Testimony of Legislative Counsel Christopher Anders on H.R. 169, the "Religious Liberty Protection Act of 1999," Before the House Judiciary Subcommittee on the Constitution

American Civil Liberties Union
Statement on H.R. 1691
Religious Liberty Protection Act of 1999
Before the Subcommittee on the Constitution of the
House Committee on the JudiciaryPresented by Christopher E. Anders, Legislative Counsel
May 12, 1999I. INTRODUCTION

The American Civil Liberties Union” 1 appreciates the opportunity to present its testimony on the potentially harmful effect that H.R. 1691, the Religious Liberty Protection Act of 1999 (“RLPA”), may have on the enforcement of state and local civil rights laws. The ACLU urges the Judiciary Committee to respond to these concerns by either amending the legislation or considering other alternatives to enhancing the protection of religious exercise without causing any unintended consequences on the hard-won civil rights laws enacted and enforced by state and local governments.

RLPA is consistent with the ACLU’s position favoring stronger protection of religious exercise–even against neutral, generally applicable governmental restrictions. But our concern is that some courts may turn RLPA’s shield for religious exercise into a sword against civil rights.

The ACLU historically supports religious exercise claims of persons seeking the protection of the law as a shield against governments that are burdening such religious exercise for reasons that are not compelling or by regulations that are not the least restrictive means. Our concern is that some landlords or employers may turn the shield created by RLPA into a sword used against the civil rights of others. Although we believe that courts should find civil rights laws compelling and uniform enforcement of those civil rights laws the least restrictive means, we know that at least several courts have already rejected that position.

Thus, the ACLU regrets that we have no choice but to ask the Committee to refrain from passing RLPA as introduced. For nearly a decade, the ACLU has fought in Congress and the courts to preserve the highest level of constitutional protection for claims of religious exercise. Our record of support for persons seeking protection for religious exercise against governmental burdens is even longer. We have directly represented persons asserting burdens on their religious beliefs, filed amicus briefs with the Supreme Court, and were founding members of the coalition that supported the Religious Freedom Restoration Act of 1993, and the RLPA legislation during most of the last Congress.

However, we are no longer part of the coalition supporting RLPA because we could not ignore the potentially severe consequences that RLPA may have on state and local civil rights laws. During hearings last summer before this Subcommittee, a landlord testified that her religious beliefs were burdened by having to comply with a state fair housing law protecting people based on marital status. We researched the issue and found that landlords across the country were using state religious liberty claims to challenge the application of state and local civil rights laws protecting persons against marital status discrimination. None of the claims involved owner-occupied housing; all landlords owned so many investment properties that they were outside the state laws’ exemptions for small landlords.

The U.S. Court of Appeals for the Ninth Circuit (covering California and seven other Western states) recently decided a case in which it applied the same strict scrutiny standard contained in RLPA to a claim by landlords that compliance with a local civil rights law protecting unmarried couples from discrimination based on marital status burdened the landlords’ religious beliefs. The court held that the governmental interest in preventing marital status discrimination was not compelling. As a result, the landlords did not have to comply with that civil rights law.

The Massachusetts supreme court and a plurality of the Minnesota supreme court have also found that a defendant in a civil rights case may have a religious liberty defense against state civil rights claims. The only two state court decisions that found in favor of the civil rights plaintiffs in similar cases are in California and Alaska–but both states are in the Ninth Circuit.

RLPA may jeopardize more than marital status protection. The Ninth Circuit’s analysis calls into question all state and local civil rights laws which are not motivated by a “firm national policy” in favor of eradicating specific forms of discrimination. Thus, persons protected because of characteristics such as marital status, familial status, pregnancy status, sexual orientation, disability, and perhaps religion or gender, could find their protections under state or local laws eroded by RLPA.

If RLPA becomes law, an applicant for a job or housing may have no state law protection against having to answer questions such as: Is that your spouse? Are those your children? Are you straight or gay? Are you pregnant? Are you HIV-positive? Mentally ill? What is your religion?

In the wake of the recent court decisions, the Committee should not leave the problem of RLPA’s potential effect on civil rights laws unresolved. The stakes are too high.

Instead, the ACLU urges you to consider other alternatives for increasing the protection for religious exercise without causing the unintended consequence of jeopardizing civil rights laws. A properly drafted amendment to RLPA is one approach. It would make clear that RLPA has no effect on state or local civil rights laws, thus leaving in place both the rights of civil rights plaintiffs and the existing constitutional exception from civil rights laws for the ministerial functions of religious organizations and the numerous statutory exceptions for religious organizations and small landlords. 2

Another approach is to pass legislation that specifically addresses each area of law where generally applicable state laws often conflict with religious exercise by linking protection of such religious exercise to specific sources of federal funds. That approach can provide at least as much protection as RLPA–but with a more effective enforcement mechanism, no questions about its constitutional authority, and no effect on state and local civil rights laws.

II. SCOPE OF THE POTENTIAL PROBLEM

RLPA would provide extensive statutory protection for religious exercise to replace or enhance the constitutional protection previously afforded religious exercise prior to a 1980 Supreme Court decision that lowered the standard of review for religious exercise claims. 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 [or impose a substantial burden on religious exercise if the burden affects interstate commerce], 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.

As introduced, the legislation does not have any provision specifically addressing RLPA’s potential effect on state and local civil rights laws.

The scope of the potential civil rights problem raised by religious freedom statutes is broad. The U.S. Court of Appeals for the Ninth Circuit and four state supreme courts have recently decided five cases with nearly identical fact patterns, namely, landlords claiming that their religious beliefs defeat housing discrimination claims brought by unmarried heterosexual persons based on marital status. 3 The decisions were split, with the Ninth Circuit and the Massachusetts and Minnesota courts holding that a religious liberty defense could defeat civil rights claims based on state or local laws. The courts could apply the reasoning in those decisions to civil rights claims made by members of other groups that also receive less protection from the courts and the federal government.

The intent of at least some of the supporters of RLPA is clear. Several witnesses during hearings before the House and Senate Judiciary Committees specifically stated their belief that RLPA could and should 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, numerous 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 Thomas v. Municipality of Anchorage, 165 F.3d 692 (9th Cir. 1999) (governmental interest in preventing marital status discrimination was not compelling); Smith v. Fair Employment & Housing Comm’n, 913 P.2d 909 (Cal. 1996) [hereinafter “Smith v. FEHC”] (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 in eliminating discrimination based on marital status was compelling and whether uniform application of the state anti-discrimination law was the least restrictive means); Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska), cert. denied, 115 S. Ct. 460 (1994) (the government’s interest in providing equal access to housing was compelling and uniform application of the state anti-discrimination law was the least restrictive means); Cooper v. French, 460 N.W.2d 2 (Minn. 1990) (“marital status” did not include unmarried cohabiting couples; a plurality of the court also found no compelling governmental interest in preventing marital status discrimination). Thus, in the Ninth Circuit and Massachusetts and Minnesota, defendants may successfully use their religious beliefs to defeat at least certain civil rights claims based on state or local laws.

In those housing cases, the owner-occupied exceptions found in all state fair housing laws did not apply; the rental properties at issue were not owner-occupied, but instead were used solely for investment purposes. See Thomas, 165 F.3d 692 (statute provides exception for “space rented in the home of the landlord”); 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); Smith v. FEHC, 913 P.2d at 912 (Smith “does not reside in any of the four units”). 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 and pursued by the least restrictive means.

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). 4

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); 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 congressional hearings last year, 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

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 [or impose a substantial burden on religious exercise if the burden affects interstate commerce], 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.

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,” any civil rights defendants who can show that his or her 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., Smith v. 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., 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 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 Smith v. 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); Smith v. 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”).

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.” Smith v. 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 Smith v. FEHC used an analysis for “substantial burden” that may be 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 Smith v. 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. 5 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, should 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 characteristics such as sexual orientation or marital status is compelling. See, e.g., 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); Swanner, 874 P.2d at 282-83 (Anchorage’s interest in prohibiting marital status discrimination in housing is compelling), 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.) (no compelling governmental interest in ending discrimination against unmarried couples).

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 e