Professor Hamilton Submits RFRA Testimony to House of Representatives

Professor Hamilton submitted testimony about the Oversight of RFRA and RLUIPA to the House Subcommittee on the Constitution and Civil Justice of the Committee on the Judiciary.

You can read her full letter to the subcommittee here: RFRAoversight_HouseSubcomm_Hamilton__2_27_15_sent.

Two of her major recommendations for RFRA reform are reprinted below:

I am on the record for the proposition that RFRA is unconstitutional, but for purposes of this Oversight Hearing, I leave that issue aside to offer the following observations and conclusions regarding specifics of the RLUIPA/RFRA formula. Each of these is the product of grappling with RFRA and RLUIPA issues in my scholarly work, the courts, and the classroom for nearly 20 years.

1. The “Least Restrictive Means” Test. I believe that the most problematic element of the RFRA/RLUIPA formula is the “least restrictive means” test. As I mention above, it truly was never part of the Court’s doctrine. Religious litigators sought it fervently for a number of years, but the Court never adopted it (even for purposes of strict scrutiny), and the Court has confirmed this fact in its own cases repeatedly. See above. The heated response to Employment Div. v. Smith, 494 U.S. 872 (1990), that drove to the enactment of RFRA was motivated in fact by disappointment that the push for this test had definitively failed, not because the Court had “abandoned” its previous doctrine.

The “least restrictive means” analysis is an invitation to judicial activism, because it invites courts to imagine if there is any lesser restrictive alternative to the one lawmakers enacted—regardless of economic, policy, or political feasibility. The judges’ imaginations are not cabined in any way, which led the Supreme Court to conclude in Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2759-60 (2014), that the Affordable Care Act’s contraception mandate failed RFRA on the theory that it would have been less restrictive had the ACA subsidized contraception for every woman in the country—even though such a policy was never politically or economically feasible. Even more recently in Holt v. Hobbs, 135 S. Ct. 853, 864 (2015), the Supreme Court held itself out as an expert on prison management, chastising prison authorities for not choosing the option of having prison guards comb inmates’ beards rather than having a no-beard policy. Finally, in an early RFRA case, a Vermont court held that a man who refused to pay child support for religious reasons could not be subject to contempt of court for his failure to pay, because there were less restrictive means of enforcing the law against him. Hunt v. Hunt, 162 Vt. 423, 436-438, 648 A.2d 843, 853-54 (1994). This last argument that a RFRA requires watering down criminal punishment or civil penalties is not uncommon.

The RFRA/RLUIPA “least restrictive means” element further sends the message to believers that they have a “right” to force every law to be shaped to them, without regard to how their actions affect or harm third parties. I believe this mode of thinking, which only appeared in United States law when RFRA was enacted in 1993, is directly responsible for the claims of a right to discriminate that are now motivating so many state RFRAs. This trend needs to stop now, because there are numerous groups in the United States that would take a right to discrimination to even darker corners, whether it is gender, race, or disability, as the Southern Poverty Law Center so courageously documents. Southern Poverty Law Center, http://www.splcenter.org/.

My concern about the “least restrictive means” test goes beyond the win-loss RFRA/RLUIPA record to the broader question of what it means to be an American. As I have argued in God vs. the Gavel: The Perils of Religious Liberty (Cambridge University Press 2014) and elsewhere, this is a message that is both dangerous to the vulnerable and also antithetical to America’s needs in the war on fanatical Islamic terrorists and other radical groups inside and outside of the United States. How can America stand for the rule of law on the world stage when it is saying to Muslim parents who force their girls to undergo female genital mutilation or other parents in sects like the Followers of Christ (who have let their children die from easily treated diseases) that they should be able to insist on watered down penalties through the least restrictive means test?

Recommendation: I suggest that Congress eliminate the misguided “least restrictive means test” from the RFRA/RLUIPA formula and put public policy back into its own hands.

1. RFRA’s Endangerment of Children. As the RFRA formula has migrated from Congress to the states, it has carried with it increasing risks for children. Those who defend RFRA argue that the children’s cases are no argument against RFRA, because the protection of children always serves a “compelling interest.” This is a half-truth. Yes, they are correct on the compelling interest test, but they are leaving out the “least restrictive means” analysis. That element has opened the door to watering down laws that protect children. Most recently RFRA allowed a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints to refuse to testify in a child labor law case. Perez v. Paragon Contractors, Corp., No. 2:13CV00281-DS, 2014 WL 4628572, at *1, *4 (D. Utah Sept. 11, 2014) (The U.S. Department of Labor and U.S. Attorney’s Office in Utah investigated potential child labor violations during harvest activities at a pecan ranch, seeking an FLDS member to explain how the ranch operated; court held for the FLDS member, holding that compelling the FLDS member to testify was not the least restrictive means to obtain information for the investigation). As discussed above, it is also an argument to reduce penalties on parents who harm their children.

If the vast majority of the children’s cases are unsuccessful under RFRA, as its advocates repeatedly assert, the only beneficiaries of the law as it relates to children are church lawyers.RFRA and its state counterparts have led to one unnecessary case after another.United States v. Brown, No. CIV. 07-5037, 2007 WL 2746608, at *1 (W.D. Ark. Sept. 18, 2007) aff’d, 312 F. App’x 828 (8th Cir. 2009) (RFRA does not provide legal right to grow or distribute marijuana); Fernandez v. Mukasey, 520 F.3d 965 (9th Cir. 2008) (No substantial burden to religious exercise, since lack of qualifying relative was not due to aliens’ Catholic beliefs, which did not prevent adopting child as qualifying relative.); Gary S. v. Manchester School Dist., 374 F.3d 15 (1st Cir. 2004) (RFRA does not give private school attendees the right to receive all the services that public school children receive under the rubric of free and appropriate public education); In re Watson, 309 B.R. 652 (B.A.P. 1st Cir. 2004) aff’d, 403 F.3d 1 (1st Cir. 2005) (RFRA does not protect right to use income to pay for religious private school education.); Swanson By & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-1, 942 F. Supp. 511 (W.D. Okla. 1996) aff’d sub nom. Swanson By & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998) (Compelling children to go to school does not substantially burden religious exercise.); Nieuwenhuis by Nieuwenhuis v. Delavan-Darien Sch. Dist. Bd. of Educ., 996 F. Supp. 855 (E.D. Wis. 1998) (RFRA claim fails because a refusal to extend benefits available in a public school to students enrolled in private school does not burden religious exercise.); In re Three Children, 24 F.Supp.2d 389 (D. N. J. 1998) (RFRA does not compel the Court to establish this privilege because the government’s interest in investigating/prosecuting crimes outweighs the incidental burden on free exercise.); Battles v. Anne Arundel Cnty. Bd. of Educ., 904 F. Supp. 471, 477 (D. Md. 1995) aff’d, 95 F.3d 41 (4th Cir. 1996) (State statute monitoring home school program does not substantially burden religious exercise.”); Thiry v. Carlson, 887 F. Supp. 1407 (D. Kan. 1995) aff’d, 78 F.3d 1491 (10th Cir. 1996) (Although condemnation would impose burden on religious practices of plaintiffs, burden was not so substantial as to give rise to claim under the RFRA and plaintiffs failed to establish any violation of rights guaranteed by free exercise clause of First Amendment.); Goodall by Goodall v. Stafford Cnty. Sch. Bd., 60 F.3d 168 (4th Cir. 1995) (parents’ economic burden of providing their hearing-impaired child with required cued speech services because they sent the child to a private religious school that did not receive such services funded by the county, did not substantially burden the parents’ free exercise of religion under RFRA.); Klemka v. Nichols, 943 F. Supp. 470, 473 (M.D. Pa. 1996) (Arrest during memorial service did not violate RFRA); Adoption of Brooke, 42 Mass. App. Ct. 680, 679 N.E.2d 569 (1997) (Mother’s own exercise of religion was not burdened where her rights with respect to the designation of the religion of her child’s adoptive parents were terminated when she did not surrender the child for adoption.); Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791 (App. Div. 1997) (While the First Amendment to the United States Constitution prohibits regulation of religious beliefs, conduct by a religious entity remains subject to regulation for the protection of society.); Harless by Harless v.Darr, 937 F. Supp. 1339 (S.D. Ind. 1996) (School policy restricting times and place for distribution of printed matter by students and requiring prior approval does not violate RFRA); A.H. ex rel. Hernandez v. Northside Indep. Sch. Dist., 916 F. Supp. 2d 757 (W.D. Tex. 2013 (School requirement of wearing school badge for ID did not violate substantially burden free exercise); Jeffs v. State, No. 03-10-00272-CR, 2012 WL 601846 (Tex. App. Feb. 24, 2012) (Home search in relation to criminal investigation did not violate RFRA); Combs v. Homer Ctr. Sch. Dist., 468 F. Supp. 2d 738 (W.D. Pa. 2006) aff’d in part, vacated in part, remanded sub nom. Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231 (3d Cir. 2008) (Pennsylvania statute specifying home education programs did not substantially burden exercise of religion, and thus did not violate Pennsylvania Religious Freedom Protection Act); Ex parte Snider, 929 So. 2d 447 (Ala. 2005) (Order providing that religious training of child during visitation with ex-wife was not to involve training that was disparaging or critical of ex-husband’s religious beliefs did not violate ex-wife’s free exercise of religion).

The RFRAs are layered on top of pre-existing religious exemptions. It is a fact that when RFRA was enacted there were already many troubling religious exemptions affecting the safety and health of children, including vaccination exemptions (that now threaten our collective herd immunity); medical neglect exemptions (that have paved the way to deaths of children across the country, most recently in Idaho); and education exemptions or failures to enforce education requirements in religious schools (that have disabled children in multiple faiths), among others. Why, in the world, would Congress want to further incentivize harm to children in religious settings in this way?

Recommendation: I suggest an exemption of all children’s issues from RFRA. If there are going to be laws that permit adults to violate the laws that protect children, that debate needs to be specific and in full sunlight.

Hamilton