------------------------------------------------------------------------ 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.