Sasnett v. Sullivan

• Citation: 91 F.3d 1018
• Decision Date: 02 August 1996
• Docket Number: No. 95-3924,95-3924
• Parties: Sylvester SASNETT, et al., individually and on behalf of others similarly situated, Plaintiffs-Appellees, and United States of America, Intervening Plaintiff-Appellee, v. Michael J. SULLIVAN, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1018

91 F.3d 1018

65 USLW 2115

Sylvester SASNETT, et al., individually and on behalf of others similarly situated, Plaintiffs-Appellees, and United States of America, Intervening Plaintiff-Appellee, v. Michael J. SULLIVAN, et al., Defendants-Appellants.

No. 95-3924.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 1996.

Decided Aug. 2, 1996.

Percy L. Julian (argued), Steven N. Schulman, Peggy J. Hurley, Julian, Olson & Lasker, Madison, WI, for Plaintiffs-Appellees.

Frank D. Remington (argued), John S. Greene, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendents-Appellants.

Michael J. Singer, Patricia Ann Millett (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, for Intervenor-Appellee.

Marc D. Stern, American Jewish Congress, New York City, for Coalition for the Free Exercise of Religion, amicus curiae.

Peter Koneazny, American Civil Liberty Union of Wisconsin, Milwaukee, WI, for ACLU of Wisconsin Foundation, Inc., amicus curiae.

Michael W. McConnell, Chicago, IL, for Jewish Community Relations Council of the Jewish United Fund of Metropolitan Chicago, Illinois Council of Churches, Baptist General, amici curiae.

Eric W. Treene, The Becket Fund for Religious Liberty, Washington, DC, for Becket Fund for Religious Liberty, amicus curiae.

James A. Serritella, James C. Geoly, Kevin R. Gustafson, Mayer, Brown & Platt, Chicago, IL, for Catholic Conference of Illinois, amicus curiae.

Before POSNER, Chief Judge, and ESCHBACH and EVANS, Circuit Judges.

POSNER, Chief Judge.

Wisconsin severely restricts the wearing of jewelry by jail and prison inmates. A regulation forbids the possession of "items which because of shape or configuration are apt to cause a laceration if applied to the skin with force," and the state refuses to make an exception for religious jewelry, such as crucifixes, which (unless made of cloth) fall within the ban. Inmates brought this suit against the relevant officials to enjoin, as a violation of the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb to 2000bb-4, the defendants' refusal to make such an exception. The officials defend their refusal primarily on the ground that the Act is unconstitutional, exceeding the power that section 5 of the Fourteenth Amendment gives Congress to enforce the amendment, and secondarily on the ground that the ban of religious jewelry satisfies the Act's stringent test for permissible burdening of religion. The district judge rejected the constitutional challenge (as two other circuits in similar cases have done, Flores v. City of Boerne, 73 F.3d 1352, 1359-60 (5th Cir.1996); EEOC v. Catholic University, 83 F.3d 455, 469-70 (D.C.Cir.1996)), Sasnett v. Department of Corrections, 891 F.Supp. 1305, 1315-21 (W.D.Wis.1995), and went on to grant summary judgment for the plaintiffs.

The background and content of the Religious Freedom Restoration Act are discussed in our recent opinion in Mack v. O'Leary, 80 F.3d 1175 (7th Cir.1996), enabling us to be brief. The Act forbids government, federal or state, to "substantially burden" a person's exercise of his or her religion unless the government shows that the burden is the "least restrictive means of furthering [a] compelling governmental interest." 42 U.S.C. § 2000bb-1(b). The Act was motivated by a desire to supersede Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that the free-exercise clause of the First Amendment allows the government to do just what the Act forbids, provided that the government does so by means of a law of general applicability not motivated by hostility toward religion or toward a particular sect. In Smith the law was a general prohibition of controlled substances applied to the use of peyote in a religious ceremony of an Indian tribe. Before Smith the Supreme Court had used something much like, perhaps identical to, the test adopted in the Act in interpreting the free-exercise clause. The Act thus seeks to return the courts, when a law burdening religious observance is challenged, to the approach they had taken before Smith. The term "restoration" in the Act's title supports this interpretation of what Congress was about, as do the Act's text and legislative history.

The state argues that section 5 of the Fourteenth Amendment does not authorize Congress to create new rights, Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883); City of Rome v. United States, 446 U.S. 156, 210-12, 220, 100 S.Ct. 1548 1578-80, 1583, 64 L.Ed.2d 119 (1980) (dissenting opinion), and that this is just what the Religious Freedom Restoration Act did. Smith had held that a person has no right to demand special treatment by government just because he will find it difficult to practice his religion otherwise. The Act creates such a right. This is one way to look at what Congress did, but it cannot be the only way. Whenever Congress passes a law under the authority of section 5, it creates a right. The question is whether it has exceeded its authority in creating the particular right at issue. It has not if the right is reasonably designed to secure a right created by the Fourteenth Amendment itself. The clearest examples come from the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et seq. The Supreme Court held in Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), that literacy tests for voters do not violate the Fourteenth Amendment--whereupon Congress prohibited literacy tests for voters, 42 U.S.C. § 1973b(e), and the Court upheld the prohibition. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). And on the same day that the Court held in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that at-large electoral systems which have the practical effect of preventing the election of any blacks do not violate the Fourteenth or Fifteenth Amendments, it held in City of Rome v. United States, supra, that the provision of the Voting Rights Act that authorizes the Department of Justice to veto such systems if they have an exclusionary effect is valid under the Fifteenth Amendment's counterpart to section 5.

In both sequences Congress was held to be empowered by the enforcement clauses of the Reconstruction amendments to outlaw a practice that while not unconstitutional deprived a constitutional right of practical efficacy. The legislation bore a necessary and proper relation to the underlying right. Katzenbach v. Morgan, supra, 384 U.S. at 650, 86 S.Ct. at 1723. The plaintiffs argue that RFRA bears a similar relation to the constitutional right to exercise one's religion without interference by government. After Smith the only way to prove a violation of the free-exercise clause is by showing that government discriminated against religion, or a particular religion, by actually targeting a religious practice, rather than hit it by accident while aiming at something else. A tax on churches, a prohibition (shades of Elizabethan England) against conducting a mass, a ban on wearing yarmulkes--only intentional discrimination, as illustrated by these hypothetical cases, is actionable under Smith. Even under this demanding test a law neutral on its face but intended to discourage a particular religious practice or belief infringes the free-exercise clause, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 2227, 124 L.Ed.2d 472 (1993), but the intent behind such a law may be difficult to prove. Its apparent neutrality would be sand in the eyes of the finder of fact. Congress could, the plaintiffs argue, have established the stiffer test of RFRA to prevent government from resorting to such difficult-to-detect methods of discrimination, in just the same way that the Voting Rights Act forbade literacy tests for voters because it was so difficult to prove (what everyone suspected) that the hidden purpose of the tests was to disfranchise blacks. On this view, instead of having to prove that the Wisconsin prison system was motivated by hostility to religion in refusing to permit the wearing of religious jewelry, all that the plaintiffs would have to prove was that the refusal imposed a substantial burden on their religious practice. By proving this they would shift to the state the burden of proving if it could that it had no other way of achieving a legitimate and important governmental objective.

Granted, the legislative history of the Act contains only hints of this theory of what the Act was intended to do. See, e.g., H.R.Rep. No. 88, 103d Cong., 1st Sess. 6 (1993) U.S.Code Cong. & Admin.News 1993, 1895; "The Religious Freedom Restoration Act," Hearing before the S. Comm. on the Judiciary, 102d Cong., 2d Sess., ser. no. J-102-82, at 95-96 (Sept. 18, 1992) (statement of Prof. Douglas Laycock). But a statute's constitutionality should not depend on the ability of congressional staff to write a plausible brief for it into the committee reports. Katzenbach v. Morgan, supra, 384 U.S. at 653, 86 S.Ct. at 1724. Legislative history is too easy to manufacture. And anyway it is not the motive of the legislators that is important (at least when a statute is not attacked on the basis of an invidious purpose, as in Edwards v. Aguillard, 482 U.S. 578, 591-92, 107 S.Ct. 2573, 2581-82, 96 L.Ed.2d 510 (1987), and Wallace v. Jaffree, 472 U.S. 38, 56-61, 105 S.Ct. 2479, 2489-92, 86 L.Ed.2d 29 (1985)), but whether the statute they pass is within the scope of their constitutional authority. The motivation behind the Religious Freedom Restoration Act was in fact disagreement with the Supreme Court's interpretation of the Constitution. The Act could still be within the scope of section 5 if its effect is, without infringing any constitutional rights, to make the legal remedies against violations of the free-exercise clause more effective...