Clinton Steps Up Enforcement of New Religious Freedom Act

WHEN it comes to protecting the rights of worshipers, it appears that the Clinton administration has gotten religion.

The administration has taken unusual actions to put teeth into the Religious Freedom Restoration Act (RFRA).

But these actions came only after the Department of Justice provoked a confrontation with religious-rights groups that accused the administration of slighting the statute.

Congress enacted RFRA last year to protect religious rights from unintentional government interference. Now President Clinton has directed every department of the federal government to monitor its compliance with the law closely.

According to White House deputy counsel Joel Klein, the general counsel of each department has been asked to prepare a report on religious-rights issues that could arise in the course of the department's operations. In addition, Mr. Klein says, each department has designated a staff lawyer to raise a red flag whenever a policy, regulation, or enforcement action could violate the religious-freedom act.

``The president recognizes that religion is not just another value or activity,'' Klein says. ``He believes that religion has a unique role in American life and that it deserves special protection that is consistent with the Constitution.''

RFRA reversed the effects of a 1990 Supreme Court ruling. In that case, the justices upheld the enforcement of generally applicable laws or regulations that do not discriminate against religion, but whose even-handed application nonetheless curtails religious freedom. The ruling said the state of Oregon can enforce its antidrug laws against native Americans who used a hallucinogenic drug in religious rites.

Under the statute, government must show that any encroachment on religious freedom serves a ``compelling'' public interest, and that the interest cannot be served in less intrusive ways.

Religious-rights leaders basked in Clinton's praise for the act at a signing ceremony last November, but many say the administration flunked the first true test of its support for the law.

Earlier this year, in a lawsuit by a bankruptcy trustee to recover money that an insolvent couple had tithed to a church in Minnesota, the Justice Department filed a friend-of-the-court brief arguing that the litigation raised no RFRA issues.

But religious-freedom advocates insisted that trying to recover money from a church in this way violated the church's religious rights, and therefore triggered the RFRA tests.

``The Justice Department's brief was a disaster for RFRA,'' says Steven McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom in Annandale, Va.

Last month, however, just 12 hours before the case was argued before the federal Court of Appeals in St. Louis (where a decision is still pending), the Justice Department withdrew its brief at the order of President Clinton.

``We were thrilled with the president's action in the case,'' Mr. McFarland says. ``It took a lot of spine for Clinton to overrule his attorney general in the first major court test of RFRA.''

The religious-rights law now has ``high visibility,'' says Associate Attorney General John Schmidt, who chairs a RFRA task force of representatives from the Justice Department's divisions and some other federal agencies. The task force tries to anticipate RFRA issues that ``cut across usual jurisdictional lines,'' Mr. Schmidt says.

McFarland was one of several religious-rights leaders who met with White House lawyer Klein and other administration officials in June to urge them to designate RFRA watchdogs within the federal agencies. He applauds the administration's latest action.

``RFRA is front and center on the administration's screen, now,'' McFarland says. ``The president has clearly indicated that he has a personal interest in religious rights.'' But McFarland says the new watchdog policy will succeed only if the department lawyers ``understand that their role is to provide objective advice on RFRA, not to defend government actions against RFRA challenges.''

``RFRA is a check on government power,'' McFarland notes, ``and there is always pressure on department lawyers not to rein in government's discretion.''