The Religious Freedom Restoration Act was declared unconstitutional last year by the U.S. Supreme Court. But that isn't stopping religious and other special interest groups from attempting to pass "First Amendment proof" measures that benefit churches and believers. The new Religious Liberty Protection Act (RLPA) is not about protecting liberty; it is an effort to obtain special rights for religious groups!

Web Posted: June 18, 1998

PECIAL RIGHTS legislation to benefit American churches and other religious organizations has been fast tracked at both ends of Capitol Hill as part of an effort to revive the unconstitutional Religious Freedom Restoration Act. Dubbed the Religious Liberty Protection Act, the new proposal attempts to institute the "substantial burden" and "compelling interest" criteria that characterized the RFRA. RLPA was crafted by members of the Coalition for the Free Exercise of Religion, an ecumenical group which had supported and written the RFRA for passage by congress in 1993.

    Like its predecessor, the Religious Liberty Protection Act enjoys bipartisan support. The Senate version, S2148, is being pushed by Sen. Edward Kennedy (D-Mass.) and Sen. Orrin Hatch (R-Utah). The House rendition, H.R. 4019, was introduced by Rep. Charles Canady (R-Fla) and Rep. Jerrold Nadler (D-N.Y.)

ORIGINS -- A CASE NAMED SMITH...

    The Religious Liberty Protection Act is actually the latest incarnation in a series of legislative remedies designed to seriously alter the relationship of church and state in America. RLPA is essentially a retread of the discredited Religious Freedom Restoration Act, enacted by Congress in 1993. That act was a response to another ruling in a relatively obscure case known as OREGON EMPLOYMENT DIVISION v. SMITH.

    In that case, the justices ruled that the state of Oregon had the right to enforce restrictions on drug use by a drug counselors in a government program who claimed the right to ingest peyote, an hallucinogenic substance as part of a native American religious tradition. The court ruled that there is no exemption from a neutral law that applies to all (a "generally applicable rule") which may have the effect of restricting a religious activity or group. Most religious groups, and some -- though not all -- legal scholars considered that a shift from the government's traditional view of religious exercise. But the effect of SMITH was to put all groups and individuals on a level footing, where neutral and generally applicable rules would be enforced equally and without discriminatory regard for religious belief or affiliation.

    Religious groups promptly swung into action to address what they saw as the shortcomings from the SMITH ruling. A Coalition for the Free Exercise of Religion was formed, uniting a staggering array of religious and political cause groups. Matters of doctrine -- questions over which god to worship, or which prayer to recite -- were quickly subsumed in the rush to reverse SMITH. Membership in the Coalition embraces such diverse groups as Methodists, Jews, Muslims, Humanists, Scientologists, Unitarians, Baptists, Presbyterians, Buddhists, and new age mystics. Even groups traditionally identified with separationism -- the American Civil Liberties Union, People for the American Way. Americans United for the Separation of Church and State -- hopped on the bandwagon. Critics charged that by doing so, religious organizations were, in effect, seeking "special rights," and elevating themselves above nonbelievers and, indeed, any private or secular activity.

Rep. Jerrold Nadler (D-N.Y.) is a co-sponsor of the Religious Liberty Protection Act. Despite overwhelming support from America's religious community and both major political parties, there seems to be little concern that RLPA discriminates against secularism, and creates special rights for churches.

    The product of this effort was the Religious Freedom Restoration Act, passed overwhelmingly in Congress in 1993. President Clinton promptly signed the measure into law.

    There was hardly any opposition to the RFRA, although critics pointed out that it was one of the broadest and most wide sweeping measures of its kind. It essentially required that if a government entity passed a law that put a "substantial burden" on religious groups or practice, it had to demonstrate a "compelling interest" and achieve that end by the least restrictive means.

DISCRIMINATION FOR RELIGIOUS GROUPS?

    From a civil libertarian perspective, while the goal of protecting voluntary religious expression was laudatory, RFRA did so at a heavy, and unconstitutional price. It affected nearly every point of interaction between governments at any level, and religious groups. Problems began to emerge as inmates in prisons began demanding certain privileges and exemptions based on religious belief or affiliation. Churches insisted that they could opt out of zoning rules and other local regulations which applied to others. The effect, charge critics of RFRA, was to establish a two-tier system of justice, one for the religious, another for private individuals and businesses. Was that fair? And what about the enormous costs to governments, especially local municipalities, for the constant litigation which RFRA would unleash?

BOERNE v. FLORES

    In November, 1996, the U.S. Supreme Court announced that it would accept a case which had momentous implications not only for the RFRA, but in deciding whether or not Congress had exceeded its authority by passing the act three years earlier. The case involved the Roman Catholic Church and the City of Boerne, Texas. The church had sought to demolish most of a 70-year old structure which according to the city fell under the purview of local historical ordinances. After failing to obtain a demolition permit, the Archdiocese of San Antonio cited RFRA as a justification.

    The stakes in the case were significant. Would churches or other religious groups be exempt from local regulations such as zoning? Could prison inmates wear crosses or demand special diets while incarcerated? What about religious groups that preached withholding of medical care from children? How far could religious groups go in citing federal protection for behaviors which violated neutral, "generally applicable" rules?

    In June of last year, the court struck down the Religious Freedom Restoration Act in a 6-3 ruling, BOERNE v. FLORES. Most of the opinion was a rebuke against Congress for usurping powers more appropriate to the federal courts and individual states. The latter was seen by many as a green light for "mini-RFRAs" which, indeed, began to proliferate throughout the country thanks to the activity of the Coalition for the Free Exercise of Religion.

    In his opinion in BOERNE, Justice John Paul Stevens touched upon the crucial First Amendment aspects of the RFRA:

"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 be 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 it owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law... the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment..."

A ONE-TWO PUNCH FOR RELIGIOUS SPECIAL RIGHTS

    The demise of the Religious Freedom Restoration Act, at least at the federal level, hasn't stopped the Coalition for the Free Exercise of Religion and other RFRA supporters. Versions of the statute have been proposed in over a dozen states, and Florida recently joined the ranks of states enacting a version of the law. Word has been percolating through Washington for the last two months that a new federal RFRA was in the works, one supposedly "First Amendment proof." The result is an old RFRA with a new label -- the Religious Liberty Protection Act.

RFA AND SELECTIVE INDIGNATION

    Two weeks ago, when the House of Representatives bitterly debated and turned down a proposed Religious Freedom Amendment, "religious separationists" -- believer groups that happened to oppose the RFA -- were vehement in not only defending their own religious credentials, but in proclaiming their love of the First Amendment. RFA fell short of the necessary 2/3 vote in the House, 224-203; a Senate version still awaits action.

    But many of the groups which loudly cheered the defeat of RFA, and used the issue to raise funds, have gone back to work on behalf of the cosmetically restored RFRA, known now as the Religious Liberty Protection Act. Support for the measure is coming from both sides of the aisle, and embraces political liberals and conservatives, uniting such traditional opponents as Sen. Edward Kennedy and Sen. Orrin Hatch. For once Congress seems to agree -- religious groups and organization require the largesse of government, not just to insure the right to religious expression, but to create "special rights" at the expense of secular culture.

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