# Amicus Curiae Brief — City of Boerne v. Flores

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A32

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 507

## Text

~ Supreme Court: u.¢
FN FoOloL RF
A141) ¥

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

ee

iv

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

—

v

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

vi

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

ne

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

ix
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

18

4

11, 16

11

11

29

x

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

——

Ll

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-

12

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-

13

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).

14

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).

15

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.

16

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.”’).

17

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).

18

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.”).

|
|
:
|

19

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

20

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.

21

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).

© See Church of Lukumi Babalu Aye v. City of Hialeah, 508
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-

22

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-

23

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.

24

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

25

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).

26

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-

27

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).

28

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

29

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) ).

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A32. Public record. Not legal advice.