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Testimony of Legislative Counsel Christopher Anders on the Protection of Religious Liberty Before the Senate Judiciary Committee

Document Date: June 23, 1999

American Civil Liberties Union
Statement on the Protection of Religious Liberty
Before the Senate Committee on the Judiciary
Presented by Christopher E. Anders, Legislative Counsel
June 23, 1999

I. INTRODUCTION

Mr. Chairman and members of the Committee, the American Civil Liberties Union greatly appreciates the opportunity to present this testimony on the importance of ensuring that any federal legislation enhancing the protection of religious exercise will not cause any unintended harm to the enforcement of state and local civil rights laws. Such properly drafted legislation would be consistent with the long-standing practice of the Congress in refraining from undermining or preempting state and local civil rights laws that may be more protective of civil rights than federal law.

The ACLU historically supports legislation providing stronger protection of religious exercise–even against neutral, generally applicable governmental restrictions. But our concern is that some courts may turn a federal statutory shield for religious exercise into a sword against state and local civil rights laws.

Thus, the ACLU regrets that we have no choice but to ask the Committee to refrain from passing any religious liberty legislation unless it will have no adverse consequences on the hard-won civil rights laws enacted and enforced by state and local governments. For nearly a decade, the ACLU has fought in Congress and the courts to preserve or restore the highest level of constitutional protection for claims of religious exercise. 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 in 1993, and the Religious Liberty Protection Act (“RLPA”) during most of the last Congress.

However, we are no longer part of the coalition supporting RLPA, as introduced in the House, because we could not ignore the potentially severe consequences that it may have on state and local civil rights laws. 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.

We have found that landlords across the country have been 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 of the landlords owned so many investment properties that they were outside the state laws’ exemptions for small landlords. These landlords all sought to turn the shield of religious exercise protections into a sword against the civil rights of prospective tenants.

The U.S. Court of Appeals for the Ninth Circuit recently applied a strict scrutiny standard of review to a local civil rights law in deciding a claim by landlords that compliance with that 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 defendants in similar civil rights cases 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.

An improperly drafted federal statute could 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 itself, could find their protections under state or local laws eroded by federal law.

The enactment of an unamended RLPA would represent a sharp break from a long Congressional tradition of exercising restraint to avoid passing any law that would undermine state or local civil rights laws. In fact, Mr. Chairman, you and other members of this Committee have had an important role in encouraging states to develop their own civil rights laws by publicly applauding the civil rights successes of many states.

However, if federal legislation such as an unamended 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 a federal religious liberty statute’s potential effect on state and local civil rights laws unresolved. The stakes are too high.

Instead, the ACLU urges you to consider other alternatives for providing a shield for religious exercise without creating a sword against civil rights laws. As Texas State Representative Scott Hochberg will testify, Texas Governor George W. Bush signed into law–only two weeks ago–a state RFRA that protects Texas’ civil rights laws. On the House side, the ACLU and many other groups are supporting a civil rights amendment to RLPA offered by Congressman Nadler that will have a similar result.

The ACLU very much appreciates your willingness to consider these concerns as you draft legislation. We believe that members of Congress who justifiably care deeply about protecting both religious exercise and state and local civil rights laws should not be forced to choose. It is a false choice because both goals can be made compatible. We hope to work with members of the Committee to resolve this problem. Thank you once again for this opportunity to present our concerns.

II. SCOPE OF THE POTENTIAL PROBLEM

The House of Representatives is presently considering H.R. 1691, the Religious Liberty Protection Act of 1999 (“RLPA”), which would provide extensive federal statutory protection for religious exercise to replace or enhance the constitutional protection previously afforded religious exercise prior to a 1990 Supreme Court decision that lowered the standard of review for religious exercise claims. H.R. 1691 is similar to legislation considered last year by both houses of Congress. H.R. 1691 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, H.R. 1691 does not have any provision specifically addressing its 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. 1 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). 2

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. The City of Los Angeles filed an amicus brief in the Ninth Circuit Smith case, stating its concern that a religious liberty defense could undermine enforcement of its municipal law protecting persons against discrimination based on HIV status.

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

H.R. 1691 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. 3 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 interes

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