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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.

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"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."
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.

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Who are the religious groups backing the Religious Freedom Restoration Act?
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.

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 noted:

"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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