The Religious Freedom Restoration Act, a major piece of "special rights" legislation for churches and other believer groups, is approved in California. Although RFRA has been vetoed in Illinois, however, opposition to the legislation is still not emphasizing the important First Amendment violations of this act.

Web Posted: August 16, 1998

t was a split decision this past week on the controversial Religious Freedom Restoration Act. That measure requires governments to employ a "compelling interest" test before placing any "burden" on religious groups or practice. Nearly two-dozen states have versions of the legislation under consideration. And despite being declared unconstitutional by the U.S. Supreme Court in the historic BOERNE v. FLORES case last year, the federal RFRA has been reintroduced as the Religious Liberty Protection Act.

¶ In California, the State Senate on Wednesday voted to pass the measure -- known there as the Religious Freedom Protection Act -- by a 25-3 vote. Introduced by Assemblyman Joseph Baca, the RFPA cleared the Assembly in mid- January with no opposition. American Atheists was one of the few organizations speaking out in against the measure; AA State Director Dave Kong said that RFPA discriminated against Atheists by establishing a dual-standard in applying laws.

    The Coalition for the Free Exercise of Religion -- an ecumenical group which helped to write the federal Religious Freedom Restoration Act -- was deeply involved in the California effort. Assemblyman Baca declared that thanks to the group's effort's, "I believe we have an angel looking out the bill."

    But the "angel" turned out to be a frantic stealth effort to pass RFPA before opposition could materialize. First Amendment scholar Eugene Volokh warned that the California measure "goes much further than the free-exercise clause has ever been read to go and seriously interferes with the government's control of its employees." In addition, Mr. Kong warned that the act would essentially nullify anti-discrimination laws when religious groups were involved, and was a flagrant violation of government neutrality toward religion.

    The Senate version included amended language, however, concerning the enforcement of child abuse laws and the regulation of conduct inside the state's prison system. The State Department of Corrections still opposes the act saying that it could jeopardize security inside of correctional facilities. Unfortunately, while those technical concerns have been debated, legislators expressed little interest in the overarching premise of RFPA -- that religious groups were entitled to "special rights" at the expense of private individuals and secular groups.

¶ In Illinois, Gov. Jim Edgar -- usually a friend of organized religious interests -- disappointed the Coalition by announcing a veto of the state's Religious Freedom Restoration Act. The governor cited possibly safety and security concerns in the prisons, such as "gang interests under the guise of religious exercise." An amended version of RFRA had been proposed -- one which would have excluded prison and jail inmates from coverage of the act -- but supporters of the Religious Freedom Restoration Act declared that they would vigorously oppose that emendation.

    Edgar's move -- an amendatory veto -- returns the Illinois RFRA to the General Assembly. Expressing disappointment with the governor's decision, Mark Peysakhovich of the American Jewish Committee, one of the groups supporting the legislation, told reporters, "We acknowledge that prison is not the street, but at the same time... religious belief is one of the major rehabilitative factors that lowers the rate of recidivism." He added that RFRA boosters "are not ready to write off people who need religion the most." That was a shocking statement from the AJC, which in other states has taken a dim view of efforts to "religionize" the penal system.

    One issue surrounding the Illinois RFRA was the "stealth" agenda, and charges that critics of the proposal were being silenced. Officials in Chicago complained that they were given insufficient notification and background information about the RFRA; the District Attorneys office there agreed to not speak out against the measure until it was sent to the governor for signing.

    Also opposing the Illinois Religious Freedom restoration Act were many municipalities. Administrators expressed concern over the potential impact of RFRA on matters such as conservation, land use and zoning. Mark Damish, cochairman of the Northwest Municipal Conference's Committee on Legislation warned, "This bill gives churches ... more power than other citizens to challenge state and local laws, and that's unfair.." Conference Executive Director Dave Bennett agreed, saying "Under this law, a church would be able to expand their facility without any concern for how they might impact their neighbors. It's an unfair advantage."

    Illinois RFRA supporters vowed to overrule Edgar's veto, however. A spokesman for AJC said that the group would "consider the changes" Edgar was proposing, but added that "we will continue to push until RFRA protections are in place for all Illinois citizens."

THE RFRA DEBATE -- NARROW, EXCLUSIONARY

    So far, there has been little broadbased opposition to RFRA and the federal version, the new Religious Liberty Protection Act. Constitutional attorney Dr. Marci Hamilton, who successfully argued the case in front of the Supreme Court in the BOERNE v. FLORES decision has been forming an ad hoc coalition to resist RFRA/RLPA. But supporters of the measure, especially the Coalition for the Free Exercise of Religion, are still better organized and funded. In addition, the debate over RFRA has been unfocused -- in part because of the sheer diversity of the groups who happen to disagree with most, or portions of the measure. The groups which have signed on to Dr. Hamilton's efforts cover the spectrum of interests. Included are representatives from:

National League of Cities
International Municipal Lawyers Association
Rita Swan, CHILD, Inc. (Children's rights advocacy)
National Trust for Historic Preservation
American Atheists
National Center for Public Policy Research

    There are also unexpected allies, including Eagle Forum, American Association of Christian Schools, and the Religious Freedom Coalition.

    Unlike the coalition behind RFRA/RLPA, however, those groups speaking out against the measure do so in a cacophony of voices. The Coalition for the Free Exercise of Religion and its supporters convey a tighter message -- that the legislation is necessary to guarantee "religious rights." The argument that RFRA/RLPA is really a case of "special rights" for churches and other religious groups, however, has not always been addressed when legislators debate the merits and pitfalls of this new law. In California, most of the concerns about that state's Religious Freedom Protection Act were narrow and parochial, focusing on whether or not prisoners could exploit the act for gain, thus compromising the burgeoning criminal justice system. The fact that Governor Edgar is proposing technical exemptions for the state's prisons and jails -- while not questioning the wider First Amendment aspects of the Religious Freedom Restoration Act -- suggests that separationists have a lot of work to do in terms of educating the public and elected officials about the inherent problems with this legislation.

RLPA/RFRA ON CAPITOL HILL:
TARGET, SEPTEMBER 1?

    Don't expect supporters of the Religious Freedom Restoration Act to be satisfied with the victory in California, or a temporary setback in Illinois. When Congress returns from its current recess on September 1, the Religious Liberty Protection Act could be slated for action on both ends of the hill. The measure has cleared the Constitution Subcommittee of the House Judiciary Committee, and stands a good chance of passing overwhelmingly there. In the Senate, opposition to RLPA could be more formidable. Separationists need to demand to more hearings; to date, there have been only three in the House, one in the Senate. Groups which oppose RLPA/RFRA, or have doubts about certain provisions, need to speak out... soon.