GETTING RELIGIOUS LIBERTY PASSED; 
A TESTAMENT TO TEAMWORK
by Nathan J. Diament
as published in the New Jersey Jewish News, Aug. 3, 2000

Last week, to the happy surprise of many in the Jewish community, both houses of congress passed by unanimous consent the Religious Land Use and Institutionalized Persons Act. 

This measure is the latest effort by America’s religious communities to legislatively redress the cramped protection given to religious liberty by Supreme Court precedents.  In brief, the measure grants houses of worship and incarcerated persons a higher level of protection against laws that unduly interfere with their religious liberty.  These two areas were singled out for coverage out of both substantive and political considerations; congressional hearings clearly demonstrated that the challenges to religious liberty were most pressing in these areas and, as a political matter, they did not implicate any of the issues that had prompted some civil rights groups from opposing a broader religious liberty measure earlier in the year.

Most remarkable, however, is the intensive efforts of a very diverse group of members of congress, staffers and activists that not only fended off continuing opposition to the bill, but managed to pass it through both the Senate and House in the waning hours before congress’ August recess last Thursday.

Only a few months ago, the religious organizations that had been pressing for a broader religious liberty measure relented to the political power of the gay-rights community, and shifted to an effort to enact a narrower bill dealing only with the land use and prisoner issues.  This allowed us to work closely with both Senators Hatch and Kennedy and reconstitute the old religious liberty coalition - which included the ACLU, Reform Jewish Movement and Baptist Joint Committee. 

After weeks of intensive drafting and negotiation sessions which also included representatives of The White House and experts such as AJ Congress’ Marc Stern and U. of Texas law professor Doug Laycock, the consensus bill was finalized and introduced in both houses by bipartisan co-sponsors.  Despite having this bipartisan support and the entire religious and civil rights communities behind it, the measure still sparked opposition from groups whose free reign over religious institutions it checked – with the strongest opposition coming from local government representatives (such as the League of Cities) and historic preservationists.

These opposition groups mounted an intensive effort, particularly through New York City’s influential Municipal Arts Society, to get Senators Moynihan and Schumer to delay the bill’s consideration.  Members of the coalition such as the Orthodox Union, Catholic Bishops’ Conference and others solicited grass roots letters and calls to these and other senators to press our side of the case.  Thankfully, along with Senator Kennedy’s office, Moynihan and Schumer managed to address most of the concerns of the preservationists with some legislative history language we worked out to address these issues.  Despite this fact, the preservationist scored a coup with a Thursday morning New York Times editorial calling on the senate to slow down its consideration of the bill.

On another front, another Democratic senator blocked consideration of the bill on Thursday not out of any substantive concerns, but as a means of demanding another important measure’s immediate consideration – that being the Violence Against Women Act.  As worthy as that measure is, there was little doubt that if we failed to pass RLUIPA last week, it would very well die over the August recess.  Thus, the efforts of the National Council of Jewish Women – a key proponent of the VAWA push, as well as the Catholic Church to persuade the senator to drop his hold on the bill were critical. 

As we finally cleared our last hurdle in the Senate (at around 3 in the afternoon), a few of us turned our attention to the House of Representatives and dared to imagine that we could pass the measure through that body before the adjournment as well.  A few of us reached out to Majority Leader Dick Armey’s office to ask about our prospects.  We were told that the House was scheduled to adjourn at 5:30 and that if the bill passed the Senate before then, and Democratic Minority Leader Gephardt gave his assent, the House could pass the bill before adjourning.  Leaders of the ACLU, Religious Action Center as well as Senator Kennedy’s and Representative Nadler’s office reached out to Mr. Gephardt to seek his assent to the bill’s consideration, and he gave it.

But at 5:15pm, the bill still hadn’t cleared the Senate.  Richard Bryan of Nevada was giving a speech on the floor about prescription drug prices….and he had charts!  Mr. Bryan completed his remarks (with many of us throwing things at our tv screens) at 5:30, and just as the House finished its last vote, Senator Hatch took the Senate floor and received unanimous consent in support of our legislation.  We were pleased that we had finally passed the Senate, but were sure the House had eluded us for now. 

As it happened, a number of House members took to the floor after their vote and offered various resolutions and requests, we still had a chance.  The papers were rushed across Capitol Hill by a senate clerk as Representatives Canaday and Nadler prepared to take the bill to the House floor.  Staffers for Dick Armey’s office and Rick Lazio’s (he serves as Assistant Majority Leader) were working the House floor   But, there was a last minute snag; Representative Bobby Scott (D-VA) registered an objection to the bill being considered when the members of the Judiciary Committee (the committee of jurisdiction) were polled for their consent by e-mail.  In frantic minutes, Congressman Nadler reached Mr. Scott as did the chairman of a key civil rights organization who had been contacted by the RAC’s David Saperstein, and persuaded him to withdraw his objection.  Minutes after 6:00pm, Representatives Canaday and Nadler took to the House floor and received unanimous consent for the Religious Land Use and Institutionalized Persons Act…. and we all exhaled.

The bill now awaits President Clinton’s signature.

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