March 11, 1993
ACLU Strongly Supports Religious Freedom Restoration Act; Urges Congress to Act Quickly to Restore Protections
WASHINGTON -- The American Civil Liberties Union today joined congressional sponsors and other members of the diverse coalition formed to support the Religious Freedom Restoration Act in calling upon Congress to act quickly in restoring full legal protection to religious liberty.
"Passage of the Religious Freedom Restoration Act is the most important action that Congress can take for the free exercise of religion since the First Congress passed the Bill of Rights," said ACLU Legislative Counsel Robert S. Peck.
The legislation is designed to restore the level of legal protection that was previously enforced by the courts under the First Amendment. "For two centuries, the guarantees of the First Amendment has proven to be the boldest and most successful experiment in religious liberty the world has known," Peck added. "A disastrous and erroneous decision by the Supreme Court three years ago has threatened to derail that experiment and make religious freedom a matter of legislative grace. Such an approach is inconsistent with our constitutional heritage and the level of protection the courts afford all other fundamental rights." In Employment Division v. Smith (1990), the U.S. Supreme Court rejected the traditional tests for evaluating infringements of religious liberty and effectively read the Free Exercise Clause out of the First Amendment. As Justice Blackmun's dissent correctly put it, the Court's "holding dramatically departs from well-settled First Amendment jurisprudence . . . and is incompatible with our Nation's fundamental commitment to individual religious liberty." The Religious Freedom Restoration Act attempts to restore the previous status quo, under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated and advanced in the least restrictive manner.
The Smith decision rejected a claim for unemployment benefits by two Native Americans who had been fired from their state jobs for the ritual use of peyote in tribal religious ceremonies. It did so expansively, reaching far beyond the issue before them and declaring that government practices and policies that are neutrally stated and generally applicable will be upheld against constitutional attack as long as the policies are not targeted at religious practice. Thus, under the Court's new rules, laws passed in ignorance or passed irrespective of their impact on religious freedom would be deemed constitutionally valid. In rejecting the compelling government interest standard that previously governed these cases, Justice Scalia's majority opinion characterized the test as a "luxury" that the nation could no longer afford as a result of the country's growing religious diversity.
"The Court's rationale turns the First Amendment on its head, and guarantees judicial protection only in periods of relative religious homogeneity," Peck said.
The Religious Freedom Restoration Act simply and elegantly restores the compelling interest test that previously characterized free exercise cases prior to Smith.
The ACLU applauds the leadership of Senators Edward Kennedy (D-MA) and Orrin Hatch (R-UT) and Representatives Charles Schumer (D-NY) and Christopher Cox (R-CA), as well as the more than 150 original co-sponsors in both Houses, for their support of this important legislation.
The New York Times reports that for now, the efforts seem likely to take the form of legislation and steer clear of a contentious attempt to amend the Constitution, a move initially favored by the more hard-lined religious activists but vigorously opposed by the more moderate members of the religous coalition that supported the 1993 law.
Rep. Charles Canady, the Florida Republican who chairs the Constitution Subcommittee of the House Judiciary Committee, said at the hearing that a constitutional amendment would be "ill-advised," premature and "most likely would not pass in any event," the Times reports.
Congress passed the religious liberty law in 1993 to protect individuals when their religious practices conflict with general local, state and federal laws. Under it, governments had to prove a "compelling interest" to enforce laws that would, for example, permit autopsies to be performed on members of religious groups that prohibit them, or bar a Jewish student from wearing a yarmulke in school. In its ruling last month, the Supreme Court said the law was unconstitutional because it usurped power from federal courts and the states.
Immediately after the decision, Representative Charles E. Schumer, a Brooklyn Democrat who was an author of the law struck down, called for a conference of experts to consider how a new law might be written. The American Civil Liberties Union also suggested a campaign to change "the climate of opinion" on the Supreme Court.
Ira Glasser, Executive Director of the ACLU, told the Times last month: "Decisions are sometimes greeted by such criticism that it forces the Court to rethink what it did. It could happen here. The Justices need to think about how they have exposed people for doing nothing more than exercise their religious rights."
FOR IMMEDIATE RELEASE Wednesday, June 25, 1997
WASHINGTON -- In a case raising important questions about religious liberty and the power of Congress, the United States Supreme Court today said that Congress overstepped its power to legislate constitutional rights when it enacted a federal law designed to protect religious observances from government interference.
Writing for a 6 to 3 majority, Justice Anthony Kennedy said that the Religious Freedom Restoration Act did not provide a remedy for unconstitutional acts, which would have been an appropriate act of Congress, but represented a substantive change in constitutional rights -- a power he said is reserved for the judicial branch of government. The American Civil Liberties Union, which supported the law in a friend-of-the-court brief filed by the Coalition for the Free Exercise of Religion, disagreed with the Court's assessment of the law, and said that the ruling will allow government to more easily infringe on religion liberty.
"This is a disappointing ruling that further erodes the constitutional protection for our free exercise of religion," said Steven R. Shapiro, the ACLU's National Legal Director. "In our view, this law was well within Congress' authority to enforce the Constitution. Unfortunately, the Court's decision today has once again lowered the threshold at which the government can take away our religious freedom."
The 1993 law was passed by Congress in direct response to the Supreme Court's 1990 ruling in Dept. of Human Resources of Oregon v. Smith that religious groups cannot ordinarily exempt themselves from generally worded laws. The decision held that Native Americans who use hallucinogenic drugs in their religious ceremonies were not exempt from the narcotics law that applies to everyone else.
A large coalition of religious and civil liberties groups, including the ACLU, rallied Congress to pass a law prohibiting the government from enforcing a law that "substantially burdens" religious exercises without first demonstrating a "compelling" need to so and without using the "least restrictive means" possible. The law was enacted by an overwhelming majority of Congress.
The decision today stems from a challenge brought by a church in Boerne, Texas after the city denied a building permit to the church which wanted to expand its facilities and demolish a small, historic building. The church invoked the law in its lawsuit, charging the city with violating its religious rights by interfering with its expansion plans.
The Court today also drew a sharp distinction between the Religious Freedom Restoration Act and the Voting Rights Act, saying that the voting rights law was an appropriate exercise of Congress' power to remedy widespread and persistent racial discrimination. "That, at least, is a silver lining in this case," Shapiro said. The case is City of Boerne v. Flores, No. 95-2074.
Founded in 1920, the ACLU is a nationwide, non-partisan organization dedicated to defending and preserving the Bill of Rights for all individuals through litigation, legislation and public education. With the exception of the Justice Department, the ACLU is involved in more cases before the Supreme Court than any other individual or organization.
MEMORANDUM
TO: Interested Persons
FR: Christopher E. Anders, Legislative Counsel
��������Rose A. Saxe, Law Clerk
DT: August 25, 1998
RE: Analysis of the Scott Civil Rights Amendment to H.R. 4019, the Religious Liberty Protection Act of 1998
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I. INTRODUCTION
During mark-up in the House Subcommittee on the Constitution, Congressman Robert C. Scott offered an amendment to H.R. 4019, the Religious Liberty Protection Act of 1998 ("RLPA"), to ensure that the legislation will not create any defense to civil rights claims. Specifically, the Scott amendment provides that "[n]othing in this [RLPA] Act shall be construed to provide a defense to any other civil or criminal action based on any Federal, State, or local civil rights law." Although the Subcommittee defeated the amendment by voice vote, this memorandum considers whether the concerns that the amendment seeks to address warrant a legislative remedy.
RLPA would provide extensive statutory protection for religious exercise to replace or enhance the constitutional protection previously afforded religious exercise prior to a 1988 Supreme Court decision that lowered the standard of review for religious exercise claims. As reported out of the Constitution Subcommittee, RLPA provides, in relevant part, that: a [state or local] government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, even if the burden results from a rule of general applicability. . . . [unless the] government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. H.R. 4019, � 2(a)-2(b). H.R. 4019, as introduced, and the Senate companion bill, S. 2148, apply the same test, but also rely on Congress' Commerce Clause authority.
Although the objective of enhancing the protection of the exercise of religious belief from governmental interference is important, several recent cases raise significant concerns that defendants in civil rights cases could use RLPA as a defense to state or local civil rights claims. RLPA does not have any specific provision for reconciling such potentially serious conflicts between a defendant's claim that religious belief motivated his or her discriminatory act, and a civil rights plaintiff's claim that state or local anti-discrimination statutes provide protection against such discrimination--regardless of the defendant's motivation. Consequently, without any further amendments, RLPA could potentially jeopardize certain civil rights claims in at least some states, and will increase the litigation costs for civil rights plaintiffs even for those claims where a RLPA defense would be unsuccessful.
II. SCOPE OF THE POTENTIAL PROBLEM
The scope of the potential problem is broad. In deciding housing discrimination claims based on marital status, several state supreme courts have recently considered whether religious liberty statutes or state constitutional provisions provide a defense to civil rights claims. The discussions in those recent decisions closely parallel older court decisions regarding discrimination based on characteristics such as race and sexual orientation, which applied the heightened constitutional scrutiny formerly applied to religious liberty challenges to state laws. In addition, witnesses during hearings before the House and Senate Judiciary Committees stated their belief that RLPA could be used as a defense to civil rights claims based on gender, religion, sexual orientation, and marital status.
In applying standards of review substantially similar to the RLPA religious exercise standard, five state supreme courts have recently decided cases in which defendants raised a religious liberty defense to civil rights claims based on state or local laws protecting against discrimination in housing based on marital status. See Smith v. Fair Employment & Housing Comm'n, 913 P.2d 909 (Cal. 1996) [hereinafter "FEHC"] ("marital status" includes unmarried heterosexual couples; no substantial burden on religious exercise found); Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (remanding for further consideration of whether the governmental interest is compelling); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska), cert. denied, 115 S. Ct. 460 (1994) ("marital status" includes unmarried heterosexual couples; the government's interest in providing equal access to housing is compelling); Cooper v. French, 460 N.W.2d 2 (Minn. 1990) ("marital status" does not include unmarried cohabiting couples; a plurality of the court also found no compelling governmental interest in preventing marital status discrimination); Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. 1997) (governmental interest in eradicating discrimination in housing against unmarried couples was compelling), vacated for lack of case or controversy, 685 N.E.2d 622 (Ill. 1997), __ N.E.2d ___.
In those housing cases, the rental properties at issue were not owner-occupied, but instead were used solely for investment purposes. See Desilets, 636 N.E.2d at 238 n.8 (law applicable only to "dwellings that are rented to three or more families living independently of each other"); Swanner, 874 P.2d at __ (statute provides exception for individual home "wherein the renter or lessee would share common living areas with the owner"); French, 460 N.W.2d 2 (owner did not live in subject property, a two-bedroom house); FEHC, 913 P.2d at 912 (Smith "does not reside in any of the four units"); Jasniowski, 678 N.E.2d at 745 (renting a "building comprised of both commercial space and a residential apartment"). The landlords all claimed that their sincerely held religious beliefs about premarital sexual relations required them to deny housing to unmarried couples, despite state or local laws prohibiting discrimination on the basis of marital status in housing. Although the religious liberty defense was not always successful, the courts were split on whether the anti-discrimination laws impose a substantial burden on the exercise of the landlord's religion, and on whether the governmental interest in eradicating marital status discrimination in housing is compelling.
Defendants in civil rights cases have also raised religious liberty defenses in cases involving such characteristics as race or sexual orientation and in contexts ranging from educational institutions to employment. For example, defendants or courts unsuccessfully raised religious rationales for racially discriminatory practices. E.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (religious university claimed that its religious beliefs about miscegenation justified racial discrimination in admissions); see also Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a Virginia antimiscegenation statute).1
Prior to the Supreme Court lowering the standard of review for religious liberty claims in Employment Division of Oregon v. Smith, 485 U.S. 660 (1988), the use of religious liberty defenses to civil rights claims was widespread. See, e.g., Bob Jones Univ., 461 U.S. 574, 604; EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272 (9th Cir. 1982) (religious publishing house claimed that dismissing employee in retaliation for bringing discrimination charges was based on religious doctrine forbidding members of the church from bringing lawsuits against the church); Walker v. First Orthodox Presbyterian Church, 22 FEP Cases (BNA) 762 (Cal. Sup. Ct. 1980) (church dismissed gay organist because church doctrine forbids "unrepentant sinners" from taking a leadership role in musical services, despite city ordinance forbidding sexual orientation discrimination in employment); Minnesota ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985) (health club's owners insisted on hiring only employees whose religious beliefs were consistent with the owners' religious beliefs despite state anti-discrimination law forbidding employment discrimination based on religion, sex, and marital status); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. App. 1987) (religious university argued that its religious beliefs justified the denial of "University Recognition" to gay student group despite a District of Columbia civil rights law prohibiting discrimination on the basis of sexual orientation).
In addition, during recent Congressional hearings, advocates for religious groups testified that RLPA could be used as a defense to allow a sectarian vocational-tech school receiving federal funds to offer single-sex education, despite federal laws prohibiting sex discrimination in education; to permit a religiously-affiliated day care center to discriminate on the basis of religion in hiring instructors; to permit employers with sincerely held religious beliefs to discriminate against gay men and lesbians in hiring employees, despite state or local laws prohibiting discrimination on the basis of sexual orientation; and to allow landlords with religious objections to refuse to rent to unmarried couples, despite state or local fair housing laws protecting against discrimination based on marital status. State and local laws also provide protection based on other characteristics that receive less than strict scrutiny, such as disability, familial status, or pregnancy.
Although the governmental interest in eradicating discrimination has usually been found compelling, providing a new defense in civil rights actions will--at minimum--increase the cost of litigation for plaintiffs. However, the risk for persons claiming civil rights protection based on characteristics that receive lower levels of scrutiny is substantial. Because many of the groups claiming protection under state and local civil rights laws do not currently receive heightened scrutiny for their claims in court, and receive little or no explicit federal statutory protection from Congress, it is likely that at least some courts would find that the governmental interest in ending discrimination against these groups is not compelling. As noted above, the courts are divided on the question, and these decisions have come from states which traditionally have been vigorous and strict in enforcing their civil rights laws.
III. APPLICATION OF THE FOUR-PART RLPA TEST TO CIVIL RIGHTS CLAIMS
As reported out of the Constitution Subcommittee, RLPA provides, in relevant part, that: a [state or local] government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, even if the burden results from a rule of general applicability. . . . [unless the] government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. H.R. 4019, � 2(a)-2(b). Thus, in deciding a challenge to a civil rights claim based on a state or local anti-discrimination law, a court must apply a four-part test: (i) is the defendant's discrimination "religious exercise"?; (ii) does the applicable state or local anti-discrimination law "substantially burden" the defendant's religious exercise?; (iii) is the government's interest in eradicating the discrimination "compelling"?; and (iv) are uniformly applied anti-discrimination laws the least restrictive means of furthering any compelling governmental interest?
A. Is Discrimination "Religious Exercise" Under RLPA?
The first part of the RLPA test is whether a refusal to comply with civil rights laws is religious exercise. Because RLPA defines religious exercise broadly as "an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief," RLPA, � 6(1), any civil rights defendants whose discriminatory actions were "substantially motivated by religious belief" will be able to meet this prong of RLPA. Under the pre-Smith Free Exercise Clause jurisprudence which RLPA purports to restore, the "Supreme Court free exercise of religion cases have accepted, either implicitly or without searching inquiry, claimants' assertions regarding what they sincerely believe to be the exercise of their religion, even when the conduct in dispute is not commonly viewed as a religious ritual." Desilets, 636 N.E.2d at 237 (citing Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 137 (1987); United States v. Lee, 455 U.S. 252, 257 (1982); Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715 (1981)).
Courts have held that refusal to rent an apartment to an unmarried heterosexual couple based on the landlord's religious belief that promoting premarital sex is sinful is religious exercise. See, e.g., FEHC, 913 P.2d at 923 ("While the renting of apartments may not constitute the exercise of religion, if Smith claims the laws regulating that activity indirectly coerce her to violate her religious beliefs, we cannot avoid testing her claim under the analysis codified in RFRA."); Desilets, 636 N.E.2d at 237 ("Conduct motivated by sincerely held religious convictions will be recognized as the exercise of religion."). Similarly, in the employment context, courts have accepted the argument that hiring decisions are religious exercise, if the employer can demonstrate that the decision was based on religious belief or doctrine. See, e.g., Walker, 22 FEP Cases (BNA) 762 (discharging gay organist when the church viewed homosexuals as "unrepentant sinner[s]" and considered the position of organist "a member of the worship team" was "based on religious beliefs"); Pacific Press, 676 F.2d at 1280 (retaliatory action taken by religious publisher against employee who instituted EEOC proceedings alleging sex discrimination was religious exercise because church doctrine prohibited lawsuits by members against the church).
The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense. In McClure, the Minnesota Supreme Court held that a health club had standing to raise a free exercise defense, but noted that because the "corporate veil" was pierced, the three owners were held liable for any illegal actions of the corporation, and the free exercise rights being asserted were their rights rather than the rights of the health club. McClure, 370 N.W.2d at 850-51.
In contrast, the Minnesota Court of Appeals found that when a corporation itself has been held liable for discrimination, it may not raise the free exercise rights of its principals. See Blanding v. Sports & Health Club, Inc., 373 N.W.2d 784, 790 (Minn. App. 1985), aff'd without op., 389 N.W.2d 205 (Minn. 1986). In Blanding, the court analyzed the representational standing issue and held that the standing requirements were not met because the "evangelical religious commitment of its principals is not germane to the Club's purpose, profit-seeking." Blanding, 373 N.W.2d at 790.
B. Do State and Local Civil Rights Statutes "Substantially Burden" Religious Exercise?
The purpose of the second part of the RLPA test is to avoid frivolous litigation over neutral laws which have only a minimal impact on religious exercise. Congress has not defined "substantial burden," and there is no generally applicable test to determine whether a substantial burden exists. See FEHC, 913 P.2d at 924.
However, several circuit courts have adopted a broad reading of "substantial burden," holding that a substantial burden on the free exercise of religion, within the meaning of the [RFRA], is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs. Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir. 1996); see also Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) ("To exceed the 'substantial burden' threshold, governmental regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person's] individual beliefs."); Brown-El v. Harris, 26 F.3d 68, 70 (8th Cir. 1994) (substantial burden imposed when person is compelled, "by threat of sanctions, to refrain from religiously motivated conduct") (quotations omitted). But cf. Goodall v. Stafford Cty. Sch. Bd., 60 F.3d 168, 171-72 (4th Cir. 1995) (substantial burden not imposed where plaintiffs "have neither been compelled to engage in conduct proscribed by their religious beliefs, nor have they been forced to abstain from any action which their religion mandates that they take"); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995) (same); Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) (per curiam) (same).
Economic cost alone does not constitute a substantial burden. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961); FEHC at 926-27. However, even those courts that have adopted a narrow definition of substantial burden--where a substantial burden is imposed only where someone is compelled to engage in conduct forbidden by his or her religion, or forbidden to engage in conduct mandated by religious belief--have held that imposing liability on an employer for non-compliance with employment anti-discrimination laws constitutes a substantial burden when compliance would contradict religious belief or doctrine. See, e.g., Pacific Press, 676 F.2d at 1280 ("there is a substantial impact on the exercise of religious beliefs because EEOC's jurisdiction to prosecute . . . will impose liability on Press for disciplinary actions based on religious doctrine"); Walker, 22 F.E.P. Cases (BNA) 762 (municipal law imposing general and special damages on church for discharging organist because of his sexual orientation creates a substantial burden on the church's free exercise of religion).
One court has held that compliance with state fair housing laws does not impose a substantial burden, in part because "one who earns a living through the return on capital invested in rental properties can, if she does not wish to comply with an anti-discrimination law that conflicts with her religious beliefs, avoid the conflict, without threatening her livelihood, by selling her units and redeploying the capital in other investments." FEHC, 913 P.2d at 925. The court also noted that "the landlord in this case does not claim that her religious beliefs require her to rent apartments; the religious injunction is simply that she not rent to unmarried couples. No religious exercise is burdened if she follows the alternative course of placing her capital in another investment." Id. at 926.
Because the court in FEHC used an analysis for "substantial burden" that appears more stringent than the analysis required by RLPA, other courts are likely to view the "choice" of engaging in a different occupation or complying with the anti-discrimination law and violating one's religious beliefs as too harsh, and conclude that the burden is substantial. See, e.g., Desilets, 636 N.E.2d at 237-38 (substantial burden imposed because the civil rights law "affirmatively obliges the defendants to enter into a contract contrary to their religious beliefs and provides significant sanctions for its violation," and "both their nonconformity to the law and any related publicity may stigmatize the defendants in the eyes of many and thus burden the exercise of the defendants' religion"). Indeed, all courts, other than the court in FEHC, that have considered the question in the housing context have found that the state or local anti-discrimination law substantially burdened the defendant's exercise of his or her religious beliefs.
C. Is the Governmental Interest in Eradicating Discrimination Compelling?
The third part of the RLPA test provides that only a compelling governmental interest justifies imposing a substantial burden on the exercise of religion.2 The courts that recently decided civil rights cases in which a defendant raised a religious liberty defense have split most sharply on this part of the test.
The governmental interest in eradicating certain types of discrimination, particularly racial and sex-based discrimination, clearly will meet the compelling interest standard. See Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) ("The governmental interest at stake here is compelling. . . . [T]he government has a fundamental, overriding interest in eradicating racial discrimination in education . . . . That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs."); Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (the state government's "compelling interest in eradicating discrimination against its female citizens justifies the impact . . . on the male members' associational freedoms"). Such plaintiffs, however, should anticipate incurring litigation costs as defendants raise the defense.
Because sexual orientation, marital status, disability, and other newly protected classes currently do not receive the same level of judicial scrutiny as race and sex, however, it may be more difficult to persuade all courts that the governmental interest in preventing discrimination on those grounds is compelling. For example, courts have reached divided results in determining whether preventing discrimination based on sexual orientation is compelling. Cf. Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 37 (D.C. App. 1987) (District of Columbia's interest in prohibiting educational institutions from denying equal access to tangible benefits on the basis of sexual orientation is compelling); Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. App. Div. 1998) (New Jersey's interest in eradicating discrimination in public accommodations on the basis of sexual orientation is compelling); Presbytery of New Jersey v. Florio, 902 F. Supp. 492, 521 (D.N.J. 1995), aff'd, 99 F.3d 101 (3d Cir. 1996) ("New Jersey's interest [in eliminating discrimination based on sexual orientation] is not only substantial but also can be characterized as compelling."), with Walker v. First Orthodox Presbyterian Church, 22 F.E.P. Cases (BNA) 762 (San Francisco's interest in eradicating sexual orientation discrimination in employment is not compelling). The cases on marital status discrimination also are divided. Cf. Swanner, 874 P.2d at 282-83 (Anchorage's interest in prohibiting marital status discrimination in housing is compelling), with Desilets, 636 N.E.2d 233 (remanding for further consideration of whether the government's interest in prohibiting marital status discrimination is compelling); French, 460 N.W.2d at 10-11 (plurality op.)3 (no compelling governmental interest in ending discrimination against unmarried couples).
Whether prohibiting discrimination on the basis of religion will be considered a compelling governmental interest is also unclear. Several courts have found that a state's interest in prohibiting discrimination based on religion is compelling. See, e.g., Jews for Jesus, Inc. v. Jewish Comm. Relations Council, 968 F.2d 286, 295 (2d Cir. 1992) (incidental restriction on speech caused by New York's anti-discrimination law was constitutional because "New York has the constitutional authority to prohibit, and a substantial, indeed compelling, interest in prohibiting racial and religious discrimination in obtaining public accommodations"); Minnesota ex rel. McClure v. Sports & Health Club, 370 N.W.2d 844, 852-53 (Minn. 1985) (Minnesota's interest in eradicating marital status, sex and religious discrimination is compelling); Pines v. Tomson, 160 Cal. App.3d 370 (Cal. App. 2d Dist. Div 3 1984) (holding that California's compelling interest in prohibiting discrimination based on religion overrides defendants' freedom of association).
Unlike classifications such as race and gender which are protected by the Fourteenth Amendment, religion is protected, at least in part, by the Free Exercise Clause (certain religious groups may claim protection under the Thirteenth Amendment). However, the Supreme Court has determined in Smith that the Free Exercise Clause does not require that laws burdening religious exercise be subject to strict scrutiny review. Because religion receives less than strict scrutiny protection, and RLPA expands protection for religious exercise with no exemption for civil rights laws, a court could conclude that at least with respect to religion, Congress intended to provide more protection for religious exercise through RLPA than for religious discrimination through civil rights laws.
Because RLPA requires that the "government demonstrate[] that application of the burden to the person is in furtherance of a compelling governmental interest" (emphasis added), courts could require the government to prove that there is a compelling interest in requiring the specific landlord or employer to comply with the civil rights law. See, e.g., Desilets, 636 N.E.2d at 238 (the issue is "whether the record establishes that the Commonwealth has or does not have an important governmental interest that is sufficiently compelling that the granting of an exemption to people in the position of the defendants would unduly hinder that goal"); French, 460 N.W.2d at 9 ("French must be granted an exemption . . . unless the state can demonstrate compelling and overriding state interest, not only in the state's general statutory purpose, but in refusing to grant an exemption to French.").
However, the majority of courts interpreting RFRA considered simply whether the government had a compelling interest in enforcing the law at issue. When a state or municipality chooses to target and prohibit a specific form of discrimination, presumably it does so because it believes that there is a serious problem. See EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1280 (9th Cir. 1982) ("By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a 'highest priority.'"). Legislative determination alone, however, is not always dispositive of whether the state's interest is compelling. See Gay Rights Coalition, 536 A.2d at 33 ("While not lightly to be disregarded, the Council's strong feelings do not resolve the issue whether its ban on sexual orientation discrimination represents a compelling governmental interest."); Desilets, 636 N.E.2d at 240 ("we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the state has" a compelling interest in ending marital status discrimination in housing); but see Dale, 706 A.2d 270 at __ (accepting the legislature's enactment of the prohibition against discrimination as proof that the government's interest was compelling, because the inclusion of sexual orientation in the anti-discrimination statute "was an implicit recognition that discrimination based on 'archaic' and 'stereotypical notions' about homosexuals that bears no relationship to reality cannot be countenanced").
To the extent that other state or municipal laws or policies discriminate against the class, courts are sometimes less likely to find that the governmental interest in ending discrimination against that class is compelling. Thus, anti-fornication or sodomy statutes have provided additional support for concluding that there is no compelling governmental interest in protecting against discrimination based on marital status or sexual orientation. See, e.g., French, 460 N.W.2d at 10 (plurality op.) ("How can there be a compelling state interest in promoting fornication when there is a state statute on the books prohibiting it?"); Desilets, 636 N.E.2d at 240 (the existence of a criminal statute against fornication "suggests some diminution" in the state's interest).
Similarly, state or local policies favoring married couples also have been used by courts to determine that the governmental interest in ending discrimination against unmarried couples is not compelling. See, e.g., Desilets, 636 N.E.2d at 239-40 ("in various ways, by statute and by judicial decision, the law has not promoted cohabitation and has granted a married spouse rights not granted to a man or woman cohabiting with a member of the opposite sex"); French, 460 N.W.2d at 10 (plurality op.) (noting differential treatment of married couples in employee life and health insurance benefits); Smith v. Fair Employment and Housing Comm'n, 39 Cal. App. 4th 877, 894 (Cal. App. 1994) (relying on the absence of strict scrutiny for marital status classifications and the existence of other state laws or policies favoring married couples, including insurance benefits and conjugal visits to determine that state interest was not compelling), rev'd on other grounds, 913 P.2d 909 (Cal. 1996) (plurality op.); but see Swanner, 874 P.2d at 283 (noting that differential treatment of married and unmarried people in areas other than housing does not prove that the state views marital status discrimination in housing as insignificant).
Because courts have flexibility in defining what governmental interest is at stake in prohibiting discrimination, there is significant judicial control over whether or not the interest will be found compelling. Defining the governmental interest broadly, the Swanner court had no difficulty in concluding that the state's "interest in preventing discrimination based on irrelevant characteristics" is compelling. Swanner, 874 P.2d at 282-83. "The government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing. Allowing housing discrimination that degrades individuals, affronts human dignity, and limits one's opportunities results in harming the government's transactional interest in preventing such discrimination." Id.; accord Gay Rights Coalition, 536 A.2d at 37 ("The compelling interests . . . that any state has in eradicating discrimination against the homosexually or bisexually oriented include the fostering of individual dignity, the creation of a climate and environment in which each individual can utilize his or her potential to contribute to and benefit from society, and equal protection of the life, liberty, and property that the Founding Fathers guaranteed to us all.").
In contrast, the Massachusetts Supreme Court in Desilets insisted on a much more narrow reading of the governmental interest, noting that "[t]he general objective of eliminating discrimination of all kinds . . . cannot alone provide a compelling State interest that justifies the . . . disregard of the defendants' right to free exercise of their religion. The analysis must be more focused." Desilets, 636 N.E.2d at 238. This narrow reading permitted the court to insist that Massachusetts "demonstrate that it has a compelling interest in the elimination of discrimination in housing against an unmarried man and an unmarried woman who have a sexual relationship and wish to rent accommodations to which [the civil rights statute] applies." Id.
D. Are Uniformly Applied Anti-Discrimination Laws the Least Restrictive Means Available?
The fourth part of the RLPA test is whether the challenged state or local law uses the least restrictive means to achieve the government's compelling interest. There is agreement among the state courts that have decided the compelling government interest issue in favor of the government that uniform application of the anti-discrimination laws is the least restrictive means available. See Swanner, 874 P.2d at 280, n.9 ("The most effective tool the state has for combating discrimination is to prohibit discrimination; these laws do exactly that.
Consequently the means are narrowly tailored and there is no less restrictive alternative."); Gay Rights Coalition, 536 A.2d at 39 ("The District of Columbia's overriding interest in eradicating sexual orientation discrimination, if it is ever to be converted from aspiration to reality, requires that Georgetown equally distribute tangible benefits to the student groups."); McClure, 370 N.W.2d at 853 ("the state's overriding compelling interest of eradicating discrimination based upon sex, race, marital status, or religion could be substantially frustrated if employers, professing as deep and sincere religious beliefs as those held by appellants, could discriminate against the protected class").
However, another state supreme court has held that the government may be required to prove that "uniformity of enforcement of the statute . . . [is] the least restrictive means for the practical and efficient operation of the antidiscrimination law." Desilets, 636 N.E.2d at 241. RLPA defendants could argue that the government cannot have a compelling interest in uniformity of application of civil rights laws, as the civil rights laws typically contain some exemptions for religious organizations, and therefore a less restrictive means is available: granting an exemption to persons who hold sincere religious beliefs. However, at least one court has recognized that while the government permits exemptions for "religious corporations when religious beliefs shall be a bona fide occupational qualification," "the state's overriding interest permits of no exemption to appellants in this case. . . . [W]hen appellants entered into the economic arena and began trafficking in the market place, they have subjected themselves to the standards the legislature has prescribed not only for the benefit of prospective and existing employees, but also for the benefit of citizens of the state as a whole in an effort to eliminate pernicious discrimination." McClure, 370 N.W.2d at 853; but see Desilets, 636 N.E.2d at 240 ("the compulsion of the state's interest appears somewhat weakened because the statute permits discrimination by a religious organization in certain respects . . . if to do so promotes the principles for which the organization was established").
Moreover, because granting religious exemptions to an individual employer, landlord or institution from civil rights laws will likely increase the number of people claiming a religious defense for their discriminatory actions, uniform application is the least restrictive means to accomplish the goals of the anti-discrimination laws. See id. at 853, n.16 (warning that if the court permitted the exemption in this case, other employers, "if they could demonstrate their beliefs were sincere and based on accepted theological concepts, would be permitted to discriminate contrary to the state's public policy of affording equality of opportunity and equal access to public accommodation to all its citizens. To permit such an exception would substantially emasculate the state's public policy of ensuring civil rights for citizens."); Desilets, 636 N.E.2d at 240 ("the practical problems of administering a law with the exemption that the defendants seek may be shown to be such as to make the operation of such an exemption impractical"); see also Brown v. Dade Christian Schools, 556 F.2d 310, 323-24 (5th Cir. 1977) (Goldberg, J., concurring) ("[W]hen recognizing the [free exercise] claim will predictably give rise to further claims, many of which undoubtedly will be fraudulent or exaggerated, the situation is different. In that event the court must either recognize many such claims . . . or draw fine and searching distinctions among the various free exercise claimants. The latter course would raise serious constitutional questions with respect to the proper functioning of the courts in sensitive religion clause adjudication.").
IV. CONCLUSION
The Scott civil rights amendment to RLPA effectively responds to a serious potential problem raised by RLPA. Although members of the House and Senate Judiciary Committees may develop alternative legislative language, any amendment should ensure that not only will such civil rights defenses fail, but that the amendment will be so clear that defendants will not have any reason to believe that such defenses will succeed. Not only should RLPA not trump civil rights claims, but a civil rights plaintiff should not have to incur litigation costs caused by a defendant raising a RLPA defense.
ENDNOTES
1. In Loving, the Supreme Court reversed a decision of the Virginia Supreme Court which had affirmed, in part, a Virginia state trial court decision that stated:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with this arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. Decision of Circuit Court for Caroline County (Jan. 6, 1959), (quoted in Loving, 388 U.S. at 3).
2. In Employment Division v. Smith, 494 U.S. 872, 888 (1990), the Supreme Court noted that the compelling government interest test from Sherbert used to analyze free exercise cases was less strict than the test used in strict scrutiny in equal protection or free speech cases. However, RLPA uses language that suggests the strict scrutiny equal protection test.
On the other hand, the legislative history to RFRA makes clear that it was intended to "restore" the pre-Smith free exercise jurisprudence. Thus, it is unclear whether RLPA would require courts to apply a pre-Smith level of scrutiny or the higher level of scrutiny applied in strict scrutiny equal protection analysis.
3. Because the California Supreme Court found that there was no substantial burden imposed on Smith's religious exercise, the court did not reach the issue of whether the government's interest was compelling. See Smith, 913 P.2d at 929.
It has been re-submitted for vote again. The new name of the bill is SJ Res. 48. All important information is available on the website.
This is an extremely important matter for all Earth Spirituality Religions. This amendment would effectively allow "prayer" in school, in court, and any other public location. It would also allow tax dollars to be spent on Religious activities, such as religious schools. In other word, if you are a Wiccan, you will be funding Christian activities, and if you are a Christian you will be funding Wiccan activities.
In all reality ... it means the dominant religion gets special treatment and federal funding. This amendment could effectively KILL freedom of religion by causing a