RFRA

[Marci Hamilton]

My recollection of Marc Stern's comments before the Committee was that no religion worthy of being worried about discriminated.  The context of the remark was clearly to lay to rest concerns on the committee regarding the anti-discrimination laws.  Given the presence of the Aryan Brotherhood, among others, in the prisons and elsewhere in society, I view the remark as not very helpful, to say the least. FYI-- in at least one jurisdiction, the KKK has asked for treatment as a religion.  This debate is not furthered by whitewashing religion.  See my U. Ark. at Little Rock L. Rev. symposium piece.

If Tom is searching for "hard analysis" regarding the effect of RFRA/RLPA on the anti-discrimination laws, the ACLU has issued an impressive and lengthy analysis that concludes that RLPA seriously threatens such laws.  Indeed, the ACLU has now parted ways with the Coalition on this score and has asked the Congress to exempt anti-discrimination laws from RLPA. 

As to the courts' mild treatment or handling of RFRA, three years hardly test a law in the federal system, and the real social impact is the way in which it alters administration of complicated entities like the prisons.  Moreover, with all due respect to Chip, and I mentioned this to him when I read his draft, I question his conclusions though not his information.  The many cases coming down on "substantial burden" indicate not that RFRA made no difference but rather that there was an explosion of marginal and/or frivolous claims. That is a serious societal cost.  Indeed, if religion were losing all of these cases, it would seem to me to be a waste of time for the courts and the religions.

We have no evidence regarding the federal prison level because the President has ordered the system not to permit these claims to go to court.  The Assn of State Corrections Admins (which, in the interest of full disclosure, I am representing now in a challenge to the ADA and its regs) has recently issued the results of its survey of the 50 state prisons (which will be on my website soon).  To put it lightly, RFRA was no picnic in the state prisons.

Finally, the best evidence of RFRA's negative impact comes from the state prison chaplains, who obviously are interested in furthering the religious experiences of the prisoners.  The State Ohio Prison Chaplains have issued a letter explaining how rfra/rlpa hurts the goals of having religion in the prisons in the first place.  I have also received a great deal of email from federal prison chaplains who are extremely unhappy about RFRA and RLPA.  They, however, cannot go on the record because of a gag order from the DOJ/President.  They fear for their jobs if they tell the truth.  Nice regime, eh?

Marci Hamilton


Marci A. Hamilton
Professor of Law
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY  10003
(212) 790-0215
(212) 790-0205 (fax)
hamilton02 at aol.com
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