roposed versions of the Religious Freedom Restoration Act ran into opposition earlier this week, as American Atheist state directors joined with private citizens and representatives of other groups in opposing two state measures. RFRA legislation was debated by legislative committees in New Mexico and Maryland. The bills would require government to use a "compelling interest/least restrictive means" test when dealing with religious organizations or practices. The state proposals, often labeled as "religious protection" or "religious liberty" bills, are modeled on the federal Religious Freedom Restoration Act (RFRA) struck down in June, 1997 by the US Supreme Court in the historic BOERNE v. FLORES ruling. In the 6-3 decision, justices criticized Congress for overstepping its legislative authority; Justice John Paul Stevens opined that RFRA was violative of the establishment clause of the First Amendment, and provided churches, mosques, temples or other religious groups with a legal instrument "which no atheist or agnostic" could obtain.

A Problem with the Religious Liberty Protection Act -- the Legacy of Compelling Interest and Least Restrictive means

Testimony of Dr., Marci Hamilton, March 9, 1999, Maryland RFRA

American Atheists Challenge Proposed Texas RFRA (February 25, 1999)

   Despite the BOERNE decision, though, state versions of RFRA have proliferated throughout the country at the behest of the Coalition for the Free Exercise of Religion and other groups. A "son-of-RFRA" proposal, the Religious Liberty Protection Act has been introduced on Capitol Hill, although squabbling between supporters of the House and Senate versions may derail the legislation during the current congressional session.

   ¶    In New Mexico, American Atheists State Director Barb Reiland provided written testimony to the State House Judiciary Committee which is considering the fate of HB 847, the N.M. RFRA. Reiland told lawmakers, "It is the position of American Atheists that the New Mexico RFRA invites potential litigation... (it) invites religious groups or individuals who cite belief as a rationale for certain actions or demand to invoke RFRA in court actions."

"We maintain that the New Mexico Religious Freedom Restoration Act would unfairly empower religious groups -- no matter how dubious their sincerity -- giving them a legal instrument unavailable to private individuals, homeowners, secular groups including nonprofit organizations, and private businesses..." --Barbara Reiland, New Mexico State Director, American Atheists

   Reiland warned that "the cost to taxpayers, especially in communities which are seeking to preserve certain land use or environmental standards, could be prohibitive."

   "We maintain that the New Mexico Religious Freedom Restoration Act would unfairly empower religious groups -- no matter how dubious their sincerity -- giving them a legal instrument unavailable to private individuals, homeowners, secular groups including nonprofit organizations, and private businesses."

   Reiland also cited the historic Supreme Court decision in LEMON v. KURTZMAN (1971), which established the "Lemon" or "three-pronged" test for courts to use when evaluating the constitutionality of First Amendment-related cases. "We support both the free exercise and establishment clauses of the First Amendment," added Reiland. "The discriminatory and exclusionary aspect of RFRA, though, invites legal challenges as to its ability to pass constitutional muster."

   ¶    In Maryland, State Director John Obst testified last night before a hearing of the Commerce and Government Matters Committee of the House of Delegates.

   Citing Justice Stevens's opinion in BOERNE v. FLORES, Obst told committee staff and members, "This is the crux of our opposition to this state version of the Religious Freedom Restoration Act. It gives churches, mosques, temples or other religious groups 'special rights' above and beyond those accorded to private individuals..." He also warned officials that "in everything from zoning to land use to the applicability of any other 'neutral' law," RFRA would require governments to employ a "special standard" when faith-based organizations were involved.

   As of press time for this dispatch, the fate of the New Mexico Religious Freedom Restoration Act remains uncertain. Voucher proposals have overshadowed the RFRA issue there.

   At the Maryland hearings last night, however, a broad array of groups spoke out in opposition to the proposed legislation. Neal Cary, National Outreach Director for American Atheists, noted that representatives from the Roman Catholic Church and the Christian Legal Society to various historic preservationist groups also opposed RFRA. Steve McFarland of CLS told officials that "Maryland doesn't need this version of RFRA," a sentiment echoed by the state Catholic Archdiocese. An earlier version of the Maryland RFRA was vigorously supported by the Catholic Church, but the new bill exempts prisoners from coverage of the act.

"This is the crux of our opposition to this state version of the Religious Freedom restoration Act. It gives churches, mosques, temples and other religious groups 'special rights' above and beyond those accorded to private individuals..." -- John Obst, Maryland State Director, American Atheists

   The Maryland Congress of Parents and Teachers also weighed in with their opposition to HB 966, charging that RFRA "provides an unnecessary intrusion into state local curricular matters, infringes on Maryland State Department of Education Core Learning Goals, and State and National Standards in core curricular areas." A position paper submitted by Maryland PTA also warned that the bill "creates a dangerous precedent for exempting large numbers of students from a broad spectrum of subject matter and course offerings..."

   An analysis of the proposed Maryland RFRA obtained by AANEWS done by the Department of Legislative Services also painted a bleak scenario should RFRA be enacted. The memorandum for the 1999 legislative session warned:

   ¶    "STATE EFFECT: Potential indeterminate increase in general fund expenditures.

   LOCAL EFFECT: Potential indeterminate increase in expenditures due to the effect on the ability of local governments to enforce zoning and building codes, and other government legislation regarding land use and health and safety matters."

   ¶    Confirming the argument of RFRA critics that the legislation is overly broad and widesweeping in its effect, the memorandum observed:

   "The bill (RFRA) applies to nearly all State government action ranging from Education Law to Health Care Law and Employment Law...The bill could cause expenditures to increase to handle increased litigation..."

   The most devastating critique of the Maryland RFRA came from Dr. Marci Hamilton, Professor at the Benjamin N. Cardozo School of Law and the successful lead attorney for the city of Boerne, Tx. in the historic BOERNE v. FLORES case. In written and oral testimony to the committee last evening, Hamilton described RFRA legislation as "Breathtaking" in its scope, and proving "More expansive protection for religious interests than (in) previous eras."

"It (RFRA) sharpens strict scrutiny by requiring the government to prove not only a compelling interest and the least restrive means, but also that the 'alternative proposed by the person will unduly interfere with the fulfillment of compelling governmental interest.' (Sec. 12-602(B)(3). This is a standard unknown in the free exercise jurisprudence..."

-- Dr. Marci Hamilton, Professor Law, Benjamin Cardozo School of Law and attorney for Boerne, Texas in BOERNE V. FLORES.

    She also criticized HB 66 for going well beyond the limits of the "compelling interest/least restrictive means" test, saying that the legislation "places a completely novel burden on governments."

   "It sharpens strict scrutiny by requiring the government to prove not only a compelling interest and the least restrictive means, but also that the 'alternative proposed by the person will unduly interfere with the fulfillment of compelling governmental interest.' (Sec. 12-602(B)(3). This is a standard unknown in the free exercise jurisprudence," noted Hamilton.

   She also warned in subsequent sections of her testimony that the bill violated provisions in both the Maryland and United States Constitutions, including separation of powers and the establishment of religion.

   "It plainly favors religion over irreligion, which is prohibited by the United States Constitution," observed Hamilton.

   "Maryland would be better off abandoning this proposal and letting the courts apply existing standards to free exercise conduct claims."

   Hamilton then unearthed a long list of policy concerns and negative or unintended consequences:

   "Providing extremely demanding scrutiny of every generally applicable, neutral law that burdens religious conduct can and will prompt challenges to the following laws and undermine such laws: abortion regulations; physician assisted suicide regulation; child neglect, abuse and support laws; statutory rape and minimum age marriage laws; laws against domestic violence; zoning and building codes, including height, lot-size, and building size restrictions, on and off-street parking, non- commercial status; antidiscrimination laws that forbid discrimination on the basis of race, gender, disability and sexual orientation...;fair housing laws; prison regulations; school weapons bans; midwifery licensing regulations; endangered species protection laws; historical and cultural preservation laws; open space laws; Medicare/Medicaid regulations; literature distribution in the public schools; human reproduction classes in the public schools; prayers in public schools; compulsory education laws; compulsory vaccination laws."

   "This is the just the tip of the iceberg, of course," added Hamilton.

   RFRA boosters may have made a crucial blunder; simply put, the legislation is taking too long to pass, giving critics of the proposed Acts sufficient time to organize and speak out. In addition, as demonstrated with the Maryland RFRA, supporters have become divided over different versions of the bill. The clause exempting prisoners and jail inmates from RFRA coverage, for instance, has become a major obstacle to enactment in California, Illinois and now Maryland. Groups which originally supported the Religious Freedom Restoration Act, including Catholic organizations and the American Civil Liberties Union, have come out in opposition to these amended RFRAs.

   Finally, state legislators appear to be increasingly aware of the potential problems with the Religious Freedom Restoration Act, and how it would impact the public treasury, neighborhoods, schools and other institutions. RFRA remains a dangerously broadsweeping legislative proposal, and one that invites litigation from both supporters and critics.

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