Legislators in the Golden State ponder a version of the discredited Religious Freedom Restoration Act. AMERICAN ATHEISTS State Director Dave Kong tells a Senate Committee that the proposed measure is discriminatory, and promotes "special rights" for churches and other religious groups.

Web Posted: June 25, 1998

merican Atheists California State Director Dave Kong testified earlier this week in front of a committee of the California State Senate, warning of the serious consequences of the proposed Religious Freedom Protection Act which has been introduced. "It's one of the most wide sweeping and discriminatory pieces of legislation affecting the First Amendment," noted Mr. Kong. "It's another dangerous effort to obtain 'special rights' for churches and other religious groups, and it is clearly biased against Atheists and any secular activity."

    Introduced as Assembly Bill 1617, the measure has wide support from both Republicans and Democrats in Sacramento. It is one of nearly two-dozen versions of the discredited Religious Freedom Restoration Act being promoted in state legislatures throughout the nation by the Coalition for the Free Exercise of Religion. The Coalition drafted the original RFRA passed by Congress in 1993, but overturned last year by the U.S. Supreme Court in the historic case of BOERNE v. FLORES. While the high court ruling concentrated on the procedural weaknesses of the law as an unconstitutional extension of Congressional power, it left the door open for state "mini-RFRA" which have appeared across the country in Florida, Michigan, Illinois, Virginia, Georgia and elsewhere. RFRA has stalled, however, in Maryland and New Jersey while legislators look to the California vote.

    The state RFRAs often appear as "Religious Liberty Amendments" or "Religious Protection Acts." But all have nearly identical wording; they require that government "should not substantially burden religious exercise without compelling justification" or do so by the "least burdensome" method.

    Critics charge that RFRA and its siblings foster a two-tier standard of laws, one for churches and other religious groups, the other for secular activities -- both private and commercial. Now, a federal "son-of-RFRA" has even appeared on Capitol Hill as the Religious Liberty Protection Act. Supporters, including the special interest and church groups backing the old RFRA, hope that the sanitized RLPA is "First Amendment proof."

   Mr. Kong presented detailed legal arguments to the Senate Judiciary Committee, including the following introductory statement:

Statement before the Senate Judiciary Committee

June 23, 1998

    My name is Dave Kong, and I am the state director for the American Atheists, a national organization that began almost 35 years ago. American Atheists was the only national organization to oppose the RFRA on the basis that it created “special rights” for persons and organizations motivated by religious belief. We continue to oppose the various state versions now being promoted across the country, including California’s Religious Freedom Protection Act.

    American Atheists’ letter outlining our opposition to AB 1617 is on file with the committee, and is briefly summarized in the analysis document. In addition, each committee member was sent a copy. In summary, it said:

   AB 1617 has been proposed in response to a nonexistent attack on religious liberty. In light of the fact that, on a case-by-case basis, freedom of religious expression and conduct has been upheld, such legislation is unnecessary. The bill essentially amounts to special rights for people and groups who are religiously motivated, and discriminates against those who profess no religious belief. It is essentially a “power grab” by the religious, and upsets the delicate balance between government and religion. It has the effect of encouraging religious beliefs, and also puts the courts in the tenuous position of determining the sincerity of such beliefs. The proposed bill is overly broad, and permits the unconstitutional funding of faith-based programs and invites litigation against all levels of state government.

    Finally, the far-reaching nature of the act is more appropriate in the form of a constitutional amendment. It is ominous that this bill has been introduced without a critical examination of the state of religious liberty in California. It is also ominous that while there has been some discussion about what laws might not be covered under the RFPA (such as neutral free speech laws), little has been said about which laws will be covered by this bill. Will the RFPA affect zoning laws, fire codes, or parking and traffic violations? Will this bill exempt conduct such as child abuse, statutory rape, or drug use? This legislation has the potential to adversely affect society in ways not yet envisioned.

     The California Department of Corrections, in its letter to the committee dated June 3, ponders how religiously motivated conduct can be allowed without causing animosity and disruption among those not afforded this privilege. It cannot. To elevate religiously motivated conduct over identical conduct that is not so motivated is inherently discriminatory, divisive, and goes against the common good and general welfare of the people of California. Attorney Marci Hamilton calls this legislation “an ill-conceived solution to an unidentified problem.” The Religious Freedom Protection Act is neither necessary nor desirable. The RFPA discriminates against millions of Californians who profess no religious belief. It upsets the balance of power between government and religion that has served our country well for over 200 years, and would invite litigation against the state on all levels. American Atheists urges the committee members to fulfill their duty as trustees of the public’s peace, safety and harmony, and reject the Religious Freedom Protection Act.

Dave Kong, State Director
American Atheists

[text only]