The latest version of this balancing act is the so-called Religious Liberty Protection Act (RLPA), which passed the House of Representatives July 15 and 'aims to protect religious expression in cases in which it conflicts with other government regulations,' according to The Christian Century (June 2, 1999). To infringe upon religious claims, governments would have to demonstrate a compelling reason--such as health or safety--and show that they are operating in the least restrictive manner possible. But, rather than clarify the church-state debate, the legislation has sparked a furious struggle over gay rights and state authority.
'Protecting religious liberty is a worthy cause, but not at the expense of any person's other civil rights,' says Kerry Lobel, executive director of the National Gay and Lesbian Task Force. 'We strongly believe both of these principles are important and neither should be sacrificed for the sake of the other.'
The act is intended to replace the similar Religious Freedom Restoration Act of 1993, which the Supreme Court ruled unconstitutional two years ago. It will come up for debate in the Senate later this year.
During House debate, RLPA supporters said it is needed to, for instance, protect the right of Jewish children to wear yarmulkes in public schools, and that of 'elderly landladies' to refuse apartments to unmarried couples. Church representatives also testified about the N.I.M.B.Y. (not in my back yard) objections they increasingly face when building new church facilities.
RLPA opponents suggest that the law would, in fact, legitimize discrimination based on sexual orientation and marital status. Writing in The Nation (July 12, 1999), Doug Ireland suggests that RLPA would 'shred much of the protection against discrimination provided by the dozens of local and state gay civil rights laws' by giving landlords and employers freedom to act upon their religion-based bigotry against homosexuals. Indeed, Representative Barney Frank, a Massachusetts Democrat, noted during House debate that slavery and segregation were once justified on religious grounds, too.
Other opponents argue that RLPA violates states' rights and the regulatory prerogatives of local governments. The 1997 Supreme Court ruling against the Religious Freedom Restoration Act was based on a states' rights argument and involved the case of a Catholic parish in Boerne, Texas, that wanted to tear down a historic church building against the wishes of city officials. 'Cities could face dramatic preemption of local zoning authority' under RLPA, according to Susan Parnas in Nation's Cities Weekly (June 21, 1999).
Besides, she argues, none of the concerns RLPA proponents have cited affect their ability to worship. They cite 'cases in which church-operated facilities, or religiously motivated opinions have been affected--not the actual practice of religion.'
That view, of course, draws a narrow definition of 'religion' that few believers, of any stripe, would accept. Religious freedom doesn't consist simply of the right to attend worship without being jailed. Most believers would say it is the freedom to bring their religious identity, undisguised and unimpeded, into every aspect of public life.
Ironically, that's also how most gay people would define their goals regarding sexual orientation. And there you have at least one horn of a dilemma. When America's founders invented religious freedom in the 18th century, there was a Protestant, Christian, Northern European consensus about the core values of American culture. By the end of the 20th century, that consensus has dissolved on every front.
As has any hope of settling the church-state debate.