Behind the Headlines: Groups of Diverse Persuasions Back Law to Reverse Court Ruling
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Behind the Headlines: Groups of Diverse Persuasions Back Law to Reverse Court Ruling

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When the Supreme Court ruled last April that two American Indians could be denied unemployment benefits because they were fired for using an illegal drug, peyote, in a religious ceremony, many groups across the country realized the decision affected far more than Native Americans.

The result was the organization of an ecumenical coalition of religious and civil rights organizations, many of which have differed vehemently with each other on political or religious issues.

They came together out of fear that the April 17 decision in Oregon Employment Division vs. Smith would threaten religious freedom, especially for minority religions such as Judaism.

No one believes that Congress or a state legislature will adopt laws that specifically prohibit practices by minority religions, according to Rep. Stephen Solarz (D-N.Y.).

“The threat to religious freedom, to the extent there is one, essentially comes from the enactment of laws of general applicability which make it impossible for individuals to carry out the requirements of their faith,” he explained.

Solarz drew up the Religious Freedom Restoration Act of 1990, designed to return the situation to what it was for some three decades before the court decision.

It was introduced in the House last summer and now has 99 co-sponsors, Democrats and Republicans, liberals and conservatives. A similar bill was introduced in the Senate just before Congress adjourned last week.

The crowded congressional calendar kept the bill from being adopted this year, but Solarz will introduce it again when the new Congress takes office in January, said David Lachman, a legislative assistant to the congressman from Brooklyn.


The proposed law would require federal or state legislation to demonstrate a compelling governmental interest before restricting someone’s religious practices.

The government also would have to prove that the law was the “least restrictive means of furthering that compelling government interest.” Such compelling interests have usually involved health and safety.

The need to prove a compelling state interest was rejected in the peyote case by Justice Antonin Scalia, who wrote the majority opinion.

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate,” Scalia wrote.

Religious and civil rights groups claim this was tantamount to destroying the protection contained in the clause of the First Amendment that guarantees free exercise of religion.

Justice Sandra Day O’Connor, who voted with the court majority against the two American Indians, nevertheless dissented from Scalia’s reasoning. She said the court has always respected the First Amendment in requiring the government to “justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.”

The anger over Scalia’s decision resulted in 35 groups, including eight Jewish organizations, joining together in the Coalition for the Free Exercise of Religion, which is lobbying in support of the Solarz bill.

During a recent hearing by the House Judiciary subcommittee on civil and constitutional rights, coalition representatives said they were particularly incensed with Scalia’s statement that the compelling interest test was a “luxury” a democracy could not afford.


“But what we can ill afford is a court that misconstrues precedent and guts our free-exercise rights,” said Robert Dugan Jr., public affairs director for the National Association of Evangelicals.

Witnesses at the hearing gave many examples of how generally applicable laws could bar religious practices. For Jews, this could mean making the drinking of sacramental wine illegal for minors, excluding an Orthodox basketball player from interscholastic competition for wearing a yarmulka, banning kosher slaughter and circumcision; and requiring government employees to work on religious holidays.

Agudath Israel of America, one of the members of the coalition, has expressed concern that zoning laws could be used to stop the establishment of new synagogues. Until now, the courts have rejected all such zoning restrictions as unconstitutional.

Members of the coalition point out that the Supreme Court has already sent back to the Minnesota Supreme Court a case with instructions to review it in light of the peyote decision.

The state court had upheld the right of the Amish to use on their horse-drawn buggies an alternative to the triangular signs that Minnesota law requires be placed on slow-moving vehicles. The Amish, who dress in black, consider the bright-orange signs too garish.

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