Testimony on NJ Senate Bill 321

remarks of Christopher L. Eisgruber
Professor of Law
New York University School of Law

presented in Trenton, New Jersey
on Monday, March 2, 1998

attachment: Amended version of S.321 suggested by Prof.Eisgruber

Good morning. My name is Christopher L. Eisgruber. I reside in Montclair, and I hold the position of Professor of Law at the New York University School of Law. I teach classes on Constitutional Law and Religious Liberty. During the last four years, Professor Lawrence G. Sager and I have co-authored several articles about the federal Religious Freedom Restoration Act ("RFRA"). While we believe that it is desirable for legislatures to protect religious freedom, we believe that the "compelling state interest" test is not well-suited to that task. My goal this morning is to explain our reservations about that test, and to propose a better alternative.

Let me begin by emphasizing some points on which I think we can all agree. Religious freedom is a value of the highest order. Public officials are sometimes insensitive or even hostile to the needs of religious persons. When that happens, we should want courts to step in and protect religious freedom. It is desirable for legislatures to facilitate that kind of action. That was almost certainly the goal of Congress when it enacted RFRA. Unfortunately, RFRA went too far. By employing the "compelling state interest" test, RFRA undermined the capacity of state and local governmental entities to pursue perfectly legitimate, even-handed, democratically chosen goals. In effect, RFRA created two classes of citizens: those who could invoke religious reasons for defying governmental regulations and those whose reasons -- however laudable and heartfelt -- were not religious. RFRA's compelling state interest test went far beyond protecting religiously-motivated people from hostility or insensitivity. Taken seriously, it would have allowed religiously motivated people to pick and choose from among otherwise valid laws. This legislature can and should work to protect religious practice from hostility or insensitivity. But Senate Bill 321 would perpetuate and possibly exacerbate the mistake of RFRA.

A bit of history may help to clarify the problem. As you know, Senate Bill 321's "compelling state interest" test is not a new creation. It was lifted from a series of Supreme Court cases that began with Sherbert v. Verner back in 1963. The Supreme Court continued to recite the test in Free Exercise Clause cases for almost thirty years, up until Department of Employment Services v. Smith in 1990. For that reason, many people assume that the test has a proven track-record. They assume that it successfully and reliably protected religious liberty in the past, and that it is therefore a sensible method to use in the future.

These assumptions are, however, mistaken. There was a huge gap between what the test promised and what the courts delivered. The test seems very demanding: "compelling interests" are rare. In most areas of constitutional law, the test has actually been very demanding. Indeed, Professor Gerald Gunther once said that the compelling state interest test subjects government action to scrutiny that is strict in theory but fatal in fact. With regard to Free Exercise claims, however, almost exactly the opposite was true. The "compelling state interest" test was strict in theory, but feeble in fact. In almost every case, the Supreme Court either found that the compelling state interest test was satisfied, or found some special reason not to apply the test to case before it. Aside from Sherbert, there were only four exceptions to this pattern--and three of those cases were unemployment benefits decisions virtually identical to Sherbert itself. All the other claimants lost, even though they often had claims that were (as a moral matter, at least) very attractive ones.

In sum, both the Supreme Court and other state and federal courts applied the "compelling state interest test" in ways that were toothless and inconsistent. This pattern is not an accident. Rather, it reflects two simple but profound defects in the "compelling state interest" test. First, as the Supreme Court said in its City of Boerne decision, the "compelling state interest" formula is out of all proportion to the problem that it attempts to solve. In other areas of constitutional law, that test essentially creates a presumption that the government has behaved unconstitutionally. That is why the test is "fatal in fact." But it makes no sense to presume that the government has behaved unconstitutionally every time it imposes a substantial burden on religious conduct. Many zoning laws, for example, will impose substantial burdens on churches. That does not mean we should presume them to be unconstitutional. Zoning laws impose substantial burdens on everybody. And they also have substantial benefits for everybody, including churches and religious persons. Traffic and parking regulations illustrate this fact nicely. On the one hand, they may constrain the ability of church-goers to reach their places of worship. But church-goers also benefit from such laws; without such laws, they might find it quite impossible to get to and from church (or, of course, to carry out the many other responsibilities in their daily lives).

The second defect is related. If taken seriously, the "compelling state interest" would create special privileges for religious persons. Suppose, for example, that a charity wants to open a soup kitchen in a residential neighborhood (this issue arose several times under the federal version of RFRA; courts split about how to resolve it). Can it do so? It is doubtful that the government has a "compelling interest" in excluding a soup kitchen from a residential neighborhood. For that reason, under the compelling interest test, the charity's rights might depend upon whether it was a religious charity. If so, it could open the soup kitchen. If not, it would have to comply with the zoning ordinance. In my view, that kind of inequality violates the Establishment Clause of the United States Constitution. The rights of persons ought not to vary on the basis of whether they are religious, or on the basis of what religion they espouse.

Courts therefore could not take the "compelling state interest"" seriously. Had they done so, they would have saddled governments with impossible burdens, and they would have created special privileges for religious persons. Because Senate Bill 321 invokes the "compelling state interest" test, it repeats these problems. Indeed, Senate Bill 321 will exacerbate these problems, because its language goes further than either Sherbert or the federal Religious Freedom Restoration Act. In Section 3(c) the Bill stipulates that the "exercise of religion" applies without regard to whether the "burdened religious exercise is compulsory or central to the larger system of religious belief." This language was not part of the Supreme Court's jurisprudence before Sherbert, nor was it part of the federal RFRA. It is in fact inconsistent with most judicial decisions under RFRA. It makes an extreme and impractical standard even more extreme and more impractical.

Unless the Bill is amended, New Jersey courts will face two unsatisfactory choices. They can assume that Senate Bill 321 means what it says when it embraces the "compelling interest test." If New Jersey courts take that path, then Senate Bill 321 will impose an extraordinary burden upon local governments, and it will raise major problems under the Establishment Clause. Alternatively, New Jersey courts might follow the practice of courts before Smith, and interpret the "compelling state interest" test so that is, once again, "feeble in fact." If the courts pursue that course, then we will be left with a jumbled and unpredictable jurisprudence, and this Legislature will not have done anything to benefit religious liberty. Either way, the Bill will be a full-employment act for lawyers, who will tangle endlessly over these issues. Unfortunately, the cost of those legal battles will fall largely upon New Jersey's local governments.

There is in fact a test available with a proven track-record for protecting civil rights, but that test is not the "compelling interest test."" The test is the "reasonable accommodation" standard. That is the standard which appears in, for example, the federal Americans with Disabilities Act. As you know, that law is a rather demanding one. Whatever else you may think of it, it is not toothless. It was used a couple of weeks ago, for example, to protect the rights of the golfer Casey Martin, who wanted to use a golf cart when competing in PGA tournaments.

In the written version of these remarks, I have suggested language which would incorporate the "reasonable accommodation" standard into Senate Bill 321. In my view, the "reasonable accommodation"" standard would be a defensible means by which to protect religious freedom against the burdens that might otherwise result from facially neutral laws. That test recognizes that government should take into account the special needs of religious persons and organizations. It also recognizes, however, that when the government makes zoning regulations or runs prisons or administers civil rights laws, it will have no choice but to impose burdens upon all kinds of conduct that we value very highly, including religious conduct. The "reasonable accommodation" test speaks more softly than the "compelling state interest" standard, but, for precisely that reason, it will be a more reliable protector of religious freedom. Unlike the "compelling state interest" test, the "reasonable accommodation" test specifies a standard that is fair and practical, and that we can expect courts to apply in a firm and consistent manner.