The Campaign For Religious "Special Rights" Continues. Advocates are divided, however, of whether certain groups -- such as prisoners -- may benefit. Is RFRA involving government too deeply in the business of religion, or the lack of religious belief?

ersions of the Religious Freedom Restoration Act, which was struck down last year by the U.S. Supreme Court in the BOERNE v. FLORES decision, have now been slated for action in the state capitals of New Jersey and Michigan. In the last three weeks, mini-RFRAs have been moving through the legislative process in California, Tennessee, Virginia and Georgia. The act is already law in Rhode Island.

    All versions of the state RFRAs are based on the language of the discredited federal law which was passed by the U.S. congress in 1993. The BOERNE case, however, struck down the act when justices saw the measure as an illegal action taken by congress. Although Justice John Paul Stevens saw the Religious Freedom Restoration Act as an invasive violation of state-church separation which favored religion over non religion, the ruling in that case invited individual states to pass their own versions.

New Jersey American Atheists Director Dave Silverman (above) warns that "special rights" legislation such as the N.J. Religious Freedom Restoration Act violates state-church separation. Visit the New Jersey American Atheists web site.

    In Michigan, there are two competing versions of RFRA. As with other renditions of the act, they require that government use the "compelling interest" test before taking any action which "burdens" religious belief or practice; even then, governments are obligated to use "the least restrictive means possible" toward that goal.

   Critics charge that RFRA is "bad law," and has the effect of creating "special rights" for religious groups and a dual standard of justice which treats private, secular and entrepreneurial activity differently than it does religion.

    Michigan HB 4376, sponsored by Rep. K. Profit, includes the RFRA essentials but exempts prison and jail inmates from its coverage. A similar exclusion appeared in a Virginia Religious Freedom Restoration Act proposed by Delegate Glenn Croshaw (D-Virginia Beach), who said that the addendum was necessary in order to discourage inmates from "abusing" religious liberty. The proposal had the support of the Michigan Jewish Conference, Anti-Defamation League, Presbyterian Villages of Michigan (a series of retirement communities), Michigan Family Forum, Michigan Corrections Organization, Michigan Ecumenical Forum and the American Civil Liberties Union.

    ACLU, however, and possibly other groups have now thrown there support to a Michigan Senate RFRA, SB 678, which does not include the exemption. An "action alert" put out by the MCLU warns that the House version, now under review in the Senate Judiciary Committee, results in "exclusion of one disfavored group (which) can lead to other exclusions -- a very slippery slope indeed."

    The New Jersey Religious Freedom Restoration Act exists as mirrored bills in both the Assembly (No. 903) and Senate (No. 321). Sponsors are: Sen. Robert W. Singer (R - District 30), Sen. Joseph M. Kyrillos, Jr. (R- District 13), Assemblyman Joel Weingarten (R- District 21) and Assemblyman Jack Collins (R-District 3). The measure is under technical review by Legislative Counsel.

   New Jersey RFRA also requires a "test of compelling governmental interest" before religious groups or practice may be "substantially burdened." But it also attempts to define "exercise of religion" and could create serious a serious potential for abuse.

    " 'Exercise of religion' means an act or refusal to act that is substantially motivated by a sincerely held religious belief, whether or not the burdened religious exercise is compulsory or central to the larger system of religious belief."

   While this RFRA does not take up the sticky question of what constitutes a "religion," it comes close in attempting to define what religious exercise is. In so doing, it raises the possibility that a wide range of behaviors not associated with traditional religious group could be defended on this basis of the RFRA in New Jersey.

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