Amicus Curiae Brief — City of Boerne v. Flores

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No. 95-2074 Supreme Court? U.S.

rasa ae argon EL

JAN 10 1997

IN THE

a

Suprene Court of the LnitdStates—

OCTOBER TERM 1995

-

CITY OF BOERNE, TEXAS,

Petitioner,

——Vversus—

' 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 AMICUS CURIAE OF THE COALITION

FOR THE FREE EXERCISE OF RELIGION

IN SUPPORT OF RESPONDENTS

MARC D. STERN

Counsel of Record

AMERICAN JEWISH CONGRESS

15 East 84th Street

New York, New York 10028

(212) 360-1545

Of Counsel Listed Inside

Of Counsel

Oliver S. Thomas

Special Counsel

NATIONAL COUNCIL OF CHURCHES

2708 Montvale Road

Maryville, TN 37801

(423) 977-9046

J. Brent Walker

Melissa Rogers

BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS

200 Maryland Avenue

Washington, D.C. 20002-5797

(202) 544-4226

Steven T. McFarland

Center for Law and Religious Freedom

CHRISTIAN LEGAL SOCIETY

4208 Evergreen Lane - Suite 222

Annandale, VA 22003

(703) 642-1070

Aron U. Raskas

Nathan J. Diament

Institute for Public Affairs

UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA

333 Seventh Avenue

New York, NY 10001 |

(212) 563-4000

Of Counsel (cont'd)

Michael Farris

HOME SCHOOL DEFENSE ASSOCIATION

P. O. Box 159

Paeonian Springs, VA 22129

(703) 338-5600

Samuel Rabinove

Richard Foltin

AMERICAN JEWISH COMMITTEE

165 East 56th Street

New York, NY 10022

(212) 751-4000

Elliot Mincberg

PEOPLE FOR THE AMERICAN WAY

2000 M Street, N.W.

Washington, DC 20036

(202) 467-4999

David Zwiebel, Esq.

AGUDATH ISRAEL

84 William Street

New York, NY 10038

(212) 797-9000

Steven R. Shapiro

AMERICAN CIVIL LIBERTIES UNION

132 West 43rd Street

New York, NY 10036

(212) 382-0557

Of Counsel (cont'd)

Steven K. Green

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

1816 Jefferson Place

Washington, DC 20036

(202) 466-3234

Jack F. Trope

Association of American Indian Affairs

P.O. Box 268

Sisseton, SD 57262

(605) 698-3998

a

The undersigned, counsel of record for the amici, furnishes

the following list pursuant to U.S. Sup.Ct. R. 26.6:

COALITION FOR THE FREE EXERCISE OF RELIGION

All of the members of the Coalition are corporations, and

have no parents or subsidiaries, except as indicated below.

Agudath Israel of America

Aleph Institute

American Association of Christian Schools

American Baptist Churches USA

American Civil Liberties Union

American Conference on Religious Movements

American Ethical Union, Washington Ethical Action Office

American Humanist Association

American Jewish Committee

American Jewish Congress

American Muslim Council

Americans for Democratic Action

Americans for Religious Liberty

Americans United for Separation of Church & State

Anti-Defamation League

Association of Christian Schools International

Association on American Indian Affairs

Baptist Joint Committee on Public Affairs

B'nai B'rith

Central Conference of American Rabbis

Christian Church (Disciples of Christ)

Christian Life Commission, Southern Baptist Convention

Christian Science Committee on Publication*

Church of Jesus Christ of Latter-day Saints

Church of the Brethren

Church of Scientology International

Certificate of Interest (Cont'd)

Coalition for Christian Colleges and Universities

Coalitions for America

Concerned Women for America

Council of Jewish Federations

Council on Religious Freedom

Council on Spiritual Practices

Criminal Justice Policy Foundation

Episcopal Church

Evangelical Lutheran Church In America

Federation of Reconstructionist Congregations and Havurot

Friends Committee on National Legislation

General Conference of Seventh-day Adventists*

Guru Gobind Singh Foundation****

Hadassah, the Women's Zionist Organization of America, Inc.

Home School Legal Defense Association

International Association of Jewish Lawyers and Jurists

International Institute for Religious Freedom

Japanese American Citizens League

Jewish Reconstructionist Federation

Justice Fellowship

Liberty Counsel

Mennonite Central Committee U.S.**

Muslim Prison Foundation

Mystic Temple of Light, Inc.

National Association of Evangelicals

National Campaign for a Peace Tax Fund

National Committee for Public Education and Religious

Liberty

National Council of Churches o* Christ in the USA

National Council of Jewish Women

National Federation of Temple Sisterhoods

National Jewish Commission on Law and Pubiic Affairs

National Jewish Community Relations Advisory Council

National Sikh Center

Certificate of Interest (Cont'd)

Native American Church of North America

Native American Rights Fund

North American Council for Muslim Women

People For the American Way Action Fund

Peyote Way Church of God

Presbyterian Church (USA), Washington Office

Rabbinical Council of America

Sacred Sites Inter-faith Alliance

Soka-Gakkai International - USA

Traditional Values Coalition

Union of American Hebrew Congregations

Union of Orthodox Jewish Congregations of America

Unitarian Universalist Association of Congregations

United Church of Christ, Office for Church in Society***

United Methodist Church, Board of Church & Society

United Synagogue of Conservative Judaism

° Unincorporated association.

** The Mennonite Central Committee, U.S. is a part of the

Mennonite Central Committee, Inc.

*** The parent organization of the Office for Church in

Society is the Executive Council of the General Synod

of the United Church of Christ.

**** Organized as a Maryland trust.

4

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: , “a

Marc D. Stern

Counsel of Record

AMERICAN JEWISH CONGRESS

15 East 84th Street

New York, NY 10028

(212) 360-1545

TABLE OF CONTENTS

CERTIFICATE OF INTEREST .

SAAD OP ALTTOEEM oo ccc ccc nccccces ii

INTEREST OF THE AMGCUS ..... 6. ccc ccc ccese |

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

GU id Bir es ls dy i ong 3

I. RFRA DOES NOT ESTABLISH RELIGION ....... 3

A. RFRA Does Not Impermissibly Favor Religion

i ee OR ae te Pad 3

i. Case Law Recognizes the Permissibility

Oe eo sbydoiekcssse us 6

ii. Legislative Precedents Support the

Constitutionality of Exemptions ........... 7

B. RFRA Does Not Create Impermissible

Entanglement With Religion ................. 8

C. RFRA's Broad Scope Minimizes the Likelihood of

Religious Favoritism in the Granting of

Pa a is bee cueos a vse 11

Il. RFRA WAS AN APPROPRIATE EXERCISE OF

CONGRESS' POWER UNDER § 5 OF THE

FOURTEENTH AMENDMENT ................ 13

A. RFRA Facilitates Enforcement of the Ban Against

Religious Discrimination ................... 12

B. Congress Has Broad Power to Guard Against

Purposeful Religious Prejudice............... 16

C. RFRA is But the Latest Example of Congress’

Exercise of a Broad §5 Power............... 18

i. Title VII and the States................. 18

ii. The Voting Rights Act ................. 18

D. The Framers of the Fourteenth Amendment

Intended to Protect Religious Liberty ......... 21

Pe ee

E. The Legal and Political Background of the

Fourteenth Amendment Supports Congress' Power

SI hk oo ee aioe bao eas 6c sd heen 23

Ii]. RFRA IS FULLY CONSISTENT WITH THE

SEPARATION OF POWERS ..........cccecee: 24

A. Separation of Powers Doctrine Does Not Bar

COPOCNVG LGUIOR on cece cee u eves: 25

B. RFRA Does Not Impose a Rule of Decision... . . 26

C. Klein Does Not Proscribe Use of Legislative

NG 3 we cee aaweh eee oe etal et eee 27

D. RFRA is Fully Consistent With Marbury and

BPR R Ee oe POE Ps Tee 28

LEG vs we Cees eset ieee tet kee keus 30

-ii-

TABLE OF AUTHORITIES

CASES

Ableman v. Booth, 62 U.S. 506 (1858) ............... 23

Adarand Construction, Inc. v. Pena, 115 §.Ct. 2097

ATA on Perr rere rer ey orem 21

Arlan's Dep't Store v. Kentucky, 37\ U.S. 218 (1962) ..... 5

Armstrong v. Wilson, 942 F.Supp. 1252 (N.D. Cal.

PR PP y rere errs tees eer eT eee TEE 21

Ashwander v. TWA, 297 U.S. 288 (1936) ............ 3,9

Barclays Bank PLC v. Franchise Tax Board, 114 S.Ct.

1 See er rer rere ee eee er ee 26

Board of Educ. v. Grumet, 114 §.Ct. 2481 (1994) . 4, 5, 6, 11

Bowen v. Kendrick, 487 U.S. 589 (1988) ............-... 5

Braunfield v. Brown, 366 U.S. 599 (1961) .........---. 5

Buckley v. Valeo, 424 U.S. 1 (1976) ......-.--.-+----- 30

Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y. 1994) .. 14

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ........-...-. 12, 13, 14

City of Mobile v. Bolden, 446 U.S. 55 (1980) .... 18, 25, 28

City of Richmond vy. J.A. Crosson, 488 U.S. 469 (1989) .. 23

City of Rome v. United States, 446 U.S. 156 (1980) .. 18, 19

Cooper v. Aaron, 358 U.S. 1 (1958) .....-------+-+5: 28

Corp. of the Presiding Bishop v. Amos, 483 U.S.

TTT os 65 erie d eG ow cra wean s heeds we 6o en 4,5

Dred Scott v. Sanford, 60 (19 Howard) U.S. 393 (1857) . . 23

EEOC v. Wyoming, 460 U.S. 226 (1983)..........---. 16

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

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) 6,7

Ex Parte Virginia, 100 U.S. 339 (1879) ........-.---. 16

Ex parte Klein, 13 Wall.128 (1872) ...........---- 26, 27

,

F.W. Woolworth v. NLRB, 121 F.2d 658 (2d Cir. 1941)... 14

Fitzpatrick v. Bitker, 427 U.S. 445 (1976) .......... 17, 18

Fullilove v. Klutznick, 448 U.S. 442 (1980)... ... 17, 20. 21

Hobbie v. Unemployment Appeals Comm'n, 480 U.S.

SO i hence seh ieee eee a 4

Hutto v. Finney, 437 U.S. 678 (1982) ................ 21

Jolly v. Coughlin, 76 F.3d 468 (2nd Cir. 1996) .......... 9

Jordan v. Winter, 604 F.Supp. 807 (N.D. Miss. 1984) .... 19

Kaufman v. Carter, 1996 W.L. 731925 (E.D. Mich.

| FE eer anw Harper nena samen) Sane him 21

Keeler v. Mayor and City Council of Cumberland,

940 F Supp. 879 (Md. 1996) ................... 9, 26

Larson v. Valente, 456 U.S. 228 1982) ............... 13

Lassiter v. Northampton County Bd. of Elections,

Be I PERS bie 6 io The eee eee 20, 25

Leblanc-Sternberg v. Fletcher, 67 F.3d 412 (2nd Cir.

RD ol ia at oe oe es ak eee ee 13

Lemon v. Kurtzman, 403 U.S. 602 (1971) .............. 5

Loving v. U.S, 116 $.Ct. 1737 (1996) . 0. wc ccc ces. 29

Lyng v. Northwest Indian Cemetery Protective Assoc.,

TP Oe ee ee nis news so Feta eeeedea ae 9

ALLB. v. S.L4., 65 U.S.L.W. 4035 (1996) .....2...5.. 18

Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996) .......... 9

Major v. Treen, 574 F.Supp. 325 (E.D. La. 1983) ....... 19

Marbury v. Madison, 5 U.S. 137 (1803) .............. 28

Mcintire's Case, Fed. Cas. No. 8,824 (C.C. Dist. Col.

UE Ns codes eo Eh eecdee bs ee cee eee 8

Mississippi Islamic Center v. City of Starkville, 876

Fae Ce le RO sch ccs Sie Fe aoe 14

Mississippi Republican Executive Committee v.

Brooks, 469 US. 1002 (1963) 2... care ewss 19

-iv-

iii ial

Monnell v. City of New York, 436 U.S. 658 (1988) ...... 24

Morgan v. Katzenbach, 384 U.S. 641 (1966)......-. 12, 17

Niece v. Fitzner, 941 F.Sup: 1497 (E.D. Mich. 1994) ... 21

Norwood v. Harrison, 413 U.S. 455 (1977) ......- 5+ ->- 4

Oregon v. Mitchell, 400 U.S. 112 ED vy yep vie es 20, 25

Personnel Administrator v. Feeney, 442 U.S. 256 (1979) . 18

Plaut v. Spendthrift Farms, Inc., 115 S.Ct. 1447 (1995) .. 28

Prigg v. Pennsylvania, 42 U.S. 539 eS ee . 24

Quern v. Jordan, 440 U.S. 332 Eg ce scare vets 24

Robertson v. Seattle Audubon Society, 503 U.S.

Se es,

Rosenberger v. Rector, 115 §.Ct. 2510 ee 12

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

petition for cert. pending, No. i 8,9

School District of Abington Township v. Schempp,

ee ao 12

Sherbert v. Verner, 374 U.S. 398 (1963) .......-. 9, 10, 30

Small v. Lehman, 98 F.3d 762 (3rd Cir. 1996) ......----- 9

Smith v. North Babylon School District, 844 F.2d

90 (2d Cir. 1988) .......---- eee ere S a

South Carolina v. Katzenbach, 383 U.S. 307 (1966) .. 20, 26

Texas Monthly v. Bullock, 489 U.S. 1 (1989) ...-.---- 4,6

The Jesus Center v. Farmington Hills ZBA, 215 Mich.App.

54, 544 N.W.2d 698 (1996) .......---- seer 9

Thornburg v. Gingles, 478 U.S. 30 BR sky ss 19, 28

Tony and Susan Alamo Foundation v. Secretary, 471

BE 10

Underwood v. Hunter, 471 U.S. 222 (1985) ....------- 13

United States v. Seeger, 380 U.S. 163 (1965) ......--- 3,8

Walz v. Tax Comm'r, 397 U.S. 664 (1970) .....------ 5,8

Welsh v. United States, 398 U.S. 333 (1970) ......------ 3

-V-

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............ 3,4

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

FER CUE spiked credo hd 4a ee eee aeons 29

Zorach v. Clauson, 343 U.S. 306 (1952) ............. 1]

Zurcher v. Stamford Daily, 436 U.S. 547 (1978) ........ 26

STATUTES

Be is en HR OOD bi ois iv aces ekeee ees ue 7

ee. OG ok voce as 0A see eee 8

GE Ars ora bavi eV eabaevees awe

MUSE Oe ree ees 20

er ere ee em ee er 16, 27

PR TEM os a vie Kno ck oe oh wt ee 8

Pe MR ooo Gk ance reek eneeeeenaee 8

POU GE os 2 ae ie Sue eae eee 8

Privacy Protection Act of 1980, 42 U.S.C. § 2000aa ..... 26

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

OD is acs CR Te ee eee ee eee passim

Title VII, 42 U.S.C. §2000e-1(a), ef seg. ......... 5, 18, 28

Voting Rights Act, 42 U.S.C. 1973, et seq. ... 18, 19, 26, 28

LEGISLATIVE HISTORY

8 GR | Arr rE ratty rors 15

S.1093, 104th Cong., Ist Sess., Cong.Rec. (S)10895

Oe eer tr Be we pe 30

S.Report 103-11, 103rd Cong., Ist Sess. .............. 15

OTHER AUTHORITIES

A. Amar, The Bill of Rights and the Fourteenth Amendment,

101 Yale L.J. 1193, 1222-24 (1992) ................ 23

-Vi-

Ark. O.A.G., 93-414, (1994) ....... Me ee 27

Constitution of the United States of Armwsica. Analysis and

Interpretation (1987) at 963-64

CE 2: er ee eee a

J.B. James, The Ratification of the Fourteenth Amendment

CAS rrr eS err ne 24

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

Religious «ception Under the Fourteenth Amendment, 88

N WU. L Rev. 1106 (1994) .....----- 0c eres: 22

Md. O.A.G., Opinion 94-037 (1994) ..........225-55 27

M. McConnell, The Origins and Historical Understanding of

Free Exercise of Religion, 103 Harv. L.Rev. 1409 (1990) 7

M Pawa, When The Supreme Court Suppresses Constitutiona!

Rights, Can Congress Save Us?, 141 U.Pa. L.Rev. 1029

PUR vc pvp eres ant ees ser cha era teknereers 18

P Hamburger, A Constitutional Right of Religious Exemption:

An Historical Perspective, 60 Geo. Washington L.Rev. 915

CU ols Pig coe canes Bis cen bans Pe ACen rh eas 7

RJ. Kaczorowski, The Nationalization of Civil Rights -

tutional Theory and Practice in a Racist Society,

eae er) eee 25

-vil-

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHENA

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

INTEREST OF THE AMICI

The Coalition for the Free Exercise of Religion ("Coalition")

is a coalition of over sixty religious and civil liberties

organizations. These organizations represent almost every major

faith group in America, spanning the spectrum of religious

diversity in America—Christians, Jews, Moslems, Native

Americans and Sikhs. The Coalition includes religious liberals

and conservatives, and groups with world views as disparate as

People for the American Way and Concerned Women for

America. They are united by the conviction that the protection

of religious liberty is an essential element of a democratic society.

(Its members are listed in Appendix A.) The Coalition was called

into being in response to the decision of this Court in

Employment Division v. Smith. It drafted, lobbied for, and

ultimately secured the passage of, the Religious Freedom

Restoration Act ("RFRA").

The Coalition takes no position on the question of whether

RFRA requires the City of Boerne to adjust its landmarks

preservation law to accommodate the religious obligations of

Bishop Flores. This brief addresses only the question of whether

RFRA is a constitutionally legitimate exercise of Congressional

power.

The brief is filed with the consent of the parties.

SUMMARY OF ARGUMENT

1. (a) This Court has repeatedly held that government can

constitutionally accommodate religion. It invited such

accommodation in Employment Division v. Smith, and in

numerous earlier cases. Corporation of the Presiding Bishop v.

Amos establishes that the three-part test does not invalidate all

accommodation.

(b) Since the beginning, legislatures have granted

exceptions for religious objectives to secular laws, one of which

—— atin ahd He

|

2.

(the substitute of an affirmation for oath) is found in the

Constitution itself.

(c) RFRA is constitutional even in light of cases such as

Estate of Thornton v. Caldor, Inc. and Texas Monthly v. Bullock.

Unlike these cases, RFRA does not require accommodation

without a showing of a substantial burden on religious practice

and without regard to the impact on third parties.

(d) Unlike case-by-case accommodation—which Petitioners

advocate—accommodation under RFRA is available to all

religious practitioners, without regard to their size or political

clout. RFRA treats all religions equally. It does not require an

inquiry into centrality, which might be entangling.

2. (a) This Court has repeatedly upheld Congress’ power

under § 5 to draft statutes which reach beyond the Amendment's

core prohibitions to compensate for difficulties of proving

violations. These principles sustain § 2 of the Voting Rights Act,

as well as its ban on literacy tests, and Title VII of the 1964 Civil

Rights Act (as it applies to state and local government). All that

is necessary is that a “violation be lurking,” a condition met here.

Intentional religious discrimination in the granting or withholding

of exemptions is unconstitutional and does exist. No formal fact-

finding is required to justify an exercise of the power in this way.

(b) The legislative history of the Fourteenth Amendment

indicates an intent to protect religious liberty. Moreover, under

the then regnant philosophy of Prigg v. Pennsylvania, it was

unnecessary to include § 5 to empower Congress to enforce § 1

of the Amendment. Taken together, these background facts

counsel a broad reading of § 5.

3. (a) The separation of powers doctrine does not prevent

Congress from reexamining the practical results of this Court's

constitutional decisions and, if appropriate, addressing these

results under one of its powers. When it does so, Congress

~

exercises a balancing function as important to the constitutional

scheme as the separation of powers.

(b) Ex Parte Klein's ban on rule of decision is inapplicable

RFRA is a permissible change of federal statutory law, not a

direction to courts how to decide specific cases. Nor does Klein

prohibit Congress from legislating a broadly applicable standard,

as opposed to specific rules.

ARGUMENT

I. RFRA DOES NOT ESTABLISH RELIGION

A. RFRA Does Not Impermissibly Favor Religion

Over Non-Religion

Petitioners first contend that RFRA violates the

Establishment Clause because it “privileges religion over all other

types of beliefs and [] meddles[] with the religious life of the

nation.”' [Cert. Petition at 19-20, Brief at 49.] This is an attack

not on RFRA, but on all religious accommodation. It asserts that

the government is required to be indifferent to the impact of its

policies on religion and that government can shape its actions to

accommodate all interests but religious ones. The argument

ignores numerous precedents.

Employment Division v. Smith, 494 US. 872 (1990),

implicitly rejects this argument. The majority there invited

1. The Act does not define religion. This Court's precedents have

alternatively insisted on a theistic definition of religion, Wisconsin v.

Yoder, 406 U.S. 205 (1972) and a non-theistic one, Welsh v. United

States, 398 U.S. 333 (1970), United States v. Seeger, 380 US. 163

(1965). The issue has not yet arisen in the RFRA context. Courts have

allowed RFRA claims to be made by members of a truly broad spectrum

of religions, including non-traditional ones. Plainly religion should be

given a generous construction so as not to set up government endorsed

criteria for religion, a construction that would avoid potential

constitutional difficulties. Cf Ashwander v. TWA, 297 U.S. 288 (1936).

-4-

legislative exemptions for religious practices. “[A] society that

believes in the negative protection accorded to religious belief

can be expected to be solicitous of that value in legislation as

well ....”. 494 U.S. at 890. Petitioners must believe that the

Court was urging legislatures to violate the Constitution.

It was not only Justice Scalia who recognized the legitimacy

of legislative exemptions. Before and after Smith, other Justices

(including every sitting Justice except Justice Breyer, who has

not yet considered the question), have rejected the argument that

legislative accommodation of religion necessarily establishes

religion:

[T]he Constitution allows the state to accommodate

religious needs by alleviating special burdens. ... [I]n

commanding neutrality the Religion Clauses do not

require the government to be oblivious to impositions

that legitimate exercises of state power may place on

religious belief and practice. Rather, there is “ample

room under the Establishment Clause for ‘benevolent

neutrality which will permit religious exercise to exist

without sponsorship and without interference ....””

(Citations omitted.)

Board of Educ. v. Grumet, 114 S.Ct. 2481 (1994). 114 S.Ct. at

2492-93 (Souter, Biackmun, Stevens, O'Connor and Ginsburg,

JJ.); id. at 2501 (Kennedy, J., concurring); id. at 2511-12 (Scalia,

Rehnquist and Thomas, JJ., dissenting). Those declarations

broke no new ground. Corp. of the Presiding Bishop v. Amos,

483 U.S. 327, 334-36 (1987); id at 341 (Brennan, J.,

concurring); id. at 347-48 (O'Connor, J., concurring); 7exas

Monthly v. Bullock, 489 U.S. 1, 17-21 (1989) (plurality opinion

of Brennan, J.); id. at 327 (concurring opinion of O'Connor, J.);

id. at 29-44 (Scalia, J., dissenting); Hobbie v. Unemployment

Appeals Comm'n, 480 U.S. 136, 145. n.11 (1985); Norwood v.

Harrison, 413 U.S. 455 (1977), Wisconsin v. Yoder, 406 U.S.

:%

205 (1972); Walz v. Tax C omm'r, 397 U.S. 664 (1970), Sherbert

v. Verner, 374 U.S. 398 (1963).

In 1961, this Court upheld Sunday Blue Laws against free

exercise challenges by Saturday Sabbath observers. While

observing that exempting Sabbatarian merchants might create

unfair competition, it nevertheless suggested that a statutory

exemption might be appropnate. Braunfield v. Brown, 366 U.S.

599, 608 (1961). A year later, it upheld just such a statute

against an Establishment Clause challenge by a competing

merchant. Arlan's Dep't Store v. Kentucky, 37\ U.S. 218

(1962).

Petitioners’ Establishment Clause argument is understandably

devoid of precedential support other than a_ half-hearted

invocation of the three-part test of Lemon v. Kurtzman, 403 US.

602 (1971). [Petitioners' Brief at 47-48.] The Lemon argument

was made, and rejected, in Amos’ for reasons that are equally

applicable here. In Amos, this Court applied the Lemon test to

the broad religious corporation exemption of Title VII, 42

U.S.C. §2000e-1(a), and found that a statute exempting

organizations from anti-discrimination law had the secular

purpose of “allevia(ting] significant governmental interference

with the ability of religious organizations to define and carry out

their religious missions.” Amos, 438 US. at 385. It did not have

the primary effect of advancing religion, in the Court's view,

because it merely allowed the church to do what it would have

done anyway. /d. at 337. And, even assuming that there is any

relevance of the entanglement test in the context of activities

other than recurring appropriations, Bowen v. Kendrick, 487

> The status of the three-part test is not entirely clear. Compare

Board of Educ. v. Grumet, 114 S Ct. at 2494-95 (Blackmun, J.) with id.

at 2498-99 (O'Connor, J.). The amici themselves are divided on the

desirability and vitality of that test.

i aN

ibe

U.S. 589 (1988), RFRA. wxe the Title VII exemption, does not

require any weighing of the relative importance of religious

beliefs, see Point I.B., infra, which would entangle courts in

religious questions.

i. Case Law Recognizes the

Permissibility of Accommodation

The argument from precedent for the facial invalidity of

accommodation rests on 7Jexas Monthly v. Bullock, 489 U.S. |

(1989), and Estate of Thornton v. Caldor, Inc., 472 U.S. 703

(1985). Neither sustains the argument. 7exas Monthly struck a

Texas sales tax imposed on secular, but not religious, magazines.

Even Justice Brennan's plurality opinion, the judicial high water

mark of Establishment Clause restrictions on accommodation,

sustains RFRA. Justice Brennan explained that an

accommodation which neither imposes substantial burdens on

third parties nor subsidizes religious practice in ways unrelated

to the alleviation of a burden on religious practice will not be

invalidated as an impermissible preference. 489 U.S. at 15 and

18, n.8. See also Board of Educ. v. Grumet, 114 S.Ct. at 2501

(Kennedy, J., concurring).

RFRA applies only when government imposes a substantial

burden on religious practice. It thus easily passes the second of

Justice Brennan's tests, that an accommodation ease a

governmental burden on religion. In the vast majority of cases,

religious accommodation does not impose a substantial burden

on others. Where it does, a state may well have a compelling

interest in not accommodating religion.

Justice Brennan's opinion did not command a majority.

Justice White concurred on freedom-of-the-press grounds.

Three Justices (per Justice Scalia) objected that Justice Brennan's

opinion tilted too far against free exercise, for “our cases make

plain that it is permissible for a State to act with the purpose and

effect of limiting governmental interference with the exercise of

Be

religion.” /d. at 40. Two other Justices (O'Connor and

Blackmun), while finding the Texas statute infirm for directly

subsidizing religious speech while not funding directly

competitive secular speech, also argued that Justice Brennan's

formulation cabined permissible accommodation too narrowly,

subordinating the Free Exercise Clause to the Establishment

Clause. /d. at 27. Taken together, nothing in these opinions

remotely sustains the claim that RFRA establishes religion.

Estate of Thornton v. Caldor, Inc., involved a statute that

absolutely required employers to accommodate the Sabbath

observances of their employees. Moreover, no religious practice

other than Sabbath observance was protected. As Justice

O'Connor noted in her concurrence, that case did not compel the

invalidation of more universal and flexible forms of

accommodation. 472 U.S. at 711-12. RFRA applies to all

religious practices. Its compelling interest defense provides the

flexibility wholly absent in Caldor, Inc.

ii. Legislative Precedents Support the

Constitutionality of Exemptions

Legal historians disagree whether exemptions were

mandatory or merely permissive in the early years of the

Republic, compare M. McConnell, Zhe Origins and Historical

Understanding of Free Exercise of Religion, 103 Harv. L.Rev.

1409 (1990) with P. Hamburger, 4 Constitutional Right of

Religious Exemption: An Historical Perspective, 60 Geo.

Washington L.Rev. 915 (1992). There is, however, no

gainsaying the fact that religious exemptions from neutral laws

have long been granted by legislatures.

The Constitution itself exempts those with religious

exemptions from taking the prescribed oath, Art. VI, cj. 3,

permitting an affirmation in its place. Congress soon followed

that policy for witnesses, an exemption which continues

uninterrupted to this day. 1 U.S.C. §1, s.v. - oath; 28 U.S.C. §

: 3

459, 953; Fed.R.Civ.P. 43(d); Fed.R.Evid. 603; MclIntire's Case,

Fed. Cas. No. 8,824 (C.C. Dist. Col. 1803). Conscientious

objectors have enjoyed an exemption from compulsory military

service from the earliest days of the Republic. United States v.

Seeger, 380 U.S. 163 (1965). Churches enjoyed the benefit of

real property tax exemption from an early date. Walz v. Tax

Comm'r, 397 U.S. 664 (1970).

James Madison, a leading separationist, proposed as part of

the Bil! of Rights guaranteeing the right of conscience against

state interference. Constitution of the United States of America:

Analysis and Interpretation (1987) at 963-64. Madison saw no

inconsistency between not establishing religion and insulating

individual believers from the coercive power of the state. In

short, wherever one looks for guidance, the position of

Petitioners runs athwart history.

B. RFRA Does Not Create Impermissible

Entanglement With Religion

A second argument made against RFRA is that it plunges

courts into the morass of deciding whether a practice is central

to the claimant's religion. See, e.g., Sasnett v. Sullivan, 91 F.3d

1018 (7th Cir. 1996), petition for cert. pending, No. 96-710.

Petitioners echo this claim. “The Act necessarily fails the

entanglement prong by forcing every government to become

expert on every religion.” [Petitioners' Brief at 48.] They warn

that legislatures will be forced to conduct official investigations

of the universe of religious beliefs in order to comply with

RFRA.

That argument rests on a misunderstanding. RFRA does not

invalidate any statute before it creates a substantial burden on

religious practice. No government need worry about the

possibility that a particular Act may some day trench on

someone's religious practice, nor need it conduct a survey of all

world religions to determine whether any adherents might be

-9-

affected by a proposed action. RFRA requires only that, when

a conflict is called to government's attention, it accommodate

that practice if not in conflict with a compelling interest.

Petitioners’ rhetorical specter of a government commission

investigating all religion is frightening; it merely has nothing to

do with RFRA.

Equally wrong is the argument that RFRA is entangling

because it applies only where a substantial burden is imposed on

a practice central to a faith. Centrality is not a threshold question

under RFRA. Nothing in the phrase “substantial burden”

necessitates an inquiry into centrality. The a “burden” threshold

is drawn from this Court's opinion in Sherbert v. Verner, supra,

374 US. at 403. Sherbert has survived Smith, Keeler v. Mayor

and City Council of Cumberland, 940 F Supp. 879 (Md. 1996).

But if the inquiry necessary to determine if a religious practice

imposes a substantial burden creates excessive entanglement,

Sherbert, too, fails on Establishment Clause grounds.

The sponsors of RFRA demonstrated a detailed

acquaintance with this Court's Free Exercise decisions. They

must be presumed to have been aware of this Court's holdings

that courts could not inquire into centrality. See Employment

Division v. Smith, 494 U.S. at 886-87; Lyng v. Northwest Indian

Cemetery Protective Assoc., 485 U.S. 435 (1988). Nothing in

the legislative history suggests that Congress insisted on such an

inquiry for RFRA. Familiar canons counsel against reading a

statute to create a constitutional difficulty. Ashwander v. TWA,

297 U.S. 288 (1936). Several courts have rejected a centrality

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

Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996); Jolly v.

Coughlin, 76 F.3d 468 (2nd Cir. 1996); The Jesus Center v.

Farmington Hills ZBA, 215 Mich.App. 54, 544 N.W.2d 698

(1996). Contra, e.g., Small v. Lehman, 98 F.3d 762 (3rd Cir.

1996). As the Second Circuit put it:

-10-

[T]he judiciary has but a “limited function ... in

determining whether beliefs are to be accorded [RFRA]

protection.” Cur scrutiny extends only to whether a

claimant sincerely scolds a particular belief and whether

the belief is religious in nature. Any inquiry any more

intrusive would be inconsistent with our nation's

fundamental commitment to individual religious

freedom; thus, courts are not permitted to ask whether

a particular belief is appropriate or true—however

unusual or unfamiliar the belief may be.

76 F.3d at 476 (citations omitted).

The “substantial burden” language of §2000bb-1 is not

rendered superfluous by this reading. Some religion-state

conflicts can be avoided without any compromise of religious

practice. In Zony and Susan Alamo Foundation v. Secretary,

471 U.S. 290 (1985), a church challenged a ruling requiring it to

pay adherents working in church enterprises the minimum wage.

The church objected that its adherents were religiously bound not

to enrich themselves at its expense, and that their receipt of

wages from the church interfered with that obligation. This

Court noted, however, that adherents remained free to donate

their earnings to the church or to be paid with in-kind services.

The challenged statute worked no burden on the church that it

could not avoid without modifying its religious practices.

RFRA's “substantial burden” language codifies this holding.

The “substantial burden” test also excludes claims where the

secular burden is too trivial to coerce religious behavior or to

serve as a likely vehicle for discriminating against unpopular

faiths. Sherbert rests on the insight that substantial indirect

penalties on religious practice coerce religious behavior as much

as a direct ones. But some secular benefits are trivial and their

denial no burden. In Smith v. North Babylon School District,

844 F.2d 90 (2d Cir. 1988), a student objected to the scheduling

it

of her high school graduation on her Sabbath. She asserted that

the school was obligated to accommodate her by rescheduling it.

The Second Circuit held that the benefit of attendance at

graduation was too insignificant to exert pressure on Smith to

compromise her faith. This rule, too, is embodied in the

“substantial burden” language.

C. RFRA's Broad Scope Minimizes the Likelihood

of Religious Favoritism in the Granting of

Accommodation

Petitioners insist that accommodation should be worked

retail (despite their apparent inconsistence with almost all of their

Establishment Clause argument [Petitioners’ Brief at 48]). Such

exemptions, often designed to alleviate the problem of a

particular faith group, may be granted unfairly by legislatures,

which may well respond only to powerful, popular and

sympathetic religions. See Smith, 494 U.S. at 890.

That ad hoc potential is not without potentially serious

constitutional repercussions. “The anomalous case-specific

nature of ... legislative authority ... leaves the Court without any

direct way to review such state action for the purpose of

safeguarding a principle at the heart of the establishment clause,

that government should not prefer one religion to another, or

religion to non-religion.” Board of Educ. v. Grumet, supra, 114

S Ct. at 2491. Id. at 2497 (O'Connor, J., concurring).

RFRA requires religious accommodation wholesale. It

allows any faith, no matter how small, unpopular or politically

ineffectual, to press its claims before a neutral arbiter under an

objective and religiously neutral standard. The consideration and

adjudication of RFRA claims facilitates judicial review for

fairness and minimizes favoritism to the vanishing point.

Petitioners ask this Court to choose between their retail model,

which virtually invites religious favoritism, and RFRA's wholesale

approach, far less susceptible to manipulation. There is no

o} 2

question as to which policy poses less risk to Establishment

Clause values.

Petitioners construe the Establishment Clause to require the

government to ignore the impact of its practices on religious

observers. They have forgotten this Court's declaration that the

Constitution does not require that. Zorach v. Clauson, 343 U.S.

306 (1952). Moreover, without the ability to exempt religious

belief from the scope of neutral regulation, legislatures would

often be forced to choose between legislating for the public good

or imposing rules on religious institutions and individuals that

force a violation of their view of God's will, a result public

opinion will often not tolerate. In areas as diverse as abortion,

gay rights, landmark preservation, employment and public

education, the result will be a reluctance to legislate altogether.

Thirty-five years ago, Justices Goldberg and Harlan warned

against reading the Establishment Clause to require an all

pervasive secularism. School District of Abington Township v.

Schempp, 374 U.S. 203, 306 (1963) (concurring opinion).

Petitioners invite this Court to ignore that warning. Their

invitation should be declined.

Il. RFRA WAS AN APPROPRIATE EXERCISE OF

CONGRESS' POWER UNDER § 5 OF THE

FOURTEENTH AMENDMENT

Congress’ power to enact RFRA turns on the scope of § 5

of the Fourteenth Amendment. Petitioners argue for a narrow

reading of that power, particularly on some of the broader

reaches of Morgan v. Katzenbach, 384 U.S. 641 (1966). Amici

believe that Petitioners read the Fourteenth Amendment too

narrowly. As interesting as the question of the scope of § 5 is, it

is unnecessary to reach it. RFRA easily fits within the narrowest

possible reading of § S—that Congress has the power to ensure

that core prohibitions of the Amendment are effectively

redressed

Pre ee. ee ee

it

A. RFRA Facilitates Enforcement of the Ban

Against Religious Discrimination

The Free Exercise and the Equal Protection Clauses prohibit

intentional governmental discrimination against religion generally

or against a specific religion, Rosenberger v. Rector, 115 S.Ct.

2510 (1995); Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993); Larson v. Valente, 456 U.S. 228

(1982). So would a discretionary action by a local body, such as

a zoning board, designed to exclude a particular faith. Leblanc-

Sternberg v. Fletcher, 67 F.3d 412 (2nd Cir. 1995). That ban

on religious discrimination is not circumvented by cloaking

discrimination in neutral garb, just as the bar on racial

discrimination is not elided by overt neutrality. Church of the

Lukumi Babalu Aye, supra, cf. Underwood v. Hunter, 471 U.S.

222 (1985). Even a facially neutral statute or act should be

struck if motivated by religious bias. Unfortunately, such animus

is hard to document.

Church of the Lukumi Babalu Aye considered a facially

neutral ordinance banning animal slaughter. The City of Hialeah

asserted health, sanitation and animal rights justifications when

challenged by the church whose religious ritual of animal sacrifice

was outlawed by the ordinances. After a nine-day trial, a

seasoned district court judge found no evidence of religious

discrimination. 723 F.Supp. 1467 (S.D. Fla. 1989). Three

experienced circuit judges affirmed. 936 F.2d 586 (11th Cir.

1991).

This Court unanimously reversed. Carefully parsing the

ordinances and reviewing the history of their enactment, it

concluded that the ordinances had the purpose of suppressing the

Santeria faith. But even the members of this Court could not

agree on a methodology. Compare 508 U.S. at__; /d at

(Scalia, J., concurring), /d. at ___—s- (Souter, J,

concurring). Other courts have only with difficulty unmasked

-14-

religious bigotry. Mississippi Islamic Center v. City of

Starkville, 876 F.2d 465 (Sth Cir. 1989) (variance); Campos v.

Coughlin, 854 F.Supp. 194 (S.D.N.Y. 1994).

Public officials are aware that outright expressions of

religious hostility are politically unacceptable and legally

indefensible. As Judge Jerome Frank observed:

Persons engaged in unlawful conduct seldom write

letters or make public pronouncements explicitly stating

their attitudes or objectives; such facts must usually be

discovered by inference; the evidence does not come in

packages labelled “Use me”, like the cake, bearing the

words “Eat me,” which Alice found helpful in

Wonderland.

F.W. Woolworth v. NLRB, 121 F.2d 658, 660 (2d Cir. 1941).

The drawing of inferences is a more difficult manner of proof

than the use of direci evidence. It is fraught with uncertainty and

the possibility of mistake. Congress had every reason to believe

that the result would be religious discrimination going

undetected. Congress was not just speculating. It heard

extensive testimony to this effect from religious liberty

practitioners.

Because many of its members began their careers at the local

level, Congress was aware of the subt!e ways in which bias can

be disguised behind ostensibly neutral decisionmaking. Members

were also aware that the more powerful churches are able to

shape legislation to avoid conflicts with their religious practices.

Smaller, less organized faiths are unable to protect themselves in

the process either because they are unaware of it, or because of

outright bias. To take an obvious case, Kosher ritual slaughter

was permitted under the Hialeah ordinances, but Santeria ritual

slaughter was not. Church of the Lukumi Babalu Aye v. City of

Hialeah, supra, 508 U.S. at _.

hh.

That the concern about hidden bias is weighty is illustrated

by landmark preservation law. Whether a particular building is

important enough to be landmarked, whether a particular

alteration would destroy its historical value, and whether

hardship has been demonstrated, are all highly discretionary

judgments, easily subject to manipulation by multi-member

decision making bodies in pursuit of religious or anti-religious

agendas. Congress could and did readily conclude that

discretionary decisionmaking is not easily reviewed for bias:

After Smith, claimants will be forced to convince courts

that an inappropriate legislative motive created statutes

and regulations. However, legislative motive often

cannot be determined and courts have been reluctant to

impute bad motives to legislators.

H.R. Rep. 103-88 at 6.

The Senate Committee likewise found that governmental

bodies will rarely reveal their intent to deliberately disadvantage

religious minorities. It agreed with Justice O'Connor's

observation that “few States would be so naive as to enact a law

directly prohibiting or burdening a religious practice as such.”

S.Report 103-111 (103rd Cong. Ist Sess.) at 7. See also 42

U.S.C. 2000bb(a)(2) (same).

Moreover, this judgment finds empirical support in the

related and equally discretionary area of church zoning. If one

reviews church zoning cases decided in the last ten years, for

example, one is struck by the inverse relationship between the

size of a church and the number of church zoning cases involving

it. There are at most a handful of cases involving Catholic,

Methodist or Episcopal churches but dozens involving small

evangelical churches and Orthodox Jewish synagogues. There is

more than one reason for this phenomenon, but bias by

decisionmakers (and communities) is surely an important one.

-16-

Indeed, if the testimony of religious liberty experts were not

sufficient, and if the knowledge of members of Congress did not

carry the burden of demonstrating that neutral laws often mask

discrimination, this Court's decision in Smith would fill in the

gap. The majority there acknowledged that the discriminatory

availability of accommodation was one likely result of its

judgment. 494 US. at 890.

RFRA ferrets out bias by requiring proof of a legitimate

motive when government imposes a substantial burden on

religious exercise. The compelling interest test, coupled with the

least restrictive alternative inquiry, screens out those cases where

the government's interest is not truly secular, but intended to

suppress or disadvantage a faith. The stringency of the

compelling interest test, and the requirement of a close fit

between means and ends, are well designed to ensure that hidden

bias does not go undetected.

B. Congress Has Broad Power to Guard Against

Purposeful Religious Prejudice

It is common ground that within its sweep, the § 5 power is

broad indeed. Like the enumerated powers of Art. I, § 8, the §

5 power includes:

Whatever legislation is appropnate, that is, adopted to

carry out the objective the amendments have in view,

whatever tends to enforce submission to the

prohibitions they contain, and to secure all persons the

enjoyment of perfect equality of civil nghts and the

equal protection of the law against State denial or

invasions, if not prohibited, is brought within the

domain of congressional power.

Ex Parte Virginia, 100 U.S. 339, 345-46 (1879).

Surely, Congress may “enforce submission to the

prohibition” on intentional religious discrimination. Where a

“violation lurks,” Congress may act. EEOC v. Wyoming, 460

ola

U.S. 226, 260 (1983) (Burger, C.J., dissenting). RFRA prohibits

some actions that are not intentionally biased, but that sweep is

constitutionally appropriate given the legitimate concern with

“lurking” intentional religious discrimination and the difficulties

of proof.

This broad power trumps the reserved power of the states.

Speaking in the analogous context of the Fifteenth Amendment,

this Court wrote: “As against the reserved powers of the States,

Congress may use any rational means to effectuate the

constitutional prohibition of racial discrimination in voting.”

Moreover, “Congress may take steps to permit litigation against

states ...constitutionality impermissible in other contexts.”

Fitzpatrick v. Bitker, 427 U.S. 445, 453, n.9 (1976). Accord

City of Rome v. United States, 446 U.S. 156, 172-78 (1980).

But Petitioners say [Brief at 35-36] that Congress did not

make explicit findings that official religious discrimination is a

substantial problem. This reflects the view of Justice Harlan,

dissenting in Morgan v. Katzenbach, supra. The majority of the

Court, though, held otherwise. “It is enough that we can

perceive a rational basis for Congress to have acted as it did.”

384 U.S. at 652-53. What has been said above about the

existence of religious discrimination certainly satisfies this

requirement. Petitioners’ brief (/d.) can also be read to require

Congress to consider the consequences of its lawmaking.

Nothing in Morgan v. Katzenbach.

In Fullilove v. Klutznick, 448 U.S. 448, 477 (1980), this

Court reiterated that formal findings were unnecessary in

upholding an act that lacked them: “Congress, of course, may .

legislate without compiling the kind of ‘record’ appropriate with

respect to judicial or administrative hearings.” Justice Powell,

concurring, likewise rejected such a requirement:

[C]ongress is not expected to act as though it were

duty bound to find facts and make conclusions of law.

-18-

The creation of national rules for the governance of our

society simply does not entai! the same concept of

recordmaking that is appropriate to a judicial or

administrative proceeding. Congress has no

responsibility to confine its vision to the facts and

evidence adduced by particular parties. Instead, its

special attribute as a legislative body lies in its broader

mission to investigate and consider all facts and

opinions that may be relevant ....

448 US. at 502-03.

C. RFRA is But the Latest Example of Congress’

Exercise of a Broad § 5 Power

Congress has repeatedly prohibited conduct which is not

itself illicit in order to ensure that prohibited conduct does not

go unremedied.

i. Title VII and the States

A state violates the Equal Protection Clause only if it

deliberately discriminates. M.L.B. v. S.L.J., 65 U.S.L.W. 4035,

4042 (1996). A law which merely has an adverse impact is not

unconstitutional. Personnel Administrator v. Feeney, 442 U.S.

256 (1979). Nevertheless, relying on § 5, Congress extended

Title VII's adverse impact theory to the states on the ground that

barring de facto discrimination was an appropriate way of

ensuring that sophisticated forms of intentional discrimination did

not go undetected. Fitzpatrick v. Bitker, 427 U.S. 445, 453, n.9

(1976); M. Pawa, When The Supreme Court Suppresses

Constitutional Rights, Can Congress Save Us?, 141 U.Pa. L.Rev.

1029, n. 369 (1993) (collecting cases). RFRA is similarly

justified.

ii. The Voting Rights Act

Congress’ remedial powers were again invoked in City of

Rome v. United States, 446 U.S. 156 (1980). Simultaneously

-19-

with its decision that the Fifteenth Amendment barred only

intentional discrimination, City of Mobile v. Bolden, 446 U.S. 55

(1980), the Court upheld Congress’ power to prohibit electoral

changes having the effect of causing a retrogression in minority

political power (42 U.S.C. § 1973):

[T]he Act's ban on electoral changes that are

discriminatory in effect is an appropriate method of

promoting the purposes of the Fifteenth Amendment,

even if it is assumed that § | of the Amendment

prohibits only intentional discrimination in voting.

Congress could rationally have concluded that, because

electoral changes by jurisdictions with a demonstrable

history of intentional racial discrimination in voting

create the risk of purposeful discrimination, it was

proper to prohibit changes that have a discriminatory

impact.

Congress in 1982 extended the effects test to all Voting

Rights Act ("VRA") claims, including those arising under § 2.

Thornburg v. Gingles, 478 U.S. 30 (1986). That extension, too,

was unsuccessfully challenged. /ordan v. Winter, 604 F.Supp.

807 (N.D. Miss. 1984), affd sub nom, Mississippi Republican

Executive Committee v. Brooks, 469 U.S. 1002 (1985), citing

Major v. Treen, 574 F.Supp. 325, 342-49 (E.D. La. 1983).

Major explained:

Congress ... determined ... that the intent test

inordinately burdened plaintiffs in vote dilution cases,

was unnecessarily divisive due to the charges of racism

which must inevitably be leveled against individual

officials or entire communities, and ... compelled

protracted, often futile, inquiries into the motives of

Officials who acted many years ago. .... Congress

enact[ed] a legislative prophylaxis, calculated to

forestall the iwistitution of potentially discriminatory

-20-

electoral systems and extirpate facially neutral devices

or procedures which continue to expose minority voters

to harmful consequences rooted in _ historical

discrimination. (Citations omitted.)

The same rationale justifies VRA's ban on literacy tests. 42

U.S.C. §1973aa. Fairly administered, such tests are

constitutional, Lassiter v. Northampton County Bd. of Elections,

360 U.S. 45 (1959). Nevertheless, this Court in Sowth Carolina

v. Katzenbach, 383 U.S. 307, 333-35 (1966), upheld a temporary

Statutory ban on literacy tests as against the claim that by

preempting the judicial process of case-by-case litigation the Act

violated the Court's core role of enforcing the Fourteenth

Amendment. “On the contrary, § 2 of the Fifteenth Amendment

expressly declares that Congress shall have power to enforce ....

[The Framers] indicated that Congress was to be chiefly

responsible for implementing the rights ...” protected by the

Amendment. /d..at 325.

RFRA cannot be distinguished from the VRA cases on the

ground that instances of religious bigotry are outweighed by a

larger number of cases where bias is absent and hence that RFRA

is too strong a remedy for whatever problem exists. How much

undetected or unremedied bias to tolerate is a legislative

question. Thus, under § 5 of the VRA (another exercise of

Congress § 5 power) the Justice Department in 1995 interposed

19 objections out of a total of 3987 preclearance submissions.

(Copies of the reports are lodgec with the Clerk.) The question

calls for a political judgment, one the Constitution commits to

Congress.

Oregon v. Mitchell, 400 U.S. 112 (1970), upheld a

permanent statutory ban on literacy tests. The multiple opinions

of the Court were summarized in Fullilove:

The [Mitchell] Court was unanimous, albeit in separate

opinions, in concluding tha: Congress was within its

Wim a ce rere ot ee a ee

21.

authority to prohibit the use of such voter

qualifications, Congress could reasonably determine

that its legislation was an appropriate method of

[foreclosing the possibility that purposefully

discriminatory administration of literacy tests would

escape undetected and] attacking the perpetuation of

prior purposeful discrimination, even though the use of

these tests or devices might have discriminatory effects

only. (citations omitted).

448 U.S. at 477.°

Similar reasoning has lead courts to uphold application of

the Americans With Disabilities Act to state prisons. See

Kaufman v. Carter, 1996 W.L. 731925 (E.D. Mich. 1996), Niece

v. Fitzner, 941 F.Supp. 1497, 1500-04 (E.D. Mich. 1994);

Armstrong v. Wilson, 942 F.Supp. 1252, 60-61 (N.D. Cal.

1996).

D. The Framers of the Fourteenth Amendment

Intended to Protect Religious Liberty

Chief Justice Rehnquist's dissent in Hutto v. Finney, 437

U.S. 678, 717-18 (1982), suggests that § 5 is broad only when

applied to the guarantee against racial discrimination. No

suggestion to this effect appears in any of the cases discussing

the scope of Congyess' power under § 5. It is supported neither

by the text of the Fourteenth Amendment nor the ratification

debates. Congress and the Courts have not acted as if such a

limitation existed. Section 1983 is used equally to enforce the

3. Fullilove, 448 U.S. at 476-80 used this same analysis with

regard to congressional power to enact contract set-asides. Adarand

Contruction, Inc. v. Pena, 115 S.Ct. 2097 (1995), restricts the use of

contract set-asides not because Congress lacks the power to enact broad

remedies tor discrimination, but because the Equal Protection Clause

imposes special restraints on the use of race conscious remedies.

23.

Due Process Clause, the Equal Protection Clause, and other

incorporated rights.

Moreover, the legislative history of the Fourteenth

Amendment demonstrates an intention to protect the frve

exercise of religion from state intrusion, including impingem. *t

by facially neutral laws. K. Lash, 74e Second Adoption of the

Free Exercise Clause: Religious Exception Under the

Fourteenth Amendment, 88 N.W.U. L.Rev. 1106 (1994).

Professor Lash demonstrates that, because the Fourteenth

Amendment grew out of the national crisis over slavery, one of

its goals was protecting religious liberty.

Sometimes invoking facially neutral laws, defenders of

slavery silenced abolitionist religious voices and prevented slaves

from having access to their religious materials. /d. at 1131-33.

As Professor Lash puts it, “[t]he architects of the Fourteenth

Amendment were well aware of how slavery had resulted in the

suppression of religious exercise,” /d. at 1146. They were

determined to prevent a repetition:

Religious exercise was to be protected from

majoritarian hostility or indifference; it was to be a

substantive right affording more than simply “equal

protection”; and its protection created a zone of

autonomy within which both mandatory and

discretionary aspects of religious exercise were

protected from government interference. Most

important, by explicitly targeting “religiously neutral”

laws as examples of what would become

unconstitutional with the passage of the Fourteenth

Amendment, men like Join Bingham and Lyman

Trumbull gave notice that in the future, generally

applicable laws might sometimes impermissibly violate

an individual's religious liberty.

88 N.W.U. L.Rev. at 1149.

obtran.

93.

E. The Legal and Political Background of the Fourteenth

Amendment Supports Congress’ Power To Enact RFRA

The fit between RFRA and the power of Congress to make

certain that core violations of the Fourteenth Amendment do not

go undetected and unremediated, does not exhaust the possible

bases for an exercise of power under § 5. While others address

these bases in a more comprehensive way, we believe that it is

important to note that the political and legal background against

which § 5 was written makes it unlikely that its drafters intended

it to be given the narrow reading suggested by Petitioners. There

is substantial reason to think that § 5 was intended to empower

Congress to go beyond what the Constitution requires, provided

only that it does not violate some other constitutional provision.

Section 5 reallocated power between the national legislature

and the judiciary, and between the federal government and the

states, because of abuses revealed during the slavery crisis. Dred

Scott v. Sanford, 60 (19 Howard) U.S. 393 (1857), and Ableman

v. Booth, 62 U.S. 506 (18£8}, helped spark the Civil War.

Rectifying these judicial ‘mistakes’ was a primary goal of the

drafters, A.Amar, Zhe Bill of Rights and the Fourteenth

Amendment, 101 Yale L.J. 1193, 1222-24 (1992). Those who

enacted the Fourteenth Amendment were not about to entrust

their handiwork solely to the same courts that had protected

slavery. Section 5 insured that the Congress could define the

rights protected by the Amendment, provided only that it

observed the minimum standards imposed by the Amendment

itself—the so-called one way ratchet. City of Richmond v. J.A.

Crosson, 488 U.S. 469, 490 (1989) Opponents of ratification

argued unsuccessfully that the Amendment should not be ratified

because § 5 threatened federalism. See generally, J.B. James,

f the Fourteenth Am nt (1984).

Moreover, under then prevailing aaibinaeiaie theory, there

was no need to include § 5 to authorize Congress to implement

§ 1. In Prigg v. Pennsylvania, 42 U.S. 539 (1842), the Supreme

Court held that, given the Constitution's protection for slave

-24-

ownership, Congress had the authority to protect it even without

an explicit grant of power:

If ... the Constitution guarantees the right ... the

natural inference certainly is, that the national

government is clothed with the appropriate authority

and functions to enforce it. The fundamental principle

.. would seem to be, that where the end is required,

the means are given; and where the duty is enjoined, the

ability to perform it is contemplated to exist on the part

of the functionaries to whom it 1s entrusted.

42 US. at 615-16. (Citations oriitted.)

Supporters of the Fourteenth Amendment repeatedly

invoked Prigg. E.M. Maltz, Civ,l Rights, The Constitution and

rarer 1863-69, 64-66 gaa R.J. Kaczorowski, The

i f Civil Righ nstitution

Ps np mr 1866- 1883 (1987) at 97. This Court

has acknowledged Prigg to be the governing law at the time the

Fourteenth Amendment was adopted. Quern v. Jordan, 440

U.S. 332, 343, n.14 (1979); Monnell v. City of New York, 436

U.S. 658, 672 (1988). It follows that § 5 was unnecessary to

allow Congress to enforce §1 as written, but must have meant

something more.

This political and legal background establishes that the

drafters of the Fourteenth Amendment intended Congress to

have broad latitude to assert its legisiative power, and that the §

5 power is not narrowly confinec to the exact metes and bounds

of § 1. A more clear-eved presc-iption for RFRA could hardly

be imagined.

Il. RFRA IS FULLY CONSISTENT WITH THE

SEPARATION OF POWERS

Petitioners’ separation of powers argument is even less

substantial. Stripped to its essentials, the claim is that once this

Court interprets the Constitution 1eading to certain real world

results, Congress may do nothing to reach a different real world

4.

result. Petitioners are not clear about the basis of this rule, but

it appears to be motivated by a ruie against judicial /ese majeste.

The point appears, moreover, to be one of timing. Had RFRA

preceded Smith, it would not violate the separation of powers.

It is the act of responding to this Court's decision which

generates the argument.

Petitioners make this claim—for which they cite no

precedent—in the face of this Court's invitation in Smith for

legislative accommodation. Petitioners do not and cannot

explain why Congress’ response to that invitation is

unconstitutionally disrespectful of the Court's authority.

Petitioners’ claim is also belied by well-worn political paths and

judicial precedents.

A. Separation of Powers Doctrine Does Not Bar

Corrective Legislation

Lassiter v. Northampton County Bd. of Elections, supra,

held that the use of literacy tests was within the authority of the

states to regulate the franchise. Tne VRA banned them. 42

U.S.C. §1973aa. Courts now decide challenges to literacy tests

under a statutory standard, not a constitutional one; just as

accommodation cases are now decided under a statutory

standard, not a constitutional cue. This Court has twice

sustained these voting rights provisions. Oregon v. Mitchell,

supra, South Carolina v. Katzenbach, supra.

In City of Mobile v. 3olaen, suvra, the Court held that de

facto voting discrimination did not violate either the Fifteenth

Amendment or the Voting Rights Act. This Court emphasized

that there were important policy reasons to permit the states to

use electoral devices with adverse racial consequences. 446 U.S.

at 78-80; id. at 88-90 (Steven, J., concurring). Congress

promptly amended the VRA to ban de facto electoral

discrimination. 42 U.S.C. §1973. The :egislative history of

those amendments is as sharply critizal of Bo/den as the RFRA

-26-

Congress was of Smith. This revised statute has irrevocably

changed the shape American poltics.

Zurcher v. Stamford Daily, 436 U.S. 547 (1978), holds that

the Fourth Amendment imposed no special restraints on searches

of newspaper offices for evidence. This Court's opinion

emphasized the importance to law enforcement of obtaining all

possible evidence without delay or obstruction. 436 U.S. at 560-

63. Congress did not agree with this Court's weighing of the

respective interests of the press and police. The Privacy

Protection Act of 1980, adopted the position of the Zurcher

dissenters. 42 U.S.C. §2000aa. That newly created statutory

right interfered with state interesis recognized as valid by this

Court.

Congress’ willingness to sidestep the Court's constitutional

decisions—subject to leaving the decision itself in place as an

authoritative interpretation of the Constitution—is not limited to

the field of civil rights. The Commerce Clause invalidates state

regulation that interferes with the national market contemplated

by the Constitution. Yet Congress has the power to tolerate just

such interference under Art. I, § 8. This Court has even invited

legislative revision of its Commerce Clause decisions. See, e.g.,

Barclays Bank PLC v. Franchise Tax Board, 114 §.Ct. 2268,

2286 (1994).

B. RFRA Does Not Impose a Rule of Decision

Ex parte Klein, 13 Wal!.128 (1872) said that Congress may

not prescribe a rule of decision for che courts, a holding that one

court says invalidates RFRA. Kee/er v. Mayor and City of

Cumberland, 928 F.Supp. 59! (D. Md. 1996). It does not.

Klein refused to enforce a statute directing the courts to ignore

a presidential pardon. Ki/eir is most narrowly read to stand only

for the noncontroversial proposition that Congress may not

undermine the presidential paraon power. RFRA trenches on no

power exclusively committed to another branch. Congress did

at.

say that the Free Exercise Clause means something other than

what this Court says it means.

Even read more broadly, K/e/n does not invalidate RFRA.

Every statute provides a rule for deciding disputes of decision.

There is a dispositive difference between a legislature changing

the law and acting as a super fact-finder. The former is the

everyday business of legislatures, the latter intrudes upon the

courts’ core function. RFRA falls into the permissible category.

Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992),

involved an environmental dispute. With litigation pending,

Congress compromised the competing claims. The Ninth Circuit

invalidated the compromise because i* impacted on the litigation,

purportedly in violation of K/ein. This Court reversed, because

Congress had changed the underlying substantive law.

“Whatever the precise scope of K/ein ... later decisions have

made clear that its prohibition does not take hold when Congress

‘amend{[s] applicable law,’ Roberison v. Seattle Audubon Society,

503 U.S. 429, 441 (1992).” Piaut v. Spendthrift Farms, Inc.,

115 S.Ct. 1447 (1995). RFRA fits this moid precisely.

C. Klein Does Not Proscribe Use of Legislative

Standards

Keeler also invalidated RFRA because it was supposedly

directed not at regulating the conduct of government officials,

but solely at judges. 928 F.Supp. at 603-04. It reasoned that

RFRA does not dictate results in specitic cases (e.g., protecting

peyote consumption) but instead only prescribes a standard for

determining which religious activities are protected. This

reasoning is flawed. RFRA .s not <.rected solely at the courts.

It tells officials that they must take religious practice into

account, and how they must do so. State and federal agencies

are bound to abide by RFRA. Siaie attorneys general have

applied it. Ark. O.A.G., 93-414, (1994); Md. O.A.G., Opinion

-28-

94-037 (1994) (landmark preservation law fails RFRA). Only

where there is a bona fide dispute is RFRA applied by a court.

RFRA's use of a “standard” as opposed to a specific rule is

hardly unprecedented. Title VII prohibits state and local

governments from using employment criteria that adversely

impact minorities without justification. 42 U.S.C. §2000e-2. It

does not say that specified criteria are illegal. The amended § 2

of the Voting Rights Act, 42 U.S.C. §1973, adopted by Congress

in response to—indeed, by way of reiection of—Bolden, supra,

cf Thornburg v. Gingles, 478 U.S. 30, 43-44 (1986); Jd. at 83-

84 (O'Connor, J., concurring), does not proscribe any particular

voting procedure. Modelling itself after a series of judicial

decisions, it establishes a standaid, not a muse.

Given the complexities of modern life, a rule proscribing

generalized legislative standards wouid be wholly impracticable.

It would also be a judicial intrusion on a grand scale into the

operation of the legislature.

D. RFRA is Fully Consistent With

Marbury and Cooper

Neither Marbury v. Madison, 5 U.S. 137 (1803), nor

Cooper v. Aaron, 358 U.S. 1 (1958), holds that congressional

action revisiting constitutional issues passed on by the Court is

per se improper. Marbury merely holds that the Court is

empowered to decide constitutiona! questions in cases properly

before it. It does not say that no other branch acting within the

proper scope of its constitut.cnal au:aority can ameliorate the

effects of a judicial decision. The holding of Cooper is that states

may not unilaterally defease individval rights protected by the

Fourteenth Amendment. Couper is not a separation of powers

case, but a preemption case.

That the Court has allowed Congress to ameliorate the

practical implications of its decisions in favor of greater

protection for individual rights than the Constitution provides, is

-29-

not mere prudence on its part. Rather, it reflects this Court's

principled commitment to reconciling the separation of powers

with checks and balances:

While the Constitution diffuses power the better to

secure liberty, it also contemplates that practice will

integrate the dispersed powers into a workable

government. It enjoins upon its branches separateness

but interdependence, autonomy dut reciprocity.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635

(1952) (Jackson, J., concurring).

“Separation of power principles are vindicated, not

disserved, by measured cooperation between two political

branches ... each contributing to a lawful objective throughout

its own processes.” Loving v. U.S., 116 S.Ct. 1737, 1751

(1996). Thus, while only < court can convict someone of a

crime, the President may nevertheless grant a pardon premised on

the conclusion that the judiciary erroneously assessed guilt. The

“Framers understood ‘that a hermetic sealing off of these three

branches of Government ‘rom o.1€ another would preclude the

establishment of a Nation capasle of governing itself

effectively.”” /d. at 1743 citing Buckley v. Valeo, 424 US. 1,

121 (1976).

Loving does reassert the principle that one branch may not

intrude on the core functions of another. RFRA does not violate

that principle. The courts have the final say on what the

Constitution means. In enacting RFKA, Congress did not usurp

that role. Even today, the Free Exercise Clause means what

Smith said it means. Moreover, Congress can repeal or modify

RFRA at any time. It has already considered repealing RFRA as

it applies to prisons. S.1093, 104th Cong., Ist Sess., Cong.Rec.

(S)10895 (July 28, 1995). Congress cannot ‘repeal’ Smith or

Sherbert.

-30-

CONCLUSION

The judgment below, that RFRA is facially constitutional,

should be affirmed. |

Respectfully submitted,

Marc D. Stern

American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 360-1545

January 9, 1997

Oliver S. Thomas

Special Counsel

NATIONAL COUNCIL OF CHURCHES

2708 Montvale Road

Maryville, TN 37801

(423) 977-9046

J. Brent Walker

BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS

200 Maryland Avenue

Washington, D.C. 20002-5797

(202) 544-4226

Steven T. McFarland

Center for Law and Religious Freedom

CHRISTIAN LEGAL SOCIETY

4208 Evergreen Lane - Suite 222

Annandale, VA 22003

(703) 642-1070

Aron U. Raskas

Nathan Diament

UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA

333 Seventh Avenue

New York, NY 10001

(212) 563-4000

Michael Farris

HOME SCHOOL DEFENSE ASSOCIATION

P.O. Box 159

Paeonian Springs, VA 22129

(703) 338-5600

Samuel Rabinove

Richard Foltin

AMERICAN JEWISH COMMITTEE

165 East 56th Street

New York, NY 10022

(212) 751-4000

Elliot Mincberg

PEOPLE FOR THE AMERICAN WAY

2000 M Street, N.W.

Washington, DC 20036

(202) 467-4999

David Zwiebel, Esq.

AGUDATH ISRAEL

84 William Street

New York, NY 10038

(212) 797-9000

Steven R. Shapiro

AMERICAN CIVIL LIBERTIES UNION

132 West 43rd Street

New York, NY 10036

(212) 382-0557

Steven K. Green

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE

1816 Jefferson Place

Washington, DC 20036

(202) 466-3234

Jack F. Trope

ASSOCIATION OF AMERICAN INDIAN AFFAIRS

P.O. Box 268

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(605) 698-3998