WASHINGTON (Jul. 19)
There have been few recent issues on which the organized Jewish community has been so firmly unified as the need to protect religious freedom in America.
Every major Jewish organization, joining together with a broad coalition of religious and civil liberties groups, had thrown its support behind legislation known as the Religious Liberty Protection Act, which sailed through the House of Representatives last week on a 306-118 vote.
Which is why it came as a surprise when the majority of Jewish lawmakers voted against it.
Those who opposed the measure, including some Jewish lawmakers that initially supported it, made clear that they agreed with the principle of the bill – - namely, that people must be allowed to practice their religion free from government intrusion.
But support among many Democrats broke down amid a dispute over whether religious liberty or civil rights laws should take precedence when the two come into conflict.
The measure approved by the House would prevent state and local governments from placing a “substantial burden” on an individual’s free exercise of religion unless officials make a compelling case for doing so — and only then through the “least restrictive means.”
The legislation seeks to remedy what supporters said were numerous cases in which laws have needlessly interfered with religious practices.
Supporters have pointed, among other things, to city ordinances that have prevented synagogues and other houses of worship from expanding, policies that prohibit Jewish children from wearing yarmulkas in schools and laws that conflict with the Orthodox prohibition against autopsies and the practice of giving sacramental wine to minors.
The legislation was crafted following a 1997 U.S. Supreme Court decision that struck down certain protections for religious practice. The justices ruled that Congress overstepped its bounds in 1993 when it passed the Religious Freedom Restoration Act — a similar law that made it harder for government to interfere with religious practice — and declared the law unconstitutional.
Following that decision, the coalition began working with lawmakers to craft new legislation to restore the broadest possible protections for religious liberty.
They came up with what is known as RLPA, which relies on three technical powers of Congress — its ability to regulate spending, interstate commerce and the 14th Amendment’s protection of citizenship rights — to extend new protections to religious freedom.
One of the chief proponents of the bill, Rep. Charles Canady (R-Fla.), said the bill is “designed to ensure that the free exercise of religion is not trampled on by the insensitive and heedless actions of the government.”
Once thought to be relatively noncontroversial, the measure has come under fire from the American Civil Liberties Union and gay rights groups, which have argued it would make it easier to discriminate against people on the basis of sexual orientation or marital status.
Opponents, including lawmakers who voted against the measure, worry that the proposed legislation could be used to justify violations of state or local anti-discrimination laws. They point to recent court decisions they say have opened the door to such claims.
Under the proposed law, they argue for example, landlords and employers in states and cities with laws prohibiting discrimination against homosexuals could invoke their religious principles as a defense for refusing to rent to or hire gays and lesbians.
Most Jewish lawmakers, in speeches on the floor, addressed the civil rights concerns during the debate on the House floor July 15.
Of the 23 Jewish members of the House, 15 voted the same day against the bill, and one did not vote. Even one of the original sponsors of the bill, Rep. Jerrold Nadler (D-N.Y.), voted against the bill after an amendment he authored failed by a vote of 190-234.
His amendment sought to ensure that existing civil rights laws would not be affected.
“We desperately need stronger religious protection in this country,” Nadler said during the debate. “But this bill forces us to choose between religious freedom and civil rights.
“As an American and as a Jew — an individual whose heritage has suffered from the appalling ravages of intolerance — I must conclude that that is a false choice. We can do better.”
“RLPA should be a shield for the religious liberty of all — not a sword against the civil rights of some,” he added.
Canady said the problem with Nadler’s amendment was that “it would establish as a matter of congressional policy that religious liberty would have second-class status.”
Every Jewish lawmaker who voted supported Nadler’s amendment. But upon its defeat, only seven voted for final passage of the legislation.
Rep. Anthony Weiner (D-N.Y.) supported the bill in the end but acknowledged the difficult choice it presented.
“This was a very difficult balance that people had to strike,” Weiner said in an interview. “If anything I’m disappointed that there wasn’t greater accommodation on the part of the sponsors to try to find a way to achieve what we wanted to, which is to protect religious freedom, while leaving no doubt that we were being respectful of civil rights as well.”
Jewish groups across the gamut praised the House’s action, noting that the bill passed by a larger margin than had been anticipated.
The opposition of Jewish lawmakers, however, clearly made the victory bittersweet.
“The decision of so many of the Jewish lawmakers to vote against it is troubling,” said Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, which has helped lead the coalition.
But he said “it’s important to underscore that even the Jewish lawmakers who spoke against it on the floor, all made clear their strong support for the principle of the bill.”
Marc Stern, a lawyer with the American Jewish Congress who helped draft the bill, said he disagreed that the legislation would create conflict with civil rights laws, particularly because it would be left to judges to decide the merits of individual cases.
Although most Jewish groups continue to support the legislation, that support may belie certain misgivings some feel about the bill. While most members of the coalition have not changed their position on the measure, some activists say they feel a conflict.
“Personally it tortures me, because I’m not sure I’m on the right side,” said one coalition member who asked not to be identified.
The Clinton administration has signaled its “strong support” for the measure, but as the focus shifts to the Senate, the prospects for final passage of the bill remain unclear.
Most Jewish groups have indicated they intend to work with opponents of the legislation to reassure them that the bill would not undermine civil rights protections.