A drug bust in Utah, and a report on how white supremacist groups are using new age, Christian and ancient Norse religion to operate behind prison bars, could spur further discussion on the possible consequences of RLUIPA

eports are coming from capitol hill this afternoon that Sen. Orrin Hatch (R-Utah) has asked for a unanimous consent agreement to rush passage of the Religious Land Use and Institutionalized Persons Act of 2000. Under the official rules of the Senate, " A Senator may request unanimous consent on the floor to set aside a specified rule or procedure so as to expedite proceedings. "

   If approved, Hatch's strategy would fast-track the RLUIPA which was introduced late last week in the House and Senate.

   The Religious Land Use and Institutionalized Persons Act of 2000 is considered a "clone" version of earlier unsuccessful legislation, including the Religious Liberty Protection Act. The measures require government to employ a "compelling interest/least restrictive means" test when dealing with faith-based organizations. Critics charge that the measure violates the separation of church and state, and provides sectarian groups with wide latitude in flaunting land use, zoning and environmental regulations. There are also concerns that the measure could affect other statutes, including those protecting children from religion-based abuse and medical neglect.

   Hatch has been a major supporter of RLPA, and in January introduced the Religious Liberty Protection Act of 2000 in the Senate. A mirror version cleared the House of Representatives last summer. Opposition has been voiced in the Senate, though, and the Religious Land Use and Institutionalized Persons Act (S. 2869) was dropped in the legislative hopper last week as a compromise version between hard-line RLPA supporters and groups like the American Civil Liberties Union who feared that the earlier legislation could be used by churches and believers to trump anti-discrimination laws. While RLUIPA seems to focus mostly on land use issues, and giving prison and jail inmates greater "religious freedom," critics point out that ACLU's confidence in the bill may be premature, and that the "compelling interest" test could indeed be used to justify faith-based discrimination.

   Hatch's move is all the more incredible since the bill was announced unexpectedly, and was not even posted until last evening on the Library of Congress THOMAS website which lists current legislation. The House version was introduced by Rep. Charles Canady, and is designated H.R. 4862.

   There are several news items which may have an impact on the debate over RLUIPA, though:

   ¶    A July 8 drug arrest in Ogden, Utah could once against trigger concerns over whether "religious liberty" covers ceremonial use of illegal drugs. Authorities arrested Nick Stark-- a medicine man in the Native American Church -- after reports that he forcibly held a woman against her will and made her ingest peyote buttons and ingest tea made from the hallucinogenic substance. According to today's Salt Lake City Tribune, Stark and his followers have been conducting twice-a-month ceremonies in the backyard of his private home. The police raid confiscated $11,000 in cash and 3,500 quarter-size peyote buttons, which reportedly come from cactus plants in southern Texas.

   A member of the church declared, "This (peyote) is like truth serum. It shows you where you are in life. It takes you closer to God."

   Stark is reportedly claiming that the ceremonies and peyote use are protected under the First Amendment of the U.S. Constitution, as well as the Utah constitution. He also claims to be a part Iroquois Indian, a member of the Oklevueha Earth Walks Native American Indian Church. James Mooney, identified as the head of the sect, said that Stark is authorized to carry out "spiritual ceremonies" using peyote.

   The Tribune notes that federal law already permits Native Americans to consume peyote as part of their religious rituals, as long as it is distributed by a medicine man. "But the medicine man criterion creates a perplexing question for police," notes Tribune writer Frank Curreri, "as they seek charges against Stark: What documentation does someone provide to prove he is a medicine man, not a con man." Another problem may be whether those with no American Indian blood can legally participate in such rituals. Guests at Stark's gatherings are asked to pay at least $200 in order to join, and most are not American Indians. All of this raises questions about what laws religious groups may be exempted from, and how the government -- or some other authorized group -- will determine what is and is not an authentic religion.

   The Utah bust is germane to the RLUIPA for another reason. The earliest version of the legislation, the Religious Freedom Restoration Act (RFRA), involved a similar case with the Native American Church. A Oregon man had gone to court arguing that his membership in the sect constituted a religious exemption from drug laws. The Supreme Court ruled in EMPLOYMENT DIVISION v. SMITH, though, that while religious beliefs were sacrosanct, not all religious practices could be permitted. The justices opined that "generally applicable" and neutral civil laws, such as those pertaining to drug prohibition, could be enforced against a group or person claiming a religious exemption. Religious groups were outraged, charging that this seriously altered the balance between church and state, and affected how the courts decided such First Amendment issues. Congress responded in 1993 by passing the Religious Freedom Restoration Act; but the measure was declared unconstitutional by the Supreme Court four years later in BOERNE v. FLORES. Justice John Paul Stevens opined that RFRA violated the First Amendment by providing faith-based groups with a legal instrument which "no atheist" could obtain.

   ¶    The second section of the Religious Land Use and Institutionalized Persons Act concentrates on prisons and jails; it is intended to give inmates wider latitude in practicing their religion, and forces correctional authorities to employ the "compelling interest/least restrictive means" test if they in any way deny or restrict religious exercise behind bars. As a result, RFRA, RLPA and the RLUIPA have encountered opposition from criminal justice groups.

   Now comes the latest Intelligence Report from the Southern Poverty Law Center which tracks hate groups. Titled "Pagans and Prisons," it focuses on bizarre white supremacist sects which have fused racist ideology and pagan-new age-religious belief systems. "Imprisoned racists are working with others outside the walls to spread a noxious version of ancient Norse religion," warns the Center. The report profiles a number of organizations now operating throughout the nation's penal system with ties to racist, and often violent groups. They include Skinheads, The Order, Odinism, Asturu, White Order of Thule, and Sonnenkinder Kindred.

   Two years ago, AANEWS revealed that Christian Identity sects were operating within the Texas prison system as legally incorporated religious groups. The irony here is that Texas is a bellwether state for efforts by Charles Colson and his Prison Fellowship Ministry to establish Christian religion-based penal rehabilitation programs, and eventually obtain government funding for these outreaches. Gov. George W. Bush is an enthusiastic proponent of such schemes; but why would Colson's ministry be the only one seeking both legitimacy and tax dollars? RLUIPA could fuel the activities of such groups within the prison system, placing those who are demonized by these religious ideologies (such as Blacks, Jews and Hispanics) at greater risk. Prisons are already "combat zones" where inmates must sometimes join ethnic, political or religion-based gangs merely to survive. Could RLUIPA fuel this process?

   The Senate adjourns about July 28 for the traditional August- midsummer recess; Sen. Hatch is hoping for quick action on the Religious Land Use and Institutionalized Persons Act. For more information on RLUIPA, and to participate in our on-line E-mail campaign to stop this legislation, visit http://www.atheists.org/action/

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