Is the push for "special rights" for churches and other religious groups stalling? In Virginia, questions arise about the practical consequences of misguided legislation -- the Virginia Religious Freedom Restoration Act.

two year effort to pass a version of the Religious Freedom Protection Act (RFRA) in Virginia has failed. Yesterday, members of the House of Delegates "disposed" of the bill by returning it to a committee that will not meet again during the current session. It is another serious setback for RFRA legislation which has stalled in a number of states, or faced opposition from a growing cohort of critics.

   Modeled after the federal Religious Freedom Restoration Act, the Virginia proposal would have held government to a "compelling interest/least restrictive means" test in dealing with religious groups or belief. The federal RFRA was struck down by the US Supreme Court in the historic BOERNE v. FLORES decision, but has since been revived on Capitol Hill as the Religious Liberty Protection Act. In addition, versions of RFRA/RLPA have been proposed in over a dozen state legislatures throughout the country.

   Separationist and civil liberties groups remain split on the merits of RFRA. Supporters like the American Civil Liberties Union, along with the ecumenical Coalition for the Free Exercise of Religion say that the measure is necessary in order to strengthen and protect religious rights, especially in light of what they claim are new restrictions. But critics, including American Atheists, charge that RLPA/RFRA discriminates in favor of churches, temples, mosques and other religious organizations, and marginalizes secular or private activity.

   "It holds government to one standard when dealing with religious groups," charged AA National Spokesperson Ron Barrier, "while using a more severe benchmark when private individuals, businesses or secular groups are involved. That's unfair, it's discriminatory, and it clearly favors organized religion."

   The Virginia RFRA grew out of a series of confrontations in Richmond back in 1996 when religious groups opened up soup kitchens to feed groups of homeless people. That year, a homeowners association in the Fan neighborhood of Richmond requested the city to investigate the activities of a feeding program run by a local church. Charges were leveled at both sides in the squabble; those feeding the homeless were afraid they were unfairly being branded as "do-gooders," while neighbors -- concerned about strangers in their area, possible crime, noise and other "quality of life" questions were branded "nimbys" or "Not In My Back Yard." The man filing the original complaint against the feeding program, however, saw it as an example of discrimination. "In a country that is supposed to be a free country, why is it that religious groups get more freedom than other groups?

   City officials tried to curtail the feeding program which they charged violated a 1991 ordinance that governs soup kitchens and similar outreaches in residential neighborhoods. Church and homeless advocates then demonstrated at City Council meetings, and seven religious groups filed suit in federal; the city backed down by repealing the original ordinance At that point, Delegate Donald A. McEachin (D-Richmond) entered the fray along with Del. Kenneth Plum (D-Fairfax) to introduce the Virginia RFRA. Like RFRA legislation elsewhere, the wording was nearly identical to the old federal Religious Freedom Restoration Act. It also elicited an astonishing amount of support from the state's diverse religious community. At a press conference organized by McEachin and other RFRA supporters to unveil their proposal, the delegate was flanked by representatives of Christian Coalition, the Virginia Assembly of Independent Baptists and other church groups. For RFRA boosters, the issue was a simple one: McEachin told reporters, "We should ensure that all Virginians are able to practice their faith, whether that be feeding the poor or any other part of their ministry." Also signing on to the Virginia RFRA was the new governor, Republican James S. Gilmore III, a close friend of televangelist Pat Robertson. "Nothing would please me more than to have the Virginia Religious Freedom Restoration Act one of the first pieces of legislation I sign as governor," declared Gilmore.

   In March, 1998, the General Laws Subcommittee of the Virginia House of Delegates voted 4-1 to send the state RFRA to the full committee -- but not before attaching a controversial amendment that ended up dooming the proposal, as has been the case elsewhere. House Bill No. 1 was amended to exempt Virginia's prison inmates from the added legal coverage of the legislation. An article in the Richmond Times-Dispatch newspaper noted, "Del. Glenn R. Croshaw, D-Virginia Beach, the head of the subcommittee, said the amendment was added to discourage inmates from abusing the act. Prisoners quickly become savvy about new laws, leading to the proliferation of frivolous lawsuits, Croshaw said..."

   The potential of abuse from prison inmates has been a major obstacle for the various RFRAs now percolating through state legislatures. "Religious Liberty" bills were vetoed by governors in California and Illinois. In Michigan, RFRA supporters are divided over whether to supported an amended version in that state which would exempt the prison population.

   New opposition to the bill also appeared as the Virginia Association of Counties raised questions about the RFRA. James Campbell, executive director of the group, charged that the bill did not contain a sufficiently succinct definition of religion. Observed the Times-Dispatch: "This means it would be harder to stop people from declaring their own religion with the intention of claiming benefits churches have, such as tax exemption." Campbell warned, "The way this bill is drawn, most people focus on the traditional religions, but it also protects nontraditional, creative religions that pop up from time to time."

   On a more immediate level, though, the Virginia RFRA basically turned a blind eye toward private individuals and communities deeply concerned about issues which directly had an impact on them. Zoning ordinances, for instance, restrict placement of businesses, resorts, entertainment facilities or other enterprises that might bring noise, pollution, traffic or other problems into a neighborhood. Why should a church-operated program be exempt? If a restaurant could not open in the middle of a residential neighborhood, why should a church-operated mission or feeding program be treated differently? RFRA did not resolve that problem, and proposed instead to discriminate in favor of churches.

   So what does the shelving of the Virginia Religious Freedom Restoration Act mean for the fate of other bills across the country, or the "new and improved" federal legislation, the Religious Liberty Protection Act?

   One lesson is that while people are rightly concerned about protecting legitimate "religious liberty," RFRA/RLPA may not be a fair and equitable standard in trying to resolve state-church separation problems. When applied, the "compelling interest" test is biased against private individuals, neighborhood groups, elected bodies, private businesses and secular organizations. Ironically, under the Virginia RFRA for instance, a secular charitable organization would have been required to obey local zoning ordinances concerning feeding the homeless, but a church-run program would not. RFRA legislation also provides for "no appeal" for individuals and groups that challenge religion-based activities. The result is a clear and obvious chilling effect on those who attempt to defend their freedom from religion, and the separation of church and state.

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