The juggernaut to enact state versions of the Religious Freedom Restoration Act continues. In Alabama, RFRA is called "the most significant religious expression legislation" on the docket...

Web Posted: April 17, 1998

he Religious Freedom Restoration Act continues to sweep its way through legislatures across the nation as South Carolina and Alabama join the list of states where bills have been introduced.

    Last Thursday in Montgomery, the state Senate voted 26-0 for the "Alabama Religious Freedom" constitutional amendment, which now heads for the House; reports from media and other sources suggest that the measure is being "fast tracked" for quick action in the final two weeks of the legislative session. If passed, the bill would then require voter ratification through a state wide referendum slated for November, 1998.

    Alabama State Attorney General Bill Pryor, who has been a vocal supporter of public prayer and display of religious icons in government courtrooms, described RFRA as "the most significant religious expression legislation that's in this session." That opinion was echoed by Rev. Dan Ireland of the Alabama Citizen Action Program who gushed, "it's a good piece of legislation."

    A report distributed by Associated Press noted, "Even the American Civil Liberties Union likes it..."

    In keeping with the pattern found in other states, the Alabama bill enjoys wide support from religious and political groups at both ends of the ideological spectrum. The ARF bill drew endorsement from the controversial Rutherford Institute, a "religious rights" group which has emerged at the center of the Paula Jones flap. In fact, the Alabama RFRA was authored by Birmingham attorney Eric Johnston, who is identified as the state president for the Rutherford Institute.

Pass The Wine -- And The "Special Rights"

    If enacted, the amendment would address a number of concerns which religious groups have expressed, such as the serving of wine to minors at a communion ceremony. RFRA would protect that and related practices. But in nearly every state where RFRA legislation has been introduced, more bottom- line issues have been cited in defense of the measure, including expansion of church facilities and parking lots. Indeed, the U.S. Supreme Court decision which tested the constitutionality of the Religious Freedom Restoration Act in the BOERNE v. FLORES case involved a Roman Catholic Church which wanted to demolish most of a decades-old structure. The City of Boerne, Texas refused to issue to the necessary permits, however, saying that the building was under the purview of local historic ordinances and regulations. The Archdiocese filed suit, citing the Religious Freedom Restoration Act, that mandated the government to demonstrate a "compelling interest" before placing "burden" on religious groups or practice.

    The high court's 6-3 decision last year in BOERNE dealt, in part, with the limits of Congressional authority, and whether or not congress had the right to enact RFRA in 1993. The court considered the act an unconstitutional extension of legislative authority. In his decision, however, Justice John Paul Stevens wrote that the RFRA was clearly an "establishment of religion." He opined:

    "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 ordinance 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 applicable 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. The governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment."

    Associated Press noted that in the case of the proposed Alabama amendment, "a city might not be able to stop a church from expanding its parking lot or buildings, but it could show a compelling interest for making sure the addition matches the architectural style of the surrounding neighborhood or that the parking lot is bordered by a fence or green area, he (Johnston) said." But none of the RFRA proposals which have introduced so far actually say that; in all instances, government is required to demonstrate its "compelling interest," a test which critics of the amendment say discriminates in favor of religious belief.

RFRA in South Carolina

    The "South Carolina Religious Freedom Restoration Act" was formally introduced in that state's General Assembly this past week by Rep. Campsen and 27 co-sponsors. Bill 5045 is a near-copy of other RFRA which have appeared in California, Tennessee, Georgia, Virginia, New Jersey and elsewhere -- the handiwork of the various groups which are supporting the measure, especially the Coalition for the Free Exercise of Religion. Unlike the Alabama measure, though, it would take effect upon approval by the Governor.

"Bad Wine" Versus Greed

   The case of providing "sacramental wine" to minors as part of religious worship is often cited by defenders of RFRA, although so far AANEWS has been unable to find a single incident where federal, state or local governments have acted to prevent this and similar practices. Where the act has caused substantial problems, however, are in more contentious areas such as the insistence of churches, mosques and temples that they be exempt from zoning ordinances and other regulations which apply (as "general rules of applicability") to everyone else in the society. A more complex point involves the religious rights of prisoners; those issues have involved everything from demands for special diets to sexual visitations, defended as a part of an inmate's religious beliefs. Some states like Virginia and Michigan have suggested amending their proposed Religious Freedom Restoration Acts so that anyone confined in a penal institution would not be covered by the legislation; civil libertarians, though, threaten to challenge that restriction in court.

    Critics of RFRA charge that the jump from "sacramental wine" for minors, or asking the Amish sect to obey traffic regulations (another reason cited for the act) to more monetary issues like zoning and church expansion render the measure overly broad. Marci Hamilton, the attorney who successfully defended the city in BOERNE v. FLORES, says that RFRA is one of the broadest pieces of legislation ever proposed, and would impact nearly every aspect of the law. And there is the contention that whatever problems the act seeks to address, is it is "bad law," and discriminates against Atheists or, indeed, anyone engaged in a secular activity. Ellen Johnson, President of American Atheists, says that RFRA is "Platinum card treatment for churches and other religious groups, and goes on to marginalize millions of Americans who have no religious belief."

    That is not stopping the RFRA juggernaut, though; nor does it mean that someday the various RFRA laws could end up again in front of the U.S. Supreme Court.

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