n the first setback for the Religious Freedom Restoration Act being promoted in states throughout the nation, legislators in Maryland have withdrawn their version of RFRA saying that the bill "has possible unanticipated consequences." Roman Catholic officials, including the lobbyist for the Maryland Catholic Bishops Conference which had led an ecumenical effort on behalf of RFRA, expressed their disappointment, but told the Baltimore Sun newspaper that another version could be introduced next year.

    State Senate President Thomas V. Mike Miller (D-Prince George) and Delegate Samuel Rosenberg (D-Baltimore) agreed to pull the legislation after they were unable to resolve numerous problems. Rosenberg, who serves on the board of the ACLU and is on the Leadership Council of Common Cause, added that difficulties with the RFRA probably could not be adequately addressed in the three remaining weeks of the current legislative session.

    It could be a crucial turning point in the national effort to enact so- called "mini-RFRAs" based on the now-discredited Religious Freedom Restoration Act of 1993. That measure required governments to justify any laws that "burden" religious belief or exercise using a "compelling interest" standard. While religious groups united to support RFRA, critics charged that the law fostered "special rights" for believers, and discriminated against atheists and nonbelief in general.

    The Maryland RFRA appears to be the first time that legislators had difficulties with some of the possible consequences of the measure. "County officials and constitutional experts argued that unless the bill was significantly rewritten, local governments would face millions of dollars a year in lawsuits from challenges to laws affecting jails, school curriculums and land use," noted The Sun. Areas of contention that were cited included "possible danger of churches suing to be exempted from zoning laws and inmates' claiming their religious beliefs afford them privileges."

Attorney Marci Hamilton, who defended the City of Boerne, Texas in the historic BOERNE v. FLORES case, warns that the Religious Freedom Restoration Act "hands religion a legal tool unavailable to any other entity."

    Indeed, RFRA was struck down last year by the U.S. Supreme Court in the historic case of BOERNE v. FLORES. That seminal decision involved an effort by Roman Catholic Church authorities in the community of Boerne, Texas to seek immunity from local historical ordinances that prevented them from demolishing part of a decades-old structure in order to erect a new church. In a 6-3 decision, justices ruled that Congress had overstepped its authority in enacting the Religious Freedom Restoration Act, but left open the possibility that RFRA measures could be proposed by individual states. But Justice John Paul Stevens noted the discriminatory nature of RFRA in his opinion:

    "If the historic landmark on a hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This government preference for religion, as opposed to irreligion, is forbidden by the First Amendment..."

    Since then, a group known as the Coalition for the Free Exercise of Religion -- which crafted and supported the original federal RFRA -- has conducted a "stealth campaign" across the nation to implement state versions of the act. So far, RFRAs have appeared in California, Georgia, Tennessee, Florida, Kentucky, New Jersey, New York, Michigan, Illinois and elsewhere. The Act has already been approved in Connecticut and Rhode Island, and awaits the Governor's signature in New York.

    The Coalition is composed of a broad range of religious and civic groups covering the entire "faith" spectrum; it includes Roman Catholics, Jews, Baptists, Presbyterians, Humanists, Methodists, Unitarians, Muslims, Scientologists, Hindus and New Agers. The handiwork of the Coalition on the individual RFRAs is also obvious; in state after state where the measures have been proposed, key paragraphs display nearly identical wording.

    If the Maryland case is any indication, legislators across the country may now be less willing to respond to "hurry up" pressure from religious groups, and examine the potential consequences of RFRA. In Maryland, the executive director of the state Association of Counties said that while officials agreed "in concept" with RFRA, there were concerns about potential problems. David Bliden told The Sun, "The greatest concern was that while we were willing to support a bill that makes it easier to sue us, we didn't want to give legions of lawyers broad license to sue us for every minuscule action that (the) government takes." Already, critics have warned that RFRA would be a "full employment act" for attorneys acting on behalf of religious groups seeking exemption from zoning laws, ordinances governing land use and other regulations which nevertheless apply to private individuals and businesses.

American Atheists State Director Dave Silverman leads the effort in his state to defeat the Religious Freedom Restoration Act. "American Atheists stands firmly against any legislation which impedes the rights of atheists in any way, or provides special rights to believers."

Hamilton Warns Legislators

   Among the few voices speaking out against the Religious freedom Restoration Act in Maryland and elsewhere has been Dr. Marci Hamilton, Professor of Law at the Benjamin Cardozo School of Law. In a written communique to John F. Woods, Acting Chair of the Maryland Commerce and Government Matters Committee earlier this month, she warned of the unanticipated effects of the passage of RFRA. Hamilton had successfully defended the City of Boerne, Texas in its challenge to the Religious Freedom Restoration Act in BOERNE v. FLORES. She noted that both the House and Senate versions of the Maryland bills "hand religion a legal tool unavailable to any other entity," adding, "If a church wants to avoid a zoning ordinance, the government must tailor its law to the least restrictive means for that church. If a philosophical bookstore or other business wants to do the same, it does not have the same right..."

   Hamilton also observed that the Maryland RFRA would "entangle church and state by creating an incentive for the state to act as a theological overseer of the religions in its boundaries." Critics have noted that this could indeed happen as government is confronted with the claims of various self- described "churches" and "religions." Curiously, RFRA -- originally justified as an insurance policy for religious freedom and expression -- could put the state in the awkward and questionable position of determining which religious beliefs and "churches' are "authentic," and which are not. Is this even constitutionally possible?

New Jersey -- The Next Test

   The battle over RFRA now shifts to New Jersey where the State Senate Judiciary Committee is expected to take up the matter on Monday, March 23. Dave Silverman, New Jersey State Director for American Atheists, reports that versions of the Religious Freedom Restoration Act are now in both the state House and Senate, and that the proposed legislation "goes further than even the Religious Freedom Amendment, in actually declaring that 'Actions of any governmental entity which are facially neutral towards religion may nonetheless burden religious exercise,' and that 'Government should not substantially burden religious exercise without compelling justification.'"

    "American Atheists stands firmly against any legislation which impedes the rights of atheists in any way, or provides special rights to believers," added Mr. Silverman.

    Earlier today, the organization issued a Legislative Action Alert calling upon atheists and others opposed to RFRA in New Jersey to contact their elected representatives as soon as possible. For background and links, the New Jersey Office of American Atheists web site at http://www.hdiweb.com/atheism/.

[text only]