A distinguished constitutional scholar, Professor at the Benjamin Cardozo School of Law and attorney in the fight for the separation of church and state speaks out against a proposed version of the Religious Freedom Restoration Act introduced in Maryland. Dr. Marci Hamilton warns that the measure is replete with constitutional problems and unanticipated consequences.

Honorable John F. Wood, Jr.
House of Delegates
Acting Chair, Commerce and Government Matters Committee
Lowe House Office Building, Rm. 140
Annapolis, MD, 21401-1991

RE: An Act Concerning Civil Rights -- Religious Exercise, HB 966

Dear Mr. Chairman:

   Thank you for permitting me to testify regarding HB 966, an Act Concerning Civil Rights -- Religious Eerxise. This bill is an amended version of last year's HB 1041, SB 515. last year, I expressed the view that they were unconstitutional and a policy mistake. Although HB 966 is somewhat milder, it still violates the state and federal constitutions and confounds common sense.

HB 966, Which Has A Breathtaking Scope, Provides More Expansive Protection for Religious Interests Than Previous Eras.

   Like HB 1041 and SB 515, HB 966 directs the courts to apply the compelling interest and least restrictive means test every time a state or local law substantially burdens religious conduct. As the United States Supreme Court has made clearand as I testified last year, the courts have never applied the compelling interest and least restrictive means test across the board. See, e.g., Boerne v. Flores, 117 S. Ct. 2157, 2171 (1997) (stating that the least restrictive means test is a "requirement that was not used in the pre-Smith jurisprudence"); Employment Div. v. Smith, 494 U.S. 872, 882-82 (1990) (stating the Court had "abstained" from using the "compelling interest" test in many free exercise cases).

   From the beginning of its free exercise jurisprudence, the Court has applied a common sense balancing approach, which takes into account the particular context. This bill does not capture the pre-Smith cases, because its plain language mandates the strictest of scrutiny in every arena except prison regulations.

   HB 966 does not stop at the compelling interest/least restrictive means test posed by HB 1041 and SB 515, but rather places a completely novel burden on governments. It sharpens strict scrutiny by requiring the government to prove not only a compelling interest and the least restrictive means, but also that the "alternative proposed by the person will unduly interfere with the fulfillment of the compelling governmental interest." Sec. 12-602(B)(3). This is a standard unknown in the free exercise jurisprudence. Apparently, even if the government can prevail on the compelling interest and least restrictive means prongs, it will have to prove that any proposal dreamed up by a person engaging in illegal conduct that is motivated by religious belief "unduly interferes" with the government's interest. It invites extreme court micromanagement and second-guessing of local and state laws.

   Far from returning Maryland to a comfortable era of free exercise protection, this bill turns over the free exercise apple cart. The effect is to favor religious conduct more aggressively than it has been favored in the past. It should be entitled the Maryland Religious Supremacy Bill.

HB 966 Violates the Maryland and United States Constitutions

   HB 966 violates the Maryland and United States Constitutions. First, like the federal Religious Freedom restoration Act (RFRA), it violates the separation of powers between the legislature and the courts. Under the Maryland Constitution, the branches are to be separate. Here, the legislature is dictating to the courts what standard of review they should apply in cases involving the free exercise of religion. This is a quintessentially judicial task, best left to the judiciary.

   Second, HB 966 violates the federal and state prohibitions on the establishment of religion. By adding the "unduly interferes" prong to the government's burden, this bill offers even more power to religion than the Religious Freedom Restoration Act promised. It plainly favors religion over irreligion, which is prohibited by the United States Constitution. See Wallace v. Jaffree, 472 U.S. 38 (1985).

   Third,HB 966 amends the Maryland state constitution's free exercise protections by simple majority legislative vote. The federal RFRA suffered from the same defect and was invalidated in part on this ground.

The Preamble Does Not Solve the Problems Posed by the Plain Language of the Bill

   The newly added Preamble to HB 966 makes it appear as though HB 966's drafters now understand that the compelling interest and least restrictive means tests were not the tests employed against every loaw that burdens conduct motivated by religious belief. The Preamble, contrary to the text of the statute,directs the courts to apply the law in effect prior to Smith, without specifying what particular standard the courts are to apply. Yet, standard rules of statutory construction do not permit a Preamble (or headings) to trump the plain meaning of the statutory language. Here, the language in Sec. 112-602 is quite clear and therefore the Preamble cannot change the statute's directive to apply the compelling interest, least restrictive means,and unduly interferes tests in every case. The directive in Sec. 12-602 will trump whatever tempering effect the Preamble is intended to have.

   Pity the court who is given HB 966. It sends nothing but contradictory messages. First, the plain language of the statute prescribes three stringent tests to be applied to laws that burden conduct motivated by religious belief. Second, the Supreme Court's statements (quoted above) make it clear that application of the compelling interest and least restrictive means tests to all free exercise claims will mark a sharp turn in free exercise jurisprudence. The court,at this stage, must conclude that it is supposed to apply super strict scrutiny in every scenario (except the prisons). Third, the Preamble contradicts the directive to increase free exercise protections dramatically.

   The bill's new features -- deletion of attorney's fees, exemption of the prisons from its effect, deletion of "highest order" from definition of "compelling interest," and the deletion of the "centrality" language -- certainly move the bill in the right direction if the legislature intends to provide statutory protection consistent with pre-Smith jurisprudence. As long as the bill mandates strict scrutiny plus the new "unduly interferes" test in every scenario but the prisons, however, it will not give the courts the latitutde to engage in the sort of reasoned balancing that the free exercise cases in Maryland and the Supreme Court have employed for decades.

Maryland Would Be Better Off Abandoning This Proposal and Letting the Courts Apply Existing Standards to Free Exercise Conduct Claims

   If the legislature's goal is to have a place in the system mirroring the Supreme Court's free exercise jurisprudence before Smith, there are two more direct and less troubling routes. First, the Maryland courts have not abandoned McMillan v. State, 258 Md. 147, 152 (1970), which reflected the pre-Smith case law. Second, it would be prudent to learn how the Smith decision plays out in practice. The decision was not in fact a serious departure from the Court's earlier cases and portended strict scrutiny in a variety of scenarios. legislation like HB966 gets in the way of the courts working out the ramifications of Smith, which resolutely refused to overrule the Court's preceeding cases, but rather expressed the spirit of the Court's free exercise jurisprudence since its inception in the late 19th century.

Because of Its Impact on a Vast Array of Policy Concerns, HB 966 Will Generate Negative and Unintended Consequences

   This bill continues to provide a defense to every crime committed by religious believers and poses a potential threat to interests ranging from the antidscrimination laws to child protection laws. providing extremely demanding scrutiny of every generally applicable, netural law that burdens religious conduct can and will prompt challenges to the following laws and undermind such laws:

abortion regulations
physician assisted suicide regulations
child neglect, abuse and support laws
statutory rape and minimum age marriage laws
laws against domestic violence
zoning and building codes, including height, lot-size, and building size restrictions, on-and-off-street parking, non-commercial status
antidscrimination laws that forbid discrimination on the basis of race, gender, disability, and sexual orientation (the federal ACLU has withdrawn support from any federal religious liberty legislation that does not exempt these laws because of the adverse impact strict scrutiny could have on them)
fair housing laws
prison regulations governing hair length, jewelry, conjugal visits, and dietary accommodation.¹
fair housing laws
school weapons bans
midwifery licensing regulations
endangered species protection laws
historical and cultural preservation laws
open space laws
Medicare/Medicaid regulations
literature distribution in the public schools
human reproduction classes in the public schools
prayers in public schools
compulsory education laws
compulsory vaccination laws

   Letters fromgroups representing some of these interests, which can explain the likely impact of HB 966, can be found on my website at www.marcihamilton.com.

   This is just the tip of the iceberg, of course. HB 966 affects every state and local law and therefore its impact is literally unimaginable. It is especially difficult to predict how its super strict scrutiny would affect the vast majority of laws because the United States Supreme Court had only addressed a handful of scenarios and applied strict scrutiny in only two (unemployment compensation and compulsory high school education).

   Thank you again for your attention to this important issue. I would be happy to answer any questions that you might have.

Sincerely,
Marci A.Hamilton,
Professor of Law

¹   The current version of HB 966 exempts prisons from its reach. If prison regulations were brought under the strict scrutiny umbrella, the bill would generate a great deal of litigation, much of it frivilous,because it would provide a level of protection to prisoners' religious conduct that is vastly different from the standards applied by the Supreme Court in that context.

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