Web Posted June 21, 2020
They've got tunnel vision at ABC's "20/20" program over something known as the RFRA.
A decision is expected this week as the U.S. Supreme Court tries to decide the
constitutionality of the Religious Freedom Restoration Act. Signed into law by President
Clinton in 1993, the Act, say supporters, was intended to make it more difficult for
government to infringe upon religious groups and practices. Under the RFRA,
government had to demonstrate a "compelling interest" before it could place limitations
on religious belief.
RFRA has drawn a chorus of support from religious groups across the nation; last year,
a coalition of denominations -- everyone from the Baptists and Methodists to Jews,
Humanists, Muslims and Scientologists -- filed an amicus brief in support of the Roman Catholic
Church in its battle with the City of Boerne, Texas, a legal slug-fest which should
ultimately test the constitutionality of the law. Boerne doesn't like the plans of the
Archdiocese, which wants to demolish part of a historic 70-year old church and erect a
new structure. Archbishop P.F. Flores and other church leaders are not challenging
zoning laws, historic districts or other restrictions per see -- they are instead maintaining
that these laws and regulations should apply to everyone else, but to not religious groups,
since they restrict the free exercise of religious belief and the latitutde enjoyed by
religious groups. Those who oppose RFRA point out that freedom of religion is already
sufficiently protected under the First Amendment's free exercise clause, and note that the
RFRA legislates a class of "special rights" for religious groups and believers. No
religious groups have dared to come forward against the RFRA (why should they?), and
even some organizations traditionally thought of as "separationists," concerned with
state-church separation issues, have signed-on to the RFRA agenda.
|"RFRA has succeeded where no ecumenical movement could in uniting the whole smorgasbord of contemporary belief into a smug coalition of churches, sects, temples and cults looking out for number one -- and we're not referring to a monotheistic supreme being."|
It's a curious
alliance, one that finds the liberal People for the American Wary suddenly answering to
the same altar call as the Traditional Values Coalition. RFRA has succeeded where no
ecumenical movement could in uniting the whole smorgasbord of contemporary belief
into a smug coalition of churches, sects, temples and cults looking out for number one --
and we're not referring to a monotheistic supreme being.
|WOULDN'T YOU LIKE TO KNOW?|
Who are the religious groups backing the Religious Freedom Restoration Act?|
So it was surprising when the Friday night installment of ABC's "20/20" featured
reporter John Stossel taking on the Religious Freedom Restoration Act and its effect
behind bars in the nation's prison system. A twenty year veteran of the investigative
reporting wars, Stossel has lately earned himself a reputation for questioning everything
from wild claims about the environment to the frivolous spending of tax money and the
crazy things going on in the court system. He had equally blunt words about the RFRA;
and bracketed by the cameo shots of the tyrannical Barbara Walters and Hugh what's-his-
name, viewers got the impression that the Religious Freedom Restoration Act was
enabling prison inmates to transform the over-crowded gaols of the land into virtual
bacchanals of indulgence, where everything from conjugal visits and solitary
masturbation to special foods was made possible -- at taxpayer expense -- by freedom of
religion. Prisoners, we were told, are building "sweat lodges", conducting satanic cult
services, and filing so many legal suits based upon the RFRA that their volume is
measured not in pages but in feet. Some are demanding "special diets" (indeed, one
advocacy group with an aggressive prison outreach is the Lubavitcher sect of Orthodox
Jews, which defends the rights of inmates who seek special kosher meals.) Others
maintain that long hair or certain sexual practices are part of their religious beliefs. Some
inmates want the right to practice Satanism or voodoo. Where does it end, and who pays?
Unfortunately, ABC didn't get the full story, nor did the otherwise intrepid Stossel ask
the really tough and discomforting questions.
If these sorts of "abuses" behind prison walls are the result of RFRA, what can we
expect in the general society? What happens when more religious advocacy groups,
emboldened perhaps by a favorable high court ruling on behalf of the Religious Freedom
Restoration Act, start flexing their muscle in the courts? What are the consequences of
demolishing the Establishment Clause, that part of the First Amendment which provides
for separation of state and church, by enacting other legislative schemes such as the
Religious Freedom Amendment, or the American Community Renewal Act? How can
governments encourage some religious outreaches in prisons -- as in Texas where the
Prison Fellowship Ministry of former Watergate crook Charles Colson is now running its
own penal unit -- and then frown on an inmate who wants to sacrifice chickens to appease
the Santeria gods, or worship the devil?
Even before RFRA, courts were locked in litigation over the issue of religion and
prisoner's rights. In 1987, for instance, the Supreme Court ruled in O'Lone v. Estate of
Shabazz that restrictions on inmates were proper if they were "reasonably" related to
legitimate prison objectives. But prisons couldn't play the role of mini-governments,
recognizing some groups or beliefs as genuine while discriminating against others. In
1973, the Fifth and Eighth Circuit Courts agonized over that point, and in 1982, Judge
Adams wrote an opinion for the Third Circuit (AFRICA v. PENNSYLVANIA) which
"The legitimacy of a religious belief is not important in dealing with established beliefs.
It is important when prison officials are confronted with beliefs that they do not recognize
or that venture far from the mainstream..."
The squabble over the status of different religions in prisons has mirrored the debate
over religious groups in the general society. For instance, if Christian ministers could
distribute bibles or tracts to inmates, why wouldn't the same right apply to the Temple of
Love and the Hebrew Israelite movement? The latter was banned when prison authorities
claimed that the materials were "inflammatory, derogatory and racist" and "seriously
affect the good order and operation of the prison." The passage of RFRA, though,
overturned that decision, and in LASWSON v. DUGGER (1994), the court held that an
outright ban on Hebrew Israelite literature was "not the least restrictive alternative."
In prison and elsewhere: "special rights" for Believers
For ABC, the bottom line in the effect of the Religious Freedom Restoration Act on the
nation's prisons was that it fostered headaches for administrators and a torrent of near-
frivilous and litigious suits by inmates that ultimately cost the taxpayers money. A
gaggle of state attornies general lamented the mountain of paperwork they confronted as
RFRA-related suits made their slow, torturous journey through the legal labyrinth. What
eluded John Stossel and his editors , though, was the fact that a handful of prisoners
practicing Santeria, or inventing ready-made "religions" that allow them to congregate in
sweat lodges or masturbate in private, are small potatoes compared to the effect RFRA
and other legislation can have in the rest of society. What happens when a "minister"
from a fringe religious sect walks out through those prison gates and decides to set up
business operating a "faith based" charity which can qualify for public money? Ralph
Reed and Chuck Colson can't make their case for religious social outreaches having
access to government largesse without extending the same privilege to the Nation of
Islam, the Santerians, or the Hebrew Israelites. What happens when these groups begin
lining up for a slice of the public pie?
Prisons are not the most reliable laboratory for testing laws. There are overarching issues
about security and costs; and it is questionable whether prisons and jails are always
moral, or efficacious. OJ Simpson is driving around golf courses a free man, but plenty
of Afro-American males who had only a fraction of the Juice's legal jazz are serving long
sentences. We should contemplate the fact that DNA testing is now setting free a lot of
prisoners who were railroaded through the court system, and had the keys to their cells
thrown away in a "lock 'em up," get tough climate of public opinion. We should also
confront the fact that America now leads the world in its rate of incarceration; at least in
the past, we trailed behind countries like South Africa for that questionable distinction.
Taxpayers, energized by programs like "20/20" will decry the cost of RFRA-related
litigation, but quickly forget that it is several times more expensive to lock someone up
than it is to provide a decent educational environment in the cash-strapped public schools.
But the net effect of RFRA inside the walls and fences of the nation's penal institutions
pales when compared to the potential abuses in the outside world. In prison, whether it's
access to special food, unmonitored religious services, wearing long hair or anything else,
the Religious Freedom Restoration Act clearly fosters a class of special rights for those
who happen to have religious beliefs. That same situation is already developing outside
the jailhouse walls. In Boerne, Texas, for instance, the Roman Catholic Church in effect
says that zoning laws and other restrictions should be just so much cumbersome red tape
for private individuals and businesses, but shouldn't apply for religious groups which
already benefit through a public tax exemption. In New York, religious schools want not
just a place at the public discussion table over values, but a hand-out from taxpayers in
the form of public assistance in operating remedial educational services.
The U.S. Military has decided that any of the 200,000 or so members of the Native
American Church who happen to enlist in Uncle Sam's armed services can ingest peyote
as part of their religious beliefs, and still tote an M-16 or drive a tank. One wonders if
Lieutenant Kelly Flynn shouldn't have invented a religious group which permitted
adultery as part of its practices? She might still be flying a B-52.
You can't have it both ways and be fair, or constitutional. You cannot allow one set of
behaviors for religious believers which you don't permit for the rest of the population.
You cannot say that drug laws end at the door step of an "approved" church or temple,
that some inmates can have long hair or conjugal visits while other may not. You cannot
uphold the notion of equal rights by saying that religious belief renders one group more
equal, or privileged than another.
This doesn't automatically mean that the laws being twisted, circumvented and even
suspended on behalf of "religious rights" are just and proper to begin with. But the
response to invasive, burdensome and even unjust law isn't to create a class of privileged
and exempted individuals and groups on the basis of religious belief.
It was pretty evident that some of the inmates John Stossel interviewed may be
running a scam, a cheap and expedient grift. Years ago, the writer Jessica Mitford caused a sensation with her book
CRUEL AND USUAL PUNISHMENT, and helped to ignite a movement for prison
reform in the United States. Prisons weren't working then, and it's pretty obvious that
they don't work now. Mitford made a persuasive case to demonstrate that most men and
women behind bars aren't there because they did the sorts of heinous deeds Americans
frequently think of when blindly casting their votes to enact tougher laws, or fund the
boom in prison construction. Most of us on the outside might find ourselves resorting to
some of the same ruses and cons that prisoners on the inside devise to cope with prison
life. We might set up a "church" or "religion," and grab for every special benefit,
privilege and perk we possibly could. It is part of existence behind bars, where life itself often
depends on wits, bargaining, and quickly developing the equivalent of street smarts in
order to survive on the cell block.
Outside of prison, it may be a bit of a different story. The Archdiocese of San Antonio
will survive and prosper even in the unlikely event that the Supreme Court rules against
the church in the BOERNE v. FLORES case. Religion enjoys the lucrative results of
decades of financial privilege and tax exemption, even if churches do inflate their
membership figures. Many denominations have rushed into the rewarding field of
administering social welfare programs. That involves a lot more money than some prison
inmate clogging a court docket with papers arguing that his "religious beliefs" entitle him
to long hair, or a solitary masturbation session, or some other holy ritual.
The real danger with the Religious Freedom Restoration Act isn't what some inmates
are doing, but what churches and other religious groups want to do outside the prison
walls, and the social message RFRA sends about the status of religious belief. For
starters, we're talking about big bucks, especially as religious groups cast an avaricious eye
toward the public treasury. After all, if Charles Colson can set up a tax-exempt "faith
based" program in the Texas penal system, why not some other religious group? RFRA
is just the first step in eliminating the few constitutional restraints on how religious
groups may spend public money if they qualify. Win or loose, the Religious Freedom
Restoration Act will become the "wedge issue" in promoting even more dangerous laws,
including the Religious Freedom Amendment.
Thanks to RFRA, we're also talking about a divided, polarized society on both sides of
prison walls. Prisons are already badly fragmented along ethnic lines, with competing
gangs running operations, threatening each other, and often preying on younger,
vulnerable inmates. RFRA makes a bad situation even worse, as privileges behind bars
are created and dispensed on the basis of who can join a religion, or, if necessary, who
can invent on.
Outside the barbed wire, it threatens to be much the same. Why should some
Americans be permitted to ingest drugs, or have their children carry knives to school, or
be exempt from zoning regulations, while other may not? Is that fair? Should the couple
that wants to add on a patio or garage to their house be subject to historic zoning codes,
while the neighborhood church isn't? Should one set of regulations apply to private
businesses and individuals, while a less-stringent standard is invoked for churches, temples,
mosques and synagogues?
Get out of jail, John, and you and Barbara and Hugh quit worrying about what some
inmate is doing. Grab your cameras and head for Boerne, Texas, where some real crooks
are scheming a way to violate the law and trash the First Amendment. Or the Supreme
Court building. Find out what religious coalitions have in mind when they talk about
"religious liberty" and their plans for raiding the public treasury. Get that video tape
rolling, and do a segment on how dozens of religious groups which filed the amicus brief
in BOERNE v. FLORES want a class of "special rights" for believers, and how nine
justices on the Supreme Court may just let them get away with it.
I'd like to see that story on "20/20."
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