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The Reincarnation of RFRA.

Church-State Update tracks continuing developments in important federal, state, and local church-state issues. Each item is preceded by an up arrow ([delta]) or a down arrow ([nabla]), based on the story's implications for separation of church and state and the rights of the nonreligious.

[nabla] Limited Federal "Special Rights" Bill Becomes Law. Congress's latest stab at a "compelling interest/least restrictive means" religious liberty law was signed into law by President Clinton in late September. The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires government to cite a compelling state interest and prove it has used the least-restrictive possible means when state action affects land use by religious organizations or free-exercise rights of prisoners and other residents of government institutions. RLUIPA passed both houses of Congress with broad bipartisan support, in spite of warnings by some civil liberties groups that, like its predecessors, this law grants special rights to religious persons and organizations not available to others.

RLUIPA is the latest incarnation of 1993's Religious Freedom Restoration Act (RFRA), designed to broaden free-exercise rights restricted by the Supreme Court in Employment Division v. Smith (1990). RFRA was overturned by the Supreme Court in 1997; in a case concerning a Texas church's claim that RFRA made it exempt from local zoning laws. Over the next two years several attempts were made to pass a federal Religious Liberty Protection Act (RLPA), essentially restoring RFRA. Key supporters from the Catholic Church to the American Civil Liberties Union (ACLU) drifted away because of growing perceptions that RLPA would create unfair privileges for certain religious groups and disadvantage other constituencies.

In 2000 attention turned to RLUIPA, a more limited statute focusing solely on land use and free exercise rights of prisoners and the mentally ill. The change in emphasis won back some lapsed supporters, including Senator Edward Kennedy (D-Mass.) and the ACLU. RLUIPA passed both houses of Congress easily A mere three minutes after President Clinton signed RLUIPA, a Catholic Montessori school near Ann Arbor, Michigan, filed suit under the act against local zoning officials who had refused it permission to double its enrollment.

Critics say RLUIPA gives religious bodies "unfair and dangerous immunity" from local laws. Constitutional lawyer Marci Hamilton noted that to "exempt religious groups from obeying them is not a protection of religion but a granting of power at the cost of all their neighbors."

RLUIPA is plainly vulnerable to the same objection Supreme Court Justice John Paul Stevens raised in the decision overturning the original RFRA: it appears to arm "the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment." A court challenge is expected.

[delta] Scouting Losing Funds, In-Kind Support. Now that the U.S. Supreme Court has recognized the Boy Scouts' right to discriminate against gays (and, by extension, the nonreligious), Scouting can no longer pretend that it does not discriminate. A growing number of municipalities, local United Way organizations, and other groups have withdrawn support from Scouting. In New York City, Chicago, San Francisco, San Jose, and other cities, the Boy Scouts have been denied access to public schools or other municipal facilities. Ft. Lauderdale, Florida, has denied city funding to the Boy Scouts. Regional United Ways in San Francisco; New Haven, Connecticut; Santa Fe, New Mexico; Santa Cruz, California; and Portland, Maine, have ended all support of Scouting. United Ways in Massachusetts Bay, Massachusetts; Evanston, Illinois; Broward County, Florida; Chicago, and St. Louis have announced or are considering partial bans on funding for the Scouts. In St. Louis, United Way officials said their mall from local residents is running 3 to 1 in favor of cutting funds to Scouting.

[nabla] Federal Government Waffles On Scouting. Despite rising public anger over discrimination by the Boy Scouts, some in the Clinton administration and on Capitol Hill keep pulling strings in their defense. Attorney General Janet Reno announced that Scouts would still enjoy access to federal lands for their camps and jamborees. The Department of the Interior had questioned whether President Clinton's June executive order barring government discrimination against gays would affect its historic relationship with Scouting. A spokesman for then-candidate Al Gore promised that "in a Gore administration, Boy Scouts will be allowed to use federal land."

Meanwhile congressional Republicans took the unusual step of allowing a sparsely supported anti-Scouting resolution to come to the floor just so it could be voted down by a wide margin. The doomed bill, sponsored by a small group of liberal lawmakers, had called for revocation of Scouting's honorary 1916 congressional charter.

[delta] IRS Can Sell Church For Back Taxes. A federal judge ordered an Indianapolis Baptist congregation to vacate its church so the Internal Revenue Service can sell the building. In 1984, the then-pastor of Indianapolis Baptist Temple embarked on a bizarre tax resistance scheme, ordaining all of the church's employees as ministers and ceasing to withhold income and Social Security taxes. Back taxes, penalties, and interest now total almost $6 million. Though numerous court precedents provide that churches must collect employee taxes, this is the first time a church has been ordered sold to pay delinquent payroll taxes.

[delta]Poll: Public Voucher Support Eroding. A Phi Delta Kappa/Gallup poll shows broad public satisfaction with public schools. Respondents favored improving existing schools over encouraging vouchers by a 3-to-i margin. Public support for vouchers declined just since last year. The pollsters declare that "support for the use of public funds to pay for students to attend private schools may have peaked and has begun to trend downward."

[nabla]Idaho Passes RFRA. Add Idaho to the list of states that have passed Religious Freedom Restoration Acts of their own. Idaho's RFRA, which takes effect in 2001, grants to religious believers and organizations sweeping exemptions from generally applicable laws which bind any person or group not able to claim immunity on religious grounds, and those alone.

[delta]Illinois Town Nixes Council Meeting Prayer. The Rolling Meadows, Illinois, city council voted 4 to 3 not to adopt a measure that would have added an invocation or moment of silence to council meeting agendas. Opposing aldermen cited the risk of offending religious minorities and the prospect of costly litigation. Ten years ago, Roiling Meadows fought an expensive and ultimately unsuccessful legal battle to protect a cross the city eventually had to remove from its municipal seal.

[nabla]House Votes 416-1 to Retain Vatican U.N. Status. In a non-binding resolution, the U.S. House of Representatives voted 416-1 to confirm support for the Vatican's special "observer' status at the United Nations. California congressman Pete Stark, a vocal abortion-rights advocate, cast the sole dissenting vote. The resolution was introduced as a response to the "See Change" campaign, in which Catholics for a Free Choice and some 300 other organizations worldwide have called for the Holy See to be stripped of its unique quasi-national status at the U.N.

[delta]AAUP Supports Fired Atheist. There may be light at the end of the tunnel for professor and freethought historian Fred Whitehead. Whitehead was dismissed from his 21-year post with the University of Kansas KU Medical Center shortly after he cosponsored a Council for Secular Humanism seminar on evolution at the increasingly pro-religious medical school. Following an investigation, the influential American Association of University Professors released a statement sharply critical of KU's behavior in the Whitehead affair and charging the school with handling tenure issues unfairly. In a related action the Kansas Department of Human Resources ruled that the university cannot deny Whitehead unemployment benefits.

[nabla]Virginia Minute of Silence Law Upheld. A federal judge ruled that Virginia's law mandating a minute of silence at the beginning of each public school day must be observed while an ACLU effort to overturn the law grinds through the courts. One of the eight student plaintiffs in the ACLU case has already been punished with detention for walking out of his high school homeroom rather than participating in the arguably religious classroom exercise.

[delta]"Banned Books" Law Overturned. A U.S. District Court judge overturned a controversial Wichita Falls, Texas, ordinance that allowed any book to be removed from the children's section of the public library if 300 library card holders petitioned for its removal. Two picture books about gay households, Daddy's Roommate and Heather Has Two Mommies, had been transferred to the adult section when library users belonging to a Baptist church submitted the required number of petitions.

[delta]Judge Shutters N.Y. Kosher Enforcers. A U.S. District Judge ordered New York to disband the division of its Agriculture Department charged with enforcing kosher laws. The ruling came in a suit brought by two Long Island butchers who followed the liberal kosher rules of Conservative Judaism but were frequently fined by state regulators enforcing the more strict Orthodox kosher rules. Judge Nina Gershon ruled that the enforcement activity endorsed and advanced religion.

[nabla]New Jersey Passes Islamic Food Prep Law. New Jersey Governor Christie Whitman signed a new law enforcing Islamic food preparation standards. Grocers and restaurants falsely claiming that their products are prepared in accord with halal guidelines will be subject to penalty Church-state activists suggest that the law improperly entangles government and religion. A New York law mandating enforcement of kosher standards was recently overturned (see previous item).

[delta]Christian Coalition's "Win" Against IRS Carries Little Weight. Don't put too much stock in claims by Pat Robertson's Christian Coalition that it finally won a round in its long battle with the Internal Revenue Service. The Christian Right group spent years trying to persuade the IRS to grant it tax-exempt status. In 1999, the IRS ruled that the Coalition's extensive political activity disqualified it for exemption. The Coalition was ordered to pay back taxes since 1990, though donors were not required to reverse deductions for gifts made during the application period. Reeling, the Coalition filed a flurry of technical appeals. As a result the Coalition wrung one concession out of IRS: in a negotiated settlement, the IRS conceded that the Coalition was tax-exempt during 1990, its first year of very limited operations. IRS will refund back taxes the Coalition paid for that year: a trivial $169.26.

[delta]N.J. Late-Term Abortion Law Toppled. A three-judge federal appeals panel upheld a 1998 decision overturning a New Jersey ban on certain late-term abortions. In June, the U.S. Supreme Court found Nebraska's "partial-birth" abortion law unconstitutional. New Jersey Republicans passed the measure over Governor Christie Whitman's veto and spent more than $400,000 in tax money defending it.

Tom Flynn is Coordinator of the First Amendment Task Force for the Council for Secular Humanism and Editor of FREE INQUIRY.
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Title Annotation:Religious Freedom Restoration Act
Author:Flynn, Tom
Publication:Free Inquiry
Geographic Code:1USA
Date:Dec 22, 2000
Previous Article:Viktor Frankl, the Champion of Humanness.
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