hile the controversial Religious Liberty Protection Act (RLPA) still languishes in the U.S. Senate, state versions of the measure are moving ahead in New Mexico, Alaska and Idaho.

   Based on the 1993 Religious Freedom Restoration Act, the statutes would hold governments to a "compelling interest/least restrictive means" test when dealing with faith-based groups and practices. Religious and other groups supporting the measure say that legislation is needed to reverse the effect of the Supreme Court's decision in the 1990 EMPLOYMENT DIV. v. SMITH case, where justices ruled that "generally applicable" laws such as drug statutes do not violate the First Amendment's establishment clause, though they may restrict some practices. The case involved an Oregon man who was a member of a Native American religious group that used peyote (an illegal substance) as part of its religious ritual.

   Critics charge that by holding government to the compelling interest test, the legislation prefers religion over non-religion and creates "special rights" for faith-based groups and individuals. RFRA was struck down in the 1997 BOERNE v. FLORES case, mostly as an illegal extension of congressional power. Justice John Paul Stevens opined that the statute provided churches and other religious groups with a legal instrument which "no atheist" could obtain, and thus violated the separation of church and state.

   RFRA was resurrected as the Religious Liberty Protection Act, or RLPA. The measure cleared the U.S. House of Representatives last summer, but has again bogged down in the Senate. At the state level, versions of RLPA have been introduced with varying amounts of success. Legislators increasingly worry that the measures could have "unintended consequences" on everything from zoning laws to land use and environmental regulations.

   ¶    On Saturday, the New Mexico House of Representatives unanimously approved the state's proposed Religious Freedom Restoration Act sponsored by Rep. Joe Thompson. The measure moves to the Senate. Last year, a similar bill cleared the legislature but was successfully vetoed by Gov. Gary Johnson who feared that it would have the effect of actually diminishing religious rights rather than protecting them. Buzz in the legislature, though, says that Thompson is likely to sign the RFRA this year.

   The state coalition -- the Association for the Preservation of Religious Freedom -- which supports the New Mexico RFRA has hired a lobbyist to advance the legislation. The measure also has the endorsement of the New Mexico Conference of Churches, the Archdiocese of Santa Fe, American Sikhs, the Seventh Day Adventists and the Union of Orthodox Jewish Congregations.

   The RFRA has backing from the New Mexico State chapter of the American Civil Liberties Union as well. Last fall, the national ACLU joined a number of key groups which abandoned the Coalition for the Free Exercise of Religion -- the main organization lobbying in support of RLPA and RFRA statutes throughout the country. ACLU announced that it was concerned that the measures could be used by religious groups to trump anti-discrimination laws. State affiliates of the Union, however, are free to support the measure, and a spokeswoman for the New Mexico CLU said that the chapter encourages passage of the state RFRA and would urge the governor to sign the measure.

   ¶    In Alaska, a RFRA statute known as the Religious Freedom Protection Act was introduced on February 16, and this morning was officially placed as an agenda item before the Judiciary Committee. Sponsors include Reps. Croft, Coghill, Dyson, Halcro, Cissna and Whitaker. Much of the Alaska bill includes the standard boilerplate language seen in other state "mini-RFRAs" including references to "compelling governmental interest" and "least restrictive means."

    Section 2 of House Bill 387, however, opines:

"In 1990, the United States Supreme Court retreated from over 200 years of respect for the right to free exercise of religion in Employment Division v. Smith... an opinion written by Justice Scalia, by holding that the government had to make reasonable exceptions to general laws in order to accommodate the religious beliefs of its citizens..."

   The Alaska RFPA/RFRA continues:

"...while the Alaska Supreme Court has not chosen to follow this retreat from protection for religion, the free exercise rights of Alaska citizens are so vital that it is in the public interest to provide a statutory guarantee of these rights and a change in judicial interpretation; and

"... while it is improper for the legislature to tell the judiciary how to interpret the Constitution of the State of Alaska, it is proper for the legislature to establish rights or to secure established rights in a different manner or to a different minimum set by the Constitution of the State of Alaska as long as that legislature does not interfere with the rights of other person..."    The analysis of EMPLOYMENT DIVISION v. SMITH, however, is flawed. Justice Scalia and the court ruled that the enforcement of "generally applicable" and neutral civil laws may place some burden on religious groups and exercise, but this did not violate the intent and substance of the free exercise clause of the First Amendment. EMPLOYMENT DIVISION merely affirmed the notion that religious belief or affiliation should not constitute an exemption from civil laws which are applied equally and to all. Scalia noted in his ruling:

"Subsequent decisions have consistently held that the right of free exercise 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).' "

   ¶    In Idaho, Gov. Dirk Kempthorne signed S.B. 1394, the Idaho RFRA, last Friday (March 31). The bill had been introduced on February 7 in the House, with a mirror version in the Senate three days later. There had been some talk of several religious groups carrying the ball to stop the Idaho RFRA, but these efforts fell short. The measure cleared the Senate Judiciary Committee 53-17; Kempthorne took only three days to sign the legislation.

[text only]