Focus on Issues: Activists Turn to States to Ensure Religious Rights

In the year since the U.S. Supreme Court struck down the Religious Freedom Restoration Act, lawmakers and activists have been scrambling to find ways to ensure that Americans are able to practice religion free from government intrusion.

Much of that effort has centered around crafting new federal legislation to restore some of the protections that existed under the now-defunct law. The legislation — shaped in large part by a broad coalition of religious and civil liberties groups — is expected to be introduced in Congress in coming weeks.

Activists concede, however, that even the meticulously constructed bill will amount to little more than a shadow of the original law.

For that reason, the coalition has undertaken an arduous task: working state by state to pass religious freedom statutes that mirror the original federal law. The goal is to win passage in a few states this year, and then build on the momentum.

RFRA was enacted in 1993 to provide broad protections against government interference with the free practice of religion. While the First Amendment guarantees free religious exercise, activists say that in the absence of the law it has become more difficult to secure religious rights when, for example, a law prohibits state employees from wearing hats or head coverings in the workplace, or when autopsies are required for Orthodox Jews or Muslims.

In striking down RFRA, the high court said in essence that it was unconstitutional for Congress to dictate a standard for religious freedom to the states. Now, seeking to restore the religious freedom protections eliminated by the court, advocates are trying to convince the states to dictate the RFRA standard to themselves.

To begin with, the coalition is targeting a handful of states where legislation modeled after RFRA stands the best chance of passing. Efforts to pass nearly identical measures are currently under way in states where the coalition has the most resources and where lawmakers are more or less favorably disposed to enacting new religious freedom laws.

So far, Florida and Illinois are leading the way. A RFRA bill passed the Florida state legislature last month and the Illinois state legislature this week. Both are awaiting the governors’ signatures. If they are enacted, Florida and Illinois would join Connecticut and Rhode Island, both of which adopted similar legislation in the early 1990s, as the only states with RFRA statutes on the books.

In Alabama, a state constitutional amendment securing free religious exercise passed the legislature last month and will be sent to voters in November.

Meanwhile, activists remain optimistic about the prospects of passing RFRA legislation this year in California, Michigan and South Carolina. But in some of those states concerns about reconciling the bills with anti-discrimination laws and exemptions for prisoners are holding up efforts.

Elsewhere the lobbying effort has been fraught with even more difficulty.

Attempts to pass a RFRA statute in Maryland were met with resistance from municipalities who argued that religious groups should not be exempted from zoning ordinances and other laws. The bill eventually was withdrawn.

And bills are stalled in the New York and New Jersey state legislatures, largely as a result of partisan wrangling.

Chief among the obstacles the coalition faces across the country is getting the attention of state lawmakers.

Many simply do not see it as a problem, said Michael Lieberman, Washington counsel for the Anti-Defamation League and co-chairman of the coalition working to enact the state RFRAs. For that reason, he said, activists have worked to document and dramatize hardships individuals have experienced without RFRA’s protections.

But the fact that such a broad coalition — including such varied groups as the Christian Legal Society and the American Civil Liberties Union — has come together to promote the legislation has also helped to catch lawmakers’ attention, Lieberman added.

At the same time, some Conservative Christian groups that were members of the original RFRA coalition have splintered off as they look for other ways to restore the protections. Some of the groups are advocating for a constitutional amendment — possibly in the form of Rep. Ernest Istook’s (R-Okla.) sweeping “Religious Freedom Amendment” — which would give the go-ahead to government subsidy of religion and prayer in school.

But members of the coalition — which include Jewish groups across the political spectrum — see that as a dangerous path.

Indeed, RFRA activists are skirting the issue in certain states in the South and elsewhere out of concern “that the whole effort will be hijacked and turned into a prayer in schools effort,” said Lieberman.

The task to revive RFRA has been further complicated by the lack of an organized religious lobby in most states, according to Marc Stern, co-director of the American Jewish Congress’ legal department.

“You don’t have the same degree of organization as you do in Washington,” said Stern, who has played a lead role in drafting the new federal religious freedom legislation.

Once RFRA laws are on the books in states such as Florida, California, Illinois and Michigan, Jewish activists hope to focus on other states with large Jewish populations, including Maryland, New York, New Jersey, Ohio and Virginia.

“When we get done with this year, we’ll have to sit down and assess where we are,” Stern said.