A compromise version of the Religious Freedom Restoration Act no longer has the support of Maryland's powerful Roman Catholic Church leaders. As more questions are raised about bogus "religious liberty" legislation, could the juggernaut to pass RFRA/RLPA grind to a halt?

f at first you don't succeed, try again.

That seems to be the attitude of many organizations working hard to enact a cosmetically enhanced version of the old Religious Freedom Restoration Act (RFRA) struck down two years ago by the US Supreme Court. RFRA legislation would compel government to use a "compelling interest-least restrictive means" test when dealing with faith-based organizations and beliefs.

   It sounds good on paper, an extension of the First Amendment's free exercise clause. But opponents warn that RFRA legislation -- it's now known as the Religious Liberty Protection Act -- goes too far, and creates "special rights" for churches, temples and religious believers. Writing in support of the high court's decision in the historic BOERNE v. FLORES case, Justice John Paul Stevens warned that the law provided organized religion with a legal weapon which "no atheist" could obtain. Indeed, critics point out that so- called "religious liberty" legislation goes far beyond the bounds of the First Amendment, and creates a two-tiered systems of laws in America, one for religious enterprises, the other for private individuals and businesses. Is that fair?

   Last month in Texas, Governor George Bush announced that he would support RFRA/RLPA legislation, bringing the Lone Star into the growing ranks of states where similar bills have been introduced or enacted.

   But in Maryland, "religious liberty" legislation is reportedly being reintroduced in the Assembly after experiencing a sudden and unexpected demise last year. The Maryland development is significant. In March, 1998, State Senate President Thomas Miller (D-Prince George) and Delegate Samuel Rosenberg (D-Baltimore) agreed to pull the proposal after they were unable to resolve numerous problems. Passage of the Maryland RFRA had been considered a "done deal," especially since it enjoyed the support of the state's religious lobby including the powerful Roman Catholic Church. The lobbyist for the Maryland Catholic Bishops Conference had led the ecumenical effort for passage, and the announcement that the state RFRA was in trouble came as a surprise to both supporters and critics.

   Now, a revised version of RFRA will be introduced in Maryland's legislature during the coming term. The bill's sponsor, Mr. Rosenberg, says that this "new and improved" RFRA will exempt prison and jail inmates from coverage of the special protections which are extended to faith-based groups and believers. The legislation has not been formally introduced, and according to the Baltimore Sun newspaper and Associated Press, Rosenberg is "hopeful that the attorney general's office will help him come up with a bill that will satisfy most of last year's opponents."

   That move is already causing a split within the ranks of the groups which have supported the Religious Freedom Restoration Act since it was introduced and passed five years ago at the federal level. The campaign to enact RFRA/RLPA legislation has been spearheaded by the powerful Coalition for the Free Exercise of Religion which consists of mainstream Protestants, Christian evangelicals and fundamentalists, new age groups, Scientologists, Hindus, Humanists, Moslems and others. Also throwing their weight behind the "religious liberty" effort have been organizations traditionally associated with the fight for First Amendment rights, including American Civil Liberties Union and Americans United for the Separation of Church and State.

   The ranks have begun to fragment, though, as opposition to RFRA/RLPA legislation consolidates and compromise versions fails to win support from all religious groups. That could be the case now in Maryland, where there is disenchantment with the "new" RFRA being slated for introduction. The influential and well-funded Catholic bishops reportedly are not backing the new proposal, although other faith-based groups including the Baltimore Jewish Council continue their support.

   "The reason is that last year's bill set an appropriately high standard for what we consider to be among the most important rights of citizens," declared Richard Dowling of the Maryland Catholic Conference in an interview with the Baltimore Sun. "This year's legislation doesn't come close to that standard."

   The "exemption" for prison and jail inmates has already created problems for RFRA/RLPA legislation elsewhere. In California, then-Governor Pete Wilson refused to sign a "Religious Liberty Protection Act" following complaints by the state's Department of Corrections which argued that the law could create security problems throughout the sprawling prison and jail system. A similar dilemma arose in Illinois, where Gov. Jim Edgar vetoed a RFRA measure citing concerns about its impact behind prison walls. Some opponents of the legislation argue that it would provide any jail inmate citing religious belief with special rights and privileges, and could even jeopardize security. The Coalition for the Free Exercise of Religion and the ACLU, however, both claim that the law's impact behind bars would be negligible.

   Still getting a back seat in the RFRA debate, however, is the growing number of diverse organizations which have concerns about "religious liberty" proposals from other perspectives. In Maryland, the executive director of the Association of Counties says that there is "no guarantee" that local governments will support the RFRA. "County officials will have to be assured that the bill will not open them up to lawsuits based on alleged religious discrimination," noted the Sun newspaper. That seems unlikely, however, since RFRAs impact could be greatest at the local level. In disputes involving land use, zoning, environmental regulations, historical ordinances and other laws, municipalities and taxpayers will be vulnerable to litigation from faith-based groups citing the legislation as an exemption. The BOERNE v. FLORES case, in fact, involved the regional Catholic archdiocese which sought to demolish most of a 70-year old church in Boerne, Texas. The City of Boerne insisted that the structure fell under the purview of local preservation ordinances; the church then filed suit, citing the new Religious Freedom Restoration Act.

   The Maryland RFRA could be an important turning point in the national effort to pass RFRA/RLPA legislation. At the federal level, the 106th Congress is expected to be under considerable pressure to pass the Religious Liberty Protection Act which has cleared a House committee, and is facing action in the Senate. And with legislators in state capitols going back to work now, a slew of "mini-RFRAs" is certain to be introduced in new states. The Maryland battle, though, suggests that religious groups and other supporters remain divided over how far they are willing to go in crafting compromise versions. The record also suggests that time, open hearings and public awareness of RFRA/RLPA could be the biggest obstacles to the "fast track" agenda which the Coalition and its friends have been promoting in the last year. When examined critically, the claim that "religious liberty" legislation is necessary conceals not only practical problems and consequences, but also the nagging question of whether it violates the separation of church and state.

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