hybrid claim) ; First United Meth-

odist Church v. Hearing Examiner for Seattle Landmarks Preser-

vation Bd., 129 Wash.2d 238, 916 P.2d 374 (1996) (applying First

Covenant Church to prevent landmark designation of church).

RFRA protects religious exercise differently from Smith.

Although RFRA applies to neutral laws of general ap-

plicability, it establishes a higher threshold for free ex-

ercise claims than does Smith. Under RFRA, “a plain-

tiff alleging a violation of RFRA must demonstrate that

his right to the free exercise of religion has been substan-

tially burdened.” This “substantial burden” trigger of

RFRA has been debated recently in the federal courts.

While the precise statement of the test varies, the clear

trend is to interpret the burden requirement consistently

with RFRA’s legislative history, including congressional

approval of Justice O’Connor’s burden analysis in Smith.”

The prevailing test for determining the existence of a

substantial burden under RFRA requires a claimant to

demonstrate that a practice “motivated by a sincerely

held religious belief [was] significantly or meaningfully

curtailed.” The minority test, applied consistently only

5° Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996) (emphasis

added) ; Storm v. Town of Woodstock, 944 F. Supp. 189, 146 &

n.6 (N.D.N.Y. 1996). A substantial burden exists where the state

“put{s] substantial pressure on an adherent to modify his behavior

and to violate his beliefs.” Jolly, 76 F.3d at 476; Storm, 944 F.

Supp. at 146 & n.6 (citations omitted).

51 See Sasnett v. Sullivan, 908 F. Supp. 1429, 1440-45 (W.D.Wibs.

1995) (detailing legisiative history on “substantial burden,” in-

cluding citations to the record quoting Smith, 494 U.S. at 893

(O.Connor, J., concurring)), aff'd, 91 F.3d 1018 (7th Cir. 1996).

52 Sasnett, 908 F.Supp. at 1444. Other RFRA decisions employ-

ing a form of this “religiously motivated” test include: Sasnett,

91 F.3d at 1022 (7th Cir. 1996); Jn re Young, 82 F.3d 1407, 1418

(8th Cir. 1996); Mack v. O'Leary, 80 F.8d 1175, 1178-79 (7th

Cir. 1996) ; Jolly, 76 F.3d at 476-77; Werner v. McCotter, 49 F.3d

1476, 1480-81 (10th Cir.), cert. denied, —— U.S. ——, 115 S.Ct.

2625 (1995); Small v. Lehman, 98 F.3d 762, 766-68 (3d Cir. 1996) ;

Muslim v. Frame, 897 F. Supp. 215, denying reargument of 891

F. Supp. 226 (E.D.Pa. 1995) ; Turner-Bey v. Lee, 935 F. Supp. 702,

703 (D.Md. 1996); Stwart Circle Parish v. Board of Zoning Ap-

peals, —_——~ F. Supp. ——-, 1996 WL 685755, *12-16 (E.D.Va. Nov.

26, 1996); Rouser v. White, ——— F. Supp. , 1996 WL 631130,

*6-7 (E.D.Cal. Oct. 28, 1996); In re Hodge, 200 B.R. 884, 895-96

(Bankr.D.Idaho 1996). This prevailing formulation of the sub-

by the Ninth Circuit, requires a claimant to demonstrate

that the burdened practice was (1) “mandated” by the

claimant’s faith, (2) a “central” tenet or belief of religious

doctrine, and (3) “substantially” interferred with.“ The

latter test raises the threshold burden on claimants much

higher than Congress intended and may defeat RFRA’s

remedial purpose.”

Regardless of which version of the “substantial burden”

test applies, the point is that RFRA requires it, whereas

Smith and Hialeah do not. In Hialeah, “the Court did not

consider whether the ordinances posed a substantial bur-

den . . . but proceeded directly to the compelling interest

test after it determined that the ordinances were not neu-

tral or generally applicable.” Rader, 924 F.Supp. at 1555

& n.28; accord Hartmann, 68 F.3d at 979 & nn3 & 4;

Brown, 35 F.3d at 849-50. “The rare cases which address

acts or laws which target religious activity have never

limited liability to instances where a ‘substantial burden’

was proved by the plaintiff. Applying such a burden test

stantial burden test refutes the argument that RFRA is unconsti-

tutional because it purportedly requires courts to judge the “cen-

trality” or “relative importance” of religious benefits.

°8 No court outside the Ninth Circuit has adopted a “centrality”

component to the substantial burden test. As recognized by Judge

Pollak, every Justice of this Court rejected a centrality inquiry in

Smith. See Muslim, 897 F. Supp. at 220.

‘4 See Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995); ac-

cord Stefanow v. McFadden, -— F.3d ——, 1996 WL 737423, *5

(9th Cir. Dec. 27, 1996). However, even courts within the Ninth

Circuit do not always follow Bryant’s strict test. See, €.g., Cheema

v. Thompson, 67 F.8d 883, 885 (9th Cir. 1995) ; Malik v. Brown,

16 F.3d 330, 333-34 (9th Cir. 1994), as amended, 65 F.3d 148, 149

(1995) ; Friend v. Kolodzieczak, 65 F.3d 1514, 1522-23 (9th Cir.)

(Ferguson, J., dissenting), as amended on denial of reh’g and reh’g

1996 WL 631130, *6-7; In re Hodge, 200 B.R. at 895-96.

*S For an analysis of the troublesome consequences of the “cen-

tral tenet” interpretation of “substantial burden” in the prison

context, see D. Solove, Note, Faith Profaned: The Religious Free-

dom Restoration Act and Religion in the Prisons, 106 YALE L.J.

459, 476-77 (1996).

to non-neutral government actions would make petty har-

assment of religious institutions and exercise immune

from the protection of the First Amendment.” Brown,

35 F.3d at 849-50 (citation omitted).

This difference between RFRA and the Free Exercise

Clause is significant. For example, in Brown, the Third

Circuit invalidated a city governmert action under Smith/

Hialeah for “intentionally burdening religious worship,”

but did not apply RFRA because the resulting burden was

not “substantial.” See Brown, 35 F.3d at 848-49. In such

instances RFRA cannot protect against what Smith and

Hialeah absolutely forbid: religious discrimination. Storm

v. Town of Woodstock, 944 F.Supp. 139 (N.D.N.Y.

1996), is similar in many respects; claimants could meet

the constitutional standard under Smith/Hialeah but failed

to meet the substantial burden threshold of RFRA.”

In such cases, government action violates one of the

four principles of Smith/ Hialeah and will likely be invali-

dated under the First Amendment. In those many in-

stances where government action does not violate a prin-

ciple of Smith/Hialeah but nevertheless “substantially

burdens” a person’s sincere religion exercise, the action

likely violates RFRA, entitling the claimant to an exemp-

tion. Thus, far from “reversing” or “superseding” Smith,

RFRA actually complements it, further safeguarding re-

ligious freedom.

C. RFRA Was Enacted in Accordance With Smith.

Fundamentally, Petitioner’s arguments that RFRA im-

permissibly overrules Smith fail to accord any weight to

this Court’s closing invitation in Smith for the political

branches to provide the necessary protections for reli-

gious exercise that the Court found were neither consti-

tutionally required nor foreclosed.“ Although RFRA is

56 For numerous additional examples, see the cases cited in

note 49, supra.

57 See Smith, 494 U.S. at 890 (“Just as a society that believes

in the negative protection accorded to the press by the First

broader than other legislative accommodations of relig-

ion (e.g., religious corporations exemption from Title

VII), “Congress can properly legislate under section

5 to make the formal right of religious freedom of

persons who lack political power in individual states (yet

are somehow able to form or benefit from the formation

of an effective coalition to obtain legislative assistance at

the national level) a meaningful right.” Sasnett, 91 F.3d

at 1021-22. Moreover, RFRA’s broad scope follows from

Congress’ determination that religious discrimination is

a nationwide problem. Congress’ provision of a legis-

lative solution to such free exercise violations allows

legislative flexibility to respond to changed circumstances,

including evidence that free exercise violations are not

being adequately addressed under existing law,” as Con-

gress properly did when it expressly included—despite

vigorous objections and much lobbying—the rights of

prison inmates within the scope of RFRA’s protections.

The likely alternative to RFRA—a religious equality

Amendment is likely to enact laws that affirmatively foster the dis-

semination of the printed word, so also a society that believes in

the negative protection accorded to religious belief can be ex-

pected to be solicitous of that value in its legislation as well.’’)

(citations omitted).

58 See S. Rosenzweig, Comment, Restoring Religious Freedom to

the Workplace: Title VII, RFRA, and Religious Accommodation,

144 U. PA. L. REv. 2513, 2527-28 (1996) (RFRA provides a new

action for religious discrimination claims in the workplace).

59 See M. Pawa, Comment, When the Supreme Court Restricts

Constitutional Rights, Can Congress Save Us? An Examination

of Section 5 of the Fourteenth Amendment, 141 U. Pa. L. REv. 1029,

1041 (1993); cf. Vera, 116 S. Ct. at 1968-69 (O’Connor, J., con-

curring) (upholding the Voting Rights Act as “an important

part of the apparatus chosen by Congress to effectuate this Nation’s

commitment ‘to confront its conscience and fulfill the guarantee of

the Constitution’ with respect to equality in voting,” and stating

that states should assume the constitutionality of the Act) (citing

S. Rep. No. 97-417, p. 4 (1982), 1982 U.S.C.C.A.N. 177, 181; Mis-

sissippi Republican Executive Comm. v. Brooks, 469 U.S. 1002

(1984) (affirming district court’s opinion upholding Voting Rights

Act) ).

amendment to the Constitution—would not provide such

flexibility to respond to new information and changing

circumstances.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

Of Counsel: MICHAEL JOSEPH WOODRUFF

ISAAC M. JAROSLAWICZ Counsel of Record

THE ALEPH INSTITUTE Scott J. WARD

9540 Collins Avenue J. MATTHEW SZYMANSKI

Surfside, Florida 33154-7127 STEPHEN M. CLARKE

(305) 864-5558 GAMMON & GRANGE, P.C.

8280 Greensboro Drive

7th Floor

January 10 ,1997 McLean, Virginia 22102-3807

2 Shevat 5757 (703) 761-5000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.