Despite a setback from the U.S. Supreme Court, supporters of the Religious Freedom Restoration Act are back in Washington, D.C. promoting a "special rights" agenda for churches and other faith groups. American Atheists charges that such measures discriminate and marginalize nonbelievers, and any secular enterprise.

t's baaaaack....

   Last year, the U.S. Supreme Court (BOERNE v. FLORES) struck down the controversial Religious Freedom Restoration Act, a federal law passed by Congress in 1993 which according to critics discriminated against nonbelief, and in favor of religious groups. The high court's decision centered on whether or not the legislative branch had over-stepped its authority; but it also left the door open for a flurry of state-level "mini-RFRAs" which have been introduced in several states, and enacted in Connecticut and Rhode Island.

    Now, there are indications that RFRA supporters are launching an effort to rewrite and pass new legislation at the federal level. On Thursday, the House Judiciary Committee heard testimony from three panels of religious leaders and others who told representatives that some form of special legislation is necessary in order to protect their religious rights. Speakers came from Reformed, Presbyterian, Baptist, Jewish and Roman Catholic congregations.

    According to the First Amendment Center, Steve McFarland, a director with the Christian Legal Society, said that members of the Judiciary Committee seemed "transfixed by the outrageous stories" concerning alleged violations of religious freedom by government.

    One account came from a woman in Chico, California, who did not want to rent a duplex apartment she owned to an unmarried couple. She was fined by the California Housing Commission and ordered to pay restitution, but told the Committee, "To comply with this order would require that I violate my commitment to my husband and to God..." Following appeals on her case, the California Supreme Court upheld the original judgment enforcing the state's ban on housing discrimination.

    "The California Supreme Court cavalierly suggested that I could sell the duplexes and find a new job if I didn't want to rent to fornicators... My heart pounds again as I review the persecution that I have endured for over 10 years." She also distinguished herself and her actions -- based upon religious conviction -- from those of a hypothetical "Ku Klux Klan landlord who refuses to rent to racial minorities or a Nazi landlord who refuses to rent to Jews. The Constitution should not allow California law to treat me like those landlords."

    Rabbi Chaim Baruch Rubin told the Committee of his problem with the City of Los Angeles over organizing a "Minyan," a religious meeting or "quorum of ten men." Since Orthodox Jews are prohibited by their religion from using any mechanized conveyance during a holy period or Sabbath, believers in the Hancock Park area began meeting in a private residence.

    "Nevertheless, The City of Los Angeles has taken the position that it will not allow any house of worship anywhere in Hancock Park, a vast residential area of some 6 square miles..." Rubin noted.

    Richard Robb, a member of the First Presbyterian Church in Ypsilanti, Michigan told Committee members a story reminiscent of the conflict in Boerne, Texas which precipitated last year's ruling on the Religious Freedom Restoration Act. The Boerne suit arose when a local Roman Catholic church wanted to demolish a 76-year old structure in order to expand its facilities; the city, however, refused to issue a permit saying that the building fell under the purview of local historical and preservation ordinances.

    The Catholic Archdiocese appealed, citing RFRA and arguing that the local ordinances constituted an "excessive burden" on religious belief and practice.

    In their 6-3 decision handed down in June, 1997, the justices dealt extensively with the procedural aspects of the case, and noted that Congress was basically attempting to usurp authority. Still, BOERNE v. FLORES was a high stakes case, and observers on both sides of the question agreed with Oliver Thomas of the National Council of Churches that it was "the most important religious-freedom case the Supreme Court has ever had to decide."

    But Justice John Paul Stevens said that RFRA and the BOERNE case touched upon more than procedural technicalities, and wrote that the Religious Freedom Restoration Act demonstrated "governmental preference for religion, as opposed to irreligion."

"If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances 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 actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain..."

    Mr. Robb cited the case of the First Presbyterian Church, which applied for a permit to demolish an older building adjacent to the main church as part of a plan for expansion. "No action was taken by the Historical commission," noted Robb. "Since that time it has been a continuing battle with the city and its Historical Commission which includes hearings, lawsuits and mediation."

    Judiciary Committee members also heard from E. Richard Steel, a pastor for the Cedar Bayou Baptist Church in Baytown, Texas. He conveyed details of a complex case involving the bankruptcy of a church member and a judgment by the man's former employer which ordered payment of back wages. As a result of that filing, the church was sued for the member's tithes over the period of the bankruptcy, a sum of over $30,000.

    Another witness was Rev. Donald W. Brooks of the Prison Ministry for the Roman Catholic Archdiocese of Oklahoma City. He told of conflicts involving the use of "Sacramental Wine" with the Contraband Statute of the State of Oklahoma which "forbids carrying of alcoholic beverages into the prison." Similar testimony came from the pastor of the Evangelical Reformed Church in Washington State who is contesting a court order to reveal portions of a conversation he had with a murder suspect.

    All of these cases involve diverse factors -- a weakness in any blanket legislation which may end up being overly broad in attempting to address legitimate grievances and abuses. And wide sweeping legislation such as RFRA could end up creating more problems than it solves. For instance, while the woman who would not rent to "fornicators" due to her religious beliefs attempted to distinguish herself from hypothetical Ku Klux Klan or Nazi landlords, those racial prejudices can easily be incorporated into a religious belief system. Already, groups such as the racist and anti-gay Aryan Nations church justify their behavior on bizarre religious grounds.

    But that is not stopping a two-front strategy by clerical and other groups, led by the Coalition for the Free Exercise of Religion, being executed in individual states and now on Capitol Hill. The First Amendment Center reports that the Coalition is drafting a new proposal, a second-generation RFRA. That move received encouragement by House Judiciary Committee Chairman Charles Canady who cited "The need for federal protection of religious freedom after BOERNE v. FLORES." Canady added that he looked forward to new legislation modeled along RFRA."

    Steve McFarland of the Christian Legal Society raises the prospect that Congress can enact the elements of the discredited RFRA in a de facto manner using its powers to control interstate commerce. Congress could "attach strings to recipients" of federal funding, he informed the FAC; thus, appropriations to law enforcement, housing agencies, welfare bureaus and other government divisions could be, in effect, religion-friendly.

    The use of "stings" to federal appropriations has become a popular practice in requiring a number of constitutionally suspect policies. It has also seduced legislators at the federal and state level, who now regularly attach "conditions" that may have nothing to do directly with the original appropriation. Thus, a highway construction fund is given only when recipients (states) agree to establish drug testing or other programs. Civil libertarians have often express displeasure which such schemes, and have charged that the use of "strings" is often a way to circumvent the legitimate legislative process in favor of mandating goals, standards and behaviors. Whatever the merits or drawbacks of this strategy, "strings" -- and the use of taxpayer monies -- could end up coercing communities and even citizens to become more accommodating of religious groups, even at the expense of a "generally applicable rule" or law that is enforced against everyone else, including private business and individuals.

   Attorney Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law, told First Amendment Center that "it will...be an uphill battle for the coalition to build a persuasive record that generally applicable laws are truly the scourge of religious liberty." Indeed, instead of just seeking free exercise of religion, the coalition and other who are scheming to enact RFRAs at the state and federal level, are seeking "special rights" for churches and other faith groups -- and exemptions from laws and regulations which apply to everyone else. Is that fair?

    Unfortunately, RFRA legislation can be an overreaction to legitimate cases where authentic rights are being trampled. For instance, the law recognizes confidentiality in both religious and secular circumstances -- an example is the relationship involving a lawyer and client, or a doctor and a patient. Privacy laws which benefit everyone may be the best way of addressing certain abuses, not just providing legal remedies and relief to churches and other religious organizations. Establishing "special rights," however, marginalizes millions of Americans who profess no religious belief, as well as those private citizens engaged in secular personal or business activities.

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