Should churches and believers be exempt from laws which prohibit discrimination? California advocates of the Religious Freedom Restoration Act insist that they should. The effort to win "special rights" for religion continues in Texas, Ohio and elsewhere...

upporters of the California version of the Religious Freedom Restoration Act -- known there as the Religious Freedom Protection Act -- are working to defeat an amendment to the proposed bill that would prohibit discrimination under the guise of religious belief. That move has aggravated the Coalition for the Free Exercise of Religion, the nationwide umbrella group that is promoting state level "mini-RFRAs" in California and elsewhere. Under the California measure, and most likely the other RFRAs now being introduced in state legislatures elsewhere, individuals and groups could legally discriminate against others as long as their actions are rooted in a religious belief.

    And as noted in today's posting at the First Amendment Center, should such discrimination, "supposedly justified by religious beliefs, be permitted when discriminatory actions spurred by deeply held philosophical or secular beliefs are not?" The question touches on critical issues, including how far should government should go in attempting to balance equal enforcement of laws with religious belief. Critics of RFRA charge that the legislation marginalizes atheists and anyone else who is nonreligious, thus creating "special rights" for churches and other faith-based organizations.

    Lining up to support the California Religious Freedom Protection Act is a disparate group of religious and advocacy groups including the Traditional Values Coalition, People for the American Way, California Council of Churches and even the American Civil Liberties Union. At the national level, the Coalition for the Free Exercise of Religion has attracted an equally diverse range from Baptists, Jews, Humanists, Catholics and Muslims to new agers and even ACLU, PAW and Americans United for the Separation of Church and State. The Coalition proposed the federal Religious Freedom Restoration Act which mandated that government must show "compelling interest" before "burdening" any faith-based group. The U.S. Supreme Court struck down RFRA, though, in the controversial BOERNE v. FLORES case in June, 1997. Justices ruled that Congress had overstepped its authority in passing the legislation back in 1993. Justice John Paul Stevens, writing in his opinion, expressed the position that the act was a clear violation of First Amendment state-church separation, and provided religious groups "with a legal weapon that no atheist or agnostic can obtain."

   "This governmental preference for religion," wrote Stevens, "as opposed to irreligion is forbidden by the First Amendment."

    Stung by the court's reprimand, though, supporters of RFRA have launched an effort to enact "mini-RFRAs" at the state level. Rhode Island and Connecticut have already enacted their own version of the Religious Freedom Restoration Act, and legislation is in the hopper in California, Tennessee, Michigan, New Jersey, Virginia, New York and Georgia.

    Even the federal RFRA did not contain the exemption which members of the California Assembly have tacked on to the Religious Freedom Protection Act; the amendment thus seeks to uphold laws against discrimination, even when that discrimination is grounded in a sectarian belief.

   That action, though, has angered RFPA boosters, who want the amendment removed. The measure is now in the California Senate.

    Eugene Volokh, professor of law at UCLA, told FAC's Freedom Forum that the proposed bill, as originally framed, would act to "give a massive accommodation applicable in all walks of life, and potentially touching any conflict between conscience and law -- only to those Californians who are religiously motivated, and to deny it to others."

    But the California flap is only a bump in the road for the "stealth agenda" to enact RFRA legislation...

-- A version of RFRA has already cleared the New York legislature, and is awaiting final action by Gov. George Pataki.

-- In Ohio, the Attorney General's office is working on draft legislation.

-- Texas state Senator Jeff Wentworth says that he will be introducing RFRA.

-- There is a report of RFRA slated for introduction in Maryland.

-- In Arizona, HB 2421 has been introduced by Reps. Newman, Loredo, Rios and Weason, and is now in the Rules Committee. The measure would add language to the Arizona Revised Statutes that includes language borrowed directly from the Religious Freedom Restoration Act, and states that:

"Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both: 1) In furtherance of a compelling governmental interest. 2) The least restrictive means of furthering that compelling governmental interest..."

"A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs..."

-- In Florida, House Bill 3203 has been introduced by Representatives Starks and Trovillion, and is called the Religious Freedom Restoration Act of 1998. It too contains the essential language of RFRA. But there is another RFRA bill, HB 3201, introduced by the same legislators, which has slightly different wording. It is somewhat similar to RFRA legislation in Virginia in that it exempts prisoners from the coverage of the act, and states that government may not "excessively" burden religious practice when enforcing a rule of general applicability, "except that government may substantially burden an incarcerated person's exercise of religion..." But it then goes on to propose "the least restrictive means of furthering... substantial penologicla interest."

    In light of this, both the Virginia and possibly the Florida versions could end up as being "full employment laws for attorneys." If passed, expect considerable litigation from inmates and other advocacy groups. The ACLU has backed off supporting RFRA proposals that do not extend equal protection to incarcerated inmates.

    The Florida Senate mirror of RFRA is SJR 298 introduced by Senator Grant.

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