# Amicus Curiae Brief — City of Boerne v. Flores > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A35 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 521 U.S. 507 ## Text No. 95-2074 4 Me Oy — say. > ¢ > — |. Supreme Court of the United-States OCTOBER TERM, 1996 CITY OF BOERNE, TEXAS, z Petitioner, P.F. FLORES, ARCHBISHOP OF SAN ANTONIO, Respondent. and UNITED STATES OF AMERICA, Intervenor-Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS VON G. KEETCH W. COLE DURHAM, JR. ALEXANDER DUSHKU JAMES A. SERRITELLA Kirton & McConkie JAMES C. GEOLY* 1800 Eagle Gate Tower KEVIN R. GUSTAFSON 60 East South Temple STEFFEN N. JOHNSON Salt Lake City, Utah 84111 Mayer, Brown & Platt (801) 328-3600 190 S. La Salle Street Chicago, Illinois 60603 FREDERICK MARK GEDICKS (312) 782-0600 1338 East 660 North Orem, Utah 84097 (801) 224-9389 *Counsel of Record —_ QUESTION PRESENTED In light of free exercise problems faced by minority religions, does the Religious Freedom Restoration Act represent a legitimate exercise of Congress’ power to enforce rights guaranteed by the Fourteenth Amendment through remedial legislation? li TABLE OF CONTENTS CHIBBIMIN PIEIGUNEED 6 cctv eceeevdens INTEREST OF THE AMICUS CURIAE ...... SUMMARY OF ARGUMENT ............ £8 & @.4- 9 2 O 8 a 4-8 ac 4 2 SS eee eS I. THE HISTORICAL EXPERIENCE OF THE MORMON CHURCH UNDERSCORES THE Na? Pe MP 0.6 eh er eda wae 8% A. The Persecutions of Mormons in Missouri in the Late 1830’s Exemplify Violations of Religious Rights that the Fourteenth Amendment was Designed to Remedy . ‘. B. The and The Absence of Federal Remedies Meant That No Relief Was Available for the Persecutions of Mormons in MEO 5. v5. 4 ve wee The Fourteenth Amendment Was Designed in Part to Remedy Antebellum Incursions on the Free Exercise of Religious Minorities . . . Use and Abuse of Ostensibly Neutral General Laws Resulted in Serious Incursions on Religious Freedom in TORRE VEER 3.5. oe bee eee see Page TABLE OF CONTENTS—Continued Page Il. WITHOUT RFRA, THE TYPES OF OVERT AND COVERT HOSTILITY TOWARD MINORITY RELIGIOUS FAITHS THAT HAVE AFFLICTED MORMONS' ARE DESTINED TO IMPOSE IMPERMISSIBLE BURDENS ON A WIDE ARRAY OF RELIGIOUS PRACTICES ............ 10 Il. IN. ENACTING RFRA, CONGRESS PROPERLY COMPENSATED FOR STRUCTURAL BIASES THAT IMPEDE THE EXERCISE OF RELIGIOUS LIBERTY .... 20 A. Congress Has Authority to Remedy Violations of Religious Liberty Stemming From a Growing Secularist Bias that Distorts Governmental Neutrality ..... 21 B. Congress May Legitimately Act to Correct the Encroachments on Religious Liberty Emanating From the Structure of Modern Bureaucratic Government ........... 22 C. RFRA Compensates for Inherent Limits on Legislative Capacity to Craft Religiously Sensitive Exemptions ............ 27 D. Congress May Legitimately Reallocate Burdens of Justification When Proof of Constitutional Violations Is Difficult to RE a ae we oe 6 68 6 ve 28 iv TABLE OF CONTENTS—Continued Page E. Legitimate Religious Freedom Claims in the Field of Land Use Regulation Are Likely to be Inadequately Protected po I Oe ee P 29 ee eee rrr eer ee Ce 30 APPENDIX Vv TABLE OF AUTHORITIES Cases: Page American Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405 (9th Cir. ED eb bo 5 6 oe a ee a ee ae ae 17 Attorney General v. Desilets, 636 N.E.2d 233 SN ME fk alte o Sone e Oe ge Sb» 16 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 FP aes eee re ee 6 Bessard v. California Community Colleges, 867 F. Supp. 1454 (E.D. Cal. 1994) ... 13, 27 Blum v. Bacon, 457 U.S. 132 (1982) .......... 24 Buhl v. Hannigan, 20 Cal. Rptr. 2d 740 (Ct. Ph, Se es oe ei hn ower ees 14, 27 Cantwell v. Connecticut, 310 U.S. 296 co ea aa i ll a Lali ig 26 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 NN sea ako rk ie is ole ok wa ee 0 24 Christians v. Crystal Evangelical Free Church, 82 F.3d 1407 (8th Cir. 1996), cert. pending, No. 96-437 ............. 17 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ....... 26, 28 City of Euclid v. Ambler Realty Co., 272 U.S. Pe GE o's bs RS 6 Owe ee eS 25 vi TABLE OF AUTHORITIES—Continued Page Clawson v. United States, 114 U.S. 477 CIGD 6 6s 0 Hae 0 be ower a eee sees 9 Cooper v. French, 460 N.W.2d 2 (Minn. RUNG wdcaedevinveene cemeereres 16 Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991)........... 15 Davis v. Beason, 133 U.S. 333 (1890) .......... 9 Edwards v. Aguillard, 482 U.S. 578 (1987) ... 28, 29 Employment Division v. Smith, 494 U.S. 872 ASN Sse e eet ad adtererwneeer passim Fitzgerald v. Magic Valley Evangelical Church, Inc. (In re Hodge), 200 B.R. 884 (Bankr. D. Idaho 1996) ........... 17 Flemming v. Nestor, 363 U.S. 603 (1960) ....... 28 Friend v. Kolodzieczak, 923 F. 2d 126 GR Ga See ch. he oa eh eee ree 12 Greater New York Health Care Facilities v. Axelrod, 770 F. Supp. 183 (S.D.N.Y. UGGD 0's 6.4 0s 2 ORR ee 12, 27 Hutchison v. Luddy, 414 Pa. Super. 138, 606 Rn Gee Ce hea a eee ee ees 13 vii TABLE OF AUTHORITIES—Continued In re Tessier, 190 B.R. 396 (Bankr. D. Mont. ae ee i SNS oak « 17 Late Corp. of Church of Jesus Christ of Latter-Day Saints v. United States, 136 a 6 TS bo Wek 6 Wie bc 2 ee 10 Minnesota v. Hershberger, 444 N.W.2d 282 (Minn. 1989), vacated and remanded, 495 U.S. 901 (1990), upheld on state law grounds, 462 N.W.2d 393 (Minn. SE Sek ae ba ee lale We bees «0 © 6 14, 27 Mockaitis v. Harcleroad, 938 F. Supp. 1516 ON BE ee ee 13 Montgomery v. County of Clinton, 743 F. Supp. 1253 (W.D. Mich. 1990), aff'd, 940 F.2d 661 (6th Cir. 1991)........ 15, 27 Morris v. Midway So. Baptist Church (In re Newman), 1996 WL 711319 (D. Kan., eo ee 5 er 17 Rectors, Wardens, & Members of Vestry of Saint Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 CD rw Oe bon de db Wate ewe 0% 15, 25 Reynolds v. United States, 98 U.S. 145 viii TABLE OF AUTHORITIES—Continued St. Agnes Hosp. v. Riddick, 748 F. Supp. 319 Gi. Gs SON 65 8 os eee ens Smith v. Fair Employment & Housing Comm'n, 51 Cal. Rptr. 2d 700 (Cal. 1996), cert. pending, No. 96-31 (July eee. 5 Pee he ORE ewe bes Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska), cert. denied, L359 &. Ch Ge Gee. Fe ts Swanner v. Anchorage Equal Rights Comm'n, 115 S. Ce. 460 (1994) ......... United States v. O’Brien, 391 U.S. 367 GeGED savas wae eod 2a es 3S United States v. Philadelphia Yearly Meeting of Religious Soc'y of Friends, 753 F. Supp. 1300 (E.D. Pa. 1990) ..... Walker v. First Presbyterian Church, 22 Fair Empl. Prac. Cas. 762 (Cal. Super. Ct. 0 Ge re peer Ly ee Walz v. Tax Comm’n, 397 U.S. 664 (1970) Wisconsin v. Yoder, 406 U.S. 205 (1972) . . You Vang Yang v. Sturner, 750 F. Supp. 558 8 8 re ra ix TABLE OF AUTHORITIES—Continued Page Statutes: Edmunds-Tucker Act, 24 Stat. 635 (1887) ........ 9 Religious Freedom Restoration Act, 42 ae UE Seo 2 so vise b:5's be passim Miscellaneous: 1996 Yearbook of American and Canadian EE Gah a Pe ab kas Ga wd bb ee se 3 JAMES B. ALLEN & GLEN M. LEONARD, THE STORY OF THE LATTER-DAY EE 9 ota s PUES yg ie oe a woe 5, 6 LEONARD J. ARRINGTON & DAVIS BITTON, THE MORMON’ EXPERIENCE: A HISTORY OF THE LATTER-DAY SAINTS es ik a be 2 AW 6 WS Ee 6 STEPHEN L. CARTER, THE CULTURE OF Se ae 22 Church of Jesus Christ of Latter-day Saints, Doctrine & Covenants 134:7 (1981) ........ 5 Church of Jesus Christ of Latter-day Saints, Pearl of Great Price, Article of Faith i! Bhd Ge ea yn arate aoa 3 x TABLE OF AUTHORITIES—Continued CONG. GLOBE, 39th Cong., Ist Sess. (1865) ....... 8 CONG. GLOBE, 42d Cong., Ist Sess. (1871) ....... 8 Gregory Curtis, The Church on the Hill, TEXAS MONTHLY 9 (Dec. 1996) ......... 20 Digest of the Laws Relative to Slaves and People of Free Colour in the State of Louisiana (1835), reprinted in 2 STATUTES ON SLAVERY: THE PAMPHLET LITERATURE 47 (Paul OF ee eee ee 7 Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom, 69 NOTRE DAME Se SP eee eT ere eee 21 W. Cole Durham, Jr. & Alexander Dushku, Traditionalism, Secularism, and the Transformative Dimensions of Religious Institutions, 1993 B.Y.U. L. FPP rere ee ee eee ee 21 EDWIN BROWN FIRMAGE & RICHARD COLLIN MANGRUM, ZION IN THE COURTS: A LEGAL HISTORY OF THE CHURCH OF Jesus CHRIST OF LATTER-DAY SAINTS, 1830-1900 (1988) .............. 9 eee a xi TABLE OF AUTHORITIES—Continued Edward McGlynn Gaffney, Jr., Hostility to Religion, American Style, 42 DEPAUL Se & Ff). eee Frederick Mark Gedicks, Public Life and Hostility to Religion, 78 VA. L. REV. Ge ee bw ob ole 6a S40 wa James C. Geoly & Kevin R. Gustafson, Religious Liberty and Fair Housing: Must a Landlord Rent Against His Conscience?, 29 J. MARSHALL L. EEE o'occ weveevns JAMES DAVISON HUNTER, CULTURE WARS SG Wis. 600 2 oe w ble 008 Oe ARTHUR FREDERICK IDE, EVANGELICAL TERRORISM: CENSORSHIP, FALWELL, ROBERTSON & THE SEAMY SIDE OF CHRISTIAN FUNDAMENTALISM (1986) KENDALL COUNTY HISTORICAL COMM’N, A HISTORY OF KENDALL COUNTY TEXAS as ae ae eee Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religous Exemptions under the Fourteenth Amendment, 88 Nw. U. L. REV. 1106 CO awe « bend thes xii TABLE OF AUTHORITIES—Continued Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. CT. REV. 1 ...... 18, 22 Douglas Laycock & Oliver S. Thomas, Interpreting the Religous Freedom Restoration Act, 73 TEX. L. REV. 209 CE o"6 oa te dete uae sd Pewee re eee 11 Rex E. Lee, The Religious Freedom Restoration Act: Legislative Choice and Judicial Review, 1993 B.Y.U. L. BG. TE ws FHT e's ENR Ow HEYA 11, 20 STEPHEN C. LESUEUR, THE 1838 MORMON WAR IN MISSOURI (1987) .............. 6 re er ee er eee ee 17 James Madison, Memorial and Remonstrance Against Religious Assessments, Paragraph 1 (1785), reprinted in Appendix to Everson v. Board of pe Ss a err 2 PEE Be WES 0-05-00 6 alee 8 oe Oe 18 DANIEL R. MANDELKER, LAND USE LAW § Be Gee, See: 2 OE Re a oc OR 23 Michael W. McConnell, “God is Dead and We Have Killed Him”: Freedom of Religion in the Post-Modern Age, 1993 ee ee Se Pe PP Sere ee 22 Mer SR ee ee Re xiii TABLE OF AUTHORITIES—Continued Page Note, Developments in the Law—Equal Protection, 82 HARV. L. REV. 1065 Reiss v pc cee c ees. 29 Religious Freedom Restoration Act: Hearings before the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. (1992) ccc cece cere eer eccces 13, 19 Religious Freedom Restoration Act of 1990: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st Cong., pO) rere 12, 13 Religious Freedom Restoration Act of 1991: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., Sa re 11, 14 Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 before the Subcomm. on Civil and Constitutional Rights of the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. EI eee 3 Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, EE ee eee 23, 24 xiv TABLE OF AUTHORITIES—Continued ANSON SHUPE & DAVID BROMLEY, THE NEW ,, FP Ry es 22 JOSEPH SMITH, HISTORY OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (ED dono WE Ee ele Sh dein seb cwse ee. 6 BRIEF OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AS INTEREST OF THE AMICUS CURIAE The Church of Jesus Christ of Latter-day Saints (often referred to as the “LDS Church” or “Mormon Church”) is a Christian denomination with over 9,000,000 members worldwide. Slightly less than half the members of the Church reside in the United States. Because of continuing rapid growth, the Church has an active program for con- structing temples, chapels, and various other structures that further the Church’s religious mission. For this reason, the Church constantly encounters the kinds of land use issues at stake in the present case. While most government officials work with the Church in good faith, the pressures of hostility toward religion do sometimes operate behind the facade of ostensibly neutral land use regulations. In the aftermath of this Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), the Religious Freedom Restoration Act (“RFRA”) plays a vital role in assuring that land use regulations are administered in a manner that is consistent with genuine respect for religious freedom. With the constitutionality of RFRA at stake, however, the Church’s interest in the present case goes well beyond these important land use questions to the very core of its religious beliefs. The Church’s 11th Article of Faith declares, “We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.” This tenet springs from an even deeper belief in the sanctity of conscience and the free agency of human beings. Like the framers of the federal * The parties have stipulated to their consent to the filing of this brief. The consent of the Intervenor the United States of America has been lodged with the Clerk. 2 Constitution, the LDS Church proclaims that the right to free exercise of religion is an inalienable right not dependent for its existence on the action of any secular sovereign—whether state or federal, domestic or foreign. In the words of James Madison, the free exercise right is inalienable because it reflects “a duty towards the Creator,” which “is precedent both in order of time and degree of obligation, to the claims of Civil Society.” James Madison, Memorial and Remonstrance Against Religious Assessments, Paragraph 1 (1785), reprinted in Appendix to Everson v. Board of Educ.., 330 U.S. 1, 63 (1947). The Church believes, as has been argued in other briefs, that the Constitution affords Congress adequate power to enact RFRA, and that RFRA is vital to protecting our inalienable first freedom from state and federal encroachments. When the scope of First Amendment free exercise protections was narrowed by Smith, the Church felt pro- foundly threatened by the array of potential encroachments on religious freedom that this decision opened up, and accordingly joined the broad coalition of churches and other organizations that supported passage of RFRA in 1993 (“the Coalition”). We continue to support and actively participate in the ongoing efforts of the Coalition to defend RFRA against its detractors. Since the Church continues to support the efforts of the Coalition, including its brief in this case, there is no need for us to repeat the main arguments made there confirming that RFRA does not establish religion, that it does not violate separation of powers or federalism principles, and that Section 5 of the Fourteenth Amendment grants Congress sufficient power to enact RFRA. Rather, our aim is to emphasize the vital significance of RFRA for minority religious traditions such as ours, and to highlight the historical and contemporary considerations that warrant the Congressional remedy it provides. As Elder Dallin H. Oaks of the Quorum of the Twelve Apostles of the Church stated at the time of the Congressional hearings on RFRA, oo 3 the LDS Church is “looking to the larger good and using the experience of our faith in history as a motivation to lend our voice to the protection of smaller groups against future incursion on their freedom.”’ SUMMARY OF ARGUMENT The historical experience of the Church of Jesus Christ of Latter-day Saints underscores the importance of providing the kinds of protection for religious liberty that RFRA affords. Although the LDS Church is now the seventh denomination in the United States,’ its experience outside of Utah has always been that of a minority religion. Some of the darkest pages of the history of religious persecu- tion in America chronicle the treatment of Mormons, as they were driven in the nineteenth century from Ohio to Missouri to Illinois and finally to the valleys of the Rocky Mountains. While the Church believes “in obeying, honoring, and sustaining the law,”° it is also deeply conscious that laws and the officials who apply them sometimes operate in ways that violate religious freedom. Many of the landmarks of persecution in LDS history were carried out under the cloak of “neutral” and “general” laws. Not surprisingly, then, the Church has long believed that just government has a compel- ling interest in safeguarding religious freedom and making certain that when state encroachments on that value are permitted, they must be justified on the basis of “interests of the highest order and those not otherwise served.” Wisconsin ' Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 before the Subcomm. on Civil and Constitutional Rights of the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. 57 (1992). 2 1996 Yearbook of American and Canadian Churches, quoted in Salt Lake Trib., May 25, 1996. > Church of Jesus Christ of Latter-day Saints, Pear! of Great Price, Article of Faith 12, at 61 (1981). 4 v. Yoder, 406 U.S. 205, 215 (1972). The Church’s experi- ence over the past 175 years has confirmed that the legiti- mate free exercise rights of a religious minority cannot be adequately protected or enforced without the functional equivalent of the compelling state interest/least restrictive alternative test that crystallized in this Court’s free exercise jurisprudence in the decades before the decision of Employ- ment Division v. Smith. The historical religious persecution evidenced by LDS - history is reemerging today, albeit in subtler forms that do not generally display the brutality of the past. Churches and individual believers face an ever-proliferating range of practical problems in the aftermath of Smith. Ranging from questions dealing with abortion and the beginning of life to questions of treatment of the dead, and touching on virtually every aspect of religious life in between, these practical problems have made the protections afforded by RFRA all the more significant. One reason RFRA is so important is that there are structural biases in the modern regulatory state that system- atically undervalue religious freedom rights. In fact, the comprehensive study of zoning cases collected in the Appen- dix shows that religious minorities have suffered dispropor- tionately disadvantageous treatment as a result of these structural biases at the initial decision stage. Congress has authority to pass legislation to remedy the resulting system- atic under-protection of free exercise values. 5 ARGUMENT I. THE HISTORICAL EXPERIENCE OF THE MORMON CHURCH UNDERSCORES THE NEED FOR RFRA. We believe that rulers, states, and governments have a right, and are bound to enact laws for the protection of all citizens in the free exercise of their religious belief * * *. -Doctrine & Covenants 134:7 (1981). Much of the early history of the Mormon Church is a litany of persecution. Our aim here is not to bemoan this extensive history, but to identify a number of salient episodes that have forged the Church's conviction that RFRA’s protections are vital to genuine protection of religious freedom. These episodes help document some of the many ways in which facially neutral laws were used and abused in the course of what was unquestionably one of the worst religious persecutions in U.S. history. A. The Persecutions of Mormons in Missouri in the Late 1830’s Exemplify Violations of Religious Rights that the Fourteenth Amendment was Designed to Remedy. 1. The Absence of Federal Remedies Meant That No Relief Was Available for the Perse- cutions of Mormons in Missouri. In November, 1839, and again in February, 1840, Mormon leaders met with President Martin Van Buren to seek relief for persecutions that church members had suffered in Missouri. JAMES B. ALLEN & GLEN M. LEONARD, THE STORY OF THE LATTER-DAY SAINTS 144 (1976). After being pillaged, massacred, and deprived of their property, in many cases as a direct result of state action, the Mormons were ultimately forced out of Missouri under threat of an order signed by Missouri’s governor directing that “[t}he Mormons 6 must be treated as enemies and must be exterminated or driven from the state.” Jd. at 127 (emphasis added); see id. at 81-93, 104-110, 120-130; LEONARD J. ARRINGTON & DAVIS BITTON, THE MORMON EXPERIENCE: A HISTORY OF THE LATTER-DAY SAINTS 44-45 (1979); STEPHEN C. LESUEUR, THE 1838 MORMON WAR IN Missouri (1987). Church leaders turned to the President when all state-level efforts to find redress had been exhausted. His response was terse: “Gentleman, your cause is just, but I can do nothing for you.”* The Fourteenth Amendment and RFRA, which enforces its mandate, was designed at least in part to fill this constitutional gap. As a matter of constitutional law at the time, President Van Buren’s statement was probably accurate. After all, the Supreme Court had held just a few years earlier that the Bill of Rights was not applicable to the states and operated only as a constraint on federal power. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). Thus, neither the Free Exer- cise Clause nor the Takings Clause provided any basis for relief. This remained true a few years later, when persecu- tions culminated in the murder of Joseph Smith in 1844 by discharged state militiamen and the expulsion of Church members from Illinois under brutal winter conditions in 1845-46. ALLEN & LEONARD, supra, at 193-197, 220-233. Never again should such religious persecution be left without legal remedy. 2. The Fourteenth Amendment Was Designed in Part to Remedy Antebellum Incursions on the Free Exercise of Religious Minorities. The same constitutional gap that barred relief to the early Mormons contributed contemporaneously to massive infringe- ments of the religious liberty of slaves and religiously * JOSEPH SMITH, HISTORY OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS 4:80, 5:393 (1949). 7 motivated abolitionists in the antebellum South. What is too often forgotten in reviewing the history of the Fourteenth Amendment is that its framers were concerned not only with guaranteeing the secular civil rights of the former slaves, but also with dismantling a variety of legal abuses that encroached on the free exercise rights of both the former slaves and those who opposed the institution of slavery.’ Many of these abuses took the form of neutral, general laws, but their impact on free exercise was severe. Louisiana went so far as to make it a crime, punishable by death, to “write, print, publish or distribute” abolitionist literature, most of which was written out of religious conviction. Black religious assemblies were heavily regulated, and curfew laws, while more neutral in tenor, drastically curtailed the possibility of black religious gatherings at night.’ Generally applicable laws prohibiting slaves from being taught to read prevented slaves from reading the Bible.* By the time the Fourteenth Amendment was framed, the fact that Mormons had been denied federal relief for intense persecution was largely forgotten, but anti-slavery forces were acutely aware that the absence of federal relief had * See Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions under the Fourteenth Amendment, 88 Nw. U. L. REV. 1106, 1131-37 (1994). * See Digest of the Laws Relative to Slaves and People of Free Colour in the State of Louisiana (1835), reprinted in 2 STATUTES ON SLAVERY: THE PAMPHLET LITERATURE 47, 68 (Paul Finkel- were punishable by death or imprisonment. ” See Lash, supra note 5, at 1134-35 & nn.133-36 (collecting sources). * Id. at 1135 & nn. 137-38 (collecting sources). resulted in massive infractions of religious freedom in the antebellum South. For this reason, the free exercise of religion was clearly understood to be one of the “privileges and immunities of citizens of the United States” protected by Section 1 of the Fourteenth Amendment,’ and, accordingly, Section 5 was understood as granting Congress power to remedy encroachments on religious freedom that had grown up in the absence of a federal remedy. The fight against slavery and against all the collateral structures that evolved to defend that institution sensitized the framers of the Fourteenth Amendment to the need for federal remedies capable of subjecting the facade of neutral, general laws woven by an entrenched majority to searching scrutiny when religious and other fundamental rights are at stake. The restructuring of American federalism that emerged from the cauldron of the Civil War was not accidental, and the new protection of the “privileges and immunities of citizens” was intended to fill a gap that had allowed endless suffering to minority religious groups. B. The Use and Abuse of Ostensibly Neutral and General Laws Resulted in Serious Incursions on Religious Freedom in Territorial Utah. From the 1850's until shortly before Utah achieved statehood in 1896, the federal government engaged in a * Senator Jacob Howard, commenting on the content of the “privileges and immunities” clause, indicated that it included “the personal rights guaranteed and secured by the first eight amend- ments to the Constitution.” CONG. GLOBE, 39th Cong., Ist Sess. 2765 (1865). In the Forty-Second Congress, Henry L. Dawes stated that the “privileges and immunities” clause “secured the free exercise of * * * religious belief.” CONG. GLOBE, 42d Cong., ist Sess. 475 (1871). See also Lash, supra note 5, at 1146-49 & nn. 181-95 (collecting sources confirming that Fourteenth Amendment framers believed the “privileges and immunities” clause embraced free exercise of religion). 9 protracted and steadily intensifying conflict with the LDS Church that nearly ended in the Church’s destruction."° In addition to directly outlawing the practice of certain funda- mental doctrines of the Church," the federal government passed a series of facially neutral laws that operated to increase federal pressure on the Church. For example, Statutes were passed that effectively deprived Mormons of jury trial rights. See, e.g., Clawson v. United States, 114 U.S. 477 (1885). In 1887, the Edmunds-Tucker Act had the effect of dismantling inheritance laws, overriding spousal immunity, and restricting the right to vote. 24 Stat. 635 (1887). In many areas, what began as neutral legislation was notched progressively tighter as persecution progressed. For example, in 1870, Utah’s territorial legislature granted women the right to vote. But in 1887, the Edmunds-Tucker Act provided that “it shall not be lawful for any female to vote at any election hereafter held in the Territory.” 24 Stat. 639, § 20. As the persecution reached a crescendo, territori- al legislation was passed barring Mormons (regardless of sex) from voting and holding public office. Mere adherence to the Mormon faith was deemed sufficient to sustain disenfranchisement. See Davis v. Beason, 133 U.S. 333 (1890). Not satisfied with these provisions, Congress passed more blatantly targeted provisions. At the height of the conflict in 1887, Congress took the outrageous and unprece- © See, ¢.g., EDWIN BROWN FIRMAGE & RICHARD COLLIN MANGRUM, ZION IN THE COURTS: A LEGAL HISTORY OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, 1830-1900, at 125-260 (1988). '' The question of plural marriage, of course, was addressed in Reynolds v. United States, 98 U.S. 145 (1878). The practice of plural marriage was abandoned by the Church in 1890, and in filing this amicus brief the Church has no interest in revisiting this issue. 10 dented step of eliminating the Church’s legal existence by revoking its corporate charter and authorizing federal receivers to assume ownership of virtually ali of the Church’s property and other assets, including its most sacred houses of worship, temples in Logan, Manti, St. George, and Salt Lake City. See Late Corp. of Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). As the Mormon experience demonstrates, a creative legislative body has little difficulty in fashioning facially neutral laws or administrative devices capable of imposing substantial burdens on a religious community. Congress may reasonably determine that the only effective way to ferret out illegitimate use of this potential is to subject state action that imposes substantial burdens on religion to searching scrutiny. That is what RFRA does. Il. WITHOUT RFRA, THE TYPES OF OVERT AND COVERT HOSTILITY TOWARD MINORITY RELIGIOUS FAITHS THAT HAVE AFFLICTED MORMONS ARE DESTINED TO IMPOSE IMPER- MISSIBLE BURDENS ON A WIDE ARRAY OF RELIGIOUS PRACTICES. Under Smith, “neutral” laws of “general applicability” are entitled to no special scrutiny under the Free Exercise Clause. 494 U.S. at 882. As long as legislation and/or administrative regulations are not specifically aimed at (or are not overtly hostile to) religion and apply across a relatively wide range of non-religious conduct, Smith assumes that religious liberty either will not be unduly trammeled or will be accommodated by exemptions crafted during the lawmaking process. /d. at 890. This logic is open to question. “There is nothing talismanic about neutral laws of general applicability * * * for laws neutral toward religion can coerce a person to violate his religious con- science or intrude upon his religious duties just as effectively as laws aimed at religion.” Jd. at 901 (O’Connor, J., concurring in the judgment). TS TT 1] History, in fact, demonstrates that “neutral” and “general” laws are often inimical to religious liberty. “Facially neutral laws of general application — the kind that raise no constitutional issue after Smith — were central to some of this country’s worst religious persecutions. Both the polygamy law that underlay much of the Mormon persecu- tion, and the flag salute law invoked against Jehovah’s Witnesses, were facially neutral, generally applicable laws.”'"* Moreover, “[iJf past is prologue, the forces of local, State, and Federal governmental power, now freed from the compelling governmental interest test [by Smith], will increasingly interfere with the free exercise of reli- gion.” “The reason, quite simply, is that few laws that in fact inhibit the free exercise of religion are specifically aimed at religious practices.” Rex E. Lee, The Religious Freedom Restoration Act: Legislative Choice and Judicial Review, 1993 B.Y.U. L. REV. 73, 86-87. A sampling of contemporary post-Smith cases demon- strates that “neutral” laws of “general applicability” now dramatically intrude upon virtually every aspect of religious life. As a result of “neutral” and “general” laws, a Catholic hospital has been denied accreditation based on its refusal to instruct its residents on the performance of abortions notwith- standing strong religious objections to the taking of unborn life,"* a religious mission for the homeless operated by ' Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 213 (1994) (footnote omitted). ° Religious Freedom Restoration Act of 1991: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. at 24 (1992) (statement of Elder Dallin H. Oaks, Quorum of the Twelve Apostles, Church of Jesus Christ of Latter-day Saints). Id. at 157 (statement of Edward Gaffney, Dean and Profes- 12 Mother Teresa has been shut down because it was located on the second floor of a building without an elevator,” and children have been prevented from volunteering to care for their elderly parents housed in government regulated nursing homes.’ Individuals in government custody have been denied access to religious paraphernalia without any inquiry into whether accommodation of the individual’s sincere religious beliefs would impose any significant official burden at all.” In fact, the potential incursion of facially “neutral” and “generally applicable” laws upon religious belief and practice is breathtaking. As noted in the Senate Report accompanying the passage of RFRA, the Smith standard places “all religious activity * * * at risk.” Religious Freedom Restoration Act of 1990: Hearings before the Subcomm. on Civil and Constitu- sor of Law, Valparaiso University School of Law (citing St. Agnes Hosp. v. Riddick, 748 F. Supp. 319 (D. Md. 1990)); see id. (“Even on a belief so deeply and widely held as conscientious objection to the performance of an abortion, State officials ignored the [Supreme] Court’s suggestion that it is desirable for the political branch to provide free exercise exemptions. And the courts, after Smith, thought it perilous to provide a remedy.”). 'S Jd. at 149. '© In Greater New York Health Care Facilities v. Axelrod, 770 F. Supp. 183, 187 (S.D.N.Y. 1991), the district court summarily rejected challenges to health regulations that limited the service of volunteers in nursing homes despite the fact that, for some of the volunteers, the services represented their fulfillment of the Fifth Commandment obligation to honor one’s father and mother. " In Friend v. Kolodzieczak, 923 F.2d 126, 128 n.1 (9th Cir. 1991), the court upheld a prison regulation forbidding inmates from possessing rosaries and scapulars in their cells. The court in fact went so far as to assert that the denial did not even implicate a constitutional right. 13 tional Rights of the House Comm. on the Judiciary, 10\st Cong., 2d Sess. 23 (1990) (statement of Rep. Lamar Smith).'* Even the long-established priest/penitent privilege is eroding.'? Loyalty oaths may once again be imposed on government employees notwithstanding sincere religious objection.” And “neutral” and “generally applicable” laws might well force churches to hire homosexuals despite '§ Accord Religious Freedom Restoration Act: Hearings before the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. 44 (1992) (statement of Rev. Oliver S. Thomas, Baptist Joint Committee on Public Affairs and the American Jewish Committee) (“Since Smith was decided, governments throughout the U.S. have run roughshod over religious conviction. Churches have been zoned even out of commercial areas. * * * In time, every religion in America will suffer.”); Religious Freedom Restoration Act of 1990: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 10ist Cong., 2d Sess. 39-40 (1990) (statement of Rev. Robert P. Dugan, Jr., Director, Office of Public Affairs, National Association of Evangelicals) (“Must a Catholic church get permission from a landmarks commission before it can relocate its altar? Can orthodox Jewish basketball players be excluded from interscholas- tic competition because their religious belief requires them to wear yarmulkes? Are certain evangelical denominations going to be forced to ordain female ministers, or the Catholic church to ordain female priests? * * * Are school children, contrary to their religious beliefs, to be forced to salute the flag?”). '% See, e.g., Mockaitis v. Harcleroad, 938 F. Supp. 1516 (D. Or. 1996) (court refuses to destroy secret tape-recording by police of priest/penitent conversation); Hutchison v. Luddy, 414 Pa. Super. 138, 606 A.2d 905 (1992) (allowing discovery of church’s sensitive confidential files even though the records were compiled and archived pursuant to canon law). ® See Bessard v. California Community Colleges, 867 F. Supp. 1454 (E.D. Cal. 1994). 14 contrary (and deeply held) religious beliefs.” Of course, not every post-Smith intrusion upon religious belief and practice is likely to provoke a collective cry of alarm. Some religious liberties infringed by “neutral” and “generally applicable” laws (such as the right of Old Order Amish to refuse to display a fluorescent orange triangle on a horse-drawn buggy” or of Sikhs to decline to wear a motorcycle helmet because of a religious obligation to wear a turban”) seem rather prosaic in a pervasively secular society. The Free Exercise Clause exists, however, precisely because even prosaic violations of conscience are deeply felt. “The Constitution is to protect unpopular ideas, not popular ideas."“ And many “neutral,” “generally applicable” assaults upon religious practice are significant indeed. For example, in You Vang Yang v. Sturner, 750 F. Supp. 558 (D.R.I. 1990), the district court held that an unnecessary autopsy on a young Hmong man did not constitute a violation of the Free Exercise Clause, despite the religiously-based belief of his family that the autopsy condemned the spirit of the deceased. Jd. at 560. The court had originally ruled in 2! See, e.g., Walker v. First Presbyterian Church, 22 Fair Empl. Prac. Cas. 762 (Cal. Super. Ct. 1980) (church escaped liability for firing a homosexual only because the court applied the pre-Smith “compelling interest” test). 2 See Minnesota v. Hershberger, 444 _N.W.2d 282 (Minn. 1989), vacated and remanded, 495 U.S. 901 (1990), upheld on State law grounds, 462 N.W.2d 393 (Minn. 1990). ® See Buhl v. Hannigan, 20 Cal. Rptr. 2d 740 (Ct. App. 1993). * See Religious Freedom Restoration Act of 1991: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. (1992) (Statement of Rep. Washington). 15 favor of the Yangs, but — following Smith — felt compelled to reverse its earlier ruling. The court nevertheless expressed its deep regret in applying the neutral, generally applicable autopsy law to the facts of the case: My regret stems from the fact that I have the deepest sympathy for the Yangs. I was moved by their tearful outburst in the courtroom during the hearing on damages. I have seldom, in twenty-four years on the bench, seen such a sincere instance of emotion displayed. I could not help but also notice the reaction of the large number of Hmongs who had gathered to witness the hearing. Their silent tears shed in the still courtroom as they heard the Yangs’ testimony provided stark support for the depth of the Yangs’ grief. Id. at 558.* Following Smith, government at all levels is busily dictating the outcome of deeply felt religious issues. State and local governments dramatically limit the use of property held for religious purposes. States and municipalities require landlords to engage in rental practices that the % See also Montgomery v. County of Clinton, 743 F. Supp. 1253 (W.D. Mich. 1990), aff'd, 940 F.2d 661 (6th Cir. 1991) (compelling autopsy despite contrary, deeply felt conservative Jewish beliefs). % See, e.g., Rectors, Wardens & Members of Vestry of Saint Bartholomew’s Church v. City of New York, 914 F.2d 348, 354-55 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991) (rejecting Free Exercise challenge to zoning law that excluded churches from commercial zones while permitting secular not-for- profit organizations to locate in such areas but remanding for equal protection clause claim). 16 landlords sincerely believe to be sinful.?’ Still other “neu- tral” laws have transformed religious societies from havens and sanctuaries into government enforcement agencies.” 7” See generally James C. Geoly & Kevin R. Gustafson, Religious Liberty and Fair Housing: Must a Landlord Rent Against His Conscience?, 29 J. MARSHALL L. REV. 455 (1996). In Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 278- 80 (Alaska), cert. denied, 115 S. Ct. 460 (1994), for example, a landlord’s refusal to rent to an unmarried couple violated state fair housing law and could not be excused on the ground that the landlord sincerely believed that his rental of the apartment would facilitate fornication and, therefore, be sinful). But of. Swanner v. Anchorage Equal Rights Comm’n, 115 S. Ct. 460, 461-462 (1994) (Thomas, J., dissenting) (asserting that the Alaska Supreme Court improperly raised the value of fair housing over the fundamental right to free exercise of religious belief). See also Smith v. Fair Employment & Housing Comm'n, 51 Cal. Rptr. 2d 700, 709, 719 (Cal. 1996), cert. pending, No. 96-31 (July 8, 1996) (religious landlord could not discriminate against unmarried couples regard- less of the religious beliefs of the landlord). Other state courts have protected religious landlords under state constitutional provisions. See, e.g., Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (religiously motivated landlord exempted from fair housing laws regarding marital status on the basis of state religious liberty provisions); Cooper v. French, 460 N.W.2d 2 (Minn. 1990) (same). * See, ¢.g., United States v. Philadelphia Yearly Meeting of Religious Soc'y of Friends, 753 F. Supp. 1300 (E.D. Pa. 1990) (compelling the Society of Friends, commonly known as “the Quakers,” to enforce an IRS levy against two employee-members who conscientiously refused to pay the military portion of their federal taxes despite the Friends’ assertion that the IRS could not compel the Society to violate the religious beliefs of members by acting as an enforcement arm of the government). The oddity of the result in this case, however, did not go unnoticed by the district court. In ruling for the IRS, the court apologetically wrote: 17 The current legal regime, in fact, threatens not only the sacred beliefs of church members, but the financial stability of organized religion itself. Increasing numbers of bank- ruptcy trustees and private creditors are attempting to use federal bankruptcy and state fraudulent conveyance laws to recover ordinary course contributions made to churches by their members, even absent any badges of fraud.” Coerced recovery of honestly donated tithing monies and other contributions constitutes a gross abridgement of religious liberty. The practice of tithing is deeply rooted in the religious traditions of this nation and is essential for salvation in many religions — including the LDS faith. First men- tioned in the Pentateuch, see Leviticus 27:30-32, tithing is more than a temporal rule of financial support for churches. It is a spiritual obligation to God, with associated blessings for the faithful and punishments for the disobedient. It is ironic that here in Peansylvania, the woods to which Penn led the * * * Friends to enjoy the blessings of religious liberty, neither the Constitution nor its Bill of Rights protects the policy of that Society not to coerce or violate the consciences of its employees and members with respect to their religious principles, or to act as an agent for our government in doing so. Id. at 1306. See also American Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405 (9th Cir. 1990) (although Quaker beliefs require adherents to provide employment even to illegal immigrants, the sanctions established by the Immigration Reform and Control Act can be applied to a Quaker charitable organiza- tion). ® See, e.g., Christians v. Crystal Evangelical Free Church, 82 F.3d 1407 (8th Cir. 1996), cert. pending, No. 96-437; Morris v. Midway So. Baptist Church (In re Newman), 1996 WL 711319 (D. Kan., Nov. 26, 1996); Fitzgerald v. Magic Valley Evangelical Free Church, Inc. (In re Hodge), 200 B.R. 884 (Bankr. D. Idaho 1996); In re Tessier, 190 B.R. 396 (Bankr. D. Mont. 1995). 18 For I am the Lord * * *. Yet ye have robbed me. But ye say, Wherein have we robbed thee? In tithes and offerings. Ye are cursed with a curse: for ye have robbed me * * *. Bring ye all the tithes into the storehouse that there may be meat in mine house, and prove me now herewith, saith the Lord of hosts, if I will not open you the windows of heaven, and pour you out a blessing, that there shall not be room enough to receive it. And I will rebuke the devourer for your sakes * * *. Malachi 3:6, 8-11. As a result, the use of government resources to confiscate an honestly given tithe is a substantial disruption of an individual’s religious exercise. Tithing recovery imposes substantial burdens, not only upon believers, but on churches. Without legal protection, it will become a checklist item in every individual bank- ruptcy to demand return of any contributions to religious organizations, and churches will become the most common source of partial payment in consumer bankruptcies. This liability will impose heavy (perhaps crushing) financial burdens on churches, especially those with limited resources. Time and again churches will be compelled to defend large and small contributions alike against private creditors and bankruptcy trustees, the widow’s mite going to pay lawyers instead of feeding the poor and constructing houses of worship. Churches will be forced to repay long-spent contributions from years past, disrupting budgets and programs, and occasionally to suffer the sale of religious property on the courthouse steps. The foregoing discussion amply demonstrates that “[t]he connection between religious persecution and formal neutral- ity interpretations of the Free Exercise Clause is not merely theoretical. It is historical.” And what is at stake is * Douglas Laycock, The Remnants of Free Exercise, 1990 19 substantial. As spokespeople for the American Civil Liber- ties Union testified before Congress: At risk [are] such familiar practices as the sacramen- tal use of wine, kosher slaughter, the sanctity of the confessional, religious preferences in church hiring, establishing places of worship in areas zoned for. other use, permitting religious sponsored hospitals to decline to provide abortion or contraception services, sex segregation during worship services, exemptions from mandatory retirement laws, a church’s refusal to ordain women or homosexuals, exemptions from landmark and zoning regulations, and the inapplica- bility of highly intrusive educational rules to paro- chial schools. These [are] decisions in areas that society ha[s] previously assumed that religious groups had the right to make for themselves and could not be compelled to change just because society thought otherwise. Religious Freedom Restoration Act: Hearings before the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. 192 (1992) (statement of Nadine Strossen, President, and Robert S. Peck, Legislative Counsel, American Civil Liberties Union). The history of the Mormon persecutions vividly illustrates that “neutral” and “general” laws do not adequately protect the values underlying the Free Exercise Clause, and the contemporary instances of abuse sketched above — from “general” laws regulating abortion (note 14, supra) to the “neutral” provisions of the Bankruptcy Code (note 29, supra) — demonstrate that the lessons from that history have not been entirely learned. “Although many private interests are sacrificed as a price of living in a civilized society, the free exercise of religion cannot be one Sup. CT. REV. 1, 64. 20 of them. Free exercise has at least as great a claim to the protection of heightened scrutiny as any other right afforded such protection [under the Constitution].” Lee, supra, 1993 B.Y.U. L. REV. at 95. Il. INENACTING RFRA, CONGRESS PROPERLY COMPENSATED FOR STRUCTURAL BIASES THAT IMPEDE THE EXERCISE OF RELI- GIOUS LIBERTY. History’s lesson regarding the importance of heightened scrutiny for free exercise of religion is particularly evident in the present case. According to Petitioner, St. Peter Church in Boerne embodies “times and memories [that] are graven into the souls of a city,” and “this highly visible church set on a hill speaks directly of the history of this City and its people.” Pet. Br. 2. The City’s memory is quite selective. Indeed, there is a perverse irony in its claim: the church is located where it is, on a hill near the edge of town, only because the City refused to allow churches within the city limits when the parish was founded. KENDALL COUNTY HISTORICAL COMM’'N, A HISTORY OF KENDALL COUNTY TEXAS 22 (1984); Gregory Curtis, The Church on the Hill, TEXAS MONTHLY 9 (Dec. 1996). The City no doubt intended to recall something other than the history of religious persecution with its description of the cultural value of the church. But, by denying the church the right to expand, the City imposes substantial burdens on both the rights of believers who are forced to worship in inadequate alternative facilities and the rights of the church itself to determine how it should best fulfill its religious responsibili- ties to its parishioners. In doing so, the City exhibits a subtle contemporary version of its earlier exclusionary practices: active religious life is disparaged, gern and cast outside the limits of the secularist city, which treasures religious museums but fails to comprehend the needs of living religion. Without RFRA, what may in fact be graven into the soul of the City is a secularist insensitivity 21 that exalts historical preservation of a past contribution of religious life (the church building) over preserving the religious rights of today’s living Catholic community. A. Congress Has Authority to Remedy Violations of Religious Liberty Stemming From a Growing Secularist Bias that Distorts Governmental Neu- trality. The tension between religious and secularist outlooks in this case is an instance of a much broader phenomenon that James Davison Hunter has aptly described as “culture war.” JAMES DAVISON HUNTER, CULTURE WARS (1991). Older patterns of tension along sectarian lines have been supplanted by a broad polarization cutting across all major areas of culture that divides traditional religious believers from those with more secularist orientations. Jd.; W. Cole Durham, Jr. & Alexander Dushku, 7raditionalism, Secularism, and the Transformative Dimensions of Religious Institutions, 1993 B.Y.U. L. REV. 421, 434-37. Whereas formerly, secular interests could fairly be said to be neutral as between different religious traditions, there are a growing number of areas in which secularist objectives are anything but neutral from a religious perspective. Religious considerations are thereby undervalued in secular bureaucracies because of the tendency of secular bureaucrats to confuse secularity with neutrality. If the two were identical, any interest with a secular agenda would be empowered by Smith to trump religious rights. The secularity of the agenda clearly does not insure its neutrality toward religious groups and beliefs at the other pole of the “culture war.” The culture wars have produced organized interest groups who are affirmatively hostile to religion in general, or to certain religions in particular. For examples of contemporary anti-Catholicism, see Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom, 69 NOTRE DAME L. REV. 393, 440-442 (1994); Edward McGlynn Gaffney, Jr., 22 Hostility to Religion, American Style, 42 DEPAUL L. REV. 263, 279-293 (1992); for a book-length anti-Baptist hate tract, see ARTHUR FREDERICK IDE, EVANGELICAL TER- RORISM: CENSORSHIP, FALWELL, ROBERTSON & THE SEAMY SIDE OF CHRISTIAN FUNDAMENTALISM (1986); for an account of organized hostility to religious “cults,” see ANSON SHUPE & DAVID BROMLEY, THE NEW VIGILANTES (1980); Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. CT. REV. 1, 64-65. For examination of the theoretical underpinnings of hostility to religion, see Frederick Mark Gedicks, Public Life and Hostility to Religion, 78 Va. L. REV. 671 (1992); Michael W. McConnell, “God is Dead and We Have Killed Him”: Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. REV. 163. Public opinion polls, cited in the brief of Respondent Flores, show widespread hostility to “fundamen- talists” and “members of minority religious sects or cults.” Resp. Br. 30. It is generally impossible to know, let alone prove to judicial satisfaction, when this religious hostility has contrib- uted to legislation, or when it has caused legislators or bureaucrats to refuse a religious exemption in circumstances where they would have granted an exemption to a well- connected secular interest group. But these things happen, and they happen frequently. RFRA merely requires the government to justify the resultant burdens on religion instead of making the burdened claimant prove discrimination. B. Congress May Legitimately Act to Correct the Encroachments on Religious Liberty Emanating From the Structure of Modern Bureaucratic Government. Our world has been accurately described as one in which “regulation is everywhere.” STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 144 (1993). Federal and state laws govern most of American life, usually through broad delega- tions of interpretive, enforcement, and regulatory authority 23 to administrative and local government agencies. See Antonin Scalia, Judicial Deference to Administrative Interpre- tations of Law, 1989 DUKE L.J. 511, 516-517. The nature of modern administrative bureaucracy makes it nearly inevitable that government will impose substantial burdens on religious practice—especially minority religious practice—in the pursuit of relatively unimportant government goals. In the first place, a variety of factors drive adminis- trative agencies to seek to expand their jurisdiction. Too often, efforts in this regard carry regulatory bureaucrats into domains that should in fact be protected spheres of religious autonomy. Moreover, agencies understandably seek to maximize the consistency of their rules and regulations. Exceptions to rules and regulations are unattractive from the perspective of efficiency and administrative copvenience, and, if granted too liberally, may result in the agency’s having to defend its very existence. Furthermore, govern- ment officials who are unfamiliar with distinctive religious needs may think there is no rational basis for differential treatment. Thus, the nature of administrative bureaucracy influences administrators to exercise discretion against accommodating the religious practices of those burdened by agency action. The threat to religious liberty posed by agency bias against exemptions is heightened by the general absence and/or ineffectiveness of judicial review of agency decisions. Judicial review of agency decisions, particularly those by state agencies and local governments entities, is sometimes not available at all. See, e.g., DANIEL R. MANDELKER, LAND USE LAw § 8.11, at 326 (2d ed. 1988) (noting that most state zoning acts do not provide for judicial review of decisions by planning commissions and other local govern- ment entities that administer zoning ordinances). Grants of statutory authority to agencies are typically broad and general, giving such agencies tremendous discretion in making decisions about how to implement their statutory 24 purpose. It is also well established that, even when judicial review of agency decisions exists, courts owe substantial deference to discretionary decisions made by administrative agencies within their areas of expertise. E.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-845, 865-866 (1984); Blum v. Bacon, 457 U.S. 132, 141 (1982); Scalia, supra, 1989 DUKE L.J. at 516-517. In sum, by their nature, agencies are unlikely to grant exemptions to those who are religiously burdened, and these refusals are effectively unreviewable under a deferential standard of judicial scrutiny. The very case before the Court illustrates the lack of protection afforded the free exercise of religion in such circumstances. Boerne’s historic preservation ordinance created a commission charged with drafting and administer- ing an historic preservation plan, to include “Historic Districts,” and vested with broad discretion to “protect, enhance and perpetuate selected historic landmarks,” “safe- guard the City’s historic and cultural heritage,” “stabilize property values,” “foster civic pride” in the past, “protect and enhance the City’s attractions to tourists,” “strengthen the economy,” and promote the use of protected landmarks and sites “for the culture, prosperity, education and general welfare” of the City’s residents and visitors. Pet. Br. 2-3; Pet. App. 2a. It was this commission that denied church authorities permission to expand the Church, on the ground that expansion was inconsistent with the “spirit and purpose” of the preservation ordinance. Jt. App. 38, 68-69 q v. Without RFRA, the sheer breadth of the commission’s mandate doomed the Church’s interests from the beginning. Among other things, the definition of the City’s “historic and cultural heritage,” the designation of landmarks and districts that reflect this heritage, and judgments about property values, civic pride, tourism and the like, are discretionary decisions made under a general grant of authority. Although the commission identified criteria authorized by the ordinance 25 in reaching its decision to disallow Church expansion, Jt. App. 38, 67 4 1, this was hardly critical to the validity of that decision; the ordinance is so broadly worded that it is difficult to imagine any decision that would be inconsistent with its “spirit and purposes.” Moreover, a superficial analysis of the ordinance could easily lead a court to conclude that heightened scrutiny is not required. After all, there is nothing on the face of the ordinance to suggest that it is directed at a particular religion or at religion generally. Moreover, even though only a small part of the City is regulated under the ordinance, courts have found similar landmark laws to be neutral and generally applicable. See, e.g., Rectors, Wardens & Members of Vestry of St. Bartholomew’s Church v. City of New York, 914 F.2d 348, 353-356 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991). Thus, without RFRA, the question of whether the commission’s decisions impermissibly intrude on valid religious freedom rights would be virtually immune from judicial review. Cf. City of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926) (zoning ordinances to be upheld unless “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare”). Even though the Church is merely a twentieth-century imitation of Spanish mission architecture, Pet. Br. 2, Resp. Br. 1; even though only the facade of the Church originally rested within an Historic District, Jt. App. 68 4s, 70 ¢ gg; and even though the proposed expansion of the church would have left this facade intact, Jt. App. 7 4 12, the merits of the commission’s determination that expansion would nonetheless destroy a portion of the City’s historic and cultural heritage are effectively unreviewable. Far more important than any of this, however, is the unreviewability of the commission’s implicit determination that preservation of the Church building as a relic of the past is more important than permitting Church members to worship in the present. 26 Our current age of pervasive bureaucracy, in which government rules and regulaticus administered according to the discretion of administrative agencies control virtually every area of American life, demands additional protection for religious practice if the full measure of religious liberty guaranteed by the First Amendment is to be realized. Land use provisions in particular characteristically involve permit schemes analogous to those struck down in Cantwell v. Connecticut, 310 U.S. 296, 304-307 (1940), which grant local officials essentially standardless discretion to determine whether religious practices may go forward. Constitutional rights to the free exercise of religion are of little practical value if they permit control of the meeting place of a church to pass from its members to government outsiders without any examination of the government’s asserted need for such control. Yet, unless the goals of regulatory agencies like the City’s historic preservation commission are tested against more searching scrutiny than neutrality and general applica- bility, agency officials have no occasion and no motivation to consider the value of pursuing their regulatory goals relative to the substantial burdens this pursuit may impose on the free exercise of religion. As this Court noted in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534 (1993) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)), “The Free Exercise Clause protects against governmental hostility which is masked as well as overt. ‘The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.’” RFRA simply provides the occasion and the motivation to scrutinize such gerrymanders, by requiring that regulators identify a genuinely important government goal that cannot be achieved without burdening religious practice in some less restrictive manner. 27 C. RFRA Compensates for Inherent Limits on Legis- lative Capacy to Craft Keligiously Sensitive Exemptions. In Smith, this Court acknowledged the possibility that religious practice exemptions could appropriately be crafted within the political process. 494 U.S. at 890. In fact, such accommodations are found at countless points throughout the laws and regulations of the nation. They reflect the g-neral respect of lawmakers for the principles of religious freedom that make our pluralistic society possible. Frequently, however, lawmakers fail to make appropriate exemptions not because they necessarily wish to decline granting the exemp- tion, but because no legislative body can be aware of the full range of religious needs warranting exemptions. See, é.g., Axelrod, supra note 16 (failing to exempt religiously motivated volunteer services from a regulatory limit on non- compensated services); Bessard, supra note 20 (requiring a loyalty oath not withstanding religious beliefs proscribing execution of such a pledge); Hershberger, supra note 22 (requiring vehicular signals that intrude upon religious beliefs even though state’s interest could be furthered by means that do not require violation of conscience); Buhl, supra note 23 (motorcycle helmet law fails to accommodate religious beliefs that preclude wearing a helmet). Alternatively, even when exemptions are granted, they may be insufficiently broad. See, e.g., note 15, supra (failing to exempt religious shelter for the homeless from a housing regulation designed to facilitate access by the handicapped); Montgomery, supra note 25 (general autopsy laws require procedures that condemn the spirit of the deceased); note 27 supra (fair housing laws fail to accommodate practices that landlords sincerely believe to be sinful); note 28 supra (government enforcement scheme compels church to violate the conscien- tious beliefs of its members). However, even where well- intentioned lawmakers attempt to craft appropriate exemp- tions, their efforts often fail to achieve the accommodation 28 they intend, because of the complexity and diversity of religious beliefs themselves. See, e¢.g., note 14 (failing to make sufficiently broad exemptions for conscientious objection to abortion). Even a lawmaker with the best of intentions may not be able to craft an exemption sufficiently refined to address the legitimate needs of all religious groups. The remedial influence of RFRA is vital in such settings to prevent religious groups from being forced into wooden pigeonholes created by insufficiently sensitive exemption schemes. D. Congress May Legitimately Reallocate Burdens of Justification When Proof of Constitutional Viola- tions Is Difficult to Obtain. In the absence of RFRA, a claimant whose religious practice is burdened by law can obtain relief only by carrying the heavy burden of proving that there is an unconstitutional motivation behind a law, and thus that it is not genuinely neutral or general. See Lukumi, 508 U.S. at 524, 533, 537- _ 538, 543-545. The difficulties in doing so are considerable. Assyming that government decisionmakers intend the reasonably foresees>le consequences of their lawmaking actions, judges cz of course make responsible judgments about the purpose of a law based on its language and effect. Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting). Once the inquiry ventures past these external indications of purpose to the subjective intentions of mem- bers of the lawmaking body, however, reliable conclusions about government motivations are nearly impossible to reach. See id. at 636 (Scalia, J., dissenting); Flemming v. Nestor, 363 U.S. 603, 617 (1960). Although statements of intention by individual decisionmakers can sometimes be found in legislative histories, such histories are not always compiled, particularly in cases involving state legislation or discretion- ary administrative action, and are in any event subject to manipulation. See Edwards, 482 U.S. at 638 (Scalia, J., dissenting). Even when they exist, statements of individual 29 decisionmakers, while highly probative of the intentions of those who make them, are only circ#mstantial evidence of the mo vation of the decisionmaking body as a whole. United States v. O’Brien, 391 U.S. 367, 384 (1968). Finally, courts are understandably reluctant to find unconsti- tutional motivations because of the implicit insult such a finding directs at members of the decisionmaking body. See, e.g., Edwards, 482 U.S. at 610 (Scalia, J., dissenting); Note, Developments in the Law—Equal! Frotection, 82 HARV. L. REV. 1065, 1093 (1969). This is especially true when, as is almost always the case, direct evidence of unconstitutional motivations is lacking. Cf. O’Brien, 391 U.S. at 384 (observing that “the stakes are sufficiently high for us to eschew guesswork” in determining whether government action was unconstituticnally motivated). The virtual impossibility of adducing strong evidence of illicit motivation, combined with the reticence of judges to find such motivation on anything but the strongest evidentiary record, suggest that deserving religious claimants will frequently be unable to show the impermissible motivation behind facially neutral and general laws, even in situations in which the government decisionmaking body in fact intended to restrict the claimants’ religious practice or consciously valued secular interests over the claimants’ religious ones. RFRA’s compelling interest standard does nothing more than compensate for the structural bias associated with the difficulty of proving motivation: it simply reallocates from the religious practitioner to the government the burden of proof with respect to whether facially neutral and general laws are tainted by impermissible motives. E. Legitimate Religious Freedom Claims in the Field of Land Use Regulation Are Likely to Be Inade- quately Protected Without RFRA. The foregoing structural biases against full recognition of free exercise rights are particularly evident in land use decisions. In preparing this brief, an effort was made to 30 analyze all reported cases that have dealt with religion claims in the context of zoning cases.*! The results are presented as the Appendix. What is striking is that, while minority religions represent considerably less than 9% of the general population, they are involved in over 49% of the cases involving the right to locate a church at a particular site, and in over 33% of the cases seeking approval of accessory uses of an existing church site (e.g., for sheltering or feeding the homeless). The disproportionate burden carried by minority religions becomes even more distressing if one takes into account cases involving non-denominational groups, or groups that cannot be classified on the basis of information in case reports. If these unclassified cases are counted, over 68% of reported location cases, and over 50% of accessory use cases, involve minority religions. If the experience of the LDS Church is any indicator, the foregoing statistics significantly underreport the number of problems that minority churches face. The vague standards of land use law leave room for anti-minority biases to have effect. Congress could legitimately address these problems in passing RFRA. CONCLUSION For all of the foregoing reasons, together with those advanced by the Coalition and Respondent Flores, the decision of the Court of Appeals should be affirmed. 1 The study includes cases cited in the relevant A.L.R. annotations, a leading treatise, and the relevant Westlaw keynote classification. The methodology used to select the cases is de- scribed in more detail in the Appendix. <7 aay ert 31 Respectfully submitted. VON G. KEETCH ALEXANDER DUSHKU Kirton & McConkie 1800 Eagle Gate Tower 60 East South Temple Salt Lake City, Utah 84111 (801) 328-3600 FREDERICK MARK GEDICKS 1338 East 660 North Orem, Utah 84097 (801) 224-9389 W. COLE DURHAM, JR. JAMES A. SERRITELLA JAMES C. GEOLY* KEVIN R. GUSTAFSON STEFFEN N. JOHNSON Mayer, Brown & Platt 190 S. La Salle Street Chicago, Illinois 60603 (312) 782-0600 *Counsel of Record APPENDIX APPENDIX DISCRIMINATION AGAINST MINORITY CHURCHES IN ZONING CASES In order to gain some perspective on the treatment of non-mainline groups in zoning cases, a broad sample of zoning decisions challenged on free exercise grounds has been analyzed. A total of 196 cases was ultimately included in the study. This set of cases should include a fairly comprehensive set of reported cases in this field. It includes all cases cited in annotations that have collected cases on this topic (including cases cited in pocket part updates),' all cases cited in the section of a leading treatise on zoning that addresses issues of religious land uses,’ and all cases identified through a Westlaw search classified under West’s Constitutional Law Key Number 84.5(18), which collects religion cases involving zoning and land use. It is conceivable that some cases involving religion-based constitutional challenges to zoning decisions may not have been captured through these sources, but it is unlikely that there are many such cases. The cases thus collected have been classified by the type of zoning case and by the denomination involved. Essentially, the zoning issues fall into two broad categories: cases that involve zoning of property to permit a church building to be erected on a particular site (“location cases”), and cases that determine whether an accessory use (such as ' Jay M. Zitter, Annotation, What Constitutes Accessory or Incidental Use of Religious or Educational Property Within Zoning Ordinance, 11 A.L.R.4th 1084 (1992); Jeffrey F. Ghent, Annotation, Definition of Church or Religious Use Within Zoning Ordinances, 62 A.1L.R.3d 197 (1967); Annotation, Zoning Regulations as Affecting Churches, 74 A.L.R.2d 377 (1961). 2 A. RATHKOPF & D. RATHKOPF, THE LAW OF ZONING AND PLANNING § 20 (4th ed. 1992). A-2 a homeless shelter or soup kitchen) may be allowed at the site of an existing church (“accessory use cases”). In most of the cases, the denomination involved is obvious either from the case name or from discussion of the case in the opinion. There are, however, a substantial number of cases in which either no denominational affiliation appears in the case, or the church involved is non- denominational. These cases are designated as “unclassified” in the tables below. Whiie some of the unclassified religious associations may in fact have a denominational affiliation that simply is not evident from the cases, most of these cases appear to involve local, congregationally organized churches that are functionally similar to organizations we have classified as minority churches. Information on the size of various denominations was derived from tables provided in BARRY A. KOSMIN & SEYMOUR P. LACHMAN, ONE NATION UNDER GOD: RELIGION IN CONTEMPORARY AMERICAN SOCIETY 15-17 (1993). The data is derived from the National Survey of Religious Identification conducted by the Graduate School of the City University of New York, which surveyed a representative sample of 113,000 people across the continental United States. This is the most comprehensive poll ever conducted on the issue of religious affiliation. /d. at 1-2. It provides the best available data of religious affiliation as assessed from the perspective of the believer. The line between mainline denominations and smaller groups is difficult to draw, because one is dealing with a continuum. For purposes of this study, groups with more than 1.5% of the adult population were treated as mainline groups, whereas groups with smaller percentages were included in the minority category. The only exception in the tables that follow is Judaism, but if the statistics on Judaism were divided to reflect the major branches of that tradition, A-3 the various branches would come under the 1.5% threshold. Some smaller Protestant groups may be more analogous to mainline groups, so that the categorizations in a few cases could be questioned. The population percentages in the tables that follow do not add up to 100% because the tables do not include data on non-religious groups and on the portion of the population (only 2.30%) that did not respond to the survey. Many smaller religions were not covered by the study because they have no reported cases, but such religions represent only 2.22% of the population. In analyzing the data, a basic starting assumption is that any zoning dispute that progresses far enough into litigation to yield a reported decision reflects a situation in which religious groups perceive that their religious rights are being violated. For a variety of practical reasons, ranging from the need to have a good working relationship with local government officials to the sheer cost of litigation to the availability of alternative sites, churches probably bring fewer actions in this area than they think they may be entitled to bring. Table 1 summarizes the number of cases in the location and accessory use categories by denomination. # of Accessor y Use Cases T 36.20% 1 TO] 12.80%] T3T or Protestants (>1. 5. } Baptists “TS 40% 7] S. 77 10.77 E T. 4] 3.20 , = PF 0% 6] 4.80% 3] 462 ist rT 8.00% 3 a] CS. 1.50% T] O. 1) rian ' oe 7) 76 73] 18.40% T7]| 26.15