upporters of the Religious Liberty Protection Act on capitol hill are trying to fend-off attempts to modify the legislation, and have RLPA passed by the Senate prior to the August 9 recess. AANEWS has learned that Sen. Edward Kennedy (D-Mass.) may introduce, or would strongly support, an amended version of the act which would bar churches and other religious groups from invoking RLPA in order to trump anti-discrimination and other civil rights legislation. Sources also informed us that gay rights organizations are expressing their disenchantment with RLPA, fearing that it can be used by homophobic employers, landlords and others to deny gay men and women equal rights.

   A similar amendment failed in the House on July 15 when representatives turned down a proposal introduced by Rep. Jerrold Nadler (D-N.Y.) Some who backed the amended version of RLPA then went on to support the original crafting introduced by Rep. Charles Canady (R-Fla.) which cleared in a 306-118 vote.

   The Religious Liberty Protection Act would require government to employ a "compelling interest/least restrictive means" test when dealing with faith-based groups and practices. Supporters say that the measure is necessary to protect churches, mosques, temples and other sectarian movements from the incursion of government, and a slew of recent Supreme Court decisions. But critics charge that the RLPA is unnecessary, and goes beyond the intent of the First Amendment by providing "special rights" for religious organizations and practices.

   Even under the modified RLPA, however, religious groups would still be able to cite the law as a legal instrument in a broad number of cases, including everything from zoning and land use to possible incidents of child abuse and neglect.

   Besides those groups urging a "carve-out" for civil rights, children's advocacy, health and legal organizations are also urging the Senate to the reconsider the "unintended consequences" of the Religious Liberty Protection Act. The American Academy of Pediatrics, for instance, is urging "an exemption for government actions intended to protect the health or safety of children." A letter from AAP President Joseph R. Zanga to Rep. Canady mirrored the group's concern about the Senate RLPA, and noted, "Action by child protective services agencies to safeguard children in dangerous situations may be delayed or enjoined as a result of litigation" stemming from the act.

   "While we hope and expect that most courts would find that protecting a child's health or safety is a 'compelling governmental interest,' " warned Dr. Zanga, "it is much less clear how courts would decide what is the 'least restrictive means' of furthering that interest. It is easy to imagine, for example, that a court would fail to appreciate the gravity of a medical condition (e.g., diabetes) and thus fail to order adequate treatment in face of a parent's religious objections."

   Other concerns are being voiced by the American Professional Society on the Abuse of Children. Dr. Howard Dubowitz of the group's Legislative Committee is warning "RLPA would interfere with the present ability of State and local governments to provide essential safety and protection services to children."

   The National Trust for Historic Preservation is also complaining about RLPA, and warns elected officials that while the members organizations of the trust "honor and recognize the critical role that religion and religious institutions play in America's communities," it suggests that enactment of the Religious Liberty Protection Act "is not based on any record that demonstrates that such a sweeping application is necessary to address cases where religious organizations or individuals have been denied the right or been constrained in the practice of their religion." The Trust adds that the Senate and House versions of RLPA "would take away the right of local municipalities to enact and enforce landmark laws that uniformly protect all historically significant properties..."

   Like its predecessor, the Religious Freedom Restoration Act (RFRA), RLPA is one of the broadest and most wide-sweeping pieces of First Amendment legislation ever crafted. It rests upon the questionable premise that Supreme Court decisions, starting with the 1991 EMPLOYMENT DIV. v. SMITH case, fundamentally altered the way government deals with religious groups and practices. In SMITH, the justices of the high court ruled that a defendant's membership in a Native American Church did not provide an exemption from drug laws or other "generally applicable" and neutral statutes.

In the current political climate where Congress is passing legislation advocating the display of the Ten Commandments and other "religion friendly" measures, it is doubtful that even in the Senate, most opponents of RLPA would not dare cite the separation of church and state as a good reason for opposing the bill.

   Religious groups came together in hopes of reversing SMITH, and formed the Coalition for the Free Exercise of Religion. They crafted the Religious Freedom Restoration Act, and argued that it "restored" the previous standard government that had supposedly been universally employed, namely, the "compelling interest/least restrictive means" test. Since then, Coalition mouthpieces have suggested that RLPA would address the "judicial activism" of the high court.

   But Dr. Marci Hamilton, a constitutional attorney who argued the case which struck down the original Religious Freedom Restoration Act, says that such claims are disingenuous, and that the compelling interest standard was not widely employed by courts in First Amendment cases even prior to SMITH.

   One revealing fact emerged in the House debate two weeks ago over the proposed Religious Liberty Protection Act; as charged by Rep. Canady, the unabashed supporter of RLPA, many of those arguing for a "civil rights carve-out" did not raise similar objections years earlier when Congress passed the Religious Freedom Restoration Act. Our best information at this point suggests the following:

   ¶    In the current political climate where Congress is passing legislation advocating the display of the Ten Commandments and other "religion friendly" measures, it is doubtful that even in the Senate, most opponents of RLPA would not dare cite the separation of church and state as a good reason for opposing the bill. Civil rights, anti-discrimination and other "carve outs" are the strategy of choice for some in trying to stop the Religious Liberty Protection Act. We note that in the impassioned debate over RLPA in the House of Representatives, not one opponent of RLPA raised the establishment clause issues pertinent to RLPA, even though this measure is discussed as a "religious liberty" issue.

   ¶    The Senate -- at this point -- is unlikely to pass an amended version of RLPA which in any way weakens the special protections the act affords churches, mosques, temples and other religious groups. Sen. Orrin Hatch remains unwilling at this point to compromise on the legislation. RLPA proponents, including the Coalition for the Free Exercise of Religion -- the ecumenical group supporting the legislation -- have already signaled that they will oppose any amended version.

   ¶    Can RLPA be stopped? Even if it does pass, we do not predict the wide margin of victory the legislation enjoyed in the House. There is also hope in that many Senators are expressing private concerns over the legislation, particularly with the points raised by children's' rights and medical groups. As noted by American Atheists Washington, D.C. Director Chris Prokop, though, many on the hill "are afraid of being perceived as being 'anti-religious' if they vote against the RLPA."

   Atheists and separationists need to let the Senate know now where they stand concerning the Religious Liberty Protection Act. American Atheists President Ellen Johnson will be presenting letters of opposition to RLPA when the Senate Judiciary Committee takes up the matter, possibly as early as this week. For more information, visit http://www.atheists.org/action/rlpa.html and check out the on-line letter to the SJC.

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