Law on Bended Knee

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Every first-grader learns that the Pilgrims came here to practice their religion the way they wanted. So you would think that the debate over freedom of religion was settled long ago.

It wasn't. This week the Senate is expected to consider a bill called the Religious Liberty Protection Act, whose turgid name suggests that what the Pilgrims held dear is threatened in the very nation they founded. Supporters believe that government officials disrupt religious activities even today, despite the First Amendment's crystal-clear language: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The bill's backers say cities pass zoning laws that keep churches out. They say children cannot wear the Star of David to school because of regulations meant to ban gang symbols. They say coroners perform autopsies on those whose faith holds that the corpse is sacred. In short, without the Religious Liberty Protection Act, says Marc Stern of the American Jewish Congress, "you send a message to the state [authorities] that they have carte blanche to interfere with religious practices."

The bill has broad support. It sailed through the House in July. President Clinton has said he will sign it. That support is fraying in Washington, however, as more people begin to realize that the bill's big ambitions could create unintended results.

Proponents of the law say people like Father Timothy Mockaitis need it. In April 1996, Mockaitis went to the Lane County, Ore., jailhouse to hear the confession of Conan Wayne Hale. Authorities had charged Hale with murdering three teenagers. District Attorney F. Douglass Harcleroad, thinking Hale might break down and tell all, had secretly arranged to bug the confession.

The Eugene, Ore., Register-Guard learned about the recording and reported it. Oregonians were outraged. The Vatican sent a note of protest. Mockaitis sued, and won a $25,000 settlement after a federal court said the taping was wrong, in part because it violated the 1993 federal Religious Freedom Restoration Act. The reasoning was that the D.A. had interfered with Mockaitis' religion by taping a sacrament. But in 1997 the Supreme Court struck down that law, saying it was too broad; Congress could not dictate terms of religious conduct to every community with a single law. So the new bill, an effort to achieve the same goals within more limited boundaries, applies only to individuals or institutions that receive federal funds or engage in interstate commerce.

Constitutional scholars disagree over whether the new bill is still too broad, and it will surely face a Supreme Court test if it passes. But there is a more basic problem: the law may not be needed. Mockaitis, for instance, did not need the religious-liberty law to win his case. The federal court that ruled in his favor said the taping violated both the Fourth Amendment, which bans unreasonable searches and seizures, and the federal Civil Rights Act, which prohibits discrimination based on religion. (Hale, as it turned out, was convicted of the three murders, and the tapes, which contained only his professions of innocence, were not used in court.)