97-1744
In the Supreme Court of the United States
v.
CRYSTAL EVANGELICAL FREE CHURCH
ON PETITION FOR A WRIT OF CERTIORARI
BRIEF FOR THE UNITED STATES IN OPPOSITION
No. 97-1744
ON PETITION FOR A WRIT OF CERTIORARI
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
OCTOBER TERM, 1997
JULIA A. CHRISTIANS, PETITIONER
and
UNITED STATES OF AMERICA
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
MICHAEL JAY SINGER
MATTHEW M. COLLETTE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
The United States intervened in this action solely to defend the constitutionality
of the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq.
The United States therefore addresses only the following issue:
Whether the Religious Freedom Restoration Act is constitutional as applied
to federal bankruptcy law.
In the Supreme Court of the United States
OCTOBER TERM, 1997
JULIA A. CHRISTIANS, PETITIONER
v.
CRYSTAL EVANGELICAL FREE CHURCH
and
UNITED STATES OF AMERICA
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
The opinion of the court of appeals (Pet. App. A1-A28) is reported at 141
F.3d 854. The district court's opinion (Pet. App. A72-A103) is reported
152 B.R. 939. The decision of the Bankruptcy Court (Pet. App. A104-A128)
is reported at 148 B.R. 886. The prior decision of the court of appeals
(Pet. App. A30-A67) is reported at 82 F.3d 1407, and the order denying rehearing
of that decision (Pet. App. A68-A71) is reported at 89 F.3d 494. This Court's
order vacating and remanding to the court of appeals (Pet. App. A29) is
reported at 117 S. Ct. 2502.
JURISDICTION
The court of appeals entered its judgment on April 13, 1998. The petition
for a writ of certiorari was filed on April 24, 1998. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. a. At the time this action was commenced, the Bankruptcy Code authorized
the trustee for a bankrupt estate to "avoid any transfer of an interest
of the debtor" that was made within one year of the filing of the bankruptcy
petition if, among other things, the debtor "received less than a reasonably
equivalent value in exchange for such transfer" and the debtor was
insolvent at the time. 11 U.S.C. 548(a)(2). "Value" is defined
as "property, or satisfaction or securing of a present or antecedent
debt of the debtor." 11 U.S.C. 548(d)(2)(A).
On June 19, 1998, the Religious Liberty and Charitable Donation Protection
Act of 1998 (Donation Act), Pub. L. No. 105-183, 112 Stat. 517, became law.1
The Donation Act excludes certain charitable and religious donations from
the trustee's power to void transfers under 11 U.S.C. 548. As relevant here,
the Donation Act amends 11 U.S.C. 548(a) to provide that:
A transfer of a charitable contribution to a qualified religious or charitable
entity or organization shall not be considered to be a transfer covered
under paragraph (1)(B)[2] in any case in which-
(A) the amount of that contribution does not exceed 15 percent of the gross
annual income of the debtor for the year in which the transfer of the contribution
is made; or
(B) the contribution made by the debtor exceeded the percentage amount of
gross annual income specified in subparagraph (A), if the transfer was consistent
with the practices of the debtor in making charitable contributions.
§ 3(a), 112 Stat. 517-518. The Donation Act defines "charitable
contribution" as a contribution covered by Section 170(c) of the Internal
Revenue Code, 26 U.S.C. 501(c) (1986), if the contribution is made by a
natural person and consists of a financial instrument or cash. § 2,
112 Stat. 517. A "qualified religious or charitable entity or organization"
also is defined by reference to Section 170 of the Internal Revenue Code.
Ibid.
The Act applies "to any case brought under an applicable provision
of title 11, United States Code, that is pending or commenced on or after
the date of enactment of this Act." § 5, 112 Stat. 518-519.
b. The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb
et seq., provides that "Government shall not substantially burden a
person's exercise of religion even if the burden results from a rule of
general applicability," unless "it 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." 42 U.S.C. 2000bb-1. The "exercise
of religion" means "the exercise of religion under the First Amendment
to the Constitution." 42 U.S.C. 2000bb-2(4).
A person whose rights under RFRA have been violated "may assert that
violation as a claim or defense in a judicial proceeding and obtain appropriate
relief against a government." 42 U.S.C. 2000bb-1(c). RFRA identifies
the "government[s]" subject to its terms as including any "branch,
department, agency, instrumentality, and official (or other person acting
under color of law) of the United States." 42 U.S.C. 2000bb-2(1). RFRA
also applies to all territories and possessions of the United States. 42
U.S.C. 2000bb-2(2). RFRA's coverage embraces "all Federal and State
law, and the implementation of that law, whether statutory or otherwise,
and whether adopted before or after" RFRA's enactment. 42 U.S.C. 2000bb-3(a).3
Congress enacted RFRA following this Court's decision in Employment Div.,
Dep't of Human Resources v. Smith, 494 U.S. 872 (1990). In enacting RFRA,
Congress expressed concern about the effect of the Smith decision on the
exercise of religion and, in particular, on minority religions. 42 U.S.C.
2000bb(a). Congress, accordingly, passed RFRA to establish, as a matter
of statutory right, "the compelling interest test as set forth in Sherbert
v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)
and to guarantee its application in all cases where free exercise of religion
is substantially burdened." 42 U.S.C. 2000bb(b)(1).
In passing RFRA, Congress relied upon its authority under Section 5 of the
Fourteenth Amendment to make RFRA applicable to the States. With respect
to federal law, Congress invoked its substantive powers under Article I,
Section 8 of the Constitution in conjunction with its authority under the
Necessary and Proper Clause, U.S. Const., Art. I, § 8, Cl. 18. S. Rep.
No. 111, 103d Cong., 1st Sess. 13-14 (1993); H.R. Rep. No. 88, 103d Cong.,
1st Sess. 9 (1993).
2. Bruce and Nancy Young (debtors) filed a Chapter 7 bankruptcy petition
in 1992. Pet. App. A3. In the year preceding that filing, the debtors contributed
$13,450 in tithes to the Crystal Evangelical Free Church. Id. at A135. The
Youngs were insolvent at the time they made those contributions. As a result,
petitioner, who is the trustee appointed in the debtor's bankruptcy case,
initiated the present proceeding against the Church to recover the contributions
as avoidable transfers under 11 U.S.C. 548(a)(2)(A). Pet. App. A3.
The Bankruptcy Court granted petitioner's motion for summary judgment, holding
that the contributions were voidable under Section 548. Pet. App. A104-A128.
The District Court affirmed. Id. at A72-A103.
The Church appealed. During the pendency of that appeal, Congress enacted
RFRA. The court of appeals subsequently held that the debtor's tithes were
avoidable transfers within the meaning of Section 548, but that RFRA precluded
petitioner from seeking to recover those transfers from the Church. Pet.
App. A30-A60. The parties did not raise, and the court of appeals did not
address, the constitutionality of RFRA. Id. at A51.4
3. In City of Boerne v. Flores, 117 S. Ct. 2157 (1997), this Court held
that Congress lacked the authority under Section 5 of the Fourteenth Amendment
to impose RFRA upon state and local governments. Id. at 2162-2172. The Court
explained that Congress's power under Section 5 is "remedial"
and "preventive," extending only to enforcing the constitutional
protections embodied in the Fourteenth Amendment, as defined by this Court.
Id. at 2164, 2169. Congress cannot employ its Section 5 enforcement powers
to "decree the substance of the Fourteenth Amendment's restrictions
on the States." Id. at 2164. The Court noted that "[t]he design
of the Fourteenth Amendment has proved significant * * * in maintaining
the traditional separation of powers," because Congress's enforcement
powers are limited by the Court's predicative authority to interpret the
scope of the constitutional rights that Congress may protect. Id. at 2166.
The Court concluded that RFRA is not "remedial, preventive legislation,"
because its provisions "far exceed any pattern or practice of unconstitutional
conduct under the Free Exercise Clause as interpreted" by the Court.
Flores, 117 S. Ct. at 2170, 2171. Accordingly, the Court concluded that
RFRA would impermissibly "intru[de] into the States' traditional prerogatives
and general authority to regulate for the health and welfare of their citizens,"
id. at 2171, and thus could not "be considered enforcement legislation
under § 5 of the Fourteenth Amendment," id. at 2168.
Petitioner filed a petition for a writ of certiorari. This Court vacated
the judgment of the court of appeals and remanded for further consideration
in light of Flores. Pet. App. A29.
4. On remand, the United States intervened to defend the constitutionality
of RFRA as applied to the federal government and federal law. The court
of appeals ruled that RFRA is constitutional as applied to federal bankruptcy
law. The court noted that "the Flores Court did not address whether
Congress could, pursuant to its Article I authority, constitutionally impose
RFRA on federal law." Pet. App. A8. The court concluded that RFRA falls
within Congress's broad, substantive power under Article I of the Constitution-in
this case the Bankruptcy Clause as augmented by the Necessary and Proper
Clause. Id. at A12-A14.5
The court of appeals further held that RFRA does not violate the separation
of powers. The court noted that, while Congress may not amend the Supreme
Court's authoritative interpretation of the Constitution, Congress may offer
additional protection in the federal sphere to constitutional rights as
long as Congress legislates pursuant to its recognized powers under Article
I. Pet. App. A10-A11. Finally, the court of appeals held that RFRA does
not violate the Establishment Clause of the First Amendment. Id. at A17-A19.
ARGUMENT
Petitioner seeks this Court's review of whether RFRA is constitutional as
applied to federal bankruptcy law. Pet. 6-26. Because intervening legislation
separately supports the judgment of the court of appeals and eliminates
the basis for petitioner's recoupment action, the question presented is
of no continuing relevance to this case or any analogous case. Furthermore,
the decision of the court of appeals is correct and does not conflict with
the established law of any other circuit or of this Court. Accordingly,
this Court's review is not warranted.
1. Congress's recent enactment of the Donation Act eliminates the basis
for petitioner's action and renders the question of RFRA's application to
this case of no further relevance. This Court "reviews judgments, not
opinions." Bowen v. American Hosp. Ass'n, 476 U.S. 610, 626 n.11 (1986)
(opinion of Stevens, J.). There can be no substantial doubt that the judgment
of the court of appeals in the present case is correct and, indeed, compelled
by the Donation Act.
The Donation Act forbids petitioner from recovering under Section 548 of
the Bankruptcy Code any religious or charitable contribution that does not
exceed fifteen percent of the debtors' gross annual income or that is consistent
with the debtors' established practice in making religious or charitable
contributions. § 3(a)(2), 112 Stat. 517-518. The undisputed facts of
this case (see Pet. App. A3, A135-A137) leave no doubt that the debtors'
donations satisfy that statutory standard. The debtors gave ten percent
of their gross income to the Church, which is well within the fifteen percent
limit set by subsection (a). Id. at A3, A32, A105, A135. In addition, the
debtors' payment of the tithes was consistent with their established pre-bankruptcy
donation practice. Id. at A3, A32, A105. And there can be no serious argument
that the Church is not a "qualified religious or charitable entity
or organization," within the meaning of the Donation Act, § 3(a),
112 Stat. 517-518. To the contrary, arguments earlier in the litigation
over whether the donations could be recovered under the former Section 548
presumed the Church's qualifying status under the Internal Revenue Code.
See Pet. App. A86-A87, A123-A124. Finally, the Donation Act plainly applies
to all pending cases. § 5, 112 Stat. 518-519.
In short, the Donation Act eliminates the basis for petitioner's recoupment
action and the Church's need to invoke RFRA. A decision on the constitutionality
of RFRA would have no effect on these parties or on the outcome of this
(or any analogous) litigation.
Furthermore, "[i]f there is one doctrine more deeply rooted than any
other in the process of constitutional adjudication, it is that [this Court]
ought not to pass on questions of constitutionality * * * unless such adjudication
is unavoidable." New York City Transit Auth. v. Beazer, 440 U.S. 568,
582 (1979); see also Ashwander v. Tennessee Valley Auth., 297 U.S. 288,
347 (1936) (Brandeis, J., concurring). To that end, "[b]efore deciding
the constitutional question" presented by petitioner, it would be "incumbent
on [this Court] to consider whether the statutory grounds might be dispositive."
Beazer, 440 U.S. at 582. Because the terms of the Donation Act are clear
and unquestionably implicated by the present case, it is extremely unlikely
that granting the petition would result in this Court's consideration of
the constitutional question presented.
2. Even were the Donation Act not dispositive of the present litigation,
the decision of the court of appeals would not merit this Court's review.
a. The decision of the court of appeals does not conflict with the established
law of any other circuit. To the contrary, the court's ruling is the first
post-Flores appellate decision to address and specifically decide the validity
of RFRA as it applies to federal law.6 The only pre-Flores court of appeals
decision to address RFRA's validity in the federal sphere, moreover, also
ruled that RFRA is a valid exercise of Congress's power under Article I,
and rejected the contention that RFRA violates the Establishment Clause
and the separation of powers. EEOC v. Catholic Univ., 83 F.3d 455, 469-470
(D.C. Cir. 1996) ("We doubt that [a party] would argue that Congress
lacks at least the facial authority to determine against whom, and under
what circumstances, Title VII and other laws will be enforced.").
All of the other court of appeals' decisions cited by petitioner (Pet. 16-17
n.3) either pre-date Flores or involve RFRA's applicability to state law.7
None of those cases, therefore, remotely conflicts with the ruling of the
court of appeals in this case. Petitioner's additional citation of a few
conflicting bankruptcy court decisions (ibid.) does not necessitate this
Court's review because the recent enactment of the Donation Act resolves
the substance of the conflict and ensures that it will not arise again.
In any event, uniformity of bankruptcy court decisions should be policed
by the district courts and courts of appeals in the first instance.8
b. The ruling of the court of appeals is also consistent with this Court's
decision in Flores. Flores involved the application of RFRA to a local ordinance.
As a result, the sole issue before the Court was the validity of "the
most far reaching and substantial of RFRA's provisions, those which impose
its requirements on the States." Flores, 117 S. Ct. at 2162.
Central to the Court's holding was the determination that Congress's power
under Section 5 of the Fourteenth Amendment may be exercised only to remedy
or prevent a violation of the substance of that Amendment, as defined by
this Court. See 117 S. Ct. at 2166-2167. It was in that narrow context that
the separation of powers was addressed. Id. at 2166 ("The design of
the Fourteenth Amendment has proved significant also in maintaining the
traditional separation of powers between Congress and the Judiciary.").
As the opinion makes clear, however, the separation of powers principle
implicit in Section 5 to which the Court referred means only that when the
scope of Congress's legislative authority is confined to enforcing constitutional
rights, Congress can only remedy or prevent state conduct that would cross
the constitutional boundaries set by this Court. Id. at 2166-2168. In other
words, the separation of powers requires that the predicative risk of a
constitutional violation by the States must be identified by reference to
this Court's articulation of the scope of that right. Ibid.; see also id.
at 2171-2172 (explaining that RFRA exceeds Congress's Section 5 power because
the remedy it imposes is out of proportion to the risk of actual constitutional
violations under Smith).
When considered in context, Flores' abbreviated discussion of the separation
of powers has nothing to do with RFRA's applicability to federal law or
to the federal government. Nothing in Flores purported to address or limit
Congress's legislative powers under Article I. Congress's Article I powers,
moreover, are not simply remedial and preventive; they are broad and substantive.
Nor is Congress's legislative authority under Article I dependent upon this
Court's predicate findings about the scope of the Bill of Rights. As long
as Article I legislation adheres to the constitutional floor established
by this Court (and there can be no serious argument that RFRA offers less
protection than Smith) and does not transgress other constitutional limitations
(such as the Establishment Clause, discussed pp. 18-23, infra, or the Due
Process Clause), the separation of powers is not implicated. See INS v.
Chadha, 462 U.S. 919, 941 (1983) ("Congress has plenary authority in
all cases in which it has substantive legislative jurisdiction, * * * so
long as the exercise of that authority does not offend some other constitutional
restriction.").
In fact, if the Flores Court had, as petitioner suggests, indirectly and
unnecessarily reached out to decide the constitutionality of RFRA as applied
to federal law, that action would have violated established principles of
constitutional adjudication, which themselves embody important and fundamental
separation of powers values. See Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 217 (1995) (where more than one argument is presented, the Court must
decide the question of Congress's power to enact legislation on the narrowest
possible ground); Beazer, 440 U.S. at 582 n.22 (Court must not decide constitutional
questions "in advance of the necessity of deciding them" or "in
broader terms than are required by the precise facts to which the ruling
is to be applied"); Ashwander, 297 U.S. at 345 (Brandeis, J., concurring)
(because of "the 'great gravity and delicacy' of its function in passing
upon the validity of an act of Congress," the Court has established
a number of principles limiting the circumstances and manner in which such
review will be undertaken). This Court did no such thing.
3. The decision of the court of appeals is correct and consistent with this
Court's separation of powers and Establishment Clause precedents.
a. The court of appeals correctly concluded that, in the present context,
RFRA is a proper exercise of Congress's Article I powers under the Bankruptcy
and Necessary and Proper Clauses. Congressional power under the Bankruptcy
Clause9 is "plenary and exclusive." United States v. Kras, 409
U.S. 434, 447 (1973). Congress may "embrace within its legislation
whatever may be deemed important to a complete and effective bankrupt[cy]
system." United States v. Fox, 95 U.S. 670, 672 (1877). The bankruptcy
power:
extends to all cases where the law causes to be distributed, the property
of the debtor among his creditors; this is its least limit. Its greatest,
is the discharge of a debtor from his contracts. And all intermediate legislation,
affecting substance and form, but tending to further the great end of the
subject-distribution and discharge-are in the competency and discretion
of Congress.
Hanover Nat'l Bank v. Moyses, 186 U.S. 181, 186 (1902).
The bankruptcy power is augmented by the Necessary and Proper Clause.10
That Clause vests Congress with the authority to adopt "all means which
are appropriate" and are "calculated to effect any of the objects
entrusted to the [federal] government" through its enumerated powers.
M'Culloch v. Marland 17 U.S. (4 Wheat.) 316, 421, 423 (1819). Congress thus
may "exercise its best judgment in the selection of measures to carry
into execution the constitutional powers of the government." Id. at
420.11
Congress's plenary authority under the Bankruptcy and the Necessary and
Proper Clauses includes the power to determine that the bankruptcy system
shall be operated in a manner that is consistent with congressional policy
choices. Just as it has accorded special protections to debtors' medical
and educational needs, Congress has the power under the Bankruptcy Clause
to mandate that the trustee, in marshaling and liquidating the debtor's
assets, act in a manner that does not substantially burden the debtor's
religious exercise, unless doing so would be narrowly tailored to advance
a compelling federal interest.
Congress's use here of an Article I power to protect religious liberty is
by no means unique. In conjunction with its power to "lay and collect
Taxes," U.S. Const., Art. I, § 8, Cl. 1, Congress has chosen to
provide tax-exempt status to religious organizations. See 26 U.S.C. 501(c)(3)
(Supp. II 1996); Bob Jones Univ. v. United States, 461 U.S. 574, 585-592
(1983). In addition, Congress has enacted legislation exempting from the
Social Security tax self-employed members of religious sects who are religiously
opposed to accepting governmental benefits, 26 U.S.C. 1402(g), even though
this Court has held that the Free Exercise Clause does not require such
accommodation, United States v. Lee, 455 U.S. 252 (1982).
Congress has also used its war powers and its commerce power to enact legislation
requiring the accommodation of religious exercise. See, e.g., 10 U.S.C.
774 (permitting military service members to wear religious apparel while
in uniform under certain circumstances); 42 U.S.C. 2000e(j) (Commerce Clause
legislation requiring private employers reasonably to accommodate employees'
religious exercise).
b. Petitioner errs in contending (Pet. 12-15) that RFRA cannot be proper
Article I legislation because it affords more protection for religious liberty
than the Constitution requires and thus violates the separation of powers.
Legislative enactments that, like RFRA, respond to decisions of this Court
by creating enhanced statutory rights are commonplace and wholly consistent
with the separation of powers doctrine. In City of Mobile v. Bolden, 446
U.S. 55 (1980), for example, a plurality of the Court held that a voting
practice's discriminatory effect, standing alone, does not violate the Equal
Protection Clause. Id. at 65-80 (opinion of Stewart, J.). In response to
Bolden's delineation of the scope of the Equal Protection Clause, Congress
amended the Voting Rights Act, Pub. L. No. 97-205, 96 Stat. 131, to "make
clear that a violation could be proved by showing discriminatory effect
alone" and expressly reestablished as a matter of statutory law the
legal standard employed by this Court in earlier equal protection cases,
such as White v. Regester, 412 U.S. 755 (1973). See Thornburg v. Gingles,
478 U.S. 30, 35 (1986); see also Reno v. Bossier Parish Sch. Bd., 117 S.
Ct. 1491, 1499-1500 (1997). Acknowledging that Congress's action "was
largely a response to this Court's plurality opinion in [Bolden],"
the Court has enforced that statutory right for nearly 15 years without
voicing any separation of powers concerns. Gingles, 478 U.S. at 35; see
also Mississippi Republican Executive Comm. v. Brooks, 469 U.S. 1002 (1984)
(mem.).
Likewise, in Washington v. Davis, 456 U.S. 229 (1976), this Court held that
only intentional discrimination in public employment violates the Equal
Protection Clause. Id. at 238-248. Congress has nevertheless imposed upon
governmental employers, through Title VII, the discriminatory impact test
that this Court rejected as a constitutional matter in Davis. See Connecticut
v. Teal, 457 U.S. 440, 445-456 (1982); see also Fitzpatrick v. Bitzer, 427
U.S. 445, 452-456 & n.9 (1976).12
Petitioner's separation of powers argument proceeds from the mistaken assumption
that, in Smith, this Court articulated not just a constitutional floor on
how little, but also a ceiling on how much, government can accommodate religion.
Quite the opposite, Smith expressly anticipated a legislative response to
its decision:
Values that are protected against government interference through enshrinement
in the Bill of Rights are not thereby banished from the political process.
Just as a society that believes in the negative protection accorded to the
press by the First Amendment is likely to enact laws that affirmatively
foster the dissemination of the printed word, so also a society that believes
in the negative protection accorded to religious belief can be expected
to be solicitous of that value in its legislation as well.
494 U.S. at 890. Flores and Smith thus unquestionably permit States to protect
religious liberty more than the Constitution requires, whether through retaining
the Sherbert/RFRA standard in their own constitutions or through separate
legislation. It would be illogical to conclude that Congress cannot do the
same within its own sphere. See Flores, 117 S. Ct. at 2171 ("When Congress
acts within its sphere of power and responsibilities, it has not just the
right but the duty to make its own informed judgment on the meaning and
force of the Constitution.").
c. Contrary to petitioner's contention (Pet. 18-26), RFRA fully comports
with the Establishment Clause. "The limits of permissible state accommodation
to religion are by no means co-extensive with the noninterference mandated
by the Free Exercise Clause." Walz v. Tax Comm'n, 397 U.S. 664, 673
(1970). Rather, government may "respect[] the religious nature of our
people and accommodate[] the public service to their spiritual needs."
Zorach v. Clauson, 343 U.S. 306, 314 (1952). Whatever the outer limits of
permissible accommodation, this Court's precedents demonstrate that the
lifting of substantial, governmentally imposed burdens on religion in a
sectarian-neutral manner does not run afoul of the Establishment Clause.
Petitioner's argument, by contrast, would require the invalidation of every
state constitution and law that, like RFRA, imposes heightened protection
for the exercise of religion beyond the Smith floor, without providing equivalent
protection for non-religious beliefs.13
RFRA has a secular legislative purpose. The alleviation of significant governmental
interference with religious exercise is a permissible secular purpose, as
long as Congress does not "abandon[] neutrality and act[] with the
intent of promoting a particular point of view in religious matters."
Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987). Congress's
purpose in enacting RFRA was to advance uniformly the civil rights of all
religious adherents; Congress played no favorites. Cf. Board of Educ. of
Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 702-707 (1994).
Furthermore, by limiting RFRA to instances in which federal laws "substantially
burden" religious exercise, 42 U.S.C. 2000bb-1, Congress acted only
"to alleviate significant governmental interference" with religious
autonomy and exercise. Amos, 483 U.S. at 335; cf. Texas Monthly, Inc. v.
Bullock, 489 U.S. 1, 15 (1989) (opinion of Brennan, J.). Under those circumstances,
the Establishment Clause does not "require that the exemption come
packaged with benefits to secular entities." Amos, 483 U.S. at 338.
In any event, as we have noted (see pp. 2-3, supra), the 1998 Donation Act,
which now controls this case, applies to transfers to all qualified recipient
religious or charitable entities.
RFRA also has a permissible primary effect. "A law is not unconstitutional
simply because it allows churches to advance religion, which is their very
purpose. For a law to have forbidden 'effects' under Lemon [v. Kurtzman,
403 U.S. 602 (1971)], it must be fair to say that the government itself
has advanced religion through its own activities and influence." Amos,
483 U.S. at 337. Thus, exemptions from generally applicable statutes often
do not constitute impermissible governmental facilitation of religion, because
the government neither adds to nor subsidizes the propagation of the religious
message. Ibid.
As in Amos, nothing in RFRA results in the direct advancement or subsidization
of religion. RFRA requires only that, under specified circumstances, the
federal government must leave religion to operate in its own sphere by exempting
persons from generally applicable obligations that substantially burden
their religious exercise. See Kiryas Joel, 512 U.S. at 706 (permissible
accommodations "have allowed religious communities and institutions
to pursue their own interests free from governmental interference").
Under RFRA, religious practitioners will not be any better off than before
coming into contact with the federal government; they will simply be less
worse off because of the interaction.
Finally, RFRA does not impermissibly entangle the religious and the secular.
Religious exemptions, as a whole, decrease governmental involvement with
religion. Amos, 483 U.S. at 339. Like the provision of Title VII at issue
in Amos, RFRA "effectuates a more complete separation of" government
and religious practitioners and avoids the "intrusive inquiry"
into religious doctrine and practices entailed by efforts to regulate religious
conduct. Amos, 483 U.S. at 339.14
Petitioner errs in her contention (Pet. 22-23) that RFRA fosters excessive
entanglement by mandating an inquiry into whether government action imposes
a substantial burden upon an individual's exercise of religion. Courts clearly
possess the institutional competence and constitutional ability to administer
RFRA's test. Even apart from RFRA, the substantial burden/compelling interest
test continues to govern hybrid constitutional claims and First Amendment
cases where government either intentionally targets religion or provides
for individualized consideration of claims in its statutory scheme. See
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
533 (1993); Smith, 494 U.S. at 881-885. Courts also must inquire into the
existence of a substantial or "significant" burden on religious
exercise when deciding whether religious accommodations comport with the
Establishment Clause. E.g., Texas Monthly, 489 U.S. at 15 (opinion of Brennan,
J.). In addition, such inquiries are commonplace under state constitutions
and statutes that offer more protection for religious liberty than Smith.
See note 13, supra.15
4. Petitioner also seeks this Court's review of the merits of the court
of appeals' interpretation and application of RFRA's terms. Pet. 27-30.
The United States has intervened in this litigation solely to defend the
constitutionality of RFRA. We thus do not address that argument other than
noting, again, that the Donation Act renders those issues of no enduring
relevance to the parties or to similarly situated litigants.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
MICHAEL JAY SINGER
MATTHEW M. COLLETTE
Attorneys
JULY 1998
1 The text of the Donation Act is reproduced in an addendum to the Church's
Brief in Opposition.
2 The Donation Act also renumbers the preceding provisions of Section 548(a).
Subsection (1)(B) refers to the trustee's authority to void a transfer that
was not made for reasonably equivalent value (which was previously codified
as 11 U.S.C. 548(a)(2)(A)).
3 All federal laws enacted after RFRA's passage are subject to its terms
"unless such law explicitly excludes such application." 42 U.S.C.
2000bb-3(b). The Donation Act contains a rule of construction, which provides
that "[n]othing in the amendments made by this Act is intended to limit
the applicability of the Religious Freedom Restoration Act of 1993."
§ 6, 112 Stat. 519.
4 The United States intervened in the court of appeals to defend against
the Church's arguments that Section 548 of the Bankruptcy Code is unconstitutional.
The United States withdrew that intervention shortly before oral argument
in the case.
5 The court of appeals held that the portion of RFRA applicable to federal
law is severable from the portion applicable to the States that was invalidated
in Flores. Pet. App. A9. Petitioner does not seek this Court's review of
that aspect of the court of appeals' decision.
6 Since Flores, two unpublished memoranda dispositions have stated broadly,
in cases involving the federal government, that Flores rendered RFRA unconstitutional.
See United States v. Dee, 122 F.3d 1074 (9th Cir. 1997) (Table), petition
for writ of cert. pending, No. 97-8677 (filed Apr. 13, 1998); Patel v. United
States, 132 F.3d 43 (10th Cir. 1997) (Table). Those decisions do not create
a genuine inter-circuit conflict because the unpublished rulings have no
precedential force, are not law of the circuit, and provide no indication
of how the Ninth or Tenth Circuit will rule when squarely presented with
the question of RFRA's continued applicability to the federal government.
See 9th Cir. R. 36-2, 36-3; 10th Cir. R. 36.3. At least two other courts
of appeals have noted, but reserved, the question. Alamo v. Clay, 137 F.3d
1366, 1368 (D.C. Cir. 1998) (assuming RFRA's continued application to the
federal government); United States v. Grant, 117 F.3d 788, 792 n.6 (5th
Cir. 1997).
7 See Shabazz v. Parsons, 127 F.3d 1246 (10th Cir. 1997) (addressing RFRA's
applicability to state law); Muhammad v. City of New York Dep't of Corrections,
126 F.3d 119 (2d Cir. 1997) (same); Anderson v. Angelone, 123 F.3d 1197
(9th Cir. 1997) (same); Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997)
(same); Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996) (pre-Flores decision
upholding RFRA's constitutionality as applied to the States), vacated, 117
S. Ct. 2502 (1997).
8 Petitioner's references to disputes among legal scholars (Pet. 17-18 n.4,
26 n.7), provide no basis for this Court's review.
9 The Bankruptcy Clause vests Congress with power to "establish * *
* uniform Laws on the subject of Bankruptcies throughout the United States."
U.S. Const., Art. I, § 8, Cl. 4.
10 The Necessary and Proper Clause provides that Congress may "make
all Laws which shall be necessary and proper for carrying into execution
the foregoing Powers [under Article I, section 8], and all other powers
vested by this Constitution in the Government of the United States, or in
any Department or Officer thereof." U.S. Const., Art. I, § 8,
Cl. 18.
11 Petitioner argues (Pet. 12) that, even if RFRA falls within an enumerated
power under Article I, Section 8, the statute must separately satisfy the
three-part test commonly applied under the Necessary and Proper Clause in
order to pass constitutional muster. The Necessary and Proper Clause, however,
serves "to enlarge, not to diminish the powers vested in the government.
It purports to be an additional power, not a restriction on those already
granted." M'Culloch, 17 U.S. at 420. RFRA, moreover, clearly passes
that test because the protection of religious freedom is a legitimate legislative
end; RFRA does not violate any other constitutional provision; and it is
an appropriate and reasonable method of achieving Congress's legislative
goal. Id. at 421.
12 See also City of Rome v. United States, 446 U.S. 156, 173-178 (1980)
(upholding statutory prohibition on voting practices with discriminatory
effects and requirement of heightened scrutiny through preclearance process,
despite ruling that same day that only intentional discrimination violates
Fifteenth Amendment); Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) (legislative
response to Geduldig v. Aiello, 417 U.S. 484 (1974)); 10 U.S.C. 774 (in
response to Goldman v. Weinberger, 475 U.S. 503 (1986), legislation increasing
protection for religious objections to military uniform restrictions); Texas
Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) (noting that Congress
could enact legislation giving members of the military broad rights to wear
religious head coverings in response to Goldman); 42 U.S.C. 2000aa (1994
& Supp. II 1996) (in response to Zurcher v. Stanford Daily, 436 U.S.
547 (1978), legislation immunizing the press from certain searches).
13 Numerous States employ essentially the same test as RFRA to protect religious
exercise under their own constitutions and laws. See R.I. Gen. Laws §
42-80.1-3(b) (1993); State v. Miller, 549 N.W.2d 235, 241 (Wis. 1996); Swanner
v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 280-281 (Alaska), cert.
denied, 513 U.S. 979 (1994); Attorney General v. Desilets, 636 N.E.2d 233,
235-236 (Mass. 1994); Hunt v. Hunt, 648 A.2d 843, 853-854 (Vt. 1994); In
re Dubreuil, 629 So. 2d 819, 822 (Fla. 1993); First Covenant Church v. City
of Seattle, 840 P.2d 174, 185-187 (Wash. 1992); Rupert v. City of Portland,
605 A.2d 63, 65-66 (Me. 1992) (applying compelling interest test to analyze
claim under state constitution); St. John's Lutheran Church v. State Compensation
Ins. Fund, 830 P.2d 1271, 1277 (Mont. 1992) (applying compelling interest
test without discussing Smith); State v. Hershberger, 462 N.W.2d 393, 396-398
(Minn. 1990); State v. Evans, 796 P.2d 178, 179-180 (Kan. Ct. App. 1990)
(applying compelling interest test without discussing Smith); In re Brown,
478 So. 2d 1033, 1039 & n.5 (Miss. 1985); Porth v. Roman Catholic Diocese,
532 N.W.2d 195, 199 (Mich. Ct. App. 1995); cf. State ex rel. Swann v. Pack,
527 S.W.2d 99, 111 (Tenn. 1975) (state constitutional protection of religion
is "substantially stronger" than federal constitutional protection),
cert. denied, 424 U.S. 954 (1976).
14 In the bankruptcy context, for example, exempting tithes from the trustee's
avoidance powers prevents churches from becoming routinely entangled in
bankruptcy proceedings. Without such an exemption, churches that receive
tithes will face demands for return of such contributions, become parties
to litigation, face discovery of church records, and be forced to undergo
evaluation of church assets for the collection of judgments. In addition,
in many cases the courts may have to evaluate church doctrine and practices
to determine if a contribution was made "in exchange for" services
within the meaning of the Bankruptcy Code. See Pet. App. A88-A89 (discussing
such a case). RFRA avoids those entanglements.
15 Petitioner also contends (Pet. 24-25) that RFRA violates the Establishment
Clause as applied in this case. That claim does not merit review. First,
there is no circuit conflict on that question. Second, the Donation Act
both ensures that no conflict will arise and disposes of petitioner's arguments
by requiring that non-religious, charitable donations also be exempted from
avoidance. Third, if granting the particular relief requested would violate
the Establishment Clause, that would constitute a compelling interest justifying
the trustee's refusal to accommodate. See Widmar v. Vincent, 454 U.S. 263,
271 (1981). Thus, RFRA by its own terms does not authorize any relief that
is constitutionally proscribed, and petitioner's argument-even if correct-would
render RFRA inapplicable, rather than unconstitutional.