freedom is a bedrock principle in our nation. The bill we are introducing
today reflects our commitment to protect religious freedom and our belief
that Congress still has the power to enact legislation to enhance that
freedom, even after the Supreme Court's decision in 1997 to strike down
the broader Religious Freedom Restoration Act that 97 Senators joined
in passing in 1993.
striking down the Religious Freedom Restoration Act on constitutional
grounds, the Court clearly made the task of passing effective legislation
to protect religious liberties more difficult. But too often in our society
today, thoughtless and insensitive actions by governments at every level
interferes with individual religious freedoms, even though no valid public
purpose is served by the governmental action.
goal in proposing this legislation is to reach a reasonable and constitutionally
sound balance between respecting the compelling interests of government
and protecting the ability of people freely to exercise their religion.
We believe that the legislation being introduced today accomplishes this
goal in two areas where infringement of this right has frequently occurred
application of land use laws, and treatment of persons who are institutionalized.
In both of these areas, our bill will protect the Constitutional right
to worship, free from unnecessary government interference.
numerous Congressional hearings on religious liberties, the evidence is
clear that local land use laws often have the discriminatory effect of
burdening the free exercise of religion. It is also clear that institutionalized
persons are often unreasonably denied the opportunity to practice their
religion, even when their observance would not undermine discipline, order,
or safety in the facilities.
upon the findings from Congressional hearings, we have developed a bill
upon well-established constitutional authority —
will protect the free exercise of religion in these two important areas.
Our bill has the support of the Free Exercise Coalition, which represents
over 50 diverse and respected groups, including the Family Research Council,
Christian Legal Society, American Civil Liberties Union, and People for
the American Way. The bill also has the endorsement of the Leadership
Conference for Civil Rights.
broad support that this bill enjoys among religious groups and the civil
rights community is the result of many months of difficult, but important
negotiations. We carefully considered ways to strengthen religious liberties
in other ways in the wake of the Supreme Court's decision. We were mindful
of not undermining existing laws intended to protect other important civil
rights and civil liberties. It would have been counterproductive if this
effort to protect religious liberties led to confrontation and conflict
between the civil rights community and the religious community, or to
a further court decision striking down the new law. We believe that our
bill succeeds in avoiding these difficulties by addressing the most obvious
threats to religious liberty and by leaving open the question of what
future Congressional action, if any, will be needed to protect religious
freedom in America.
land use provision covers regulations defined as `zoning and landmarking'
laws. Under this provision, if a zoning or landmarking law substantially
burdens a person's free exercise of religion, the government involved
must demonstrate that the particular law is the least restrictive means
of furthering a compelling governmental interest. This provision is based
upon the constitutional authority of Congress under Section 5 of the 14th
Amendment, as well as the Commerce and Spending powers of Congress. The
institutionalized persons section applies the strict scrutiny standard
to cases in which the free exercise rights of such persons are substantially
burdened. This provision is based upon Congress's constitutional authority
under the Spending and Commerce powers.
a strict scrutiny standard to prison regulations would not lead, as some
have suggested, to a flood of frivolous lawsuits by prisoners, and it
will not undermine safety, order, or discipline in correctional facilities.
Arguments opposing this provision have been made in the past, but they
were based on speculation. Now, the arguments can be proven demonstrably
false by the facts.
the Religious Freedom Restoration Act was enacted in 1993, strict scrutiny
has been the applicable standard in religious liberties case brought by
inmates in federal prisons. Yet, according to the Department of Justice,
among the 96 federally run facilities, housing over 140,000 inmates, less
than 75 cases have ever been brought under the Act —
of which have never gone to trial. On average, over seven years, that's
less than 1 case in each federal facility. It's hardly a flood of litigation
or a reason to deny this protection to prisoners.
the enactment of the 1993 Act, Congress also passed the Prison Litigation
Reform Act, which includes a number of procedural rules to limit frivolous
prisoner litigation. Those procedural rules will apply in cases brought
under the bill we are introducing today. Based upon these protections
and the data on prison litigation, it is clear that this provision in
our bill will not lead to a flood of frivolous lawsuits or threaten the
safety, order, or discipline in correctional facilities. Sincere faith
and worship can be an indispensable part of rehabilitation, and these
protections should be an important part of that process.
sum, our bill is an important step forward in protecting religious liberty
in America. It reflects the Senate's long tradition of bipartisan support
for the Constitution and the nation's fundamental freedoms, and I urge
the Senate to approve it.
OF LAND USE RESTRICTIONS ON
Methodist Church, Portland, OR. In February 2000, a city official
in Portland, Oregon ordered a local United Methodist Church to limit attendance
at its services to 70 worshipers and shut down a meals program for the
homeless and the working poor that the church had been operating for sixteen
years. The church can hold up to 500 persons. The land use official announced
that her job was `quasi-judicial,' and that `she was not required to explain
decisions.' After a public outcry, the Portland City Council unanimously
rejected the attendance cap and voted to allow church programs to continue,
contingent on an agreement being reached among neighbors, neighborhood
businesses and the city about the management of the church programs. (`Church
ordered to limit attendance,' Washington Times, February 18, 2000: `Church
wins on attendance,' The Oregonian, March 2, 2000).
Attendance Caps in Colorado. Officials in Arapahoe County, Colorado
imposed numerical limits on the number of students who could enroll in
religious schools and on the size of congregations of various churches,
as a way of limiting their growth. These limits directly conflicted with
the mission of evangelical churches, whose fundamental goal is to attract
Douglas County, Colorado, administrative officials proposed limiting the
operational hours of a church in much the same way as they limit commercial
facilities. As Mark Chopko noted in his Congressional testimony,
limiting a church's operational hours means that a church may not lawfully
engage in certain acts of service and devotion or overnight spiritual
retreats. (Testimony of Mark Chopko before the House Subcommittee on the
Constitution, March 26, 1998).
Etz Chaim in Los Angeles, California. Congregation Etz Chaim,
an Orthodox Jewish congregation in Los Angeles, was meeting in a rented
house, or `shul', in Hancock Park, a residential zone. The rabbi of the
congregation, Chaim Baruch Rubin, testified that ten to fifteen men would
typically visit the house for daily meetings, and forty or fifty people
(many elderly and disabled) would attend on the Sabbath or holidays to
engage in quiet prayer and study. Orthodox Jews must walk to services
on the Sabbath and on most holidays, because their religion does not permit
them to use mechanical modes of transportation on those days. When neighbors
complained about the effect on property values, the congregation requested
a special use permit from the City Council to remain in the residential
zone. The Council unanimously rejected the request, putting the neighborhood
effectively off-limits for Orthodox Jews. The same Council, however, allowed
other places of assembly in Hancock Park, including schools, book clubs,
recreational uses and embassy parties. Rabbi Rubin testified that 84,000
cars traveled through this part of the neighborhood daily, and yet somehow
the Council deemed a prayer meeting of a few who traveled by foot as harmful
to the neighborhood. Rabbi Rubin concluded his testimony by stating, what
do I tell my congregants —
do I tell an 84 year old survivor of Auschwitz, a man who used to risk
his life in the concentration camp whenever possible to gather together
to pray? (Testimony of Rabbi Chaim Baruch Rubin before the House Subcommittee
on the Constitution, February 26, 1998).
of Forest Hills, Tennessee. In the process of creating a new
zoning plan covering development in the city, the City of Forest Hills,
Tennessee set up an `educational and religious zone' called an `ER' for
schools and churches, but limited that designation to schools and churches
that already existed within the city. No other land was zoned `ER' under
the plan, so no other property was available for the construction of a
new religious building. The City also established strict requirements
for changing any zone. The Church of Jesus Christ of Latter-day Saints
determined a need for a temple in Forest Hills, and sought a zone change
for property that it owned within city limits. Forest Hills rejected the
church's request. The church then bought another piece of property that
had previously been home to a church. Churches of other denominations
were nearby. Forest Hills nevertheless rejected the church's second request
citing concern about traffic, and a court upheld this determination, effectively
precluding Mormons from temple worship within city limits. (Testimony
of Von G. Keetch before the House Subcommittee on the Constitution, March
26, 1998; Report of the House Judiciary Committee on the Religious Liberty
Protection Act of 1999, 106th Congress).
Baptist Church in Richmond, Virginia. In 1997, the City of Richmond
passed an ordinance which required places of worship wishing to feed more
than thirty hungry and homeless people to apply for a conditional use
permit at a cost of $1,000, plus $100 dollars per acre of affected property.
The ordinance regulated only places of worship, not other institutions,
and only eating by persons who are hungry and homeless. The ordinance
also limited to seven days, and to the period between October 1 and April
1, the times when places of worship may feed the hungry and homeless.
The City had complete discretion over the granting of conditional use
permits based on its assessment of a number of subjective factors. The
Rev. Patrick Wilson of Richmond, Virginia stated in his testimony: `A
$1,000 fee is beyond the means of most churches, which operate with memberships
of less than 100 persons and is therefore prohibitive. Imagine that —
imposed fee for the exercise of a basic and fundamental tenet of the Christian
faith! . . . Health and safety issues can be and are addressed in less
odious ways.' (Testimony of Rev. Patrick J. Wilson III before the House
Subcommittee on the Constitution, February 26, 1998; Preliminary and Jurisdictional
Statement in Trinity Baptist Church v. City of Richmond, (E.D.Va. filed
August 20, 1997.)
Word Ministries to All Nations in Chicago, Illinois. Twenty-two
of the twenty-nine zoning codes in the northern suburbs of Chicago effectively
exclude churches, unless they have a special use permit. Zoning authorities
hold almost wholly discretionary power over whether a house of worship
may locate in these areas. John Mauck, a Chicago attorney who serves many
churches in this area, handled the case of a church, His Word Ministries
to All Nations, interested in buying property after it outgrew its space
in the basement of a home. When it sought a special use permit in 1992,
an alderman delayed the request three times, resulting in months of delay
in the purchase of the building. After the third postponement of the hearing,
the alderman had the church's property re-zoned as a manufacturing district.
Because churches cannot locate in a manufacturing district, the church
was forced to withdraw its application for special use after paying filing,
attorney and appraiser fees. The church spent approximately $5,000 and
wasted an entire year seeking the special use permit. (Testimony of John
Mauck before the House Subcommittee on the Constitution, March 26, 1998;
Affidavit of Virginia Kantor in Civil Liberties for Urban Believers v.
City of Chicago (N.D. Ill. 1994); Testimony of Douglas Laycock before
the House Subcommittee on the Constitution, July 14, 1998).
Synagogues and Parking Spaces. In his testimony, Marc Stern stated
that orthodox synagogues are often required to have a specific number
of parking spaces, based on the number of seats in the sanctuary —
though the sanctuary will be filled with worshipers who do not drive.
(Testimony of Marc Stern before the House Subcommittee on the Constitution,
March 26, 1998).
and Racial Bias. Chicago attorney John Mauck testified about
several cases of racially motivated opposition to black churches, and
about a case in which the mayor told his city manager that they didn't
want Hispanics in the town. He also testified about other statements of
bigotry. Marc Stern testified about a case in which a small congregation
sought permission to convert a private home into a small synagogue. One
council member considering the converted use `warned that if the application
was granted, this nearly all white suburb would begin to resemble an adjoining
city which was largely minority and full of storefront churches.' (Testimony
of John Mauck before the House Subcommittee on the Constitution, March
26, 1998; Testimony of Douglas Laycock before the House Subcommittee on
the Constitution, July 14, 1998; Testimony of Marc Stern before the House
Subcommittee on the Constitution, March 26, 1998).