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September 24, 1999/14 Tishri 5760, Vol. 52, No.4
Support for federal religious freedom bill wanes on Hill
State law more 'manageable,' says ADL lawyer
TAMI BICKLEY
Staff Writer
Several organizations that were part of a diverse coalition of religious and civil liberties groups, formed to draft and advocate passage of a new federal Religious Liberty Protection Act (RLPA), last week rescinded their support of the RLPA bill pending in Congress.
However, widespread support continues for state religious-freedom laws, including the one passed in Arizona in the last legislative session.
The federal bill, which was passed by 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.
The coalition first formed following a 1990 U.S. 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. But in 1997, the Supreme Court labeled the act unconstitutional.
Over the past several months, coalition members such as the Religious Action Center for Reform Judaism, the Anti-Defamation League, the National Council for Jewish Women, the National Council of Churches and the Baptist Joint Committee, have taken a close look at the language of the new bill, and their leaders have raised concerns about what might occur if religious-liberty rights and civil rights laws should come into conflict as a result of the RLPA bill becoming law.
"We supported (RLPA) in the beginning, as did all the other groups in the coalition," said Sammie Moshenberg, the National Council for Jewish Women's director of Washington operations. "A number of other constituencies that we care about, such as people who are (on) domestic violence and child abuse committees, the reproductive rights community and gay rights community, came forward and said, 'We've taken a close look at this bill and ... we think it actually may jeopardize our (civil) rights, regardless of what it does for religious liberty.' "
Opponents argue that the bill might allow, among many civil rights-defying deeds, landlords and employers to invoke their religious principles as a defense for refusing to rent to or hire homosexuals - even in cities and states that prohibit discrimination against gays and lesbians.
In response to such concerns, members of the coalition met with various interest groups to determine how, if at all, they could change the wording of the bill so that it would be more protective of people's civil rights, as well as religious ones, explained Moshenberg.
"But when we realized (changing the bill) wouldn't be possible ... we decided we could no longer support the bill," she said.
Michael Lieberman, the ADL's Washington counsel, said the ADL has remained firmly committed to the principles behind RLPA and will continue to work with other faith and civil rights groups to enact the broadest possible protections for religious liberty.
Although the ADL now opposes RLPA in its current form, it might ultimately support a narrower version of the legislation that focuses on areas such as zoning ordinances, prisoners' rights and autopsies, Lieberman said. Meanwhile, the ADL will continue to lead an effort to enact individual religious-freedom statutes on a state-by-state basis.
In May, Arizona became one of six states so far to have passed a Religious Freedom Restoration Act (RFRA). The other five are Connecticut, Florida, Illinois, Rhode Island and South Carolina. Some supporters of RFRA in Arizona do not support RLPA in Washington, however.
Lieberman explained that even though these same civil-rights issues were raised by the Arizona Civil Liberties Union in discussions on the state bill, ensuring that the religious-freedom law is not misused or misapplied to allow civil rights violations "is much more manageable at the state level."
The laws on the books in Arizona protecting individuals' civil rights, combined with the Arizona Supreme Court's track record with regard to interpreting such laws with respect to the U.S. and state constitutions, make it safer to pass RFRA on a state basis, he said.
Because each state RFRA is different, if RLPA were to pass on a federal level, it could have a different effect on each of those states that have enacted RFRAs, Lieberman added.
Gila Franklin of the Jewish Council for Public Affairs in New York City, however, said that a federal RLPA would not affect state RFRAs.
It remains to be seen what impact the withdrawal of support from coalition members will have on the federal bill's prospects for passage - and whether the Senate will even decide to take up the controversial measure.
Without firm backing of a unified religious community, "surely it's more complicated now and conceivably impossible" to win passage, said Marc Stern, co-director of the American Jewish Congress' legal department and one of the drafters of RLPA.
According to Sue Stengel, western states counsel of the ADL, the coalition pull-out will doom the outcome of RLPA.
"My understanding from our lobbyists in Washington," she said, "is that there is very little chance this legislation is going to pass."
Proponents of RLPA point to, among other things, city ordinances that have prevented synagogues and other houses of worship from expanding; policies that prohibit Jewish children from wearing yarmulkes (skull caps) in public schools; laws that conflict with the Orthodox prohibition against autopsies; and laws against serving sacramental wine to minors as reasons why new legislation is needed.
Among some of the coalition's continued supporters of RLPA as it is currently written are the National Association of Evangelists, the Church of Jesus Christ of Latter-Day Saints, the Christian Legal Society, the Traditional Values Coalition, the Christian Coalition and the Union of Orthodox Jewish Organiza- tions.
Those factions of the coalition that dropped their support said that while they continue to support the bill's principle of creating a law that allows people to practice their religion free of government intrusion, "we are still very interested in finding a way to address the religious liberty concerns without jeopardizing other people's rights," Moshenberg said.
Daniel Kurtzman, the Jewish Telegraphic Agency's Washington correspondent, contributed to this report.
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