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Behind the Headlines; Safegu Arding Religious Liberty Again a Priority of Jewish Groups

February 26, 1991
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Safeguarding religious liberty has once again moved to the fore as a major domestic priority of American Jewish groups this year.

In both the legislative and judicial arenas, Jewish groups are working to achieve the maximum degree of religious freedom without violating the constitutional separation of church and state.

High on the agenda of Jewish groups ranging from the liberal American Jewish Congress to the strictly Orthodox Agudath Israel of American is seeking passage of a bill called the Religious Freedom Restoration Act.

The bill is an attempt to circumvent a U.S. Supreme Court ruling last spring that, in effect, permitted states to enact laws infringing on certain religious liberties without having to prove a “compelling state interest.”

The case in question involved an Oregon statute barring use of the hallucinogenic drug peyote, which American Indians use for sacramental purposes. The high court ruled that the state’s need to regulate controlled substances, in effect, overrode the Indians’ right to engage in this particular religious ritual.

Jewish groups fear the ruling could be used by states as a precedent to prohibit such ritual practices as the drinking of Kiddush wine by minors or the kosher slaughter of certain animals.

The Religious Freedom Restoration Act would, in effect, require states once again to prove a “compelling interest” before infringing on religious liberties.

Jewish groups are also pursuing related legislation at the state level. One of their concerns is that state courts might use the Supreme Court precedent to deny exemptions from zoning laws routinely given to synagogues.


Some Jewish groups are also lobbying on behalf of a bill soon to be introduced in Congress called the Public Disclosure of Religious Dietary Certification Act.

The bill, crafted by Agudath Israel and backed by the Anti-Defamation League of B’nai B’rith, would create a registry at the Food and Drug Administration for kosher certification symbols and would allow lawsuits to be filed against distributors of food falsely labeled kosher.

But one of the top certification agencies, the Union of Orthodox Jewish Congregations of America, has withheld support, citing concerns about language in the bill that could conflict with state laws already on the books.

And AJCongress has been hesitant to support the bill because of concern that it will put the government in the position of having to deal with issues of religious certification. It would regard that as a violation of the First Amendment’s ban on government endorsement of religion.

The tension between allowing free exercise of religion and prohibiting government endorsement of it is expected to be played out in the courts again this year, and Jewish groups already have their eyes on a number of cases.

The Supreme Court has no such cases on its docket at the moment, but it is considering a petition, Lee vs. Weisman, that challenges a 1990 U.S. Court of Appeals decision that ruled as unconstitutional a rabbi’s prayer at a public high school graduation ceremony in Providence, R.I.

The case was originally brought by the family of Deborah Weisman, one of the graduating students, who maintained that the inclusion of a prayer in the ceremony violated the separation of church and state barred by the First Amendment.

The family was backed by AJCongress, which filed a friend-of-the-court brief in the case.


Last week, the Bush administration filed a friend-of-the-court brief on behalf of the school in Providence, which is appealing the ruling.

Its brief argued that unlike organized prayer in public schools, banned since 1962, graduation prayers occur once a year and take place in the presence of “families as a whole,” which it said serve as “a natural bulwark against any coercion,” the Washington Post reported.

In any event, if the case is accepted, it would not be heard earlier than the fall.

Another case dealing with the degree of religion allowed in the public schools is one challenging the creation by New York state of a special school district in Monroe County to provide remedial education for children of Satmar Hasidim living in a cohesive community there.

In an earlier case, the New York State Court of Appeals held that while the school district could not be required to provide remedial instruction away from the public schools, which the Satmars do not attend, such instruction would not be unconstitutional.

When the school district did not respond by providing such services, the state legislature created a special school district. The challenge to the new state law is being heard by the New York State Supreme Court, which in New York is the state’s lowest court.

Also being tested in the courts is the issue of government aid to parochial schools, which is opposed by secular Jewish groups, but not Orthodox ones. Cases are pending in federal district courts in Kentucky, Louisiana and Missouri.

These states provide funds to private religious schools that run “shared time” programs. Under such programs public school students spend part of the regular school hours in publicly funded religious education in a private school, or when public funds are used at private schools to teach remedial education.


At the federal level, debate is expected to continue on the idea of government-funded vouchers that would assist parents who opt to send their children to private schools.

Although budget constraints in Washington will likely prevent any new major federal spending, President Bush’s proposed 1992 budget contains $330 million for voucher programs. Bush also proposed that Congress allow states to use as much as $225 million in block grants for that use.

More likely is that Congress will approve a small “pilot program” allowing the use of vouchers said Marc Stern, co-director of the AJCongress Commission on Law and Social Action.

The subject of prayer in the public schools could also arise again. At the opening of the 102nd Congress last month, proposed constitutional amendments allowing voluntary prayer in the public schools were introduced in both the Senate and House of Representatives. But observers say the initiatives are unlikely to go anywhere.

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