They finally did it, and managed to pass something called the Religious Land Use and Institutionalized Persons Act. It took a stealth agenda, suspension of rules and other capitol hill tricks of the trade. The battle against religious "special rights" may now shift to the courts...

early two weeks ago, on July 28, AANEWS reported that the U.S. Senate had "suspended rules" in order to permit quick passage of the controversial Religious Land Use and Institutionalized Persons Act, S.2869. That measure is a scaled-back version of the infamous Religious Liberty Protection Act (RLPA), which in turn was based on the old Religious Freedom Restoration Act, RFRA. And RFRA, enacted by congress in 1993, was struck down by the U.S. Supreme Court in 1997 in the historic BOERNE v. FLORES case.

   All of this legislation empowered churches, mosques, temples and other sectarian organizations with a dangerous legal instrument. They require, in one form or another, that government utilize a "compelling interest/least restrictive means" test when dealing with faith-based groups and practices. American Atheists has opposed all of these measures, arguing that the legislation violates the separation of church and state, and -- as in the words of Justice John Paul Stevens writing in the BOERNE decision -- gives sectarian groups a legal weapon "which no atheist" can ever employ. It creates two standard of law, one for private individuals, businesses and secular groups, and another for any person or group operating under the mantle of religion.

    We fought like hell. We asked you to lobby, write letters, make phone calls to capitol hill, and raise the fraudulent "religious liberty" issue in the media. You did. American Atheists President Ellen Johnson personally delivered thousands of letters to capitol hill, and thousands more were received by elected officials through faxes, e-mail and snail mail.

    Unfortunately, it wasn't enough. When RFRA was struck down, the religious coalition backing the measure simply reintroduced it as the Religious Liberty Protection Act. That measure sailed through the U.S. House after a round of perfunctory hearings which consisted mostly of "stacked panels" of "experts" who supported the legislation anyway. In the Senate, the measure sputtered despite the best efforts of backers like Utah Rep. Orrin Hatch. Along the way, a handful of liberal and mainstream religious groups left the RLPA cause when opposition to the measure began to coalesce and concerns were raised that the bill would have "unintended consequences," and even permit faith-based groups to trump anti-discrimination statutes.

   Yet another RLPA clone was introduced in the Senate, though, this device disingenuously titled the Religious Land Use and Institutionalized Persons Act (RLUIPA). It was a stroke of capitol hill genius -- Machiavellian, really. Its language concentrated mostly on "land use," giving churches the power to essentially by-pass local land use statutes, zoning regulations and even environmental laws. The liberal-mainstream religious and political groups that ran for cover as the earlier RLPA was exposed were back on board. Despite the claims of many of these groups that they favor "open" government with plenty of citizen input, RLUIPA was fast-tracked through the Senate and House quicker than even we had expected. Professional lobbyists for some of the environmental and preservationist groups which had opposed RLPA/RLUIPA were stunned as well. Hatch rose late on the afternoon of July 28 and asked for a suspension of the rules. This required immediate action for RLUIPA, and passage by a 2/3 vote of the quorum. It happened, with no public hearings, and despite a call from such a powerful newspaper as the New York Times which hours earlier had argued for a "go slow" approach to the legislation, and more study of the bill's effect.

   Wire service news reports within minutes of this suggested that "quick" passage was expected over in the House. Quick it was, indeed. Hours later, the House, too, suspended rules and passed the RLUIPA. It was funneled to the White House; the latest word we have is that President Clinton is going to sign this measure.

    What happens now? There is serious talk of a constitutional challenge. Dr. Marci Hamilton, constitutional scholar and law professor who was the lead attorney in the BOERNE v. FLORES case, has spoken about the need to test RLPA legislation in the court. An anti-RLPA coalition is reportedly looking for a suitable case once the measure is signed by President Clinton.

    In the meantime -- like athletic coaches are fond of saying -- "you done good!" Atheists took the initiative in opposing RFRA, then RLPA, then RLUIPA -- a veritable alphabet soup of constitutional violations -- even when other groups timidly tested the political waters and backed away. Thousands of you spoke out to your elected representatives. You made a difference, even if it was only in slowing the legislation down, raising public awareness of this discriminatory measure, and buying time for more opposition to come together. The fight goes on, as state legislatures continue to experiment with their own RFRA/RLPA bills -- and we have defeated, or held the line on many of them, again, with your assistance. RLUIPA may well end up in the legal rubbish bin, as its RFRA predecessor did. Take pride in having spoken out -- "you done good!"

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