In June 1997, the U.S. Supreme Court invalidated the four-year-old federal Religious Freedom Restoration Act (RFRA), alarming many in the broad-based religious community that had supported the legislation (CT, Aug. 11, 1997, p. 48). The Supreme Court ruled that Congress overstepped its constitutional authority by trying to expand the definition of religious freedom.
While no new federal legislation has been adopted to limit government regulation of religious expression, at least a dozen states have considered implementing similar provisions. The latest measure passed in Illinois, where both legislative chambers met in special sessions. Lawmakers voted to override Gov. James Edgar's amendment to the bill, in which he had tried to limit the scope of a state version of RFRA. The House overrode the amendment 110 to 3 on November 17 and the Senate followed 55 to 0 on December 2.
The final bill declares that when a state or local jurisdiction acts in a way that would curb free exercise of religion, the burden falls on the government to prove the curb is necessary. Edgar had inserted a clause exempting prison inmates from the protections.
PRISONER EXEMPTION JUSTIFIED?
Opponents of the original Illinois bill, dubbed a "clean" RFRA because it contained no exemptions, included not only corrections officials but groups such as the 36-member Illinois Municipal League and the Northwest Municipal Conference. Local governments raised concerns about the impact of RFRA on zoning (CT, Oct. 26, 1998, p. 23) and employment issues. Attorneys for the city of Chicago argued the bill would make employment policies virtually unenforceable as long as a worker identifies a religious basis for his refusal to comply with an employment policy.
"It's true that RFRA limits governments; that's the point," says Steffen Johnson, a Christian attorney who works with the Illinois RFRA Coalition. "But this 'parade of horribles' is not grounded in fact."
Nevertheless, John W. Mauck, a Christian zoning attorney in Chicago, says, "Municipalities had been working against the bill behind the scenes. They definitely wanted to choke this baby in its cradle."
Supporters of a prisoner exemption to Illinois' RFRA law argued that prisoners lose certain rights when they are incarcerated and prison officials must have the flexibility to maintain a safe and controlled prison environment. Without the exemption, they say, prison gangs could claim RFRA protection under the guise of holding a religious meeting when they actually planned an insurrection.
However, Steven T. McFarland, director of the Christian Legal Society's (CLS) Center for Law and Religious Freedom, says any exemption—especially for prisoners—is unacceptable. "A prison warden is going to use any leverage he has to elicit favorable behavior. If a warden knows a guy wants to go to a Bible study on Friday nights, he will hold that out as a privilege the prisoner will lose if he doesn't toe the line," McFarland says. "Religious liberty is not a privilege; it is a right."
Richard Hammar, editor of Church Law & Tax Report, agrees there should be no exemptions, but he also knows nobody despises RFRA more than wardens. Each year Hammar reviews every U.S. federal and state case involving the exercise of religion in prisons. He says most RFRA cases involve claims made by prisoners, the majority of which are ultimately thrown out. "Any prisoner can state that his religion commands that he be fed lobster three times a day, served on a silver platter by the warden of the prison."
Despite the abuses, Hammar says, "The federal judiciary has become quite astute in recognizing spurious religious claims by prisoners. State judges, as well, will become capable of sifting out the legitimate from the illegitimate." Hammar sees that as a far better response than trying to exempt prisoners. "In so doing, you are adversely affecting some prisoners who present legitimate claims."
The American Center for Law and Justice (ACLJ) is working for clean RFRA laws with coalitions in several states. Colby M. May, ACLJ's director of government affairs, says exempting prisoners from RFRA laws is the beginning of a slippery slope. "What you can deny to the least of us you can deny to the rest of us," May says. "It's a long way from prisons to the rest of us, but it's the beginning of that erosion that's of most concern."
GROUND SWELL OF SUPPORT:
Florida, Connecticut, and Rhode Island already have clean RFRA laws. California passed a clean RFRA, but Gov. Pete Wilson vetoed it over the prisoner issue. The Virginia legislature narrowly defeated a RFRA bill in its last session. Alabama voters approved a clean RFRA in November as an amendment to the state constitution. Supreme courts in Minnesota and Massachusetts have adopted expansive interpretations of their state constitutions to protect religious liberty.
South Carolina, New York, New Jersey, and Michigan won passage in only one legislative chamber in 1998 and must start over. Texas lawmakers will consider RFRA legislation in January.
Attorney Johnson is grateful for the overwhelming Illinois override to Edgar's amendment. "It's a testimony that religious liberty is a God-given right to which all people are entitled," Johnson says.
CLS's McFarland says Illinois lawmakers' lopsided rebuke of Edgar's attempt to remove inmates sends a message to other states forging RFRA legislation: Watered down laws are unacceptable. "This train is leaving the station and isn't coming back." he says. "And we're not about to leave prison ministries at the station."
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