Thank you, Mr. Chairman, for the opportunity to present the views of the United States Catholic Conference (USCC) on the recent Supreme Court decision invalidating the Religious Freedom Restoration Act of 1993. As leaders of a major religious denomination in this country, the Catholic Bishops deeply appreciate the critical need to protect religious freedom, and for that reason joined the quest for a solution to the Supreme Court's 1990 decision in Employment Division v. Smith, 494 U.S. 872(1990). The Bishops recognize the human rights of individuals and religious organizations to practice their religion free of unwarranted government intrusion at any level. Embodied in the Religion Clauses of the First Amendment, this principle is at the core of our heritage and has served our country well.

The "religion question" in America runs deep. Religion is truly personal, but lived corporately through many thousands of worshiping religious communities. From colonial times, it has always been diverse and pluralistic. At the heart of the religious experience in America, I believe, is the conviction that religious values and practices place upon a believer a set of obligations, different than those embraced for convenience or even choice. Forcing a religious observer to choose between God and country in a sense was always considered unconscionable. It was from this shared experience, I believe, that there developed a spirit of accommodation. The history of accommodation reflected in judicial interpretation and colonial experience is thoroughly reviewed by Professor Michael McConnell, who testifies in these same hearings, in his seminal article about the Origins of the Free Exercise Clause. THE ORIGINS AND HISTORICAL UNDERSTANDING OF FREE EXERCISE OF RELIGION, 103 Harv.L.Rev. 1409 (1990). The spirit of accommodation reflected the idea that, to get along in peace, we sometimes have to make exceptions for others' differences. We tried, sometimes imperfectly, to model "doing unto others, as we would have them do unto us." For this reason, I think accommodation, not conformity, was the national golden rule and it found expression in our laws and traditions. In 1952 in Zorach v. Clausen, 343 U.S. 306, 314, Justice William Douglas reminded Americans that, when public institutions make adjustments in the conduct of their affairs to account for "sectarian needs, it follows the best of our traditions."

Religious people no longer live in these times. In 1997, we live in a time of increasingly complex and highly regulated social structures. We routinely deal with large and often unaccommodating government bureaucracies. The world of our predecessors, like the America of the Framers, has been transformed. The presence and power of the government is pervasive and compelling in ways not imagined by them. Social, educational, and health and welfare services, formerly and in colonial times delivered almost exclusively by churches, now are vast public programs characterized by conformity to bureaucratic and administrative convenience. The breadth and penetration of regulation has made government, not individual choice or religious value, the most dominant force in our society. America is becoming rapidly more secular and the governmental bureaucracies with which we must contend have become increasingly inflexible.

For religious observers, there was always hope. The Free Exercise Clause of the Constitution held open a promise that government could not "prohibit the free exercise" of their religion. Over time, the Supreme Court of the United States enforced this promise by requiring those who would burden religious practices to show that the burden was the narrowest means necessary to fulfill a compelling governmental interest. Administrative convenience was not good enough. Conformity was not expected. Rather, the government had to demonstrate why its proposed inroad on religious practice was justified. Over time, especially in the 1980's, the Supreme Court eroded this promise, sometimes applying and sometimes not applying the compelling interest test. More often than not, courts shifted to a test where religion was balanced against the asserted government interest. As I noted in testimony before the Subcommittee in 1992, in the years prior to Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court had not always applied a compelling interest analysis and religion often did not fare well. The track record for religious claims in the lower courts was even worse. Religious scholar and Federal Judge John Noonan aptly demonstrated this trend in his dissenting opinion in EEOC v. Townley Engineering, 859 F.2d 610, 622-25 (9th Cir. 1988). In an appendix to his dissenting opinion, Judge Noonan listed 72 decisions under federal circuit courts of appeals, 65 of which were decided against the religious claimant. Thus, perhaps it was a small step for the Supreme Court in 1990 to abandon the pretext of compelling interest analysis and substitute a simple rational relation test.

More importantly, in the Smith decision in 1990, the burdens of proof and persuasion were dramatically altered. Any litigator will quickly note that who bears the burdens is at a disadvantage. Prior to Smith, the governmental entity imposing the regulation or denying the exemption had the burden to prove that it was justified. Even though a true compelling interest test was not always applied, the burdens placed on the government were not insignificant. After Smith, absent deliberate discrimination or where another right is implicated, the burden is now on the religious claimant in a Free Exercise case to show why the government acted unreasonably. In declining to follow a strict scrutiny or compelling interest analysis, and deciding to shift burdens to the religious claimant, the Supreme Court made religious values, once accorded the highest treatment in the American society because of the widely recognized dilemma that a conflict between religious obligation and governmental prescription would create, subject to a mere rational basis test. Religion was not well protected in Smith, and something needed to be done. I must also acknowledge that, although USCC came to embrace the Religious Freedom Restoration Act, in my 1992 testimony, buttressed by a 1991 analysis and other critiques, we expressed reservations about the precise legislative bill then pending in the Congress. We were absolutely convinced that the statute, despite its name, was not restoration. It embraced a broader application of the compelling interest test than had been applied in the cases immediately prior to Smith and would apply the test in a broader class of cases. More importantly, we were convinced that this was not simply a revision or rewrite of constitutional language. We were not "restoring the Free Exercise Clause" as some would have wanted the American public and others to think. Only the Supreme Court can "restore" the Free Exercise Clause. USCC recognized from the outset that Congress was writing a new statutory right, making it unlawful for persons in government to take any action that would have the effect of burdening a religious practice unless there was some compelling reason to do so. When adjustments were made by the sponsoring coalitions and drafters in the Congress, USCC strongly endorsed the legislative model because we were convinced that the Supreme Court would not readily abandon the rule of decision that it had adopted only three years before in Smith. Our concern about whether the compelling interest test would be a legitimate basis on which to contend with government, to be frank, has been shown to be not well taken as, in fact, under the Religious Freedom Restoration Act, religion did far better than many of us thought it would. The courts took seriously Justice Antonin Scalia's warning in Smith that a true "compelling interest test" would be the highest and most difficult test for the government to pass. Under RFRA, accommodation was once again the rule. Finally, I would be remiss if I did not note that Employment Division v. Smith is only part of the problem confronting religion across the board. Taken together, Employment v. Smith and Aguilar v. Felton, 473 U.S. 402 (1985), penalized religion to a very great extent. For those whom the Religion Clauses were ordinarily designed to protect, religious people and their religious organizations, the law had been turned inside out. Aguilar placed the burden on the religious claimant to show that a beneficial state program involving religious organizations (in that case, remedial education of poor children), was itself constitutional to a certainty. Despite a record in which there was a never a violation of any constitutional precept, Aguilar ruled that, because the government could not prove to a certainty that there would never be a problem, the program was declared unconstitutional and enjoined. To the same extent, Employment Division v. Smith placed the burden on the religious practitioner to show that the government was acting unreasonably. Thus, conduct beneficial to religion, either attained through governmental programs or sought as an accommodation between religious obligation and governmental regulation, was subjected to additional litigation burdens before it could be sustained. Throughout these last several years I asked whether the judicial process itself was contributing to a spirit of hostility towards religion. Indeed, Smith laid the problem back at the feet of legislators, noting that if religion wanted some accommodation it should seek accommodations through the legislative process. At the same time, cases like Aguilar and Texas Monthly v. Bullock, 489 U.S. 1 (1989), raised the specter that, if an accommodation were in fact obtained, it could be declared unconstitutional under the Establishment Clause because it would have failed the very high threshold created by the Court. This situation created, in my view, the politics of doing nothing. Why should government regulators give an accommodation if it would be subject to invalidation under the Establishment Clause? The Religious Freedom Restoration Act addressed some of this problem. The June 23 Supreme Court decision on Agostini v. Felton, ___ U.S. ____, 65 U.S.L.W. 4524 (1997), reversed Aguilar and may prove very significant in the long run to promote better cooperative relations between government and religion. For forty eight hours at the end of June, things were looking up. Unfortunately, on June 25, the Court's action in the City of Boerne v. Flores, ___ U.S. ___, 65 U.S.L.W 4612 (1997), has brought us back to where we are today.

In City of Boerne v. Flores, the Court followed the restoration rhetoric and not the law. The Court took seriously the proposition that the Religious Freedom Restoration Act "restored the Free Exercise Clause" to its pre-eminent position in American life. It was a political proposition, not a statutory rule. The rhetoric was not law. If RFRA were simply restoring the Free Exercise Clause, USCC and others might have continued to resist RFRA as potentially unconstitutional. Congress does not have the authority simply to restore the Free Exercise Clause. But the Congress, we thought, and still think, does have the power to enact a statutory remedy to protect religious rights. The brief of Archbishop Patrick Flores, ably prepared and argued by one of the preeminent constitutional lawyers in the United States today, Professor Douglas Laycock, lays out the reasons why the Religious Freedom Restoration Act was well supported by the Court's precedent in the Voting Rights Act and other cases. If the Court had followed the law and followed the theme of its own decisions, instead of the rhetoric, it would have reached the same conclusion as the federal courts of appeals: that the Religious Freedom Restoration Act was constitutional.

What the Court did was write a decision about power and the allocation of constitutional power, not a decision about religious liberty. Certainly, there is almost no mention about the idea of religious liberty and the need to protect it extensively except in the dissenting opinions. Smith is (and was) the law on Free Exercise and there may not be sufficient votes on the Court to revisit Smith anytime soon. Without the Religious Freedom Restoration Act, we are thrown back into the chaos that confronted religious organizations from 1990 to 1993. Others, notably the Baptist Joint Committee on Public Affairs, have catalogued the litigation results in cases following Smith. As the analyses prepared prior to the adoption of the Religious Freedom Restoration Act bear out, courts which applied the Smith analysis to a variety of civil statutes and claimants almost inevitably reached the result that religion loses and the government prevails. This is not a good state of affairs for religious claimants and it is distinctively un-American.

RFRA followed the best of our traditions. It required adjustments to the regulatory and service machinery of government for religious persons and practices unless some countervailing important reason was being sacrificed in the process and could not itself be obtained in some other way. It tipped the scales of justice slightly back in the direction of religion. Given our history and public traditions, the near united support among the American people and the Congress, RFRA seemed to strike a responsive chord in the soul of our country. We were finding ways to accommodate our differences in a complex highly regulated society. In simpler times, we might have been able to do so by persuasion or by making accommodations as "the right thing to do." In our litigious society, dealing with bureaucracies that expect conformity and lack mechanisms to make exceptions or evaluate the strength or weakness of various requests for exemption, RFRA served as an important tool in negotiation, bargaining, and reaching compromise in more instances than we can count.

It is for this reason, primarily, that USCC still advocates some legislative remedy to protect the religious freedom of all Americans. We do not believe that anti-religious discrimination is rampant. In fact the Smith case, confirmed several years later in Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), notes that governmental entities which target religious practice for adverse treatment must show a compelling interest in order to sustain this kind of action. Intentional discrimination is not the rule and discrimination is not tolerated in this society. But anti-religious feelings, especially about religious minorities--and we are all a minority somewhere in this country--is still felt even if it is not express. Moreover, it is also widely recognized that burdens can be created for religious practitioners and on religious practices in myriad unintended ways. The litigation which gave rise to the conflict in the City of Boerne is an apt illustration. There, the facade of the Church extended into a historic district. The Church leadership was willing to make an accommodation and preserve the facade but it needed to expand its sanctuary in order for that Catholic parish to worship as a community.

We Catholics find the Body of Christ in community. The need to worship together as one body is a sign of our unity and solidarity not just with each other but with our risen Lord. Catechism of the Catholic Church, ¶¶1108, 1140-41. We celebrate together in community as an essential element of our worship. Id. at ¶1179. The inability for the Catholics of St. Peters to worship together in community in the consecrated space dedicated for that purpose was a direct affront and a substantial burden to that community. As restated in the Catechism (¶1180), "When the exercise of religious liberty is not thwarted, Christians construct buildings for divine worship. These visible churches are not simply gathering places but signify and make visible the Church living in this place, the dwelling of God with men reconciled and united in Christ." The inability of the City leadership to make an accommodation in that instance, therefore, penalized the rights of the worshiping community and burdened their religious practices. The Religious Freedom Restoration Act held out a strong, but not exclusive, avenue for relief.

There are thousands of St. Peters churches across the country. They do not all have zoning problems. Churches, mosques, synagogues, and individual practitioners routinely conflict with the demands of the bureaucratic, highly regulated society. We do not always understand the impact of even asking a witness to swear an oath, as some faith communities will not allow their members to do so. We do not always understand why asking a Sikh to remove his head covering in a court to show reverence for the judge ascending the bench is an affront to his religious belief. We do not always understand how autopsy or uniform donation of organ rules can adversely impact the rights of religious believers who, when their bodies are violated, can be denied eternal life. When we lose the right to be different, we lose the right to be free. When we lose the sense that we need to get along, to preserve the civic peace which is a value at the core of our constitutional democracy, we threaten the very heart of what it means to be an American. Our tradition is that we find ways to get along. Our tradition is that religion has always been accorded different and beneficial treatment.

Religion has always been accorded special status under the law. It is the First Right mentioned in the Bill of Rights. It has often been understood that religion places obligations on its adherents that are different from even the claims of a moral, but secular, conscience. To be denied the right to conduct a ritual that one believes in strongly for secular reasons does not have the same potential impact for that person as it does for a religious observer who may not worship in community in consecrated space. The choice between a peaceful life now and a peaceful life in the hereafter is not one that many of us would want to foist on ourselves or our neighbors. RFRA allowed us a way out. We need to find another one.

I must note that my own thoughts about how to deal with the City of Boerne v. Flores decision are still in a very preliminary state. Indeed, they are evolving the more that I have discussions and the more that I read and research. I also confess that I must rely, and I would urge the Committee to rely, on experts on Separation of Powers and Section 5 of the Fourteenth Amendment. Although I believe that I have some learning in the law, especially on constitutional process, religious liberty, and liability theories, Separation of Powers, federalism, and the intricacies of Section 5 and other avenues of Congressional authority are not my strong suit. I would urge the Committee to seek experts to provide opinions on what the limits and reach of Congress' authority would be in light of the decision in City of Boerne. I would especially invite the Committee to ask those who have been critical of the approach adopted in the Religious Freedom Restoration Act to outline possible legislative remedies. Some are already outlined in the legislative record compiled in 1992. There is more work to be done.

My own view is that the Congress should explore a statute first. Only if it is satisfied that a statute would not solve the problem which the City of Boerne decision created, should Congress consider a constitutional amendment. In designing a statute, obviously, the Congress would have to explore alternative and different bases for legislative action. These would include the Spending Clause, the Commerce Clause, Privileges and Immunities, and even Section 5 if a record can be compiled showing the precise nature of the problem and the way in which the problem must be solved. Second, it is important that Congress itself be on record, not against Boerne and not necessarily against Smith, but for religion and for religious liberty. The Congress can recommit itself to this value in any number of ways but it should be on record to seek solutions for religion, recognizing that it will explore other ways in which it can exercise its power to protect the American public.

Third, I would also note that some exploration of the intricacy of state laws, of litigation and of a constitutional amendment should also occur. There are disadvantages associated with each of these concepts and, therefore, I assign them a lower priority on my own set of remedies. State laws will create a hodgepodge of rules that will create uneven protection for religion across the country. We could be creating new and unique problems, especially in those states which have Blaine amendments that have denied religion the benefit of public programs. A litigation strategy may be a way of testing whether there is strength beyond the three dissenters in the City of Boerne case or the proposition that Smith should be revisited and abandoned. The Court revisited and abandoned Aguilar when there was a sufficient passage of time and a sufficient change in law. The Court did not reverse Aguilar because it created an inequity in the delivery of services to poor children, but because Establishment Clause jurisprudence had evolved. So, too, I do not think that the Court will revisit Smith because it has created practical problems for the religious community in the United States. The Court would have to be persuaded that Smith does not adequately or accurately state the constitutional law. It is not at all clear that the Court will do so anytime soon. Finally, a constitutional amendment process would be divisive, and there are many issues that would have to be evaluated and resolved in order for an amendment to move forward. USCC believes that some of the present difficulty for religion has occurred because the Religion Clauses have often been read and interpreted as somehow in competition with each other. The Court contributed to this problem through separate interpretations of these Clauses in the 1940's and separate and differing constructions in the evolving litigation process. A constitutional amendment would have the opportunity, I think, to address this problem and perhaps get at the root of the difficulty, namely, a unitary construction of the Religion Clauses in a way that it is beneficial to religion. USCC has tried to contribute to this debate by writing briefs, first attacking Smith in Church of Babalu Aye case noted above, by the brief that we filed in the Agostini case, and through scholarly articles. I would be happy to provide copes of these briefs and articles either for the record of these hearings, if this Committee believes it appropriate, or later if the Committee or its staff wants to explore a broader approach to the question of religion in America.

In conclusion, the Congress has a difficult but important job ahead of it. City of Boerne v. Flores has thrown the national religious community back to where we were in 1990. We have learned much in the interim about the need for legislation to protect religion and the ways in which the religious community and the Congress could work together to solve problems. We need to join our efforts again to address this difficult situation and move forward effectively to protect religious liberty in the United States. USCC will be pleased to assist in that process.

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