WASHINGTON (Mar. 2)
Rabbi Chaim Rubin worries about what he is going to tell his congregants.
Several years ago, when his parents and other aging members of his Orthodox community began finding it difficult to make the long walk to synagogue on Shabbat, Rubin relocated his congregation to a more easily accessible location in the Hancock Park area of Los Angeles.
They have since been gathering twice a day — worshiping quietly under the threat of arrest and criminal prosecution.
Local zoning ordinances prohibit houses of worship in the idyllic residential setting, and city officials insist they are under no obligation to accommodate the community’s religious needs.
With a lawsuit pending against the city, Rubin worries what he might have to tell his young son, born with a disability and for whom a long walk is impossible, or what he will say to an 84-year-old survivor of Auschwitz who once risked his life gathering others to pray.
“Do I tell him that because he is old and weak and an amputee, that he must walk at least a mile and a half to pray, because to quietly gather down the block is illegal?”
Elsewhere around the country, in places such as Lawrence, N.Y., and Cleveland, Jewish and other religious institutions have encountered similar obstacles as a result of exclusionary zoning.
Rubin joined with 10 other religiously observant Americans to testify before Congress last week to help build a case for extending new protections for religious freedom in America.
Last year, the Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act, a law that made it harder for government to interfere with the free practice of religion.
In voiding the 1993 law, commonly known as RFRA, the high court said there was no clear record of how laws that are neutral toward religion could burden the free exercise of religion.
Despite the First Amendment guarantee of free religious exercise, conflicts between law and religion do arise. In addition to zoning issues, Jews can encounter conflicts between laws and Jewish religious observance in areas such as the Orthodox prohibition against autopsies and the practice of giving sacramental wine to minors.
Now, as lawmakers contemplate new federal legislation to restore the protections that existed under the short-lived RFRA, witnesses were brought forward to help create that record.
They were on Capitol Hill “to document in a real and material way the broad extent of the impact of not having these religious freedom protections,” said Marc Stern, co-director of the American Jewish Congress’ legal department.
A broad coalition of religious leaders is helping to shape the new legislation.
A group led by Stern and Douglas Laycock, a University of Texas law professor, has drafted legislation that would make federal funding of state and local governments contingent upon compliance with RFRA-like rules.
Such legislation is expected to be introduced in Congress as early as this month.
Any federal fix, however, is not likely to amount to a panacea, and for that reason, Jewish activists and other members of the coalition have been working to enact statutes similar to RFRA on a state-by-state basis.
RFRA-like legislation is now pending in more than a dozen state legislatures, while a couple of states already have similar protective laws on the books.
The witnesses who testified at last week’s hearing of the House Judiciary Committee’s Subcommittee on the Constitution detailed what they called hardships suffered in the absence of protection against laws interfering with their religious practice.
Their stories ranged from a religiously devout landlady in Chico, Calif., who was found in violation of the state’s ban on housing discrimination when she refused to rent to unmarried couples to a pastor in Tacoma, Wash., whom a judge ordered incarcerated when he refused to disclose confidential statements made to him during a confession.
The pastor, Rich Hamlin of the Evangelical Reformed Church, had listened to the confession of a young man under emotional duress who was arrested three days later.
A prosecutor, and later a judge, asked Hamlin to disclose the statements made to him, but Hamlin refused, saying he would not violate his own religious principles.
“To disclose matters entrusted to me as a minister would irreparably undermine the pastoral office,” said Hamlin, who is appealing the incarceration order. “I must be able to provide spiritual counsel free from government intrusion or threat of government intrusion.”
The pastor of Western Presbyterian Church in Washington, D.C., meanwhile, offered testimony about a victory attained with the help of RFRA.
When the congregation built a new church several blocks from its old site in 1994, the District of Columbia said it would not be allowed to continue feeding the homeless.
The city said the practice was neither a primary nor accessory use of a church and therefore required a zoning variance, which can be highly difficult to acquire if there is any community opposition.
The city barred the feeding program, but a federal judge later intervened, invoking the First Amendment and RFRA to allow it to continue.
“Without RFRA, I would be in jail because I have to follow the law of God, not the laws of the District of Columbia,” said John Wimberly, pastor of the church.
“I simply could not have allowed a government to take a plate of food out of my hand that was intended for a hungry, homeless individual.”
Wimberly and others pointed to such instances as a pattern where local communities use zoning codes, historical landmark laws and other civil laws to hinder a religious institution’s objectives.
Indeed, it was a landmark preservation dispute between a Roman Catholic church and the town of Boerne, Texas, that the Supreme Court used last year as its test case in weighing the constitutionality of RFRA.
“Religious groups need national laws comparable to our strong civil rights and fair housing laws to protect us from the sometimes parochial politics of neighborhoods, cities and counties,” Wimberly said.
“We presently have a totally unacceptable situation which threatens the religious vitality and diversity of our country.”