midst reports on capitol hill that Rep. Charles Canady will be introducing a new version of the Religious Liberty Protection Act (RLPA) , a key organization which had supported similar legislation has broken ranks and says it will oppose the rewritten bill.

    In midweek, the American Civil Liberties Union confirmed earlier rumors, and formally announced that it could not support RLPA or other attempts to trump the nation's anti-discrimination laws under the veil of religious practice.

    The move was made public in a letter to the U.S. House of Representatives released Wednesday, May 5 and signed by ACLU Director Laura W. Murphy, Legislative Counsel Christopher E. Anders, and Legislative Analyst Terri A. Schroeder. "The ACLU regrets that we have no choice but to ask you to refrain from supporting RLPA," declared the organization. Citing the group's long-standing commitment to the First Amendment and civil rights, it added "We are no longer part of the coalition supporting RLPA because we could not ignore the potentially severe consequences that RLPA may have on state and local civil rights laws..."

   ACLU had been a founder of the Coalition for the Free Exercise of Religion, the group which crafted and promoted the earlier version of RLPA known as the Religious Freedom Restoration Act, RFRA. The coalition included Roman Catholics, Jews, Protestants, Scientologists, Humanists, Muslims, Hindus and others, as well as ACLU and other separationist-civil liberties groups. American Atheists, however, opposed RFRA from the beginning, charging that the legislation was violative of the First Amendment and created "special rights" for religious groups.

    RFRA and RLPA both require government to use a "compelling interest/least restrictive means" test when dealing with churches and other faith-based organizations or practices. Ellen Johnson, President of American Atheists, charged that the measure "clearly favors religious groups over private individuals, secular organizations and businesses," and fostered a "dual standard of justice."

   The U.S. Supreme Court struck down the Religious Freedom Restoration Act in the 1997 BOERNE v. FLORES case. The Roman Catholic Archdiocese of San Antonio had gone to court and cited RFRA when it was denied a permit to demolish most of an old church which had fallen under the control of local historic preservation laws of the City of Boerne, Texas. Concurring with the 6-3 majority in BOERNE, Justice John Paul Stevens declared that RFRA was violative of the establishment clause, and provided churches and other religious groups "with a legal weapon which no atheist or agnostic could hope to obtain."

    Technical aspects of the BOERNE v. FLORES decision, though, left the door open for state-level versions of RFRA, which have proliferated across the nation. In addition, the Coalition for the Free Exercise of Religion created a new "son-of-RFRA" measure which has been promoted as the Religious Liberty Protection Act. Different versions have been presented and are currently in legislative limbo in the House and Senate.

    ACLU now charges that under the version of RLPA about to be reintroduced by Rep. Canady, "applicants may soon find themselves without legal protections under state and local laws against landlords or employers who base their hiring or rental decisions on personally invasive questions... " They included, "Is that your spouse? Are those your children? Are you straight or gay? Are you pregnant? What is your religion..."

    In addition to requiring a "compelling interest/least restrictive means" test which government must employ when dealing with religious groups or practices, RLPA legislation incorporates certain clauses to justify the application of the test. One version, for instance, used a "commerce clause" that empowered and justified the legislation, since money passed through churches or faith-based groups. Language in the proposal enjoined government from substantially burdening religious liberty "in or affecting commerce." This led to concerns among certain RLPA/RFRA boosters, though, such as the Home School Legal Defense group headed by Michael Farris. They feared that the "commerce clause" could backfire, and be used as a rationale to eventually tax churches. Farris warned the Constitution Subcommittee of the House Judiciary Committee last July that Congress could not "employ an expansive theory of the commerce clause to protection religious freedom without violating crucial constitutional principles and without denigrating the role and meaning of religious faith in our society." The clause was dropped in the last legislative session after behind-the-scenes dealing between Farris and capitol hill brokers.

"Applicants may soon find themselves without legal protections under state and local laws against landlords or employers who base their hiring or rental decisions on personally invasive questions... Is that your spouse? Are those your children? Are you straight or gay? Are you pregnant? What is your religion?"

    The "money" or "finance" clause is even more convoluted and obscure in its application. As with earlier versions, Canady's soon-to-be introduced Religious Liberty Protection Act will rely on Congress' constitutional power to spend public funds.

    Constitutional attorney Marci Hamilton, who successfully defended the City of Boerne, Texas in the BOERNE v. FLORES case, thinks that the Canady version will still be vulnerable not only on the First Amendment establishment clause grounds, but from the "money" clause as well.

    "There has to be some connection between the 'Spending' clause and the purpose of the legislation," she told AANEWS in an interview yesterday. Hamilton cited the Supreme Court's decision in the 1987 case SOUTH DAKOTA v. DOLE, where justices examined congressional legislation that required states to raise their legal drinking age to twenty-one as a condition for receiving federal highway funds. South Dakota challenged the stipulation, insisting that the requirement violated congressional power under the spending clause. The court ruled 7-2 that federal grants to the states could include restrictions if the spending was in the "general welfare," that the conditions were "Unambiguous," that they could not be unrelated to "the federal interest in particular national projects or programs," and finally did not run afoul of "other constitutional provisions..." Simply put, since the funds were for highway construction, the federal government could argue that drunk driving was a problem on highways and thus the conditions passed constitutional muster.

    Hamilton suggests that RLPA supporters may be hard-pressed to justify the legislation using the spending or "money" clause. She noted that the court may be demanding even stricter standards than were used in SOUTH DAKOTA v. DOLE, and noted shifts in the make of the present court. Coming to the fore along with Antonin Scalia and Clarence Thomas would be Justice Sandra Day O'Connor, who dissented in the SOUTH DAKOTA case; she argued that even tighter standards were necessary, namely a "nexus" between the government financial involvement and the conditional stipulation. Thus, even a more conservative high court may not look with favor upon the Religious Liberty Protection Act if it attempts to use a spending clause as a foundation.

   Sources tell AANEWS that the national American Civil Liberties Union began having serious concerns about RLPA late last summer following congressional hearings. In addition, organizations like the Christian Legal Society may be supporting RLPA and RFRA legislation in hopes that it will somehow allow religionists to trump local and state anti-discrimination ordinances, especially those which protect unmarried or same-sex couples. Meanwhile, the defection of the ACLU is a serious blow to the Coalition for the Free Exercise of Religion; it could lead to an exodus of liberal faith and political groups, including People for the American Way, which up to now have agreed to work with religious right RLPA boosters such as Traditional Values Coalition. ACLU also objected to state RFRA proposals that exempted prisoners from coverage of the legislation -- something which posed a major obstacle in Michigan, California and elsewhere.

    It is reported that Rep. Canady hopes to reintroduce his "new" Religious Liberty Protection Act shortly.

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