he roller coaster history of the Religious Freedom Amendment has taken another twist. Sources close to the House Judiciary Committee in Washington have told American Atheists that the Amendment will be opened for further possible alterations in its wording, and will not be "fast tracked" onto the House floor during the current session of congress as was earlier predicted. In fact, following a one-day session slated for next Thursday, October 23, the RFA may be buried until next year's session on Capitol Hill.

Christian Coalition Director Don Hodel (above). His strategy of getting religious liberals on board the CC bandwagon to support the Religious Freedom Amendment has failed. Mainstream religious groups look for ways to enact another version of the discredited Religious Freedom Restoration Act instead.

    This latest development continues a pattern characterized by frantic efforts of prayer groups to speed the proposed constitutional amendment through committee for a floor vote, and sudden reversals where the legislation was suddenly stalled, or even revised. What could be going on?

    Introduced by Rep. Ernest Istook (R.-OK), the present version of the RFA reads,

"To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. The government shall not require any person to join in prayer or other religious activity, proscribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion."

   Critics charge that the Amendment would "gut" the Establishment Clause and reverse decades of vital legislation and court rulings protecting the separation of government and religion.

   One reason why the Religious Freedom Amendment continues to languish in the procedural labyrinth of the House Judiciary Committee may be lack of support on the hill, and fear that it is a "no-win" issue which could be damaged in any lopsided vote. For over three years, various incarnations of the Amendment (a revised form was known as the Religious Equality Amendment) have been a key agenda for religious right groups such as the Christian Coalition. Within the House Judiciary Committee where Republicans command a majority and where friends of the CC are in strength, the Amendment has enjoyed considerable lip service.

(Above) Rep. Ernest Istook, R-OK. His Religious Freedom Amendment would viscerate the Establishment Clause of the First Amendment, return prayer and other religious ritual to public schools, and put church groups "on the payroll" for so-called faith-based social services.

    Opposition to the RFA, though, has been solid. Even religious groups have joined with other political and groups in opposing the measure, and questioning the need for such an amendment. The Christian Coalition grudgingly admits that at present, even with Republicans in control of both ends of the hill (and beholden to the CC for its "precinct army" performance in recent national elections) the votes are simply not there for even a close call in either the House or Senate. And passage in Washington is only part of a long, arduous path the Religious Freedom Amendment would have to traverse through individual state legislatures as part of the ratification process.

   Both former Coalition Director Ralph Reed and the present CC leadership under Don Hodel and Randy Tate have all spoken of using a floor vote on the Religious Freedom Amendment as a way of getting representatives and senators "on record," where their stand can be included in the millions of "voters guides" for which the group has become notorious. Even so, supporters of the RFA have little to celebrate. Why is the amendment stalled in the Constitution Subcommittee of the HJC? And what, if anything, has happened to postpone once again this program which for years has ranked near the top of the Christian Coalition agenda? The answer may rest with last summer's Supreme Court ruling pertaining to a related legislative item, the Religious Freedom Restoration Act, and how that decision fit into the strategic thinking of those pushing the RFA.

    The Religious Freedom Restoration Act was passed by Congress in response to a 1990 U.S. Supreme Court decision, in which the high court ruled that the state of Oregon was not required to allow a Native American Church group to use peyote in its religious ritual. The practice was illegal in Oregon and elsewhere, but attorneys for the Church argued that laws restricting its use as part of a religious ceremony constituted a "burden" on freedom of religion and exercise. The RFRA enjoyed almost unanimous support from America's religious groups; in fact, the wording of the Act was a "team effort" reflecting the work of dozens of different religious organizations, Christian, Jewish, Moslem and others. By 1993 the Act had been passed by Congress and was quickly signed by President Clinton. Advocates argued that the legislation was necessary to shield religions from laws and regulations that "burden" or hinder them.

    The test of the RFRA came in the case of BOERNE v. FLORES. This involved an attempt by the Roman Catholic Church to demolish part of an aging church building in the town of Boerne, Texas; city officials opposed the demolition, arguing that the structure was of historical significance, and fell under the jurisdiction of local zoning ordinances. But the church maintained that those ordinances and other provisions constituted a "burden" to religious exercise, and hence did not apply to a church group.

    In a complex decision, the high court struck down the RFRA on June 25, 1997. Religious groups across the political spectrum were furious; indeed, the Religious Freedom Restoration Act was one of the few political items in recent years which enjoyed near universal religious support; a brief, for instance in the BOERNE v. FLORES case supporting the church had been filed by a religious coalition that included Christians, Jews, Muslims, Scientologists, Hindus, new age sects, humanists and even some "separationist" organizations. American Atheists was one of the few movements supporting the Supreme Court's ruling, noting that RFRA created a class of "special rights" for believers and religious groups.

    Within hours of the decision in BOERNE, the Christian Coalition began promoting its call for the Religious Freedom Amendment as a "solution" to the high court's "judicial activism" and a way of supposedly addressing problems caused by the demise of the RFRA. Christian Coalition Director Don Hodel told a hastily convened gathering of news media that the BOERNE decision "is the most recent example of the free speech rights of people of faith being denied through the misinterpretation of the Constitution by the highest court in the land." A CC press handout said that "Hodel cited today's ruling as final evidence than an amendment to the U.S. Constitution is required if the American people are to have a restoration of their freedom of speech on religious matters."

    Hodel gushed, "Regrettably, now, more than ever, Americans see the need for the Religious Freedom Amendment, introduced by Rep. Ernest Istook last month."

    The Coalition and other supporters of the Religious Freedom Amendment then began efforts to woo those religious groups disappointed in the BOERNE v. FLORES decision. The man largely responsible for the wording of the unconstitutional Religious Freedom Restoration Act, Rev. Oliver Thomas of the National Council of Churches, lamented that the BOERNE ruling was "ominous" in its consequences for churches. The general counsel of the Baptist Join Committee on Public Affairs, J. Brent Walker, painted an equally dark scenario, warning that, "Without RFRA, the religious liberty of every American is in peril..."

    Oliver and much of the coalition which had supported RFRA then found themselves at a crossroads: should they find other remedies, such as enacting state-level versions of the old RFRA that would survive constitutional scrutiny, or should they instead support an amendment such as the one proposed by Istook? The Coalition and others backing the Religious Freedom Amendment hoped for the latter.

    It didn't happen. The religious coalition behind RFRA remains divided, but many are now pursuing efforts to have versions of the RFRA passed in state legislatures; the future of that effort, and the constitutional fate of the new laws, is in doubt. But there was no stampede of support for the Religious Freedom Amendment as Pat Robertson, Don Hodel and RFA Capital Hill backers had hoped for. Even those who supported the RFRA saw the Religious Freedom Amendment as too wide sweeping, and an issue identified too closely with the extreme religious right.

    Our information to date suggests that next Thursday's Constitution Subcommittee gathering will hear any proposals to rewrite and alter the phrasing of the Religious Freedom Amendment. RFA is considered "the best compromise" between to competing religious right blocks or versions which coalesced when the original Religious Equality Amendment was floated over three years ago. Major religious right players, such as Christian Coalition, Christian Legal Society, Focus on the Family, Eagle Forum, Family Research Council and Traditional Values Coalition became divided, suggesting that one version or another was "too weak." Last year, Rep. Dick Armey introduced a hurried compromise, also known as Religious Freedom Amendment. But it is the present version as crafted by Mr. Istook which seems to enjoy the most support from the diverse groups which loosely comprise the religious right, at least on Capital Hill.

    First Amendment watchers will want to scrutinize closely any new wording which may be amalgamated onto the Istook proposal. The incorporation of any language found in the old RFRA may suggest a new effort to attract support for the Religious Freedom Amendment from more mainstream groups. Any revised version, however, would probably end up requiring another round of public hearings -- something that could result in RFA being "talked to death" in foggy bottom.

    Any new versions -- or, barring their introduction, the present Istook Religious Freedom Amendment -- will probably be moved out of the Constitution Subcommittee on Thursday, and readied for the entire membership of the House Judiciary Committee. Separationists should not underestimate the possibility of this legislation being fast tracked at any time, however, nor should a defeat of the RFA or similar proposals be taken for granted. Even a dismal short-term prognosis for the Religious Freedom Amendment could mean very little after the coming elections. Those working to "bring America back to Jesus" have a long range vision and agenda. Defending the wall of separation between government and religion requires a similar attitude on our part.

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