he Religious Freedom Restoration Act is dead...

Long live the Son of RFRA! But don't shout it too loudly...

That seems to be the strategy of religious groups and the House Judiciary Committee which yesterday held a little-publicized "stealth" hearing on ways to enact a legislative alternative to the Religious Freedom Restoration Act, declared unconstitutional last month in a hotly debated Supreme Court ruling.

In a 6-3 decision, the high court ruled that RFRA was an inappropriate extension of Congressional power. The decision involved the case of BOERNE v. FLORES, where Roman Catholic authorities argued that local zoning laws did not apply to religious groups and placed an undue burden on religious exercise. Justice John Paul Stevens noted the clearly discriminatory nature of the act, though, observing that "...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."

"Religious activists appearing before the Judiciary Committee said that 'Congress should move quickly to enact a new law on religious liberty to replace one struck down by the Supreme Court (RFRA).'"

Yesterday's quickie hearing included testimony from religious partisans, including Rev. Oliver Thomas, general counsel for the National Council of Churches of Christ. Thomas warned that "By striking down the Religious Freedom Restoration Act, the Supreme Court has placed America's first freedom in jeopardy." He added that, "For that reason, Congress must carefully consider all of the options available to it as it seeks to provide relief."

Earlier, Thomas suggested alternatives for Congress following the unfavorable ruling in BOERNE. Among them were a constitutional amendment and even an Executive Order by the President, a controversial mechanism instituted during the cold war which has questionable and varying legal authority. Critics charge that Executive Orders may be a threat to the balance of power among the judicial, executive and congressional branches of government.

Make you support for state-church separation and First Amendment rights known! American Atheists will be running a display ad in USA TODAY, "The Nation's Newspaper," in conjunction with our Oct.2-4, 1997 conference and demonstration in Washington. Learn how your name can be included in his historic statement!

Now, Thomas seems to be backing away from either scenario, instead hoping to frame legislation that would "accommodate" religious practice.

Yesterday's hearings also involved former White House counsel and Watergate crook Charles Colson who now heads a "faith-based" group called Prison Fellowship Ministries.

"I've spent the last 20 years working in prisons," gushed Colson. "I've seen the doors slam shut to religious services on the whim of administrators... Congress cannot duck this fight." Colson did not offer specifics, though.

Colson's group has reason to worry about the demise of RFRA. Prison Ministries has a contract to operate an entire wing of a prison in Texas, and proposes that after a two-year pilot program, taxpayer funds be used to subsidize its "faith" outreach to inmates.

Colson agreed with Thomas that a constitutional amendment was both tedious and problematic. Thomas called any possible amendment "a last resort to be utilized only when all else has failed," and said that such an effort would be "risky." Colson added that, "I would point out that the amendment process which was deliberately and rightly made difficult by the framers of our Constitution has become a stud farm for moribund causes... Causes sent there can continue to have a good time, but their racing days are over."

Yesterday's hearings attracted little media attention.

The Washington Times (Rev. Moon and the Unification Church) observed that the religious groups recommended that "Congress should pass news laws, relying on its power to regulate interstate commerce and the Constitution's 'necessary and proper' clause, to limit the states' ability to regulate and restrict religious practice."

Cassandra Burrell of Associated Press noted that "religious activists" appearing before the Judiciary Committee said that "Congress should move quickly to enact a new law on religious liberty to replace one struck down by the Supreme Court (RFRA)."

"Witnesses warned against beginning the long and difficult process of writing a new amendment into the Constitution," added Burrell.

Constitution Subcommittee Charles T. Canady (R-Fla.) suggested that "The RFRA is still valid as to the federal government," adding that "I believe Congress would be well within its authority to enact legislation that instructs federal agencies to accommodate religious practices that are substantially burdened by government's actions." Jeffrey Sutton, an attorney for the State of Ohio, told representatives that while Ohio supported the high court ruling, it was moving ahead to fashion a law similar to the RFRA, but with modifications.

Indeed, a slew of mini-RFRAs may be the most workable for religious groups. Douglas Laycock of the University of Texas, noted that he took comfort "from the fact that six appellate courts considered the constitutionality of RFRA prior to the Supreme Court ruling," and that five of those decisions upheld the act's application to state or local law. A slew of state-by-state proposals may be more difficult for opponents to contest as well, especially if there are slight variations among them. In lieu of a federal law attempting to regulate zoning or other powers traditionally ascribed to states and local communities, individual state laws may also frame their own versions of RFRA.

Critics charged that the Religious Freedom Restoration Act went far beyond the guarantees on behalf of freedom of religion found in the First Amendment, and created a class of discriminatory "special rights" for believers. Others observe that the Supreme Court ruling in RFRA was a rebuke to Congress for challenging the high court's traditional role in interpreting the law. Reporter Larry Witham of the Washington Times quoted an unidentified Congressional aide who observed, "The court thought we were involved in a power grab as big as the power grab they came back at us with."

The aide called for legislation on behalf of religious groups which would provide "relief or accommodation" when a government seeks to restrict them under general laws.

Monday's stealth hearing suggests that religious groups, and their supporters on the hill, want to move fast in finding some way of countering the demise of RFRA. One signal from yesterday's meeting, though, is that mainstream religious groups may not sign on to the Christian Coalition agenda for trying to enact the Religious Freedom Amendment. That proposal would essentially gut the Establishment Clause and end restrictions on public funding or other benefits to religious groups. RFA will be a tough sell in Congress, although the court's action in BOERNE v. FLORES is now being used to argue the need for such an amendment.

Either way, religious groups appears unwilling to live with the guarantees found in the First Amendment, and instead seek a greater "accommodation" using the discriminatory power of government. The result will be public subsidies for religious belief, discrimination against non-religious persons (even private businesses), and a bigoted class of special rights for "people of faith."

[text only]