he Religious Liberty Protection Act is a controversial piece of legislation based on the older Religious Freedom restoration Act (RFRA), passed by Congress in 1993 and struck down by the U.S. Supreme Court in the historic BOERNE v. FLORES decision. Despite the ruling in BOERNE, though, RFRA supporters proceeded to introduce"mini-RFRA" proposals in state legislatures throughout the country; and the federal RFRA has been rejuvenated under the guise of the Religious Liberty Protection Act. RLPA, like its predecessor, requires that governments use a "compelling interest/least restrictive means" test when dealing with faith-based organizations and practices.

    Most of America's religious groups support the measure. The Coalition for the Free Exercise of Religion is the main proponent of RLPA and includes representatives of Protestant, Catholic and Jewish organizations along with new agers, Muslims, Hindus, American Humanist Association, Scientologists and many others. Even some separationist groups have joined the Coalition, although lately the American Civil Liberties Union has withdrawn its support of the Religious Liberty Protection Act, fearing that its enactment could be used by churches to trump the nation's civil rights and anti-discrimination laws.

    From the beginning, American Atheists has opposed both RFRA and RLPA. Representatives of the organization have spoken out against RFRA proposals in California, Maryland, Texas, New Jersey and elsewhere. At the federal level, we continue to speak out against the Religious Liberty Protection Act.

The Religious Liberty Protection Act Is "Bad Law" And Is Constitutionally Suspect.

    The act is based on the Religious Freedom Restoration Act struck down by the U.S. Supreme Court in the 6-3 decision BOERNE v. FLORES. RLPA will likely suffer a similar fate. Justices criticized the abuse of congressional authority in the passage of RFRA; in addition, Justice John Paul Stevens found that the act was a clear violation of the Establishment Clause of the First Amendment, and provided religious groups with a legal instrument which "no atheist" could hope to obtain. RLPA requires that government use a widesweeping "compelling interest" test in dealing with religious groups and practices. American Atheists argues that the effect of such a test is to, essentially, create a dual standard of justice in the applicaiton of civil laws -- a lenient one for churches and religious groups, and a separate and more budensome standard when applied to private individuals, businesses and secular groups.

RLPA "Establishes" And Favors Religion Over Nonreligion

   The effect of the Religious Liberty Protoection Act does not involve legitimate "neutrality" of government toward religion, but rather favors and advances the interests of faith-based sects and practices. Experts on RLPA, whatever their position, admit that it is one of the most widesweeping and broad-based pieces of First Amendment legislation ever proposed. It would affect everything from the enforcement of criminal laws to zoning regulations, land-use codes and muchmore. The laws which apply to private citizens, businesses and secular non-profit, charitable groups would not be enforced with the same rigor and application when churches, mosques and temples are involved; the latter may always cite RLPA as the basis for legal immunity. Communities and municipalities will experience a "chilling effect" when attempting to apply zoning, land use laws and other "rules of general applicability" to religious groups.

The Act Could Have Unintended And Calamitous Consequences

   As the debate over RLPA has continued, many supporters in both the House and Senate have admitted that the act could result in a broad range of unintended and unwanted consequences. Dr. Marci Hamilton, a constitutional scholar and lead attorney for the City of Boerne, Texas in the BOERNE v. FLORES case, has warned that RLPA could provide a legal shield for discrimination in housing on the basis of sexual orientation, immunity from court enforcement of child support orders, violations of the Endangered Species Act and other actions, and circumventing of historic and preservation ordinances. The full ramifications of RLPA have simply not been examined in depth because of the "rush to judgment" to enact this legislation.

RLPA "Federalizes" Legislation That More Appropriately Belongs To States And Local Communities, And Is Beyond The Legitimate Powers Of The Congress

   As Dr. Hamilton has observed: "RLPA rests on extremely shaky ground constitutionally. It attempts to expand Congress's power under the Commerce and Spending Clauses and attempts to turn Section 5 of the Fourteenth Amendment into a substantive rather than a remedial power and violates the Establishment Clause."

   The Religious Liberty Protection Act has the effect of interjecting a Congressional mandate into areas which are otherwise covered by state laws and local regulations. This is particuarly true in respect to laws concerning land use and historical preservation. Congres sis thus targeting these areas,decreeing that communities and states may not enforce these laws (or must meet a discriminatory and burdensome "compelling interest" test) when only religious groups are involved.

The Religious Liberty Protection Act Marginalizes Secularism And Discriminates In Favor Of Religion

   By establishing a dual-standard in the application of laws, RLPA marginalizes any non-religious activity, group or individual. Private home owners, business owners and other groups are required to live under the mantle of "rules of general applicability" -- everyday laws, ordinances and regulations -- while faith-based groups are provided with an exceptional legal instrument against them. Churches, for instances, may use RLPA to shield themselves against ordinances or regulations which others must adhere to concerning everything from zoning to land use.

RLPA Has Nothing To Do With The Legitimate Free Exercise Of Religion

   For over two hundred years, our Constitution and Bill of Rights have provided a balance between the legitimate exercise of religious faith and the separation of church and state. We have both freedom of religion, and freedom from religious intrusion. But the Religious Liberty Protoection Act is not about the right of individuals to voluntarily gather in churches or other houses of worship, and pray. The legislation was first invoked over a land use dispute, where a church demanded an exemption from local historic preservation ordinances.

RLPA Is An Entitlement Program That Creates Special Rights For Churches And Other Religious Groups

   By providing churches, temples, mosques and other faith-based groups with a discriminatory legal instrument,the government is creating "special rights" for these sects. This obviates the notion of equal protection under the law. The potential for abuse is considerable. RLPA will apply not just to "mainstream" religious groups but fringe sects as well as any group or individual that proclaims that they are a religion. Abuses then raise the dangerous prospect of government then deciding what is and is not an "authentic" religion. Do we want that?

   America does not need the Religious Liberty Protection Act in order to guarantee the free exercise of religion. Enacting this legislation discriminates in favor of religion-based groups and practices, and endangers the necessary separation between church and state.

-- American Atheists
September 9, 1999

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