hearing slated for today by the Senate Committee on the Judiciary begins another effort to enact the controversial Religious Liberty Protection Amendment. Latest word from the hill is that the one panel of witnesses slated to testify about the legislation would include three speaking on behalf of passage, and only one opponent warning of the consequences of the proposed measure. Dr. Marci Hamilton, a leading constitutional scholar who has opposed RLPA from its inception, was not invited to address the committee.

   Sources tell AANEWS that Sen. Orrin Hatch (R-Utah), the committee head, hopes to use today's hearing to fast-track the measure through the U.S. Senate. The House of Representatives has already passed its version of the Religious Liberty Protection Act.

   RLPA requires that government use a "compelling interest/least restrictive means" test when dealing with religious groups and practices. Proponents claim that the law is necessary in order to safeguard religious liberty against assaults from government regulation. They point to a series of Supreme Court cases including EMPLOYMENT DIV. v. SMITH, where the high court ruled that religious belief could not constitute a legitimate exception from the enforcement of neutral civil laws. In SMITH, the petitioners had sought to use membership in a Native American religious group as a shield against the enforcement of drug laws; the sect uses peyote, a prohibited hallucinogenic substance as part of its sacred ritual.

   But SMITH and other decisions have prompted debate over how far sectarian groups may go in citing freedom of religious as a rationale for circumventing legal statutes. Congress responded to the SMITH decision in 1993 by passing the Religious Freedom Restoration Act (RFRA) which included the requirement that governments use the "compelling interest" test. The Supreme Court struck down RFRA, though, four years later in CITY OF BOERNE v. FLORES. The case involved an effort by the Roman Catholic Church to demolish most of a decades-old structure in Boerne, Texas. City officials refused to grant a permit for the construction of a new facility, saying that the old church building fell under the purview of local historical ordinances. The church sued, citing RFRA.

   While the high court ruled that RFRA was an unconstitutional expansion of congressional authority, Justice John Paul Stevens opined that the act also "establishes religion" and violated the separation of church and state.

   State versions of RFRA have been proposed in capitals throughout the nation, and nearly a dozen states now have versions of the Religious Freedom Restoration Act. At the federal level, RFRA supporters have reintroduced the measure as the Religious Liberty Protection Act.

   Today's Judiciary Committee hearing marks the latest in a series of maneuvers to enact RLPA. During the past year, the measure has been stalled on the hill by legislative grid lock and other issues such as impeachment hearings against President Clinton and the budget battle. Several groups representing medical, child welfare and preservationist interests have also been complaining that RLPA has "unintended consequences," and that passage would make it more difficult to enforce statutes protecting children and maintaining the integrity of neighborhoods and historic sites.

"RLPA would seriously alter the balance between church and state. It gives churches and ther sectarian groups a legal instrument that isn't available to private individiuals, businesses or secular groups. It's just another case of special rights for organized religion." --Ellen Johnson, President American Atheists

   But American Atheists President Ellen Johnson says that the real impact of the Religious Liberty Protection Act concerns the establishment clause of the First Amendment. "RLPA would seriously alter the balance between church and state," Johnson warns. "It gives churches and other sectarian groups a legal instrument that isn't available to private individuals, businesses or secular groups. It's just another case of 'special rights' for organized religion."

   Johnson predicted that if enacted, religious organizations would have "a green light to demand exemptions from the neutral civil laws that apply to every one."

Read the American Atheists testimony to the Senate Judiciary Committee for inclusion in the Congressional Record.

   "Communities would face a real dilemma in trying to resist the encroachment of huge 'mega-churches' into their communities," she said. Johnson cited a case in the Belmont, Mass. where a local citizens group has been fighting construction of an enormous Mormon Temple. "If this were WalMart or a NASCAR raceway, these people would at least have a chance of using local zoning ordinances and other statutes to protect the value of their property and the integrity of their neighborhood. But RLPA would allow religious groups to hide behind the First Amendment on matters that are only peripherally related to a genuine 'freedom of religion' practice."

   "Every time a religious group would want to flaunt a local or state law," Johnson added, "private citizens and local government would have to ask themselves if they wanted to risk a costly court battle just to get a church or mosque to comply with a zoning code or some other statute."

   Today's hearing is expected to include several developments. Here's the latest update from our sources:

   ¶    A number of Senators have been approached by groups over the past two weeks which have attempted to raise concerns about the "unintended consequences" of RLPA. The American Academy of Pediatrics has warned that passage of the Religious Liberty Protection Act could place children at risk by making it difficult for authorities to investigate and act on cases of child neglect and other forms of abuse. Parents and sects would be able to justify draconian "Bible discipline" by citing religious privilege.

   In addition, preservationist groups have been circulating a number of studies which suggest that RLPA could endanger efforts to preserve historic cites. Other organizations and individuals are asking the Judiciary Committee to consider amendments limiting RLPA so that it would not trump the nation's anti-discrimination laws. The American Civil Liberties Union, which originally had supported the legislation, has said that it will now oppose the Religious Liberty Protection Act unless such an exemption is included.

   ¶    American Atheists is submitting testimony at today's hearing for inclusion in the Congressional Record. As far as we know, this is only the second time in history that testimony from Atheists has been officially entered into this archive.

   ¶    "Some of the senators are in a real bind," one source told AANEWS today. "They voted for the old Religious Freedom Restoration Act without knowing all of the consequences of the measure, and now they have real concerns about RLPA. But how can they justify that kind of a switch?" Sen. John Ashcroft (R-MO.) is one of several key senators who privately express concerns about RLPA, including the use of the Constitution's Commerce Clause to justify empowerment of the legislation. Ashcorft and others, though, may not be able to justify their last-minute concerns, and could end up support passage of RLPA.

   ¶    Backing the RLPA is the powerful Coalition for the Free Exercise of Religion, an ecumenical group of leading Protestant, Catholic, Jewish, Muslim, Humanist, Hindu and new age organizations. Despite its best efforts and a "stealth agenda," though, the Coalition is now encountering more opposition than it had originally anticipated. It has also informed legislators that it will not accept a compromise, amended version of the Religious Liberty Protection Act. AANEWS has learned that several member groups of the Coalition, including a leading humanist group, recently contacted Sen. Hatch expressing this no-compromise support for RLPA.

   No major sectarian groups are speaking out yet against RLPA, but there are some interesting splits within the different political and religious factions. For instance, while many religious right groups are agreeing with their liberal and mainstream counterparts on the need to enact the RLPA, some organizations like the Traditional Values Coalition and the Home School Legal Defense Fund have broken ranks. Home schoolers fear that the Commerce Clause justification for RLPA could result in taxation of organized religion, and that the measure "only benefits the big denominations."

   ¶    Passage of the Religious Liberty Protection Act was considered a "done deal" last year, as the Coalition anticipated an easy win in both the House and Senate. The White House has already signaled that President Clinton will gladly sign any RLPA that comes across his desk. But with the passage of time, the agenda to pass RLPA has become more difficult. Originally, liberals backed the measure feeling that it was necessary to protect the rights of minority religions; conservatives embraced the RLPA as a check on government interference in religious practice. But when an equally diverse group of historic preservationists, law enforcement officials, community activists, atheists and others began approaching legislators with their concerns about RLPA, it became obvious that many in both the House and Senate knew very little about the measure -- or its possible "unintended consequences."

   ¶    RLPA was not a "sexy" political issue, although it has appealed to the religious groups supporting the bill. Now, though, there is a real debate over the Religious Liberty Protection Act, as well as national publicity. The current (September 13, 1999) issue of Time Magazine includes a two-page feature "Law on Bended Knee" about the RLPA. "Will a new federal law give religious freedom even more protection than it has now? Or will it erode other basic liberties?" asks Time reporter John Cloud. The article cites possible "unintended consequences" of RLPA, including the fact that the Florida Church of Scientology may be attempting to use a state Religious Freedom Restoration Act to shield itself in criminal and civil suits involving the death of one of its members.

   "Scientology is known for its aggressive litigating style," reports Cloud. "But the church's most powerful legal weapon could be Florida's religious freedom act. After the law glided through the legislature last year, church lawyers used it to argue that the criminal charges are illegal because they unduly burden the church and impair its right to practice religion..."

   Today's hearing could well define the strategy for passing the Religious Liberty Protection Act in the coming days and weeks. Sources tell AANEWS that when the gavel drops to end today's session, Sen. Hatch will be huddling with RLPA supporters in hopes of scheduling a quick floor vote on the measure.

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