WASHINGTON (Sep. 21)
There was a time when the task of securing greater protections for religious freedom in America seemed relatively unobjectionable.
A diverse coalition of religious and civil liberties groups formed to pursue that goal following a landmark 1990 Supreme Court decision that struck down key protections for free religious practice. Congress passed legislation in 1993 to restore those protections, and President Clinton signed it.
Even when the Supreme Court struck down that act as unconstitutional in 1997, religious leaders and members of Congress were determined to draft a new bill to fill the void left by the court.
But now, with the Religious Liberty Protection Act pending in Congress, that coalition — which spans the ideological gamut and includes every major Jewish organization — finds itself in tatters.
The coalition broke down last week when several groups — including the Religious Action Center of Reform Judaism, the Anti-Defamation League, the National Council of Jewish Women, the National Council of Churches and the Baptist Joint Committee — announced they could no longer support the bill in its current form.
The groups say they continue to support the bill’s principle of creating a law that allows people to practice their religion free from government intrusion. But concerns about whether religious liberty or civil rights laws should take precedence when the two come into conflict have complicated the matter.
The measure, which passed the House of Representatives in July by a 306-118 vote, 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 say are 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.
Although the House adopted the bill by a wide margin, liberal Democrats, including the majority of Jewish lawmakers, voted against it, citing civil rights concerns.
As Rep. Jerrold Nadler (D-N.Y.), an original sponsor of the bill who opposed it in the end, put it: “RLPA should be a shield for the religious liberty of all – – not a sword against the civil rights of some.”
At issue for the lawmakers, as well as some of the religious groups that withdrew their support last week, is the question of whether the proposed legislation could be used to justify violations of state or local anti- discrimination laws. Opponents argue that 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.
Mark Pelavin, associate director of the Religious Action Center, said his group decided to withdraw support for the bill out of political expediency and concern over contentious debate on the issue in the Senate.
Looking at the political landscape, he said, it became clear there was “no realistic chance of this bill being passed this year” and that “any debate would be a bruising one.
“It would be bruising,” he added “not just for the participants, but more importantly for the concept of religious liberty.”
It remained unclear, however, whether the Religious Action Center and other groups would actively oppose the bill or simply remain silent on it.
ADL, for its part, said it remained firmly committed to the principles behind the act and would continue to work with other faith and civil rights groups to enact the broadest possible protections for religious liberty in light of the opposition.
The ADL might ultimately support a narrower version of the legislation that focuses on areas such as zoning ordinances, prisoner’s rights and autopsies, according to Michael Lieberman, the group’s Washington counsel. Such a bill would avoid the civil rights controversies related to housing and employment.
At the same time, Lieberman said the ADL will continue to lead an effort to enact individual religious freedom statutes on a state-by-state basis.
Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs and a leading proponent of the bill, said the breakdown of Jewish support for RLPA nevertheless was “very disappointing,” adding that it’s “unfortunate” that the groups decided protecting religious practice is “not a high enough priority.”
Marc Stern, co-director of the American Jewish Congress’ legal department and one of the drafters of RLPA, said he thought the coalition had struck a “reasonable balance” between religious liberty and civil rights concerns in the legislation.
He held out the possibility, though, that some of the concerns expressed by opponents could be addressed through changes in the legislation.
Indeed, some of the Jewish groups that left the coalition indicated they would be open to re-examining an altered bill.
It remains to be seen, however, what impact the dissolution of the coalition will have on the bill’s prospects for passage — and whether the Senate will even decide to take up the controversial measure.
Without firm backing from the religious community, “surely it’s more complicated now and conceivably impossible” to win passage, Stern said.
“One of the great strengths of the coalition,” he added, “was its very breadth.” And now, with groups on the left withdrawing their support, “the coalition has lurched politically in terms of people’s impressions, way off to the right.”