Assembly members have approved a law based on the unconstitutional Religious Freedom Restoration Act. Backers brag that it is "more expansive" than the First Amendment; critics charge it as another ploy to invent special rights for religious groups and believers.

Web Posted: January 28, 1998

n California, members of the State Assembly have passed a Religious Freedom Protection Act, modeled closely on a controversial federal law struck down by the United States Supreme Court. The lower house unanimously approved the measure last week, which now moves to the State Senate's judiciary committee for further consideration. The proposal requires that government "should not substantially burden religious exercise without compelling justification." A study by the Legislative Counsel defends the action, suggesting in a document obtained by aanews that the State of California has the power and should "protect the free exercise of religion" by actions which are"more expansive than the First Amendment of the United States Constitution."

A Curious Alliance...Splitting the Separationist Ranks

    While critics find the measure a threat to state-church separation and a way of promoting "special rights" for religious groups and believers, the list of organizations backing the California act includes a wide and surprising array of groups covering the faith and ideological spectrum. The Religious Freedom Protection Act has been sponsored by the California Coalition for the Free Exercise of Religion, a "popular front" embracing the right-wing Traditional Values Coalition, and other groups such as People for the American Way, California Council of Churches, Lutheran Office of Public Policy and even the American Civil Liberties Union. While organizations like the TVC are generally identified with causes such as school prayer, voucher schemes and other forms of religion-in-government measures, People for the American Way and ACLU are often considered separationist. The California Religious Freedom Protection Act also has the limited support of the Christian Legal Society, a key player in crafting other legislation such as the Religious Freedom Amendment.

American Atheists President Ellen Johnson warns that legislation such as the Religious Freedom Protection Act is an effort to obtain "special rights" for religious groups and believers. "This marginalizes millions of Americans who profess no religious faith, and discriminates against anyone involved in a secular economic or private activity..."

    But this alliance of social and religious groups from both the political left and right simply replicates a pattern which appeared in the Religious Freedom Restoration Act, a controversial measure approved by the U.S. Congress in 1993, and ruled to be unconstitutional by the U.S. Supreme Court in the case of BOERNE v. FLORES.

Background, Issues...

    Known as Assembly Bill 1617, the California proposal was introduced by Assemblyman Joseph Baca, Democrat, who represents the 62nd District. It has key elements, even wording similar to the discredited Religious Freedom Restoration Act. Following the BOERNE case, religious groups which had backed RFRA vowed to lobby for "mini-RFRA's" at the state level.

    RFRA was a response to a an obscure case dating back to 1990 known as OREGON EMPLOYMENT DIVISION v. SMITH. In that action, the court examined a plea by a Native American religious group that used the illegal hallucinogen peyote in its ritual; the justices decided that government could pass legislation to "regulate society" even if that action infringed upon religious groups and their exercise.

    For civil libertarians, that was a tough call; so was the notion of giving churches or religious believers "special rights," or a dispensation from laws which applied to everyone else in the society. A religious coalition was promptly formed, and in 1993 the U.S. Congress enacted the Religious Freedom Restoration Act. It required that government had to demonstrate "a compelling reason" or interest before burdening any religious group, and it required the state to use the least restrictive means as well.

   That measure appeased the religious community, but critics noted that RFRA essentially created a "dual-standard" of laws and justice. Religious organizations were exempted from the benchmarks used to enforce laws against secular groups, private businesses and individuals. That legal conundrum -- and a constitutional test of the RFRA -- was taken up by the high court in the summer of 1997 when it agreed to hear the case of BOERNE v. FLORES.

    That case pitted the Roman Catholic Church against the town of Boerne, Texas. City officials in the small community refused to issue a permit to St. Peter's Church, which wanted to demolish its 74-year-old building and erect a larger facility. The city's landmark commission, however, had declared the old church to be a historical treasure, "a striking example of Mission Revival architecture." The archbishop, Flores, challenged the ruling, and cited RFRA as a legal justification for why the church should be exempt from the Boene historical and zoning regulations.

    Supporters of RFRA -- many of them mainstream and liberal religious denominations -- seemed to echo a complain heard from the religious right, namely, that government had become increasingly "hostile" toward the "people of faith," and hence special legislation was required to address the inbalance. Indeed, the Coalition that had drafted the Religious Freedom Restoration Act and then filed amicus briefs in the BOERNE v. FLORES case represented a diverse community of groups with different agendas. Along with the American Civil Liberties Union, People for the American Way and Americans United for Separation of Church and State were Concerned Women for America, Christian Legal Society, Traditional Values Coalition, American Humanist Association, Church of Scientology, Episcopal Church, Christian Church, American Jewish Committee, Baptist Join Committee, Presbyterian Church, Soka- Gakkai International, National Council on Islamic Affairs, Unitarian Universalist Association, United Methodist Church and others.

    In June, 1997, the U.S. Supreme Court ruled against the church in the BOERNE case in a restricted decision which focused mostly on whether or not congress had overstepped its authority in crafting the Religious Freedom Restoration Act. But Justice Stevens, in his published opinion in the case, chose to discuss the question of "special rights" for religious believers. He wrote:

"In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a 'law respecting an establishment of religion' that violates the First Amendment to the Constitution.

"If the historic landmark on a hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not eligible for an exemption from the city ordinance that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actual prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. The governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment..."

"One, Two, Many RFRAs..."

    Stung by the 6-3 decision in BOERNE which struck down the Religious Freedom Restoration Act, the Coalition behind RFRA began to examine its options in the matter. One included a full constitutional amendment -- a lengthy procedure which Rev. Oliver Thomas, legislative hit-man for the National Council of Churches, branded "a last resort."

    "Every religious person will be hurt by this decision," Thomas remarked to the New York Times immediately following the ruling in BOERNE v. FLORES.

    Strategy sessions by the religious coalition, however, produced a different course of attack. Groups like the Christian Coalition had hoped to woo the liberal and mainstream religious groups to support the Religious Freedom Amendment; but the latter churches and organizations considered RFA to be unnecessary, and too extreme. Instead, the decision was made to push for RFRA-like laws at the state level, a nod to the fact that the BOERNE decision concerned the role of congress, and might not have examined the implications of similar legislation if passed by the states. The California law is an example of this policy of "one, two, many RFRAs" which are now being promoted in state houses throughout America.

Separation -- Too Important to be Left to the Churches..

.     The California act, and its legislative clones which are being promoted in capitals throughout America, serve to underscore an important fact; defense of state-church separation cannot always be left to churches or other groups which happen to occasionally "agree" with state-church separation for their own interests, and who marginalize the role -- and civil rights -- of atheists and nonbelievers. In a statement to media following the BOERNE v. FLORES decision, American Atheists President Ellen Johnson warned, "The religions are looking out for number one -- and that's a reference to their own selfish interests, not some supreme being." Johnson added that the effect of RFRA and its clones would be to create "special rights' for churches, mosques and temples, while relegating private businesses, secular groups and individuals to a second-class status. "That's wrong, and it is discriminatory," said Johnson.

    Eugene Volokh, professor of law at UCLA, told the First Amendment Center's Forum that the California law "goes much further than the free-exercise clause has ever been read to go..." and that the effect would be to "give religious freedom even more protection than speech, the right the Supreme Court has generally protected most strongly of all."

    Religionists might have lost at the federal level, but the passage of the Religious Freedom Protection Act in California shows that their battle for "special rights" has now opened in the states. And in the important fight, nonbelievers and principled separationists may not be able to count on some of their former allies in challenging this intrusive and discriminatory favoritism.

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