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Blowing Holy Smoke

Sen. Orrin Hatch strong-arms religious protection bills into law again and again -- the Constitution be damned.



There was a time when religion ruled the world. It is known as the Dark Ages. —author Ruth H. Green, 1915-1981

Questions Hatch Won’t AnswerThroughout the month of November, Sen. Orrin Hatch’s press secretaries in Washington, D.C., told City Weekly the senator was “too busy with the presidential election” to answer questions concerning this story. Throughout much of December, they said he was unavailable due to the upcoming holidays and a vacation.

So City Weekly faxed a list of questions to his Washington office. After several days, we were told by press secretary Chris Rosche that the fax had been lost. We faxed another copy. Rosche then replied that Hatch was “too busy with meetings and the [John] Ashcroft nomination” for the U.S. attorney general position to answer our questions. However, Hatch did manage to find time for CNN’s cameras nearly every day throughout November and December.

Here are the questions Hatch refused to answer for City Weekly:

1. How do you justify taxpayers’ dollars covering Medicaid and Medicare costs for “religious non-medical care” such as the Christian Scientist sanatoria?

2. What do you say to critics who claim this will put children in danger and elevates parents’ religious beliefs over the medical needs of children?

3. When your Religious Freedom Restoration Act was struck down, you said religious liberty was being sacrificed for zoning laws. Why don’t you believe zoning laws are important?

4. Critics charge that your Religious Freedom Restoration and Religious Liberty Protection acts are harmful not only to zoning laws, but also to child welfare laws, domestic violence laws, child welfare laws and anti-discrimination laws. What do you say to such allegations?

5. The U.S. Constitution guarantees that religious freedom allows us to believe what we wish, but that we cannot practice everything we want if that practice is in violation of an established and valid law. Don’t your religious liberties bills seek to negate that distinction?

6. Wouldn’t such bills invite government intervention into religion by forcing the courts to decide what is a valid religious practice and what is not?

7. What do you say to critics who claim your religious liberties bills allow the religious believer to subjugate the interests of other citizens, thereby violating the Establishment Clause of the First Amendment and the Due Process and Equal Protection clauses of the 14th Amendment?

The United States holds itself up as the great protector of religious freedom. Still, within our short history there have been serious examples of religious intolerance—one of the most notable being the persecution of the early Mormons.

Today in Utah, remnants of that past remain embedded in the collective Mormon consciousness. The rhetoric surrounding that history often makes it sound as if the events happened within the last decade rather than in the mid-19th century. Standing with this inherited background is Utah Sen. Orrin Hatch. During his 24 years in the U.S. Senate, Hatch has become one of the most powerful lawmakers in Washington and continues to serve as chairman of the Senate Judiciary Committee. Like a zealot driven by a personal mission, Hatch has introduced numerous bills, and an amendment, that exalt religious freedom to a level some say amounts to religious tyranny.

The controversial amendment attributed to Hatch concerns the Christian Science Church, which does not believe in modern medicine or medical care. When Medicare and Medicaid programs were established in 1965, Congress authorized reimbursements to that church’s “care” facilities, called sanatoria, to which patients are admitted for “spiritual treatments.” The sanatoria are staffed by church members who do not even have first-aid training.

But one organization is challenging this use of taxpayer funds. The non-profit group Children’s Healthcare Is A Legal Duty (CHILD) argues that such reimbursements encourage the endangerment of children. CHILD founders Rita and Douglass Swan were former members of the church whose own son died in a Christian Scientist sanatorium where staff “nurses” merely took notes as children suffered and died. Some children in the sanatoria died of treatable and curable conditions. Notes document staff observations of children heaving with convulsions, and vomiting and urinating uncontrollably while their eyes roll upward, fixed in glassy stares. One note included information about a “nurse” force-feeding a toddler as he died of a bowel obstruction.

CHILD, along with the National Task Force on Children’s Constitutional Rights and the American Academy of Pediatrics, among others, filed a taxpayers’ suit against the federal government for using funds to pay for Christian Science’s so-called nursing. New York University Law Professor Marci Hamilton was one of the attorneys who represented CHILD successfully. The court struck down the laws and regulations mandating such payments, classifying them as unconstitutional, invalid and unenforceable.

After the ruling, however, Hatch wrote a letter to the Christian Science board of directors that was obtained by City Weekly. His letter assures them that he has “taken the lead in coordinating legislative activity on this important issue” to restore Medicare and Medicaid payments. Following through with his promise, Hatch introduced an amendment to nullify the court ruling and re-establish payments for Christian Scientists under new statutory language. The amendment was added to the Balanced Budget Act of 1997 with no discussion.

As CHILD continues to challenge the Hatch amendment in the courts, Michael McConnell, a University of Utah constitutional law professor who has also represented the LDS church, acts as chief attorney in defending the Christian Science church. McConnell disputes claims that children suffer and die in Christian Science sanatoria. “Only old people who are in need of basic assistance and of being made comfortable at the end of their lives are admitted.”

Should the Hatch amendment continue to hold up, McConnell confirms that other religious believers will be entitled to use the amendment to receive Medicare and Medicaid payments for “religious non-medical care.” But the amendment is only the tip of the iceberg when it comes to the religious crusades attributed to Hatch, who, according to his press secretary, was “too busy” to respond to questions concerning this story.

In 1990, the U.S. Supreme Court was asked to decide whether the Free Exercise Clause of the First Amendment allows the use of peyote in Native American religious ceremonies or permits Oregon to deny unemployment benefits to people fired as a result of peyote use. Like 11 other states at the time, Oregon did not have an exemption for peyote use as a Native American religious ritual.

The court upheld the Oregon prohibition on peyote, stating that its decisions have never excused a person’s religious beliefs from compliance with an otherwise valid law. The case, Employment Division vs. Smith, became a lightning rod for both liberals and conservatives who soundly criticized the decision, contending that it radically altered and diminished the protections afforded by the Free Exercise Clause of the First Amendment.

However, Hamilton maintains that the ruling in the Smith case was not precedent-setting. As far back as Reynolds vs. United States, the U.S. Supreme Court has consistently ruled that religious practice is not superior to the law of the land. The Reynolds action was the 1878 Mormon church test balloon case challenging the constitutionality of polygamy laws.

In a direct response to the ruling in the Smith case, Hatch introduced the Religious Freedom Restoration Act (RFRA). It passed by 97 to three in the Senate and unanimously in the House. The bill became law in 1993, and was a bold and obvious attempt to overturn the court in the Smith case. In essence, the Religious Freedom Restoration Act gave any religion or religious believer a legal tool to fight practically every law, including valid criminal laws, and federal and local governments bear a heavy burden of proof. The U.S. Supreme Court struck down the Religious Freedom Restoration Act in 1997. “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs,” the court observed.

The justices supported the opposition, CHILD, represented by Hamilton, and the American Professional Society on the Abuse of Children. Hamilton demonstrated that under the Religious Freedom Restoration Act, religious claimants could trump anti-discrimination laws, child welfare laws, domestic violence laws and provide churches virtual immunity from zoning laws.

Hatch was not pleased with the ruling. “Religious liberty is sacrificed. And for what? Zoning laws.” He accused the court of making the Free Exercise Clause a hollow promise. “The Supreme Court has thrown down the gauntlet. I intend to pick it up.” He then reintroduced Religious Freedom Restoration Act as the Religious Liberty Protection Act in 1998.

Speaking to the Senate Judiciary Committee in support of the Religious Liberty Protection Act, Elder Dallin Oaks, a member of the LDS church Quorum of the Twelve Apostles, lashed out at the Supreme Court. Oaks, a former member of the Utah Supreme Court, called the high court’s decision on the Religious Freedom Restoration Act “nothing short of outrageous.” But Hamilton was successful in squashing the Religious Liberty Protection Act as well. She argued that “it allows the religious believer to subjugate the interests of all persons seeking protection through judicial government action, it violates the Establishment Clause and the Due Process and Equal Protection Clauses of the 14th Amendment, and is therefore an improper exercise of congressional power under any of the clauses of the Constitution.”

Hamilton further cited the adverse effect the act could have on children whose parents’ religious beliefs or practices are contrary to commonly accepted notions of child welfare. Essentially, by imposing the “least restrictive means” standard to protect religious exercise, the Religious Liberty Protection Act would have elevated the religious freedom of parents to a higher level than the welfare of children.

In July, Hatch introduced yet another bill, called the Religious Land Use and Institutionalized Persons Act. He admitted it was a “tailored version” of his unsuccessful Religious Freedom Restoration and Religious Liberty Protection acts. The new bill was trumpeted as providing religious liberty in land-use regulation for churches and synagogues—essentially enabling religions to build with impunity.

While introducing the Religious Land Use and Institutionalized Persons Act, Hatch said zoning laws “place a seemingly insurmountable barrier between the religious assemblies of our country and their right to worship freely.” His example of such a barrier was a controversial LDS temple outside Boston. “[A] city refused to allow the LDS church to construct a temple simply because it was not in the aesthetic interests of the community.”

In fact, the incident Hatch used was a case in Belmont, Mass., where a special zoning ordinance in the area actually exempted religions. It was the citizens who challenged the zoning ordinance in an effort to protect the residential neighborhood from the construction of the enormous temple. The original proposal called for the structure to be three stories high and occupy 94,000 feet, topped by six spires, the tallest soaring 156 feet into the sky. The temple was built, but to appease neighbors plans were scaled back.

Sacrificing zoning laws for religion doesn’t sit well with University of Utah Professor Eugene Carr. He also acts as an advisor for the national Center for Public Policy and Administration. “Citizens have the right to the enjoyment and use of their own property in a certain way and that must always be protected,” he said. “Everyone is expected to abide by established zoning standards, and such laws [as the Religious Land Use and Institutionalized Persons Act] are abrogating all compatibility in land use.”

But the Religious Land Use and Institutionalized Persons Act doesn’t stop with land use. The second section of the bill concentrates on prisons and jails. Hamilton believes the act will make it difficult to control violent incidents against ethnic prisoners from white supremacist groups that have already requested religious status in prison. She cites the 1999 case of the Five Percent Nation of Islam incarcerated in a South Carolina prison. After a number of violent incidents, the inmates were placed in segregation. The “Five Percenters” sued, claiming the policy violated their rights under the Free Exercise Clause of the First Amendment.

With Sens. Bob Bennett, R-Utah, Ted Kennedy, D-Mass., and Joe Lieberman, D-Conn., among others who signed on, the Religious Land Use and Institutionalized Persons Act passed and was signed into law by President Clinton as Mormon church leaders looked on nearby. It may yet be challenged in the Supreme Court, but as far as Hatch is concerned, the act doesn’t go far enough. After high court rulings against his Religious Freedom Restoration Act and Religious Liberty Protection Act, a powerful coalition of supporters implemented another strategy: quietly introduce the Religious Freedom Restoration Act in each of the 50 states.

Hamilton says the strategy is working. “These bills sail through each state’s senate and legislatures as easily as their predecessor federal bills did in Congress because lawmakers don’t like to look as though they’re against religious freedoms. It isn’t politically correct.”

So far, Religious Freedom Restoration acts have passed in nine states. Some state legislatures, including Utah’s, have not yet seen the bill formally introduced. California was one of the first states to have a Religious Freedom Restoration Act introduced. By the time it reached then-Gov. Pete Wilson, a conservative Republican, it looked like the bill would become law. However, Wilson refused to sign it, saying the legislation went beyond the guarantees of the First Amendment and the California Constitution. “It would engender litigation by prisoners and criminal defendants alike who claim that the laws which protect and preserve order burden their religious beliefs,” Wilson wrote. “It would open up the prospect of invalidating laws ranging from the payment of taxes to compulsory vaccination laws, to drug laws, to land use laws, to laws against racial discrimination.”

Idaho was another story entirely. Because it is similar demographically to Utah, the state deserves close scrutiny for hints of things to come in our own future. The Religious Freedom Restoration Act came to Idaho with the hard-line backing of a coalition comprising the Mormon church, the Christian Coalition and the Idaho Family Forum. They worked directly with Utah attorney Alexander Dushku, who works for the firm Kirton and McKonkie, which is also retained by the LDS church. Idaho’s Religious Freedom Restoration Act was sponsored by state Sen. Grant Ipsen as an “emergency bill” in need of fast-tracking. Ipsen, one of Idaho’s more notable Mormon lawmakers, has said the main reason he ran for the state Senate was to protect clergy confessional privilege.

While the bill was flying under the radar toward the governor’s signature, constitutional attorney Kathy Ball, working for the Idaho ACLU, was monitoring Ipsen’s bills for impacts against children’s rights. As she studied the state’s Religious Freedom Restoration Act, she became alarmed and sent out memos that resulted in vocal opposition. Putting up a fight against the Religious Freedom Restoration Act were the Interfaith Alliance, the Association of Counties, the Idaho Human Rights Commission, the Idaho Independent Living Council, the Fort Peck Assiniboin and Sioux tribes and the Idaho ACLU, among others.

United Methodist minister Jon Brown led the Interfaith Alliance and believes the bill is dangerous. “They use phrases like, ‘restoring religious freedom’ or ‘what the Founding Fathers originally intended,’ but what looks and sounds straightforward becomes a straight jacket,” he said. “It does by individual whim what extremists have failed to do at the ballot box—turn back the human rights clock.”

Lesley Gorenson, president of The Interfaith Alliance, was appalled at how the bill could help the state’s fringe white extremist Christians. “Had Religious Freedom Restoration Act been in place during the trial against Rev. Richard Butler and the Church of Jesus Christ Christian/Aryan Nations, in terms of a remedy they would have been given a slap on the wrist.” In that trial, the Keenan family won a $6.3 million judgment against the Rev. Richard and his church after being shot at near the church compound.

Jack Van Valkenburg, director, ACLU-Idaho, says the danger to civil and human rights caught their attention and clinched their opposition to the Religious Freedom Restoration Act. They asked that an anti-discrimination amendment be added to the bill, but sponsors and supporters objected saying, “Churches have to be able to discriminate.”

Upon further study, ACLU-Idaho identified other problems, including the potential for Idaho family law to be bypassed through so-called religiously motivated child and spouse abuse, religiously motivated non-compliance with criminal laws, as well as issues surrounding separation between church and state.

In other states where Religious Freedom Restoration acts are now law, they have encouraged and invited litigation by allowing attorneys’ fees provisions and a damages cap that permits recovery to any individual claimant. Additionally, the religious believer is allowed to challenge the application of a law to his belief-driven conduct even if that belief is not central or mandatory to the practice of that person’s religion.

The Idaho Religious Freedom Restoration Act was signed into law by Gov. Dirk Kempthorne on March 31, 2000, but because of the backlash, he has asked to delay implementation. The bill becomes effective Feb. 1. Van Valkenburg says ACLU-Idaho views the bill as unconstitutional and subject to challenge. “If we cannot get it repealed, we’ll look at litigation,” he said.

As for Utah, it’s only a matter of time before our very own Religious Freedom Restoration Act is quietly introduced in the Legislature. Predictably, we will have the same players involved here that pushed the bill through in Idaho. Though the Utah Constitution already has the strongest religious-protection laws by far, a Religious Freedom Restoration Act would have a huge impact, allowing fundamentalist Mormon polygamists and others of like mind to elevate their religiously motivated practices above the law. Such legislation, however, may not negate the polygamy laws. University of Utah political science Professor Daniel Levin was in Idaho during its Religious Freedom Restoration Act debate, and is now watching Utah closely. “Because a [Religious Freedom Restoration Act] is a statute, it cannot invalidate that provision of the state Constitution that states that polygamy shall be ‘forever prohibited.’” Levin sees the same problems with the legislation that others have pointed out, including land use. “It’s the issue of child welfare that most concerns me.”

He has good reason to worry. In1998, for example, Christopher and Kyndra Fink were feeding their 20-month-old son David nothing but watermelon and lettuce due to their religious beliefs. Relatives brought the child to the hospital, where he weighed in at 15 pounds—the average weight of a 5-month-old. The doctor described his condition as “severe and life-threatening,” causing the Finks to lose custody of David. They reacted by kidnapping the child from the hospital and running to the Montana mountains, saying it was “God’s will” the child be fed only what they called “pure foods.”

After an extensive search by law enforcement, the Finks were found and brought to justice. David and a second child born to Kyndra in the mountains are now in the care of relatives. Had a Religious Freedom Restoration Act been in place at the time, David may well have been sacrificed on the altar of his parents’ religion. Certainly the Finks would have had a cause of action for their defense during the trials.

Critics of polygamy see such proposed legislation as dangerous. Tapestry Against Polygamy Executive Director Vicky Prunty is understandably worried about the impact of a Utah law. “People are living polygamy in spite of the fact that it is ‘forever prohibited.’ What will happen when they have a law to defend, in the name of religion, their abusive actions within that lifestyle?” she asks.

When a 15-year-old girl fled a forced marriage to her uncle (who is part of the Kingston polygamy clan), her father beat her for leaving. The two men were brought to justice only after she made a 911 call. Under Religious Freedom Restoration, the father would have had a defense for beating his daughter, and, according to Hamilton, the uncle would have had a defense against civil and criminal charges.

Hamilton has testified against Religious Freedom Restoration acts in each state where they’ve been introduced. She believes that all such religious supremacy bills will eventually be found unconstitutional. “It’s inevitable, but it will take others to make that happen,” she said. “The politicians won’t be the ones to take it on.” u