Order Code RL30221
CRS Report for Congress
Received through the CRS Web
The Religious Liberty Protection Act:
Background and Current Status
Updated April 25, 2000
American Law Division
Congressional Research Service ˜ The Library of Congress
On July 15, 1999, the House adopted a slightly modified version of H.R. 1691, the “Religious
Liberty Protection Act of 1999" (RLPA) by a vote of 306-118. The measure is a response
to the Supreme Court’s 1997 decision in City of Boerne, Texas v. Flores and raises significant
policy and legal issues. This report provides background on the judicial and legislative
context of RLPA, summarizes congressional action on it in the 105th and 106th Congresses,
and frames some of the legal issues that appear to be implicated.
The Religious Liberty Protection Act:
Background and Current Status
On July 15, 1999, the House adopted a slightly modified version of H.R. 1691,
the “Religious Liberty Protection Act” (RLPA), by a vote of 306-118.. Prior to final
passage the House rejected an amendment to limit RLPA’s application with respect
to certain state and local nondiscrimination measures, 190-234. The bill (along with
a modified Senate version , S. 2081) now awaits action in the Senate.
RLPA is part of an ongoing conversation between Congress and the Supreme
Court about whether religious practices ought to be given special treatment by
government and about Congress’ power to mandate such treatment. Prior to 1990
the courts had generally applied (although often with a light hand) a strict scrutiny test
to government actions that imposed substantial burdens on the exercise of religion.
But in 1990 in Employment Division v. Smith, the Court largely eliminated the strict
scrutiny test for free exercise cases. In response Congress in 1993 enacted the
“Religious Freedom Restoration Act” (RFRA) reapplying (and extending) the strict
scrutiny test to all government actions, including those of state and local governments,
that impose substantial burdens on religious exercise. But in City of Boerne, Texas
v. Flores in 1997 the Court held that Congress lacks the power under § 5 of the
Fourteenth Amendment to impose RFRA on state and local governments. RLPA is
a response to that decision and would re-apply a strict scrutiny standard to the actions
of state and local governments on the basis not of § 5 (except with respect to land use
decisions) but of Congress’ powers to attach conditions to federal funding programs
and to regulate commerce.
RLPA raises several major issues. First is the policy question of whether, and
to what degree, religious exercise ought to be protected by federal law from
burdensome interference by state and local governments, i.e., whether religious
exercise should be afforded special treatment by government or should, instead, be
treated neutrally. RLPA is intended to be broadly protective of religious exercise, and
revisions that have occurred since it was first introduced in 1998 have made it
increasingly so. A second issue concerns whether Congress has the constitutional
power to mandate that state and local governments give religion special treatment.
Questions have been raised about whether RLPA exceeds Congress’ power under the
spending clause by imposing a condition on federal grants that is coercive on the
states and that has little nexus to the individual spending programs to which it is
attached; whether RLPA’s use of the commerce power violates principles of
federalism; and whether its reliance on § 5 of the Fourteenth Amendment in its land
use provisions satisfies the requirements the Supreme Court has articulated for
Congress’ exercise of that power. Question has also been raised about whether state
and local nondiscrimination statutes ought to be exempted from its purview.
This report provides background on the Supreme Court’s decisions in Smith and
Boerne and Congress’ passage of RFRA; summarizes legislative action on RLPA in
the 105th and 106th Congresses; and frames the salient legal issues that appear to be
implicated by RLPA. It will be updated as events warrant.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Smith Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Religious Freedom Restoration Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
City of Boerne, Texas v. Flores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Religious Liberty Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
105th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
106th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Selected Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(1) Spending power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(2) Commerce power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(3) Section 5 of the 14th Amendment . . . . . . . . . . . . . . . . . . . . . . . . 14
(4) RLPA’s impact on civil rights provisions . . . . . . . . . . . . . . . . . . . 16
The Religious Liberty Protection Act:
Background and Current Status
On July 15, 1999, the House of Representatives adopted a slightly modified
version of H .R. 1691, the “Religious Liberty Protection Act of 1999" (RLPA), by a
vote of 306-118. Prior to that vote the House rejected an amendment to limit
RLPA’s applicability with respect to some state and local nondiscrimination measures,
190-234. In the Senate the measure has been referred to the Judiciary Committee,
while a slightly modified version (S. 2081) has been placed on the Senate calendar
without referral to committee.
First introduced in the second session of the 105th Congress, RLPA is part of an
ongoing conversation between Congress and the Supreme Court. For the quarter of
a century prior to 1990 the courts had generally applied a strict scrutiny test to
government actions that imposed substantial burdens on religious exercise. In order
for a burden on a religious practice to be sustained as constitutional under that test,
government had to demonstrate that its action served a compelling public purpose and
did so by means no more restrictive of religious exercise than necessary to accomplish
the purpose. If the government could not so demonstrate, it had to exempt the
religious practice in question from the law or regulation or action that imposed the
The courts often applied the strict scrutiny test with a light hand, however; and
during the 1980s the Supreme Court became increasingly disenchanted with the test.
That disenchantment culminated in 1990 in Employment Division, Oregon
Department of Human Resources v. Smith1 in which the Court largely eliminated the
strict scrutiny test as the standard government must meet to justify actions that
impose substantial burdens on the exercise of religion. It held instead that no
religious exemptions are compelled by the free exercise clause from governmental
regulations that are religiously neutral and generally applicable, no matter how severe
their impact on the religious practice.
In response Congress in 1993 enacted the “Religious Freedom Restoration Act”
(RFRA)2 reapplying (and extending in part) the strict scrutiny test to all government
actions that impose such burdens, including those of state and local governments, as
494 U.S. 872 (1990).
P.L. 103-141 (1993); 42 U.S.C.A. 2000bb et seq.
a statutory mandate. But in City of Boerne, Texas v. Flores3 in 1997 the Court held
RFRA’s coverage of state and local governments to exceed Congress’ power under
§ 5 of the Fourteenth Amendment. RLPA is a response to that decision and would
re-apply a strict scrutiny standard to the actions of state and local governments on the
basis not of § 5 (except with respect to land use decisions) but of Congress’ powers
to attach conditions to federal funding programs and to regulate commerce.
RLPA, thus, raises serious questions about the extent to which religious exercise
ought to be given special treatment by government and about Congress’ power to
mandate such special treatment by statute. This report provides background on the
Supreme Court’s decisions in Smith and Boerne and Congress’ adoption of RFRA;
summarizes legislative action on RLPA in the 105th and 106th Congresses; and frames
some of the salient legal issues implicated by RLPA.
The Smith Decision
The free exercise clause of the First Amendment provides in pertinent part that
“Congress shall make no law ... prohibiting the free exercise (of religion).”4 It has
long been clear that this clause protects religious beliefs absolutely from governmental
interference, but over the past century the Court has used various standards of review
in applying the clause to government actions that have impinged on religious
practices. In 1963 in Sherbert v. Verner,5 however, the Court seemed to settle on the
strict scrutiny standard as the basic standard of judicial review. Religious interests,
the Court said, are to be considered of “paramount importance” in the constitutional
scheme and government actions infringing those interests are to be viewed as highly
suspect. As a consequence, the Court held that government actions alleged to
interfere with religious practices are constitutional only if they can be shown to serve
some compelling public interest and to be no more restrictive of religious practices
than necessary. Absent such a showing, the religious practice had to be exempted
from the governmental statute or regulation or action that imposed the burden.
Over the next quarter of a century the courts did not always apply this strict
scrutiny standard with unfailing rigor. Indeed, religious interests prevailed in only a
minority of the reported cases,6 and in the 1980s the Supreme Court indicated a
521 U.S. 407 (1997).
By its terms the free exercise clause is applicable only to the actions of the federal
government. But it has been held also to be part of the liberty protected by the due process
clause of the Fourteenth Amendment from undue interference by the states. See Cantwell v.
Connecticut, 310 U.S. 296 (1940).
374 U.S. 398 (1963).
One author found that the Supreme Court itself rejected 13 of the 17 free exercise claims it
heard during this period and that between 1980 and 1990 the U.S. courts of appeal rejected
85 of the 97 claims they heard. See Ryan, James E., “Smith and the Religious Freedom
Assessment Act: An Iconoclastic Assessment,” 78 VIRGINIA LAW REVIEW 1407, 14141417 (1992). An assessment by Judge Noonan of the U.S. Court of Appeals for the 9th
Circuit resulted in a slightly different count. He found that from 1963 to 1988 the Supreme
growing disenchantment with the test by applying a lower standard of review to free
exercise claims by prisoners and military personnel.7 But the test still seemed to some
to stand as a norm that gave a degree of special protection to religious exercise from
burdensome governmental regulations or actions.
However, in 1990 in Employment Division, Oregon Department of Human
Resources v. Smith, supra, the Supreme Court largely abandoned strict scrutiny as the
constitutional test for free exercise cases, 5-4. It retained strict scrutiny for
governmental actions that intentionally discriminate against religion or a particular
religious group,8 but it abandoned strict scrutiny for governmental actions that simply
Sct of burdening religious practice. The Court said that so long as laws are
religiously neutral and generally applicable, they may be uniformly applied to all
persons without regard to any burden or even prohibition placed on their exercise of
religion. The free exercise clause, the Court said, never “relieves an individual of the
obligation to comply with a `valid and neutral law of general applicability’ on the
ground the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).’” In Smith itself, that standard of neutrality meant that the free exercise
clause was construed to mandate no religious exemption from Oregon’s laws
criminalizing the possession and use of drugs for Native Americans who use peyote
in sacramental ceremonies and, consequently, no eligibility for unemployment benefits
for two Native Americans who lost their jobs because of their participation in such a
ceremony. More generally, the Court asserted that the question of whether religious
practices ought to be accommodated by government was a matter to be resolved by
the political process and not the courts, although it admitted that “leaving
accommodation to the political process will place at a relative disadvantage those
religious practices that are not widely engaged in ....”
The Religious Freedom Restoration Act
The specific result in Smith was upsetting to some.9 But it was the Court’s
abandonment of strict scrutiny for facially neutral laws and relegation of most free
Court rejected 13 of 19 free exercise claims and the U.S. courts of appeal rejected 60 of 67
free exercise claims they heard during that period. See Appendix in EEOC v. Townley
Engineering & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) (Noonan, J., dissenting).
See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (holding strict scrutiny not to apply
to governmental burdens on religious exercise in the military) and O’Lone v. Estate of
Shabazz, 482 U.S. 342 (1987) (holding strict scrutiny not to apply to governmental burdens
on religious exercise in prisons).
It also retained strict scrutiny for cases involving denials of unemployment compensation to
persons who were unemployed due to a conflict between their faith and the requirements of
a job and for what it termed “hybrid” cases, i.e., cases that involved not only a free exercise
claim but another constitutional claim as well.
Congress in 1994 made the religious use of peyote by members of the Native American
Church legal under federal law. See P.L. 103-344 (Oct. 6, 1994); 42 U.S.C.A. 1996a.
Oregon, similarly, amended its law and decriminalized the religious use of peyote after Smith.
See Ore. Rev. Stat. 475.992(5) (1996 Supp.).
exercise concerns to the political process that generated widespread alarm in the
religious community and elsewhere. That alarm quickly coalesced into a broad-based
organization known as the Coalition for the Free Exercise of Religion.10 Its efforts
resulted in the introduction by bipartisan sponsors in both the House and the Senate
of a proposed “Religious Freedom Restoration Act of 1990" (RFRA) (H.R. 5377, S.
3254). After three years of consideration, Congress enacted a modified version of
RFRA into law in 1993.11
None of the versions of RFRA considered by Congress addressed any specific
free exercise concern. Rather, the intent was to restore (and slightly expand) the strict
scrutiny test as the general standard governing the interaction of government and
religious exercise. Because a constitutional amendment would have been required to
do that for the judicial interpretation of the First Amendment, RFRA was crafted to
impose the strict scrutiny test as a statutory standard. As enacted, RFRA provided
that a statute or regulation of general applicability can lawfully burden a person’s free
exercise of religion only if it can be shown to be “essential to further a compelling
governmental interest and (to be) the least restrictive means of furthering that
compelling governmental interest.” RFRA made the standard applicable to
governmental action at every level — federal, state, and local — and included those
areas, such as the military and prisons, that the Supreme Court had excluded from the
application of the strict scrutiny test in the previous decade.12 As the means of
enforcement, RFRA allowed aggrieved parties to bring suit if they believed their free
exercise of religion had been restricted by government in violation of the statutory
City of Boerne, Texas v. Flores
One of the issues that received some attention (albeit limited) during Congress’
three years of intermittent debate about RFRA was whether Congress had the
constitutional power to enact it. Some contended that RFRA violated constitutional
principles both of federalism and of separation of powers, but Congress ultimately
decided it had sufficient power under § 5 of the Fourteenth Amendment13 to apply the
measure to the states and under the necessary and proper clause of Article I to apply
it to the federal government.14
The Coalition eventually comprised 67 organizations ranging across the political and
religious spectrum. Its breadth is shown by the inclusion of such ordinarily disparate groups
as the People for the American Way and the Traditional Values Coalition.
P.L. 103-141 (Nov. 16, 1993); 42 U.S.C.A. 2000bb et seq. For a fuller description of
RFRA’s consideration by Congress, see CRS, The Religious Freedom Restoration Act: Its
Rise, Fall, and Current Status (January 21, 1999) (CRS Report 97-795).
See cases cited in n. 7.
The Fourteenth Amendment, inter alia, bars the states from depriving “any person of life,
liberty, or property, without due process of law.” “Liberty” has been held to include religious
liberty, and Section 5 provides that “[t]he Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.”
Article I, § 8, provides: “The Congress shall have Power ... To make all Laws which shall
Nonetheless, arguments against the measure’s constitutionality were pressed in
litigation under RFRA. In City of Boerne, Texas v. Flores, supra, one of the
arguments proved successful: On June 25, 1997, the Supreme Court held RFRA to
be unconstitutional as applied to the states, 6-3, on the grounds Congress lacked the
power under § 5 of the 14th Amendment to impose a strict scrutiny standard
regarding religious exercise on the states. Boerne involved a conflict between a local
Catholic church that wanted to raze much of its existing structure and build a larger
sanctuary and the city of Boerne’s designation of the original sanctuary as an historic
structure under its historic preservation ordinance. Archbishop Flores sued on behalf
of the church, arguing in part that the city’s denial of a building permit substantially
burdened the church’s religious practices in violation of RFRA and that the church,
therefore, ought to be exempt from the city’s historic preservation ordinance. The
city responded by contending that RFRA was unconstitutional.
The Supreme Court agreed with the city’s argument, holding that as applied to
the states RFRA “exceeds Congress’ power.” The Court stated that § 5 of the 14th
Amendment gives Congress the power to enforce the provisions of the Amendment
but no power to adopt legislation that “alters the meaning” or the substance of the
rights it protects. Moreover, it said, in Congress’ exercise of its remedial or
preventive power under § 5, there must “be a congruence and proportionality between
the injury to be prevented or remedied and the means adopted to that end.” Yet in
enacting RFRA, the Court asserted, Congress not only had failed to develop a
legislative record that showed extensive denials of religious liberty but also had made
RFRA so broad that it intruded “at every level of government, displacing laws and
prohibiting official actions of almost every description and regardless of subject
matter.” Particularly with respect to the states, it noted, RFRA constituted “a
considerable congressional intrusion into the States’ traditional prerogatives and
general authority to regulate for the health and welfare of their citizens.” As a
consequence, the Court concluded, RFRA “reflects a lack of proportionality or
congruence between the means adopted and the legitimate end to be achieved ... and
contradicts vital principles necessary to maintain separation of powers and the federal
Thus, after Boerne state and local governments are no longer bound by RFRA
because, as to them, RFRA is unconstitutional. The Court also hinted in Boerne that
RFRA might be unconstitutional with respect to the federal government on separation
of powers grounds. But that issue was not squarely before the Court, and the Clinton
Administration continues to maintain that RFRA is constitutional as applied to the
be necessary and proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.” For Congress’ constitutional justifications for RFRA, see
H.Rept. 103-88, 103d Cong., 1st Sess. (1993) and S.Rept. 103-111, 103d Cong., 1st Sess.
The U.S. courts of appeal have reached conflicting conclusions regarding the
constitutionality of RFRA as applied to the federal government after Boerne, and the Supreme
The Religious Liberty Protection Act
105th Congress. Although RFRA codified an expansive version of strict scrutiny
and made it applicable to all governmental actions, judicial decisions applying the
statute do not appear to have differed markedly in result from those of the pre-Smith
era. Religious claimants still lost far more often than they won.16 Nonetheless, after
lengthy consultations within the Coalition for the Free Exercise of Religion and
among members of Congress, the “Religious Liberty Protection Act of 1998" (RLPA)
was introduced on June 9, 1998, with bipartisan sponsorship in both the House and
the Senate (H.R. 4019, sponsored by Representatives Canady and Nadler, and S.
2148, by Senators Hatch and Kennedy). As introduced, RLPA would have reimposed a strict scrutiny test with respect to religious practices on state and local
governments using different Congressional powers than that struck down in Boerne.
As introduced, RLPA would have barred state and local governments
(1) from substantially burdening a person’s religious exercise “in or affecting
commerce” or “in a program or activity, operated by [such a] government, that
receives Federal financial assistance,” unless application of the burden furthers a
compelling public interest and is the least restrictive means of doing so;
(2) from imposing any land use regulation that “substantially burdens
religious exercise, unless the burden is the least restrictive means to prevent
substantial and tangible harm to neighboring properties or to the public health and
(3) from imposing any land use regulation which “denies religious assemblies a
reasonable location in the jurisdiction or excludes religious assemblies from areas in
which nonreligious assemblies are permitted.”
Reflecting a continuing controversy over prisoner suits under RFRA, the bill also
required that prisoner suits under RLPA remained subject to the “Prison Litigation
Reform Act of 1995.”17 Enforcement of the bill’s requirements, as under RFRA, was
Court has as yet not chosen to resolve the conflict. Compare, e.g., In re Young, 141 F.3d 854
(8th Cir.), cert. den., 119 S.Ct. 43 (1998) (holding RFRA to be constitutional in the context
of U.S. bankruptcy laws) with Patel v. United States, 1997 U.S. App. LEXIS 34067 (10th Cir.
1997) (refusing to consider a federal prisoner’s RFRA claim and citing Boerne as holding
RFRA to be unconstitutional).
One author found that of the 168 cases involving RFRA decided before Boerne, the RFRA
claim had been rejected in 143 instances and granted in only 25. See Lupu, Ira. C., The
Failure of RFRA, 20 U. ARKANSAS LITTLE ROCK LAW JOURNAL 575, 591 (1998)
and n. 6.
P.L. 104-1334, Title VIII (April 26, 1996); 18 U.S.C.A. 3626. The Act does not restrict
the right of prisoners to institute suit but limits the relief the courts can provide. It states that
relief ordered by the courts in any prisoner suit relating to prison conditions must be
“narrowly drawn, extend no further than necessary to correct the violation of the Federal
right, and [be] the least intrusive means necessary to correct the violation of the Federal right.”
It further requires that in devising appropriate relief “[t]he court shall give substantial weight
to be by persons asserting a violation of the act as a claim or defense against a state
or local government in judicial proceedings. In order to rectify some decisions under
RFRA that had given “religion” a narrow meaning, the proposal also gave a broad
definition to “religious exercise,” defining it to mean
an act or refusal to act that is substantially motivated by a religious belief, whether
or not the act or refusal is compulsory or central to a larger system of religious
On June 16 and July 14, 1998, the Subcommittee on the Constitution of the
House Judiciary Committee held hearings on RLPA,19 and on June 23 the Senate
Judiciary Committee did so as well.20 Most witnesses supported the enactment of
RLPA. But some contended that its reliance on the spending and commerce powers21
still exceeded Congress’ constitutional powers, that it constituted an excessively
expansive use of federal power, and that it denigrated religion by equating it with
On August 6, 1998, the Subcommittee on the Constitution of the House
Judiciary Committee, by voice vote, ordered a revised version of H.R. 4019 reported
to the full committee. Significant changes made by the subcommittee were to
(1) delete the section based on Congress’ commerce power;
to any adverse impact on public safety or the operation of a criminal justice system caused by
the relief” and allows any party to petition the court for the termination of such relief after two
This definition was a direct response to a number of court decisions which had limited the
applicability of RFRA by narrowing the range of religious practices within its purview. Some
courts, for instance, had held RFRA applicable only if the practice burdened by government
was “compelled” by religious belief and, thus, excluded from its protection religious practices
merely “motivated” by religious belief. Other courts had limited the applicability of RFRA
by requiring that the practices and beliefs be “central” to the person’s religion. See, e.g.,
Goodall v. Stafford County, 60 F.3d 168 (4th Cir. 1995), cert. den., 516 U.S. 1046 (1996);
Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); Crosley-El v. Berge, 896 F.Supp. 885
(E.D.Wis. 1995); Luckette v. Lewis, 883 F.Supp. 471 (D.Ariz 1995); and Weir v. Nix, 890
F.Supp. 768 (S.D. Iowa 1995). One case required as a condition of RFRA’s applicability that
the religious practice burdened by government be both central to the claimant’s belief system
and compelled by that belief system. See Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995).
Hearings on H.R. 4019 Before the Subcommittee on the Constitution of the House
Judiciary Committee, 105th Cong., 2d Sess. (June 16 and July 14, 1998)).
Hearing on the Religious Liberty Protection Act of 1998 (S. 2148) Before the Senate
Judiciary Committee, 105th Cong., 2d Sess. (June 23, 1998).
Article I, § 8, of the Constitution provides that “Congress shall have Power To lay and
collect Taxes ... to pay the Debts and provide for the common Defence and general Welfare
of the United States ... (and) To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes ....”
(2) replace the bill’s restrictions on state and local land use regulations with
requirements that any state or local land use regulation
(a) which imposes a substantial burden on religious exercise be subject
to a strict scrutiny test, if the regulation permits “individualized assessment
of the proposed uses to which real property would be put”;
(b) treat religious assemblies “on equal terms with nonreligious
(c) not discriminate “on the basis of religion or religious
(d) not unreasonably exclude religious institutions from a given
(3) add an enforcement provision allowing the federal government to sue for
injunctive or declaratory relief against state and local governments; and
(4) revise the definition of “religious exercise”to mean “conduct that constitutes
the exercise of religion under the first amendment to the Constitution; however, such
conduct need not be compelled by, or central to, a system of religious belief; the use,
building, or converting of real property for religious exercise shall itself be considered
religious exercise of the person or entities that use or intend to use the property for
The subcommittee rejected amendments to bar RLPA from being used as a defense
in civil and criminal actions based on federal, state, or local child welfare laws, civil
rights laws, and environmental protection laws, i.e., to exclude those areas from the
application of RLPA. The measure was scheduled to be marked up by the full
Judiciary Committee on September 10, 1998, but the Starr Report arrived that day
and no further action occurred on the bill in the 105th Congress.
106th Congress. In the present Congress RLPA was initially re-introduced on
May 5, 1999, by Rep. Canady (R.-FL) and 10 cosponsors as H.R. 1691. The bill
retained most of the changes that had been made by the Subcommittee on the
Constitution in its markup last year, with the major exception that it reinserted the
provision based on the commerce clause and allowed land use suits to be brought
under that provision as well as under the more detailed land use section. The
subcommittee held a hearing on H.R. 1691 on May 12, 1999,22 that found substantial
support for the bill but that also retraced the concerns voiced the previous year about
the constitutionality of the measure’s reliance on the spending and commerce powers,
whether it constitutes too expansive a use of federal power, and whether its use of the
commerce power denigrates religion by equating it with commerce. Testimony also
was given raising in a more forceful manner than previously concerns about the civil
rights implications of the proposal, i.e., whether RLPA would or should override state
and local measures barring discrimination in employment, housing, and public
accommodations on the basis of race, marital or parental status, sexual orientation,
gender, or disability.
Hearing on H.R. 1691, the “Religious Liberty Protection Act of 1999,” Before the
Subcommittee on the Constitution of the House Judiciary Committee, 106th Cong., 1st Sess.
(May 12, 1999) (unprinted).
On May 26, 1999, the subcommittee ordered a slightly modified version of the
bill reported to the full committee. As reported by the subcommittee, the major
provisions of H.R. 1691 included the following:
(1) Section 2 would require a state or local government to justify any
substantial burden it places on a person’s religious exercise, even under a rule of
general applicability, by showing that application of the burden is necessary to
serve a compelling public interest
(a) in any program or activity it operates which receives federal
financial assistance, and
(b) in any instance in which the burden, or its removal, would affect
commerce with foreign nations, among the several states, or with Indian
(2) Section 3 would impose a strict scrutiny standard on any state or local
land use regulation which imposes a substantial burden on a person’s religious
exercise if the regulation allows the government to make “individualized
assessments” of the proposed uses to which a property would be put.
(3) Section 3 would, in addition, bar a state or local government from
imposing land use regulations that
(a) fail to treat religious entities on an equal basis with nonreligious entities,
(b) discriminate against any entity on the basis of religion or religious
(c) unreasonably exclude a religious entity from a given jurisdiction.
(4) Section 4 of H.R. 1691 would provide that aggrieved parties may bring
suit and obtain “appropriate relief” against state and local governments and that
the federal government can institute suit to enforce compliance with the Act.
During its markup the Subcommittee on the Constitution adopted an amendment
proffered by Rep. Canady slightly altering the definition of the term “religious
exercise” in the bill.23 It also rejected two amendments by voice vote — (1) a
substitute amendment put forward by Rep. Watt (D.-NC) entitled the “Religious
Liberty Enforcement Act of 1999" that, in place of RLPA’s strict scrutiny
requirements, would have required government simply to make “fair and reasonable
accommodation of the special requirements of persons acting pursuant to their
religious convictions” and (2) an amendment by Rep. Nadler (D.-NY) limiting
RLPA’s applicability by allowing it to be used as a defense against state and local
housing nondiscrimination statutes only by small landlords; as a defense against state
and local employment nondiscrimination statutes only by religious entities and small
businesses; and not at all with respect to state and local statutes barring discrimination
in public accommodations.24
As modified, the definition provides that “religious exercise” means “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief, and includes
(A) the use, building, or conversion of real property by a person or entity intending that
property for religious exercise; and (B) any conduct protected as exercise of religion under the
first amendment to the Constitution.”
Rep. Nadler’s amendment would have added the following to § 4 of the bill:
On June 23, 1999, the House Judiciary Committee ordered the revised version
of H.R. 1691 reported to the House by voice vote.25 The Committee also rejected by
voice vote the amendment that Rep. Nadler had previously offered in the
subcommittee to limit its use against state and local laws prohibiting discrimination
in housing, employment, or public accommodations, i.e., to bar RLPA from being
used as a defense against the application of such laws. As noted above, the Nadler
amendment would have permitted RLPA to be invoked as a defense only by small
landlords against the application of housing nondiscrimination laws and by religious
entities and small businesses against the application of employment nondiscrimination
On July 15, 1999, the full House, after brief debate, adopted RLPA without
change, 306-118.26 As in the subcommittee and full committee, the House also
rejected the Nadler amendment, 190-234.27
In the Senate H.R. 1691 was held at the desk for several months before being
referred to the Judiciary Committee in November, 1999.28 The committee has as yet
held no hearings or taken any other action on the bill. But on February 22, 2000, Sen.
Hatch (R.-Utah), the committee chairman, introduced a modified version of RLPA
(S. 2081)29 which has been placed directly on the Senate calendar without referral to
(c) PERSONS WHO MAY RAISE A CLAIM OR DEFENSE. — A person who
may raise a claim or defense under subsection (a) is —
(1) an owner of a dwelling described in section 803(b) of the Fair Housing
Act (42 U.S.C. 3603(b)), with respect to a prohibition relating to discrimination
(2) with respect to a prohibition against discrimination in employment:
(A) a religious corporation, association, educational institution (as
described in 42 U.S.C. 2000e-2(e)), or society, with respect to the
employment of individuals who perform duties such as spreading or teaching
faith, other instructional functions, performing or assisting in devotional
services, or activities relating to the internal governance of such corporation,
association, educational institution or society in carrying on of its activities;
(B) an entity employing five or fewer individuals and with gross annual
revenues of $500,000 or less; or
(3) any other person, with respect to an assertion of any claim or defense
relating to a law other than a law:
(A) prohibiting discrimination in housing and employment except as
described in paragraphs (1) and (2); or
(B) prohibiting discrimination in a public accommodation.
See H.Rept. 106-219, 106th Cong., 1st Sess. (July 1, 1999).
145 CONG. REC. H 5608 (daily ed. July 15, 1999).
Id. at H 5607.
Id. at S 15086 (daily ed. Nov. 11, 1999).
146 CONG. REC. S 680 (daily ed. Feb. 22, 2000).
committee.30 As a consequence, the measure could be taken up on the Senate floor
at any time. S. 2081 retains most of the provisions of H.R. 1691 but limits the scope
of the interstate commerce clause provision by requiring that RLPA applies only if the
burden on religious exercise or its removal has a “substantial effect” on commerce.
S. 2081 also adds a provision stating that RLPA does not abrogate the states’
sovereign immunity. That provision appears to mean that aggrieved individuals could
not bring suit against the states in either the federal or the state courts to rectify
perceived violations of their free exercise rights. Instead, suits against the states for
violations of RLPA could be instituted only by the federal government; individuals
would be able to bring suit only against state officials for declaratory and injunctive
relief and for damages.31
Finally, it should be noted that both H.R. 1691 and S. 2081 continue to generate
controversy about their implications for state and local civil rights statutes.
Selected Legal Issues
RLPA is a response to the Supreme Court’s decision in City of Boerne, Texas
v. Flores, supra, holding Congress to lack the power under § 5 of the Fourteenth
Amendment to impose a strict scrutiny standard with respect to religious exercise on
state and local governments. Thus, it deliberately uses different Congressional powers
than did RFRA. Section 2 of RLPA relies on Congress’ commerce and spending
powers, while § 3 concerning land use still relies largely on § 5 of the Fourteenth
Amendment. The following subsections briefly describe the constitutional
controversies over these provisions and the issue of the impact of RLPA on state and
local civil rights provisions.
(1) Spending power. Section 2 of both H.R. 1691 and S. 2081 would impose
a strict scrutiny standard with respect to governmental burdens on religious exercise
“in a program or activity, operated by a (state or local) government, that receives
Federal financial assistance.” In other words, it makes use of Congress’ spending
power under Article I, § 8, of the Constitution — “The Congress shall have Power
to Lay and collect Taxes ... to pay the Debts and provide for the common Defence
Id. at S 738 (daily ed. Feb. 23, 2000).
Recent decisions by the Supreme Court have made clear that the 11th Amendment and
historic notions of state sovereignty limit the extent to which the federal government can
authorize suits against the states. The Court has held that Congress does not have the
authority under Article I of the Constitution to authorize suits against the states in either
federal court (Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)) or state court (Alden
v. Maine, 527 U.S. 706 (1999)). It has also held that Congress can abrogate state immunity
from suit under the Fourteenth Amendment (Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)) but
that it must be justified by the legislative record and proportional to its remedial purpose
(Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S.
627 (1999) and College Savings Bank v. Florida Prepaid Postsecondary Education Expense
Board, 527 U.S. 666 (1999)). The Court has also implied that state immunity from suit can
be abrogated as a condition of their acceptance of federal funds (Alden v. Maine, supra) but
that any abrogation of state immunity from suit must be “unmistakably clear in the language
of the statute itself” (Atascadero State Hospital v. Scanlon, 473 U.S. 235, 242 (1985)).
and general Welfare of the United States ...” – and attaches a string to federal
assistance to state and local governments. Such conditions on federal assistance are
a common way of implementing federal policies and are binding on the recipients.
They can be avoided only if the recipient refuses to accept the federal money.
Although generally given broad sway by the courts, such conditions are,
nonetheless, subject to certain standards laid down by the Supreme Court. In South
Dakota v. Dole32 the Court most recently articulated the following tests:
(1) the exercise of the spending power must be in pursuit of “the general
(2) the condition must be stated unambiguously so that the states can
“exercise their choice knowingly, cognizant of the consequences of their
(3) conditions must be reasonably related to ‘the federal interest in particular
national projects or programs,’”34 i.e., there must be a nexus between the spending
program and the condition attached to the spending;
(4) the conditions must not violate other constitutional provisions; and
(5) a particular condition might exceed Congress’ power if the states do not
retain a real choice about whether or not to accept the federal money with the
condition, i.e., the “financial inducement offered by Congress [must not be] so
coercive as to pass the point at which ‘pressure turns into compulsion.’”35
Thus, the constitutional question about this portion of § 2 concerns whether it meets
these tests, particularly the Court’s sufficient nexus and non-coercion tests.
(2) Commerce power. Section 2 of H.R. 1691 and S. 2081 also would bar state
and local governments from substantially burdening religious exercise absent a
in any case in which the substantial burden on the person’s religious exercise
affects, or in which a removal of that substantial burden would affect, commerce
with foreign nations, among the several States, or with Indian tribes.
(As noted above, S. 2081 requires, in addition, that the effect on commerce be
“substantial”) Thus, this part of § 2 employs Congress’ Article I, § 8, power over
commerce: “The Congress shall have Power ... To regulate Commerce with Foreign
Nations, and among the several States, and with the Indian Tribes ....” The primary
constitutional question appears to concern whether, and the extent to which, this
power may now be limited by principles of federalism. Decisions by the Supreme
Court since the 1930s have repeatedly indicated that Congress’ power under the
commerce clause is extensive and can reach even minor transactions that potentially
483 U.S. 203 (1987).
Id. at 207, quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17
Id. at 207.
Id. at 211, quoting Steward Machine v. Davis, 301 U.S. 548, 590 (1937).
have an effect on commerce.36 Indeed, the commerce power has been given such a
broad construction that it has been described as “the most potent grant of authority
in § 8.”37
But several decisions by the Supreme Court in the past decade (including the
Boerne decision) have given a higher value to federalism concerns than formerly.38
In Printz v. United States,39 for instance, the Court struck down a provision of the
Brady Act that required local law enforcement officers to conduct background checks
on prospective gun purchasers on federalism grounds, stressing that “the Constitution
established a system of ‘dual sovereignty.’” “The Framers,” the Court said, “rejected
the concept of a central government that would act upon and through the States, and
instead designed a system in which the state and federal governments would exercise
concurrent authority over the people ....”40 Moreover, in United States v. Lopez,
supra, the Court struck down the “Gun-Free School Zones Act of 1990" barring
persons from possessing guns within a certain distance of public schools on the
grounds it exceeded Congress’ power under the commerce clause — the first time the
Court has invalidated a federal statute resting on the commerce clause in more than
a half century.41 The Court stated:
Under the theories that the Government presents ..., it is difficult to perceive any
limitation on federal power, even in areas such as criminal law enforcement or
education where States historically have been sovereign. Thus, if we were to
See, e.g., United States v. Darby, 312 U.S. 100 (1941); Katzenbach v. McClung, 379 U.S.
294 (1964); Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264
(1981); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Maryland v. Wirtz,
392 U.S. 183 (1968).
CRS, Constitution of the United States of America: Analysis and Interpretation (1996),
See, e.g., New York v. United States, 505 U.S. 144 (1992) (striking down the “take title”
provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 as violating
the Tenth Amendment); United States v. Lopez, 514 U.S. 549 (1995) (holding the “Gun Free
School Zones Act” to exceed Congress’ power to regulate interstate commerce); City of
Boerne, Texas v. Flores, supra (holding the Religious Freedom Restoration Act to be
unconstitutional as applied to the states on federalism grounds); Printz v. United States, 521
U.S. 898 (1997) (striking down the provision of the Brady Act requiring local law
enforcement officers to conduct background checks on prospective gun purchasers); Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996) (holding Congress to have no power to subject
the states to suit in federal courts); Alden v. Maine, 67 U.S.L.W. 4601 (1999) (ruling
Congress to have no power to subject the states to suit in state court); and Florida Prepaid
Postsecondary Education Expense Board v. College Savings Bank, 67 U.S.L.W. 4580 (1999)
(holding Congress to have failed to meet the exacting standards of Boerne in attempting to
subject states to suit for patent infringements in federal court).
521 U.S. 898 (1997).
Id. at 910.
United States v. Lopez, supra.
accept the Government’s arguments, we are hard pressed to posit any activity by
an individual that Congress is without power to regulate.42
The possession of a gun in a local school zone is in no sense an economic activity
that might, through repetition elsewhere, substantially affect any sort of interstate
commerce. Respondent was a local student at a local school; there is no indication
that he had moved in interstate commerce, and there is no requirement that his
possession of the firearm have any concrete tie to interstate commerce. To uphold
the government’s contentions here, we would have to pile inference upon inference
in a manner that would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained by the States ....
This we are unwilling to do.43
Most recently, in Alden v. Maine, supra, the Court held Congress to be without
power under Article I to subject states to suit in state courts under the Fair Labor
Standards Act,44 stating that “the States’ immunity from suit is a fundamental aspect
of the sovereignty which the States enjoyed before the ratification of the Constitution
and which they retain today ... except as altered by the plan of the Convention or
certain constitutional amendments.”
Taken together, these decisions raise questions about the scope of the powers
reserved to the states or denied to the federal government under the Constitution and,
consequently, about the constitutionality of H.R. 1691's and S. 2081's use of the
(3) Section 5 of the 14th Amendment. Section 3(b) of RLPA would impose a
number of restrictions on state and local land use decisions — a strict scrutiny
standard with respect to any burdens such decisions place on religious exercise if in
making the decision the government “has the authority to make individualized
assessments of the proposed uses to which real property would be put”; a prohibition
on regulations that fail to treat religious institutions equally with nonreligious
institutions; a prohibition on regulations that discriminate on the basis of religion; and
a prohibition on “unreasonably” excluding religious institutions from a given
jurisdiction. The section may to an indeterminate extent rely on Congress’ commerce
power, as land use decisions often have substantial economic impacts. That
possibility seems buttressed by the fact that, unlike last year’s version of RLPA, H.R.
1691 and S. 2081 do not limit challenges to land use decisions to § 3 but allow them
to be made under § 2 as well. But the section also appears to rely on one aspect of
the Supreme Court’s decision in Employment Division, Oregon Department of
Human Resources v. Smith, supra, and to be an effort to meet the requirements the
Court set forth for the exercise of Congress’ power under § 5 of the Fourteenth
In Smith, as noted above, the Court largely abandoned strict scrutiny as the
applicable constitutional test for alleged violations of the free exercise clause of the
Id. at 564.
Id. at 567-68.
29 U.S.C.A. 201 et seq.
First Amendment. But it retained strict scrutiny in three respects — (1) cases
involving intentional discrimination against religion; (2) cases raising hybrid
constitutional claims, i.e., alleged violations of both free exercise rights and of some
other constitutional right; and (3) cases denying a religious exemption in a program
which allows exemptions for other reasons. With respect to the last category, the
Court stressed that strict scrutiny was first applied to religious claims in cases
challenging denials of unemployment compensation, i.e., cases in which the
government could make “individualized ... assessments of the reasons for the relevant
conduct.” That history, it said, stood “for the proposition that where the State has
in place a system of individual exemptions, it may not refuse to extend that system to
cases of ‘religious hardship’ without compelling reason.”45
Thus, the first part of § 3 of H.R. 1691 and S. 2081 appears to be an effort to
build on the latter category of cases for which strict scrutiny remains the constitutional
standard. Subsection (b)(1)(A) of § 3 would impose strict scrutiny on the
implementation of state and local land use regulations to the extent that the
government “has the authority to make individualized assessments of the proposed
uses to which real property would be put ....” The constitutional question that might
be raised about the section is whether the standard the Court articulated is, in fact,
applicable to programs other than unemployment compensation that use
“individualized assessments.” Although the Court did not impose any conditions on
this aspect of its ruling in Smith, it has not as yet considered the continued
applicability of the strict scrutiny standard for any other kinds of programs.
The other parts of § 3 appears to rely on § 5 of the Fourteenth Amendment and
to be an attempt to satisfy what the Court said in Boerne (and now in Florida Prepaid
Postsecondary Education Expense Board v. College Savings Bank, supra) about
Congress’ exercise of its power under § 5. In striking down RFRA on federalism
grounds in Boerne, the Court stressed in part the limitations of the legislative record
that had been made during its consideration by Congress. “The history of persecution
in this country detailed in the hearings mentions no episodes occurring in the past 40
years,” it said. “Rather,” it stated, “the emphasis of the hearings was on laws of
general applicability which place incidental burdens on religion ... (and) centered upon
anecdotal evidence ....” As a consequence, the Court concluded that the evidentiary
record underlying RFRA failed to show “legislation enacted or enforced due to
animus or hostility to the burdened religious practices or ... some widespread pattern
of religious discrimination in this country.”46 For that reason the sweeping nature of
the remedy imposed by RFRA, it asserted, lacked congruence and proportionality to
the wrong it was designed to correct.
Similarly, in the Court’s decision last summer in Florida Prepaid Postsecondary
Education Expense Board v. College Savings Bank, supra, it reinforced the standards
it had articulated in Boerne for Congress’ exercise of power under § 5. In that case
Congress had in 1992 amended the patent laws and expressly abrogated the states’
immunity from suit for claims of patent infringement. But the Court held the statute
to be an invalid exercise of Congress’ § 5 authority. It said that Congress had not
Employment Division, Oregon Department of Human Resources v. Smith, supra, at 884.
City of Boerne, Texas, v. Flores, supra, at 530-31.
only failed to identify a pattern of patent infringement by the states but also had not
explored whether the states provided any remedies to aggrieved patent holders.
Congress, it stated, had “barely considered ... whether the States’ conduct might have
amounted to a constitutional violation under the Fourteenth Amendment.” As a
consequence, it concluded, Congress’ abrogation of state immunity from suit was “so
out of proportion to a supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent, unconstitutional behavior.”
Consequently, to support this aspect of RLPA, the House Subcommittee on the
Constitution attempted to develop a hearing record showing substantial discrimination
against religious bodies in state and local land use decisions.47 Moreover, unlike
RFRA, § 3 specifically isolates land use decisions as a discrete element of the wrong
to be remedied. The constitutional question appears to be whether these factors are
sufficient to meet the requirements the Court has set forth in Boerne and Florida
Prepaid for Congress’ exercise of its § 5 power.
(4) RLPA’s impact on civil rights provisions. Another legal issue, and the one
that has proven to be the most politically contentious, concerns whether RLPA’s
requirement that states not impose a substantial burden on religious exercise absent
a compelling interest might limit the application of state and local nondiscrimination
laws. The issue has emerged in part because of several court decisions involving the
application of state or local laws barring marital status discrimination in housing to
landlords who refused to rent to unmarried couples because of the landlords’ religious
beliefs against premarital sexual relations. A panel of the U.S. Court of Appeals for
the Ninth Circuit and the state supreme courts in Massachusetts and Minnesota have
held such landlords to be entitled to a religious exception from the nondiscrimination
laws on the grounds the governmental interest in preventing marital status
discrimination in housing does not rise to the level of a compelling interest.48 The
supreme courts in Alaska, California, and Michigan, in contrast, have held that the
state interest in preventing discrimination in housing is sufficiently compelling and that
denial of a religious exception does not constitute a substantial burden on a landlord’s
Thus, the issue is far from settled. But the question of whether
nondiscrimination statutes or regulations can pass muster under a strict scrutiny
standard, i.e., whether they serve compelling public purposes, also exists in other
See Hearings on H.R. 4019 Before the Subcommittee on the Constitution of the House
Judiciary Committee, 105th Cong., 2d Sess. (June 16 and July 14, 1998) and Hearing on H.R.
1691, the “Religious Liberty Protection Act of 1999,” Before the Subcommittee on the
Constitution of the House Judiciary Committee, 106th Cong., 1st Sess. (May 12, 1999)
Thomas v. Municipality of Anchorage, 165 F.3d 692, opinion vacated and rehearing en
banc granted, 192 F.3d 1208 (9th Cir. 1999); Attorney General v. Desilets, 418 Mass. 316,
636 N.E.2d 233 (Mass. 1994); Cooper v. French, 460 N.W. 2d 2 (Minn. 1990) (plurality
Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska), cert. den., 513
U.S. 979 (1994); Smith v. Fair Employment and Housing Commission, 12 Cal.4th 1143, 913
P.2d 909 (1996); and McCready v. Hoffius, 459 Mich. 131, 678 N.E.2d 743 (1998).
contexts, including race,50 gender,51 disability52 and sexual orientation.53 To the extent
state and local statutes mandating nondiscrimination on these bases are held to serve
public purposes that are not deemed to be compelling, RLPA would seem to mandate
exemptions from their application for persons whose religious beliefs justify
discrimination on those bases. The questions, thus, are the extent to which that might
be the case and whether such exemptions are, nonetheless, desirable
It is now settled that strict scrutiny applies to all governmental classifications based on race,
whether invidious or benign. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
Whether governmental classifications based on gender are subject to strict scrutiny or an
intermediate standard of scrutiny is uncertain. In the 1970s and early 1980s the Court seemed
to establish an intermediate standard of scrutiny as the applicable standard, requiring
governmental discrimination based on gender to serve “important” public interests and to be
“substantially related” to the achievement of those interests to pass constitutional muster. See,
e.g., Califano v. Webster, 430 U.S. 313 (1977); Massachusetts Personnel Administrator v.
Feeney, 442 U.S. 256 (1979); and Mississippi University for Women v. Hogan, 458 U.S. 718
(1982). But more recently in United States v. Virginia, 518 U.S. 515 (1996) the Court said
that the state had to demonstrate “exceedingly persuasive justifications” for its gender-based
policy at the male-only Virginia Military Institute. That standard seems closely akin, if not
identical to, the compelling interest standard.
See, e.g., Heller v. Doe, 509 U.S. 312 (1993) (refusing to designate the mentally retarded
as a suspect class); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (holding
mentally disabled not to be a suspect class); Amos v. Maryland Department of Public Safety
and Correctional Institutions, 1999 U.S.App. LEXIS 13873 (4th Cir. 1999) (holding the
mentally retarded not to be a quasi-suspect class); Doe v. University of Maryland Medical
Systems Corp., 50 F.3d 1261 (4th Cir. 1995) (extending rational basis scrutiny to all
classifications based on disability); and Moore v. Farrier, 984 F.2d 269 (8th Cir.), cert.
denied, 510 U.S. 819 (1993) (holding the physically disabled not to be a suspect class). But
see Pottgen v. Missouri State High School Activities Assn, 857 F.Supp. 654 (E.D. Mo. 1994)
(terming government’s interest in prohibiting discrimination on the basis of disability to be
See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (eschewing the fundamental rights approach
of the state courts in the case and striking down Colorado’s statute under a rational basis
standard of review); Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128
F.3d 289 (6th Cir. 1997) (holding homosexuality not to be a suspect class or to involve a
fundamental right); and Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 118
S. Ct. 45 (1997); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.), cert. denied, 519 U.S. 948
(1996); and Jackson v. U.S. Department of the Air Force, 1997 U.S.App. LEXIS 39954 (9th
Cir. 1997)(all using a rational basis standard of review to examine the military’s “don’t ask,
don’t tell” policy regarding homosexuality).
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