State legislators continue the rush to enact versions of the Religious Freedom Restoration Act, and give "special rights" to religious groups. Will atheists and state-church separationists organized to stop this assault on the First Amendment?

ifferent versions of the Religious Freedom Restoration Act have now been introduced for legislative action in Virginia and Georgia, the latest in a flurry of proposals being promoted in state houses throughout the country. Earlier this month, a "mini-RFRA" was proposed in California. All of the bills are closely modeled on the federal law, RFRA, which was struck down last year by the U.S. Supreme Court as an unconstitutional extension of congressional power, and a violation of state-church separation. But that decision left the door open for state or even municipal versions of the Religious Freedom Restoration Act. The ecumenical group supporting RFRA -- a broad coalition of religious and activist organizations -- has been promoting "mini-RFRAs" in state legislatures throughout the country. RFRA and its state-level versions usually include wording which requires that government demonstrate a "compelling need" before taking any action or enforcing any law or regulation that would "burden" religious practice and organizations. In the case striking down RFRA (BOERNE v. FLORES), Justice John Paul Stevens noted that this standard discriminated in favor of religious groups, providing churches and sects with a level of exemption which "no atheist or agnostic" could enjoy. Indeed, critics have charged that the Religious Freedom Restoration Act creates "special rights" for believers and religions, and discriminates against atheists or, from a wider perspective, any private or secular enterprise.

    In Virginia, House Bill No. 1 -- the Virginia Religious Freedom Restoration Act -- cleared the General Laws Subcommittee 4-1 last week, and now heads back for a full committee vote. Following hours of heated discussion, though, the measure was amendment to exempt any prisoners in the state from enjoying the legal protections offered by the act.

    Introduced by Delegate A. Donald McEachin (D-Henrico), the bill has the support of 68 legislators, split evenly between both major parties. The Richmond Times-Dispatch newspaper notes that the measure "is modeled after the Religious Freedom Restoration Act." The proposal has also been embraced by Christian Coalition, and Governor James S. Gilmore III, who enjoyed the backing of CC and its founder, Pat Robertson, in last year's race for Virginia's highest office.

    Impetus for the bill grew out of a flap involving a church in downtown Richmond which was operating a feeding program for the homeless. Neighbors complained, and the Richmond City Council then enacted a zoning regulation which restricted the church from feeding more than 30 persons more than seven times a year, unless it obtained a permit and paid a fee. Delegate McEachin then introduced his Virginia RFRA bill, and at a ceremony last September, was flanked by supporters of his measure including representatives from Christian Coalition and the Virginia Assembly of Independent Baptists.

    "These religious institutions that feed the poor are motivated by a sincere religious belief, a belief that should not be inhibited by government," declared McEachin.

    But critics charged that the Richmond controversy wasn't so much about "religious freedom" but instead the question of whether churches and other sects should be exempt from laws and zoning restrictions that apply to everyone else. A restaurant, or secular charitable group engaged in similar practices, could not claim the mantle of "religious liberty" in opposing such ordinances. Critics also maintain that RFRA laws are unnecessary in protecting legitimate religious rights -- the First Amendment has worked for over two centuries -- and that the measures are "bad law" which promulgate a system of dual-justice, with one applying to religious groups and the other to the rest of society.

    The official summary of House Bill No. 1 reads:

"RELIGIOUS AND CHARITABLE MATTERS; RELIGIOUS FREEDOM PRESERVED. Provides that no government entity shall substantially burden a person's free exercise of religion except if (i) the government entity proves that application of the restriction to a person is essential to further a compelling governmental interest and (ii) the proposed action is the least restrictive means of furthering that interest... The bill provides that a person whose exercise of religious freedom has been burdened may assert a claim of violation in a judicial proceeding and the court may grant appropriate relief, including attorney's fees."

    But if the Virginia RFRA is selective in aiding religious believers and groups with "special rights," the discriminatory nature of the law becomes more apparent in the amendment tacked on last week by the General Laws Subcommittee. That measure exempts prisoners from the "protection" of the Virginia RFRA; Delegate Glenn Croshaw (D-Virginia Beach) said that the addendum was necessary in order to discourage inmates from "abusing" religious liberty. Indeed, some have charged that abuse of religious ritual is pandemic in penal institutions, where certain inmates justify their pleas for privileges -- hair length, clothing, sexual favors, special diets -- as religious practices. The Richmond Times-Dispatch noted, "Prisoners quickly become savvy about new laws, leading to the proliferation of frivolous lawsuits, said Croshaw."

    But Delegate Kenneth Plum, a co-sponsor of the Virginia RFRA, was wary of the pick-and-choose strategy implicit in the amendment. "If you believe in the concept of the bill, you don't establish a Christmas tree of exceptions..."

    As with other state-based versions of RFRA, there was no substantive opposition to the Virginia proposal. Indeed, Virginia Religious Freedom Restoration Act enjoys the support of church groups across the faith-spectrum, and groups that ordinarily might oppose such a discriminatory measure are nowhere to be found. Some such as People for the American Way and even ACLU have hopped on the "mini-RFRA" bandwagon, and support the Coalition for the Free Exercise of Religion, the umbrella group coordinating the stealth campaign for these laws. The director for the Virginia ACLU noted that Connecticut and Rhode Island have already enacted legislation similar to House Bill 1, and gushed, "The Supreme Court's decision (BOERNE v. FLORES) essentially invited states to create their own versions of the Religious Freedom Restoration Act."

   The Virginia Association of Counties has warned that there are serious flaws in the bill, however. Executive Director James Campbell has told legislators that one problem is that the RFRA does not include a good definition of religion. The Times-Dispatch noted, "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 exemptions."

    "The way this bill is drawn," said Campbell, "most people focus on the traditional religions, but it (Virginia RFRA) also protects nontraditional, creative religions that pop up from time to time."

    In Georgia, there are actually two "mini-RFRA" proposals, HB 1123 and a House Resolution (865). Both are close copies of the Religious Freedom Restoration Act, and as with the other state measures, betray the stealth campaign for "special rights" in their wording and coverage. The Resolution, read on January 29 and January 30, 1998 proposes:

"an amendment to the Constitution so as to provide that neither the state nor a political subdivision of the state shall burden a person's exercise of religion even if the burden results from a rule of general applicability, except where such burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling interest..."

   The main sponsor of HR 865 is Rep. Tracy Stallings.     HB 1123 was introduced and read over a week before the above resolution, however. This bill would amend the Official Code of Georgia Annotated "so as to provide for protection of the religious freedom of the people of the State of Georgia against governmental intrusion..." In section 2-5, this measure declares, "Neither the state nor any of its political subdivisions shall substantially burden a person's exercise if religion if the burden results from a rule of general applicability..."

    The wordings in the Virginia and Georgia resolutions strike a slightly different tone from some of their "mini-RFRA" counterparts. The California proposal is known as the "Religious Freedom Protection Act," and is more circumspect in its language when demanding that churches be exempt from the laws and regulations that apply to private individuals or businesses -- "a rule of general applicability." Both of the latest measures clearly display the desire of religious groups to achieve special rights and status, remedies which, as Justice Stevens noted in his decision in BOERNE v. FLORES, "no atheist or agnostic" can ever hope to achieve.

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