On Monday, the high court reversed its 1985 decision in the case of AGUILAR v. FELTON, and ruled that New York City could spend Title 1 funds to provide remedial educational services inside private religious schools. That was a major blow to state-church separationists who argued that the reversal (AGOSTINI v. FELTON) will lead to greater government funding of religious schools.

But earlier today, the Supreme Court defended for the Establishment Clause, and struck down the 1993 Religious Freedom Restoration Act which had been signed into law by President Clinton, and enjoyed near-unanimous backing from America's religious groups. The 6-3 decision was more pronounced that Monday's 5-4 split, and found Justices John Paul Stevens, Clarence Thomas, Ruth Bader Ginsburg and Antonin Scalia joining with Chief Justice William H. Rehnquist for the majority. Justices Sandra Day O'Connor, David Souter and Stephen Breyer dissented.

It was a high stakes case: a spokesman for the National Council of Churches labeled it "the most important religious-freedom case the Supreme Court has ever had to decide."

Under legal scrutiny by the court was the Religious Freedom Restoration Act, passed by Congress in response to a 1990 high court ruling known as EMPLOYMENT DIV., DEPT. OF HUMAN RESOURCES OF OREGON v. SMITH. At issue in that case was whether or not the State of Oregon could enforce anti-drug laws against a Native American sect which used peyote as part of its religious ritual. In the 1990 decision, the justices wrote that the Free Exercise ('freedom of religion") Clause of the First Amendment "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " The dissent in SMITH, however, maintained that free exercise "is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law..."

The religious community, stung by the decision in SMITH which essentially stated that churches and sects were subject to the same laws which applied to everyone else, then began an effort to distance themselves from secular agencies. Ironically, many "liberal" religious groups began describing the verdict from SMITH in terms reminiscent of religious right activists -- the court was denounced for its "judicial activism," and the opposition to SMITH quickly recast in the form of a struggle for "religious liberty."

Within days of the SMITH ruling, a coalition of dozen of religious groups was formed, and asked the high court for a rehearing. The court demurred, and efforts were then launched to craft special legislation which would, under the guise of the free exercise clause, effectively exempt or distance religious groups from what they considered to be restrictions. The result was the Religious Freedom Restoration Act, wildly popular in the congress, and pushed vigorously by the Clinton administration.

RFRA was just so much lip serve, though, until a dispute arose last summer in the town of Boerne, Texas. There, the Roman Catholic Church wanted to demolish part of a 70-year old building which, said city authorities, was regulated by historical zoning ordinances. The church didn't challenge the local government's option or propriety in enacting such restrictions, so that matter was not a "property rights" dispute. Instead, the Archdiocese of San Antonio claimed that the church was exempt from the restrictions imposed by Boerne officials under RFRA. Invoking the ordinances would place a burden, said the church, on religious exercise.

Critics of the Religious Freedom Restoration Act pointed out that regardless of whether local or state laws were proper, or just, or fair, the Act effectively fostered a discriminatory class of "special rights" for religious groups and believers. The effect of RFRA was to create a dual system of regulations and laws. In Boerne, the historic ordinances would apply to everyone -- private individuals, institutions, businesses and even secular non-profit organizations -- except a church, mosque, temple, synagogue, or congregation. Critics charged that this placed the government in the unconstitutional position of facilitating and favoring religion over non-religion, and discriminating against those in a community who were engaged in a non-religious activity.

When it was announced that the case of CITY OF BOERNE v. P.F. FLORES (Archbishop of San Antonio) would be heard by the high court, a brief was filed by the Coalition for the Free Exercise of Religion in support of RFRA. That group covered most of the major, and many minor religious sects. Joining the action was the Clinton administration which also filed an amicus brief ("friend of the court") through the Solicitor General's office.

The coalition included representatives from mainstream, liberal and religious right sects. Participating were the American Jewish Committee, Muslim Council, Christian Church, Episcopal Church, General Conference of Seventh-day Adventists, American Humanist Association, Church of the Brethren, Church of Scientology, Southern Baptist Convention, Guru Gobind Sing Foundation, Hadassah, Mystic Temple of Light, National Sikh Center, National Council of Churches, Peyote Way Church of God, Presbyterian Church, National Council on Islamic Affairs, Christian Science, Unitarian Church, United Methodist Church and others.

Even groups which had traditionally worked for state-church separation joined in: they included such liberal organizations as Americans for Democratic Action, People for the American Way,Americans United for Separation of Church and State, and Americans for Religious Liberty.

They were joined by religious right groups, including the Coalition for America, Concerned Women for America, and the Traditional Values Coalition.

It came as no surprise that religious groups from across the theopolitical spectrum would mobilize on behalf of creating "special rights" and a privileged position for themselves. But the split in separationist ranks involved more complex factors. Admittedly, the issues behind SMITH and interpreting the First Amendment convinced some to think that legislation was necessary to protect religious privacy and exercise from truly invasive government actions. Many of these organizations had done commendable work in the past; and one publication respected for its analysis of First Amendment issues, urged support of RFRA, fearing that its demise would fuel pressure for enactment of an even more dangerous piece of legislation such as the Religious Freedom Amendment.

American Atheists was the only group to go on record in opposition to RFRA. We pointed out that the effect of the Religious Freedom Restoration Act was to create "special rights" for believers, discriminate against non-belief, and even religious persons who might be engaged in private or entrepreneurial activities which had nothing to do with religion! Clearly, RFRA was discriminatory, unfair, and emphasized religious belief.

In a call to the Clinton Administration to withdraw its amicus brief in BOERNE v. FLORES, the organization also noted that RFRA would only embolden religious groups, including the Christian Coalition, in their efforts to make government more "religion friendly" and obliging to the demands of clerical groups. We also honestly disagreed with other separationist groups, pointing out that the strategy of "buying off" the religious right, or blunting their demands for passage of the Religious Freedom Amendment, was tactically questionable and strategically unacceptable. For American Atheists, both RFRA and the Religious Freedom Amendment had to be defeated.

Justice John Paul Stevens remarked in today's decision striking down RFRA:

"If the historic landmark on the 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 entanglement 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. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment..."

Justice Antonin Scalia took a somewhat different approach, however, observing that:

"The limitation upon the scope of religious exercise would have been in accord with the background political philosophy of an age (associated most prominently with John Locke), which regarded freedom as the right "to do only what was not lawfully prohibited." Scalia noted "provisos" in the legal record such as the Maryland Act Concerning Religion (1649), and various state and colonial charters and constitutions, which referred to permitting religious exercise "so long as it does not violate general laws governing conduct."

He added that while George Washington spoke of a " ' wish and desire' that religion be accommodated," Scalia noted, "The one exception is the statement by Thomas Jefferson that he considered 'the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises,'...but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent (in BOERNE, ed.)."

Regardless of the earlier disagreement in separationist ranks, one thing is generally agreed upon -- with the demise of the Religious Freedom Restoration Act, pressure will now build on Capitol Hill to enact some for of "religion friendly" legislation. The most likely candidate is the Religious Freedom Amendment introduced by Rep. Ernest Istook, and backed by a coalition of religious right groups led by the Christian Coalition. Some RFA backers were active in the coalition which promoted the Religious Freedom Restoration Act; while many liberal religious groups feel that RFA "goes too far," especially with its call for some kind of student-orchestrated prayer in public schools, churches may be tempted to join the clamor for passage, or do little to oppose enactment.

It is also possible that the "liberal" coalition will try to resurrect a "son of RFRA" which will give religious institutions more perks and latitude, but still manage to pass constitutional muster. Many of the arguments made in BOERNE v. FLORES involved questions about the limits of Congressional authority; it is not certain that "mini-RFRA" laws won't be enacted at the state, or even the municipal level where they might be numerous, and difficult for separationists to challenge. And those local or state laws could go unchallenged since many of the groups which would usually contest First Amendment violations may look the other way, as they did with the RFRA.

On Capitol Hill, a spirit of Grand Compromise may also prevail, as religious groups both right and left, representing the full diversity of the theological spectrum, attempt to "bury the hatchet" and find a common ground between RFRA and the RFA. Many atheists were shocked to see Unitarians, Humanists, Ethical Culturalists and other "liberal" religious joining with far-right groups such as the Traditional Values Coalition; we should remember, though, that in the current intellectual climate the similarities and common interests of religious movements can eclipse their ephemeral doctrinal squabbles. Sen. Orrin Hatch (R-Utah), a Mormon, managed to arrange the first session of Congress opened by an invocation given by a Muslim cleric, Wallace Muhammed. In terms of a desire for "special rights," tax exemptions and other advantages, religious groups have a considerable amount in common.

The decision in BOERNE v. FLORES raises urgent, even disturbing considerations about the organizational concerns in defending First Amendment rights. Clearly, something is amiss when at least some groups "drop the ball" by supporting the Religious Freedom Restoration Act, and the job of eloquently defending the civil liberties of non-believers is left instead to a handful of Supreme Court Justices.

Traditionally, some Atheists and many other non-believers, freethinkers and rationalists have relied on the largesse of separationist groups which emphasized a "religious liberty" agenda, i.e. one that argued that state-church separation was both an important part of the constitutional record and was also good for the organizational vitality of religious belief. While this covered many cases of First Amendment litigation, it obviously fails when so crucial a piece of legislation like the Religious Freedom Restoration Act ends up receiving the endorsement of such groups, rather than the opposition. As Justice Stevens remarks, RFRA clearly discriminated in favor of religion -- and against the hypothetical atheist art gallery proprietor; so the question must be raised -- should the rights of atheists and other non-believers, and the principle of freedom from religious authoritarianism end up being subordinated to a "religious liberty" agenda? Perhaps a more sensible approach would be one emphasizing the civil rights of non-believers, and at least giving that notion equality with the concept of religious freedom and practice.

This question becomes crucial in the weeks ahead when Congress and the Christian Coalition may "fast track" the Religious Freedom Amendment. Unfortunately, debate on this proposal and its various versions in the past has been confined to religious groups who happened to either agree or disagree with the need for such legislation. With the defeat of RFRA, however, that traditional coalition of "religious liberals" may not be sufficient to turn back a coordinated effort to pass the Religious Freedom Amendment. The unreliability of this coalition becomes all the more evident in the case of the RFRA; the lesson may be that state-church separation, and the civil liberties of atheists and other non-believers, may be too important -- and too tenuous -- a cause to leave in the hands of religion-linked organizations.

For now, the "wall of separation" between state and church still stand, albeit with dangerous weak spots. Separationists face the looming prospect of wider funding for religious schools, and if other legislative schemes such as the Religious Freedom Amendment or the American Community Renewal Act pass, we could see public subsidies for blatant, "faith-based" social outreaches.

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