Home schoolers drop their opposition to the bill after the "Commercial Clause" is deleted. The stealth agenda to promote RLPA s one of last minute deals, and "Rush to Judgment"

he Religious Liberty Protection Act cleared the Constitution Subcommittee on Thursday following some last-minute pressure and dealing, and now heads for a vote by the House Judiciary Committee. An expected thumbs-up there will move the measure onto the floor of the House of Representatives for a vote.

    Thursday's decision following cosmetic revisions in the RLPA, and a deal offered by Subcommittee Chairman Rep.Charles Canady (R-Fla.) to a key religious conservative, Michael Farris, who heads the Home School Legal Defense Fund. AANEWS has learned that on Tuesday night, Canady and Farris discussed the bill, which the home schoolers had been vigorously opposing saying that it threatened the status of smaller religious groups, and did not offer sufficient protection for churches faced with having to hire "homosexuals and atheists." According to sources, Canady told Mr. Farris, "We just can't afford to have you opposing this any more." The Subcommittee Chair then offered a deal to drop the "Commerce Clause" provision of the Religious Liberty Protection Act, if Farris in turn would withdraw his opposition to the measure. Without having to actively endorse RLPA, Farris agreed.

   AANEWS has also learned that as early as July 19, a RLPA version minus the Commerce Clause was circulating in some quarters; it was based upon a report drawn up by Douglas Laycock (University of Texas) and Marc Stern of the American Jewish Committee, following numerous meetings with officials from the Department of Justice who were concerned about the impact of the measure. Also involved in those consultations was Steve McFarland of the Christian Legal Society.

    Even so, the written version of the RLPA -- minus the "Commerce Clause" -- as drafted in that memo, and reflecting the deal offered by Rep. Canady, was not delivered to committee members until about a half-hour before the official session began.

UNDERSTANDING THE RLPA DEAL

    The Religious Liberty Protection Act is based on a 1993 piece of legislation known as the Religious Freedom Restoration Act, or RFRA. That law was passed by Congress in response to a court decision, OREGON DIVISION OF EMPLOYMENT v. SMITH which essentially upheld the right of the State of Oregon to dismiss a drug program counselor for violating drug law statutes. The counselor claimed that as a member of a Native American religion, the ingestion of otherwise-illegal substances like peyote constituted a religious practice. SMITH, then, examined whether or not a government could enforce a "generally applicable rule" which was applied to all citizens in a neutral fashion, even if it happened to impinge on religious practice or belief.

    Reacting to SMITH, a group known as the Coalition for the Free Exercise of Religion was founded; it set to work drafting legislation to reverse the court ruling, and require that government demonstrate a "compelling interest" before placing any burden on religious groups or exercise, and do so using a "less restrictive means." The result was the Religious Freedom Restoration Act.

    But last summer in a historic case known as BOERNE v. FLORES, the U.S. Supreme Court struck down RFRA n a 6-3 ruling. The Roman Catholic Church had sought to tear down a 70-year old structure in the town of Boerne, Texas; city officials, however, refused to issue the required demolition permit, saying that the old church fell within the purview of local historic preservation ordinances. The Archdiocese quickly appealed, citing the Religious Freedom Restoration Act.

    In BOERNE, the high court examined whether or not Congress have overstepped its authority in devising the "compelling interest" test. Justice John Paul Stevens noted in his written opinion that RFRA constituted a violation of the First Amendment's establishment clause, and provided the church with a legal weapon "which no atheist or agnostic" could obtain. Stevens thus considered RFRA to be a clear case where government favored "religion over irreligion."

THE COALITION RESPONDS -- RLPA, MINI-RFRAS

    American Atheists hailed the decision in BOERNE v. FLORES, noting that the Religious Freedom Restoration Act had created unfair "special rights" for religious organizations and believers. "It was a clear case of discrimination against Atheists and nonbelief," charged AA President Ellen Johnson. "It established a dual standard of laws, one lenient set for churches, the other for everyone else including private individuals, businesses and secular groups."

   The Coalition for the Free Exercise of Religion, though, quickly set to work after the BOERNE decision. The high court ruling was a green light for state versions of the act, since Congress was not involved. "Mini-RFRAs" were quickly introduced in several states, often under the moniker of "Religious Protection Amendment" or even "Religious Freedom Restoration Act." The wording in these proposed laws was often similar, even identical to each other and the discredited federal RFRA.

    Then in March, 1998, a son-of-RFRA was floated, the Religious Liberty Protection Act. Like RFRA it required government to use the "compelling interest" test in dealing with any religious groups -- again, a special limitation not accorded private individuals or businesses.

    One objective in RLPA was to attempt to render the proposal "First Amendment proof." How could the act be justified? What sort of power could Congress use in ordering states, cities and counties that they must use this special, discriminatory standard ONLY in dealing with churches, mosques, temples or any group identifying itself as a religion? The "Commerce Clause" was the answer. RLPA declared that government could not place a burden on religion "in or affecting commerce." It was an end-run around the establishment clause, and -- hoped the Coalition -- around BOERNE v. FLORES.

    As most mainline religious denominations were closing ranks to support RLPA (as they had the old RFRA), religious right groups such as Christian Coalition, Southern Baptists, Focus on the Family and Family Research Council also saw these measures as a necessary check on secularism. Not all religious right groups agreed, however, including the national Traditional Values Coalition and the Home School Legal Defense Association. Farris and others warned that RLPA might not be strong enough in giving churches immunity from anti-discrimination laws; but they were most concerned that the conceptual basis of the act, so rooted in the Commerce Clause, could recast religious groups as nothing more than business ventures involved in the transaction of taking in money -- hence, possibly vulnerable to taxation and other restrictions.

    Farris's opposition was becoming a major obstacle to the agenda of The Big Three religious right groups -- Focus on the Family, Christian Coalition and Family Research Council. All have been lobbying hard in recent weeks for passage of the Religious Liberty Protection Act. Coordinating that effort was Charles Colson, former White House General Counsel under President Nixon and convicted Watergate crook; Colson now heads an outreach known as Prison Fellowship Ministry which seeks to implant "Biblical principles" in the federal and state penal systems. Colson was raising money, in conjunction with The Big Three, for a spread on behalf of RLPA to appear in The National Journal, a Capitol Hill newspaper.

   There were other reasons for Canady's deal. In the days leading up to the RLPA vote in the Constitution Subcommittee, a loose coalition was beginning to emerge in opposition to the act, drawing together a wide range of organizations. Some were totally opposed to RLPA, others objected to specific portions of the act, or wanted Congress to spend more time examining the legislation and even hold additional public hearings. Leading this effort has been Dr. Marci Hamilton, Professor at the Benjamin Cardozo School of Law, who also argued the BOERNE v. FLORES case for the City of Boerne.

    American Atheists had charged that while substantial attention was devoted to the controversial Religious Freedom Amendment (RFA) which would legislated school prayer and other now-unconstitutional practices, RLPA was being promoted through a "stealth agenda" of behind-the-scenes deal making, minimal public notification and hearings, and quick fast-track votes. In Illinois, for instance, legal officials recently complained that they had not been given sufficient notice or time to study that state's Religious Freedom Restoration Act. Elsewhere, RFRA/RLPA proposals have moved through the state legislative process with little or no public notice, and minimal media coverage.

    That situation was starting to change; and so was the situation on Capitol Hill. Look at the Canady deal as an attempt to strike a compromise to get this controversial legislation moving. Even with the "Rush to Judgment" on RLPA, however, that schedule may not be proceeding fast enough for supporters of the measure who had hoped to fast-track the bill before yesterday's recess. RLPA next heads to the full Judiciary Committee for a vote, then probably the floor of the House. In the Senate, action will not be taken the fall term begins September 1. Fortunately for Atheists and supporters of the First Amendment, there is still time to stop the Religious Liberty Protection Act.

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