he phone rang late Monday night for Dr. Marci Hamilton, Professor of Law at the Benjamin Cardozo School of Law in New York. On the line was an aide from the House of Representatives Committee on the Judiciary with the news; a hearing was slated to take place 36-hours later in Washington, on a revised version of the Religious Liberty Protection Act.

   As it turned out, Hamilton -- an early critic of RLPA and its predecessor, the Religious Freedom Restoration Act (RFRA) -- was the only witness opposing the legislation the committee bothered to hear when the gavel dropped yesterday at 1 p.m. in Room 2226, Rayburn House Office Building. She was scheduled on the final panel of the day, something she has become used to in both federal and state hearings on the controversial measure. The sudden, unannounced hearing has become standard operating procedure in the frantic effort to enact a Religious Liberty Protection Act.

   The RLPA would hold government to a "compelling interest/least restrictive means" test when dealing with cases involving religious organizations, beliefs or practices. It is based on an earlier measure, the Religious Freedom Restoration Act, which was struck down in a 6-3 decision by the U.S. Supreme in its 1997 BOERNE v. FLORES case. BOERNE involved an attempt by the Roman Catholic Church to tear down most of a decades-old church in Boerne, Texas, and build a larger structure When the Archdiocese applied for a demolition permit, though, city officials refused to issue the paperwork, noting that the structure fell under the control of local historical and preservation ordinances. The church went to court, arguing that as a religious institution it was, effectively, exempt from the local regulations. Hamilton successfully defended the City of Boerne. In the decision, Justice John Paul Stevens declared that RFRA was an unconstitutional violation of the First Amendment, and provided churches and other religious with a legal instrument that "no atheist or agnostic" could obtain. Bucking other separationist and civil liberties groups, American Atheists came out in opposition to RFRA/RLPA measures, insisting that they fostered "special rights" and discriminated against Atheists.

   Despite the ruling in BOERNE, though, groups such as Christian Legal Society and the Coalition for the Free Exercise of Religion have continued to promote the RFRA agenda. The Act was dusted off and reworded last year, and introduced on Capitol Hill as the Religious Liberty Protection Act. In over a dozen states, RFRA legislation has also been proposed.

   Last week, it was learned that the American Civil Liberties Union, a key supporter of RLPA, was withdrawing its endorsement of the measure, fearing that the legislation would be used by religious groups to trump anti-discrimination laws. Within the Coalition and nexus of groups supporting RFRA/RLPA, it is known that the Christian Legal Society and others see the legislation as a way of circumventing those measures. Under RLPA, landlords, employers and others could grill prospective applicants on a variety of personal questions about sexuality, marital status, religious beliefs and other personal items -- all under the excuse of a faith-based conviction.

   As far back as July, 1997, American Atheists was charging that a "stealth agenda" was in force to promote the passage of a successor to the Religious Freedom Restoration Act. Reporting on capitol hill hearings, we noted, "Religious activists appearing before the Judiciary Committee said that 'Congress should move quickly to enact a new law on religious liberty...'" Since then, hearings have taken place with little or no advance warning, and often include panels of witnesses heavily slanted to support the legislation. Yesterday's event was no exception. Testifying on the Religious Liberty Protection Act were:

* Richard Land -- Southern Baptist Convention
* Lawrence Sager -- Professor of Law, NYU School of Law
* Von Keetch -- General Counsel, Church of Jesus Christ of Latter-Day Saints
* J. Brent Walker -- General Counsel, Baptist Joint Committee
* Clarence Hodges -- Seventh-day Adventists Church
* Christopher Anders -- American Civil Liberties Union
* Rabbi David Sapperstein -- Religious Action Center of Reform Judaism
* Chai Feldblum -- Professor, Georgetown University Law Center
* Douglas Laycock -- University of Texas Law School
* Oliver Thomas -- National Council of Churches
* Rev. C.J.Malloy, Jr. -- First Baptist Church of Georgetown
* Michael P. Farris -- Home School Legal Defense Association
* Steven MacFarland -- Christian Legal Society.

   Testifying against the latest RLPA was lone witness Dr. Marci Hamilton.

   At yesterday's hearing, Christopher Anders of the ACLU -- who earlier this month announced that group's opposition to RLPA -- declared that the Union had an "working draft of an issue-specific religious liberty bill" which it considered to be an "alternative to RLPA."

   "Our hope is that the draft can provide at least as much protection as RLPA -- but with a more effective enforcement mechanism, no questions about its constitutional authority, and no effect on state and local civil rights laws."

   The problem with the ACLU draft, of course, is that while allowing some state and local anti-discrimination statutes to trump religious exercise, religious groups would still enjoy a broad range of "special rights" not available to the general population. Portions of the draft include:

"ACCOMMODATION OF RELIGIOUS EXERCISE IN VEHICULAR TRANSPORTATION"

   Section 1 of this proposal states, "A State receiving funds under this section shall adopt standards that ensure that no person, acting under color of law, substantially burdens the religious exercise of any person in operating a vehicle on any public street, road, or highway, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest."

   This section could apply to those who cite religious religions for not carrying a drivers' license, or are members of sects like the Amish who take buggies and other similar conveyances on to public roads. But the RLPA may not be necessary to protect such groups; as AANEWS noted in October, 1998, a judge in Decatur County, Iowa ruled in favor of an Amish man who refused to display an orange traffic reflector on the back of his buggy, saying that to do so would violate his religious belief in remaining "separate" from the world. We noted: "Interestingly, the decision suggests that wide sweeping legislation such as the Religious Liberty Protection Act and other legal remedies may not be required, or even desirable in trying to balance the 'compelling interest' of government and the rights of individuals or groups to religious practice."

"ACCOMMODATION OF RELIGIOUS APPAREL WORN BY STUDENTS"    As school districts throughout the country continue to violate the rights of students and crack down on those wearing certain color jackets, or styles of pants, or hair arrangements, trench coats, shorts, and other apparel, the Religious Liberty Protection Act will demand exceptions for "students at an elementary or secondary school" who "wear an item of religious apparel while attending the elementary or secondary school." Part 3 of Section 6 of the proposed RLPA turns the meaning of "religious apparel" over to the government and the United States Code. A Rastafarian or Satanist, or member of some other minority religious group, may not enjoy equal coverage in, say, a Roman Catholic school receiving voucher monies, or a "public" school in a heavily religious, sectarian community.

"PROTECTION OF DIGNITY AFTER DEATH."

   This is a potential legal minefield in cases where an autopsy may be required as part of an investigation into murder, foul play or other calamity. Religious groups, such as Orthodox Jews, may demand that bodies not be autopsied. Again, while non-religious individuals could not appeal with such a legal instrument, religious sects will be empowered to do so under the RLPA statute.

"PROTECTION OF PRIVILEGES FROM STATE INTERFERENCE"

   This section basically prohibits the introduction as evidence in any criminal or civil proceeding "any communication obtained from any person, who acting under color of laws, by means of any electronic device, intercepted recorded in any manner, listened to, or read such communication if it was, or would have been in the absence of such action by the person acting under color of law..." This would strengthen existing practices that treat as confidential certain types of communication discussion with a priest, confessor, attorney, doctor or other agent. It remains questionable whether RLPA is even necessary, though, to guarantee this.

   The Religious Liberty Protect of 1999 still contains the core element of the old Religious Freedom Restoration Act, namely the requirement that government use a "compelling interest" standard when dealing with religious groups, beliefs or practices. And like the old RFRA, the "new" RLPA permits religion to be used as an exemption from land use regulations, enforcement of civil rights laws and other statutes.

   The wording of RLPA, in fact, is designed to promote the legislation as a remedy for problems which do not exist, or are often misrepresented. Reading the legal language, one can be left with the impression that the Religious Liberty Protection Act is necessary to address widespread, rampant persecution of religious groups. Gratuitous language in the measure, for instance, states "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination," as if this problem cries out for legal remedy. In Section 5, the bill states:

(a) RELIGIOUS BELIEFS UNAFFECTED -- Nothing in this Act shall be construed to authorize any government to burden any religious belief.

   Sources tell AANEWS that the U.S. Senate will take some form of action next week on a version of the Religious Liberty Protection Act. Last year, RLPA was watered-down in the Senate, much to the consternation of House supporters. One source told us that "RLPA will either be voted down (presumably in committee) or reintroduced" in midweek.. There is speculation that a version of RLPA could be introduced by Sen. Orrin Hatch (R-Utah) of the Senate Judiciary Committee.

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