Sources on Capitol Hill say the controversial measure is scheduled for action in the House Judiciary Committee on Tuesday, March 3. The proposal would then go to the floor for a vote by the full House of Representatives soon afterward.

Critics, including Americans United for Separation of Church and State, charge that the Istook Amendment would devastate First Amendment religious liberty protections.

The Reverend Barry W. Lynn, Americans United executive director, said, "Representative Istook's proposal isn't a 'religious freedom amendment' at all. It's a radical scheme that would erase the religious liberty protections Americans often take for granted.

"Istook's proposal," Lynn charged, "would subject schoolchildren to coercive prayer in public schools, require taxpayers to support private religious schools and ministries and permit religious majorities to run roughshod over minority faiths.

"Americans today have more religious freedom than any people in world history, thanks to the First Amendment," said Lynn, an attorney and United Church of Christ minister. "Yet some members of Congress are ready to toss those protections into the wastebasket. We must not let them get away with it."

The Istook Amendment has strong support from Religious Right groups, including TV preacher Pat Robertson's Christian Coalition, religious broadcaster James Dobson's Focus on the Family and others.

Americans United, a Washington, D.C.-based religious liberty watchdog group, has played a leading role in opposing the Istook Amendment.

AMERICANS UNITED STATEMENT:

The Reverend Barry W. Lynn, executive director of Americans United for Separation of Church and State, today issued the following statement about the House Constitution Subcommittee hearing on the need for federal protection of religious liberty:

Americans United has a long history of strong support for the free exercise of religion. We believe that the U.S. Supreme Court erred when it removed the judicial safeguards for religious freedom in the 1990 Employment Division v. Smith decision. That's why our organization endorsed the Religious Freedom Restoration Act (RFRA), and worked to achieve its enactment into federal law in 1993.

We believe the Supreme Court erred again when it struck down RFRA in 1997. Americans United believes that the principles incorporated into RFRA and the pre-Smith doctrine of the Supreme Court were sound. Before the government can "substantially burden" someone's religious practice, it must show its action serves a "compelling state interest" and that there is no less restrictive means of achieving that interest.

We are hopeful that both federal and state measures can be enacted to reestablish these principles in law. Americans United is participating in national and state coalitions comprised of liberal and conservative religious and public policy organizations working toward that end.

With this in mind, we are deeply concerned about two of the ten witnesses testifying before the House Subcommittee on the Constitution today.

Evelyn Smith will apparently testify about her case involving her religiously based claim to be exempt from the California Fair Employment and Housing Act. Smith, a Christian, refused to rent units in her apartment building to unmarried couples, despite the Act's ban on discrimination on the basis of marital status.

The California Supreme Court on April 9, 1996, held against Smith, noting that complying with the law in her business dealings did not "substantially burden" her religious beliefs. (By so holding, the high court did not address the second issue of the state's compelling interest in eradicating discrimination, which would have served as an additional ground for overruling her free exercise claims.)

The state court based its ruling on the Free Exercise Clause of the U.S. Constitution, the religious provisions of the California State Constitution and the federal RFRA, which had not then been struck down. The U.S. Supreme Court denied review in the Smith v. Fair Employment and Housing Commission case, thus leaving the California Supreme Court decision in place.

As a result of the adjudication of Mrs. Smith's claims under the heightened standard, we are perplexed as to why she would be called to testify in this congressional hearing. Her complaint was analyzed by the California Supreme Court under RFRA and found wanting. There is no reason to believe that she or others similarly situated would or should prevail under a new version of RFRA.

AIDS AWARENESS TOO EXPLICIT?

The second witness, Jason Mesiti, was a student at a Massachusetts high school where a sexually explicit AIDS awareness assembly was held. Mesiti's mother Suzanne Brown and others brought suit, complaining that the assembly violated their families' free exercise of religion, their right to privacy and other rights. The U.S. 1st Circuit Court of Appeals ruled, however, on Oct. 23, 1995, that none of these rights were abridged. The U.S. Supreme denied review in the Brown v. Hot, Sexy and Safer Productions, Inc. case on March 4, 1996.

Without addressing the specifics of the Brown case, Americans United insists that the public school system must remain neutral when it comes to religion. The curriculum at public schools should not and must not be altered to satisfy the arbitrary demands of religious interest groups.

Americans United strongly believes that testimony from Smith and Mesiti today could be construed by the federal courts to suggest that Congress intends any new version of the Religious Freedom Restoration Act to broadly protect religious claims against federal and state anti-discrimination laws and against the religious neutrality of the public school system, regardless of the merits of the claims. We encourage the members of the House Subcommittee on the Constitution to flatly disavow any such intention and to ensure that the legislative history shows no such purpose.

Religious and advocacy groups from many diverse viewpoints have put aside their differences to press for federal and state protections of core religious liberty concerns. It would be extremely divisive and short-sighted for Members of Congress and allied Religious Right and sectarian organizations to attempt to address specific cases through federal legislation.

INFORMATION:

Americans United for Separation of Church and State
1816 Jefferson Place, N.W.
Washington, D.C. 20036
Telephone: 202/466-3234.
Web Site: http://www.au.org/