The 105th Congress is shaping up into a critical front on the church-state battlefield.
As lawmakers gear up for a busy spring with their return next week from a recess, a handful of measures are poised to make runs at the wall separating church and state.
Such initiatives include a school-prayer amendment to the Constitution, several pieces of legislation aimed at shifting social-service programs from the government to religious communities, and various school-voucher initiatives.
The efforts come as the U.S. Supreme Court considers the constitutionality of the Religious Freedom Restoration Act, the 1993 law that makes it harder for government to interfere with the free practice of religion.
That ruling, which is expected by July and which all sides of the church-state debate are watching closely, could have a significant bearing on congressional measures dealing with religious liberty issues.
For Jewish activists and church-state watchdogs, the issues now before Congress are familiar. All of them came up in the last session in one form or another.
“What is different now is atmospherics and packaging,” said Michael Lieberman, Washington counsel for the Anti-Defamation League.
Indeed, last month’s hasty vote in the House on a resolution supporting displays of the Ten Commandments on public property is an example of a measure that some observers say was geared more toward scoring political points than formulating actual policy.
At the same, time, however, many of the legislative initiatives carrying church-state and religious liberty implications have emerged in new forms.
Among them:
School prayer: A tough battle lies ahead for proponents of the Religious Freedom Amendment to the Constitution, a measure that would allow for prayer in public schools and other forms of religious expression on public property.
Rep. Ernest Istook (R-Okla.) authored the amendment, which one Jewish observer described as a “thermonuclear” device looming over the church-state battlefield.
Opponents, including most Jewish groups across the political and religious gamut, have vowed to make the defeat of the initiative a top legislative priority.
They say the First Amendment already protects religious expression, that the proposed language would allow government to fund religious institutions and that the initiative would run roughshod over the rights of religious minorities.
In the last Congress, efforts to win passage of three similar amendments became bogged down by disputes over language. This year, however, most advocates have agreed to unite behind one proposal.
Despite the unified approach and a pledge by the Christian Coalition to spend up to $2 million to lobby for the amendment, legislative observers remain doubtful it will muster the two-thirds majority necessary to pass a constitutional amendment.
Charitable choice: The welfare law adopted last year contains a provision known as “charitable choice” — a requirement that states contract with religious agencies to provide services for the needy.
The author of the charitable choice provision, Sen. John Ashcroft (R-Mo.), is seeking to extend the principle, adding it to a number of public-health and social-service bills introduced this term.
While supporters of charitable choice say religious providers can do a better job than the government in running social-service programs — drug rehabilitation, for example — critics contend that the practice could lead to religious discrimination and excessive government entanglement with religion.
One of the Jewish groups’ chief concerns is that the provision allows taxpayer money to flow to religious groups that run strictly sectarian programs. They also fear that the arrangement could permit churches to force someone to worship in order to receive benefits.
“If you’re of the wrong religion in a particular community, there isn’t going to be anyone to serve you,” said Marc Stern, co-director of the legal department of the American Jewish Congress.
Church-state watchdogs are seeking to strip the provision from pending legislation, or at the very least alter the wording so that states may only contract with religious organizations that are not pervasively sectarian.
“We believe there must be appropriate safeguards in place when these kinds of contractual relations take place,” said Richard Foltin, legislative director and counsel of the American Jewish Committee.
But the task of defeating or toning down the Ashcroft language remains daunting, observers say, given the variety of legislative vehicles carrying it and the fact that one such law — embedded in last year’s welfare bill — is already on the books.
In addition, opponents face an uphill battle because, as Stern put it, the argument against funding church-based social-service programs is harder to win because church-state concerns “end up being seen as an obstacle to an otherwise salutary public policy.”
School vouchers: Republican leaders have pledged to make school vouchers a top priority in the 105th Congress.
Legislation known as the Safe and Affordable Schools Act has emerged as the leading vehicle, though voucher programs have been inserted in several bills.
Sponsored by Sen. Paul Coverdell (R-Ga.), the act would provide $50 million in grants to fund a five-year pilot program offering vouchers to low-income parents whose children attend an “unsafe” school. The vouchers would enable them to select a parochial school.
School-voucher initiatives — also known as “school choice” — have split the Jewish community. Orthodox and Republican Jewish groups point to vouchers as the best way for addressing the educational problems in America and for improving access to a quality Jewish education.
Most in the organized Jewish community, however, continue to reject the idea of handing out taxpayer money for use at religious schools, calling it an affront to the constitutional separation of church and state.
The outlook for voucher legislation remains unclear.
In the last Congress, debate over a school-voucher plan for the District of Columbia died in the Senate when Republicans were unable to override a Democrat-led filibuster.
This term promises more charged debate amid what will likely be the most concerted push for voucher legislation to date.
The fact that the Coverdell bill was the first piece of legislation introduced in the new Senate “is indicative of the leadership’s intention to take it very seriously,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, which advocates voucher initiatives.
President Clinton’s opposition to voucher programs, however, remains a key obstacle.
Workplace Religious Freedom Act: While working to counter what they see as legislation that would erode church-state separation, Jewish activists are also hoping to win a victory for religious liberty through the Workplace Religious Freedom Act.
With solid support from just about every leading Jewish group, the bill has emerged as a centerpiece of the Jewish community’s legislative agenda.
The legislation is aimed at ending religious discrimination in the workplace by forcing employers to accommodate their employees’ religious needs, including granting time off for religious observance.
Current law requires employers to “reasonably accommodate” the needs of religious employees, whereas the proposed standard would require employers to prove a “significant difficulty or expense” if they decided not to accommodate a worker’s religious needs.
Unlike other legislative proposals advanced under the banner of religious liberty, the Workplace Religious Freedom Act “would actually do something for real people,” said Stern of AJCongress. “It wouldn’t be an ideological statement. It would actually address real problems.”
Similar legislation was introduced at the end of the past two Congresses, without success.
Supporters remain confident that the bill, sponsored by Rep. Jerrold Nadler (D- N. Y.) in the House and by Sen. John Kerry (D-Mass.) in the Senate, will pass this time around, particularly if they can convince lawmakers to seize upon it as the term’s most promising — and least meddlesome — religious liberty issue.
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