by Nathan J. Diament
Director, Institute for Public Affairs - Union of Orthodox Jewish Congregations of America

Published in the Monday, September 6, 1999 edition of the Washington Times

The recent decision by Kansas education officials to allow local school officials to remove the theory of evolution from public school curriculums has sparked a torrent of commentary. Most Americans, whatever their attitude toward the debate between scientists and creationists, should be offended by the rhetoric adopted by Kansas’ critics. Across the board, media pundits have suggested that those who really believe in a Divine Creator of the universe, to the point where they act on that belief, are (depending on where you tune in or read) "idiots," "backward," "small minded" and the like. This hullabaloo from the heartland could be written off as nothing more than summer amusement if it didn’t reflect a more serious and disturbing trend in the United States.

The religious freedom of Americans is currently under a quiet but substantial siege. While freedom of conscience – the ability to believe what you want – is unquestioned, the ability to freely and fully act in consonance with those beliefs can be severely hampered. This reality is, no doubt, surprising to most. After all, we all know the Constitution’s First Amendment guarantees the "free exercise of religion." But when religious activity runs up against prized American secular interests, it is religion that often loses. This sad truth is most evident in two contexts, both of which we are trying to redress with congressional action.

The first context in which religious exercise is under fire is when it runs up against a seemingly neutral law or regulation. In our highly regulated society, hardly any activity can be undertaken without implicating some public policy concern. A religious community seeking to erect or expand a synagogue, church or mosque must contend with local zoning regulations. A public school student wishing to wear religious garb must contend with the school district’s dress code requirements. This was highlighted earlier this month with a Mississippi school board’s prohibiting a Jewish student from wearing a Star of David to school on the grounds that it might be perceived as a gang symbol. Thankfully, the board subsequently reversed its decision.

For decades, Americans’ free exercise rights were accorded the highest level of constitutional protection, on par with other fundamental rights such as free speech. This was ensured by requiring that any law or regulation that would burden religious practice could only do so if it served a "compelling state interest" via the means "least restrictive" to religious liberty. This protection has been undone twice in recent years by the U.S. Supreme Court. Now, a coalition of groups stretching from the People for the American Way to the Christian Coalition and including every Jewish organization you could imagine are working to reinstate the highest level of constitutional protection to religious exercise through the Religious Liberty Protection Act.

Despite the startling breadth of this coalition and endorsements from the president and key congressional leaders, "RLPA" has run into political difficulty because it calls into question whether we really believe in religious liberty – even to the point that we allow people to act on those beliefs when they are otherwise "politically incorrect." RLPA’s opposition comes from the ACLU and the gay rights community. They assert, based on nothing more than speculation, that religious Americans might invoke their right to religious liberty to seek exemptions from gay rights statutes. A religious landlord, for example, might contend that homosexual conduct offends her religion and that she should thus be exempt from a local ordinance requiring her to rent an apartment to a gay couple should they apply for one. A religious employer might object to being required to afford spousal benefits such as health insurance or pension payments to the partners of homosexual employees if the employer provides such benefits to married heterosexual employees.

Now, no one working to enact RLPA believes it is designed for this purpose, nor do we believe it would necessarily succeed in such an effort since a court might well rule that a law seeking to eliminate discrimination against gays indeed serves a compelling state interest. But what should concern us more is the notion that members of congress as well as political activists question whether we should protect religious liberty even when it hurts – ie: when it will result in activity that is disagreed with.

The second context in which religious commitment is at odds with a prime American interest is when it runs up against capitalism. On a regular basis, American workers are asked to make the cruel choice between observing their faith and keeping a job. In some workplaces, Muslim women are told to remove their head-scarves, Orthodox Jews are pressed to work on Friday night and Christians are told to punch in on Christmas. The Civil Rights Act was once understood to require employers to reasonably accommodate the religious needs of their employees. In recent years however, courts have interpreted the law so narrowly that there is virtually no protection for the religious needs of employees.

The Workplace Religious Freedom Act, which will be introduced this month by a bipartisan group of senators and is, again, supported by a broad coalition of religious communities, would reinstate employers’ obligations to attempt to accommodate the religious needs of their employees. Worried about anything that might impact on their bottom line, the legislation is opposed by organized business which succeeded in blocking its progress in the past session of congress. As in the case of RLPA, our society is being asked whether we will truly respect religious liberty by allowing Americans of faith to act upon the dictates of their conscience even when such actions might be at odds with more broadly held American values and interests.

All segments of the American community, whether liberal or conservative, strictly observant or not at all, should be calling upon congress to back up its paeans to religious freedom with concrete protections for religiously motivated conduct across the board. To do less is to really say we don’t respect religious liberty.

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