hat do Ted Kennedey, Orrin Hatch, James Dobson and some members of the ACLU have in common? All of working behind the scenes on a version of the controversial Religious Liberty Protection Act (RLPA) which each feels will not only pass constitutional muster, but give faith-based groups a slew of "special rights" above those legal protections enjoyed by private individuals, businesses and secular organizations.

   RLPA has languished on capitol hill for years, ever since its predecessor -- the Religious Freedom Restoration Act -- was enacted by congress in 1993. That legislation was prompted by an obscure U.S. Supreme Court decision in the case EMPLOYMENT DIVISION v. SMITH. It examined an Oregon religious rights case where a plaintiff sought a religious exemption from enforcement of drug laws due to his membership in a Native American church which used peyote -- a banned hallucinogenic substance -- in its rituals. In SMITH, the court opined that religion was not a sufficient reason for exempting believers from neutral laws of "general applicability."

   Some worried that EMPLOYMENT DIVISION v. SMITH radically altered the balance between separation of church and state. An ecumenical group, the Coalition for the Free Exercise of Religion was soon formed with the goal of crafting and promoting legislation that address the purported changes brought about by the SMITH ruling. It represented nearly every Catholic, Protestant, Muslim, Hindu, humanist and new age sect in the nation, along with an impressive array of political organizations including the ACLU and People for the American Way.

   The response was RFRA, the Religious Freedom Restoration Act of 1993. It required government to employment a "compelling interest/least restrictive means" test when dealing with any faith-based practices or groups. It raised the bar any time religious groups sought exemptions from the enforcement of civil laws, especially in cases involving zoning and land-use. According to critics, it also fostered a discriminatory system of dual-justice, and gave religious groups "special rights" above and beyond those enjoyed by private individuals and organizations.

   In 1997, the U.S. Supreme Court ruled against RFRA in the case BOERNE v. FLORES. The Archdiocese of San Antonio had sued the city of Boerne, Texas after municipal authorities refused to grant a permit for the partial demolition of a local church. Boerne officials argued that the structure fell under the control of local zoning ordinances. The Archdiocese cited RFRA, claiming a statutory exemption from the municipal codes, saying that enforcement constituted a "burden" on the free exercise of religion.

   The historic 6-3 decision struck down the Religious Freedom Restoration Act, with the court majority opining that the act was an unconstitutional use of congressional power since it was designed to trump the earlier SMITH verdict. Justice John Paul Stevens also wrote in his concurrence that RFRA violated the establishment clause of the First Amendment, and provided faith-based groups with a legal instrument which "no atheist" could hope to obtain.

   Despite the setback in the BOERNE v. FLORES case, though, RFRA supporters went to work introducing versions of the act in individual states. The Coalition also massaged the earlier law, and reintroduced it on capitol hill as the Religious Liberty Protection Act. Essentially, RLPA was a retread of the Religious Freedom Restoration Act; and while RFRA had sailed through the House and Senate, the new legislation began to encounter opposition.

   Civil rights groups worried that RLPA would permit religious organizations to trump anti-discrimination statute. Historic preservation groups, neighborhood coalitions and even environmental organizations considered all or parts of RLPA fraught with loopholes that would allow churches to circumvent municipal, state and federal regulations. Even medical and child welfare groups began to speak out, fearing that RLPA could be used to obstruct investigation into cases of youngster abuse, or deny medical care to children under religious objections.

   The Religious Liberty Protection Act cleared the House of Representatives on July 15, 1999 by a 306-118 margin. Over in the U.S. Senate, Orrin Hatch (R-Utah) took up the RLPA crusade, and was promised quick action by Majority Leader Trent Lott (R-Miss.) The measure was put on a fast track, but three factors suddenly began to slow down the RLPA juggernaut.

   ¶    RLPA supporters found it difficult to settle on the exact wording of the legislation. Most signed on to the Hatch version which was eventually introduced as the Religious Liberty Protection Act of 2000; but even some religious conservatives who formerly supported RFRA legislation began to fear that RLPA used a dangerous extension of federal authority as its legal rationale.

   ¶    Opposition to the measure -- virtually unanticipated back in 1993 -- was organizing. American Atheists had cheered the defeat of RFRA at the hands of the Supreme Court, and warned against the new incarnation, RLPA. The ACLU, PAW and even separationist groups continued to support RLPA through the summer of 1999. Environmental groups, medical associations, local governments, neighborhood preservationists and others began speaking out against all or part of RLPA, though, and the legislation sputtered.

   ¶    In September, 1999, the Coalition for the Free Exercise of Religion began to implode. ACLU, sensing the growing pressure from other groups as well as one of its own state affiliates, finally admitted that RLPA could, if enacted, be used to trump anti-discrimination statutes. The Religious Action Center for Reform Judaism, the Anti-Defamation League, National Council of Churches, National Council of Jewish Women and the Baptist Joint Committee soon bolted the RLPA coalition, citing practical and ideological reasons for their decision.

   By November, 1999, the battle to defeat the Religious Liberty Protection Act was becoming a rout. Over two dozen advocacy groups, including the American Academy of Pediatrics, American Public Works Association, Municipal Arts Society, National League of Cities, PTA and the Sierra Club were raising concerns about RLPA legislation. What remained of the Coalition for the Free Exercise of Religion clearly felt the loss of its major backers and liberal political allies. Hatch formally introduced RLPA in the Senate in late February, 2000, hoping that a "fast track" could enact the bill. The bill was clearly in trouble, and has been in legislative gridlock ever since.

   Now, a low key behind-the-scenes compromise effort is underway in the Senate to give the RLPA one final shot at passage. The Hatch proposal remains active, but a new "stealth" version is quietly percolating through staff offices on capitol hill. It is being called "The Religious Land Use and Institutionalized Persons Act of 2000." Like RLPA and RFRA, it holds governments to a "compelling interest/least restrictive means" test (Section 2, (a) and (b) of the Act).

   "It's worded to have something for everybody," a hill source told AANEWS; but does it? RLUIPA is the ultimate example of "legislation by committee." It is also designed to address the concerns of several key players in the ongoing RFRA/RLPA saga, including James Dobson (religious right patriarch and founder of Focus on the Family), the ACLU, and Sen. Ted Kennedy. Observers, though, doubt that the new measure would survive constitutional review -- and it may not even provide the diverse assortment of groups now trying to cobble together a workable strategy for passage with what they want.

   ¶    For Kennedy and the some reportedly within ACLU, the Religious Land Use and Institutionalized Persons Act of 2000 supposedly would not give faith-based groups the ability to employ the statute as a trump card against anti-discrimination statutes. There may be little support for this claim, though, even though the bill focuses more on "land use" and zoning than practices which may relate to civil rights.

   ¶    The Act does not exempt prisons and jails from its coverage. This has been a major source of contention, especially at the state level where versions of RFRA and RLPA have been attacked for giving prison inmates unusual latitude for "religious practices." Sources tell AANEWS that including prisoners under the RLUIPA mantle was a demand made by Dobson and former Watergate crook-turned-evangelist Chuck Colson of the Prison Fellowship ministry.

   ¶    The wording of RLUIPA -- and the bill's emphasis on exempting faith-based groups from zoning and environmental controls -- suggests that the real RFRA/RLPA agenda has, in fact, always been about land use, not the legitimate practice of religious faith. Indeed, most confrontations between religious organizations and local governments have not been about the free exercise of religious practice, but more worldly matters -- zoning exemptions, waiver of permits on environmental controls, construction of glitzy "mega-churches," and expansion of church parking lots and buildings into surrounding neighborhoods. The RLUIPA hammers away at land-use themes. Section 2 of the legislation is aptly titled: "Protection of Land Use As Religious Exercise,"and Section 8 -- "Definitions" -- goes to considerable lengths in defining "land use regulation."

   "The Use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose," states the proposed statute.

   Like RFRA and RFRA, the Religious Land Use and Institutionalized Persons Act of 2000 provides "judicial relief" for sectarian groups or individuals who challenge any government statute or intervention. Even the federal government is authorized to bring "injunctive or declaratory relief to enforce compliance with this Act," something which state and local governments are bound to consider before they dare try to stop a church, temple or mosque from doing as it will regardless of consequences. The burden is placed upon neighborhoods; local, county and state government; and even private groups or landowners who may complain. Section 5 of the RLUIPA, though, declares: "Nothing in this Act shall be construed to authorize any government to burden any religious belief."

   "I'm concerned about the broad scope of this Act," said Dr. Marci Hamilton, constitutional scholar and attorney for the plaintiff in the historic BOERNE v. FLORES case. "It has the same provisions of RFRA and the Religious Liberty Protection Act, and I don't see anywhere in the RLUIPA where religious groups couldn't use the statute to ignore civil rights laws."

   The Religious Land Use and Institutionalized Persons Act of 2000 has yet to make it into the legislative hopper. Some hill watchers, though, say that RLUIPA could be introduced any day.

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