Washington Wire
July, 2000

Second only to the Workplace Religious Freedom Act, securing congressional passage of a new "religious liberty" measure has been a top OU/IPA domestic public policy priority for the last few years.  The need for such legislation stems from a pair of U.S. Supreme Court decisions.  The first, Employment Div. v. Smith, was handed down in 1990.  In that decision, Native Americans challenged Oregon's law criminalizing the use of peyote without any exception for the ritual use Native Americans engage in.  Prior to 1990, the state of the law was understood to be this: if a law interfered with a person's free exercise of religion the state had to prove that its law was serving a "compelling state interest" and that it was serving that interest by the means "least restrictive" to religious liberty.  In the Smith decision, however, the Supreme Court threw out that standard and ruled that Oregon need only possess a "rational basis" for its outlawing of peyote and need not provide an exception for religious use if it did not care to.

This decision resulted in great alarm in the Jewish community as well as other religious communities.  A broad coalition of groups joined together with a bipartisan group of senators and congressmen and passed the Religious Freedom Restoration Act in 1993.  This measure legislatively reinstated the "compelling interest/least restrictive means" standard to religious liberty challenges to laws that were otherwise neutral in their application.  However, "RFRA" was struck down by the Supreme Court in 1997 as an unconstitutional overreaching by congress.  This sent the religious liberty coalition back to the legislative drawing board.  After a good deal of work, the coalition's drafting committee (headed up by AJ Congress' Marc Stern and U. of Texas law professor Doug Laycock) produced the Religious Liberty Protection Act ("RLPA"), introduced in congress by Senator Hatch and Representatives Canady and Nadler.  RLPA was designed to legislatively reinstate the compelling interest test, but in a manner consistent with the latest Supreme Court decisions.  Thus, in addition to relying on congress' power under Section 5 of the 14th Amendment, RLPA also relied upon the Constitution's Commerce Clause and Spending Clause.  Most constitutional scholars believed this new bill would pass the high court's review.  However, as the coalition prepared to move the bill through the House of Representatives in early 1999 a new political challenge loomed.

In the years since 1993 and the passage of RFRA, the gay rights movement has grown into a very influential force within the Democratic Party. Without going into the details, gay rights organizations (along with the ACLU - a RFRA coalition member) decided that this bill was against their interests.  They asserted that it would empower religious landlords and employers to obtain exemptions from local ordinances prohibiting discrimination against gays in housing and employment and they mounted a vigorous campaign against the bill.

The battle in the halls of the House office buildings was intense in the days leading up to the vote.  I experienced some of this intensity directly when one Jewish Democrat called me into his office to debate the ACLU's legal counsel over the bill in the congressman's presence.

Rep. Nadler attempted to broker a compromise in this debate by offering an amendment to the RLPA bill, which would have carved out housing and employment ordinances from its coverage.  Because we (and other members of the coalition, including the most liberal ones) believed that religious liberty deserved the highest level of constitutional protection, we rejected Nadler's proposal.  RLPA passed the House by a substantial margin in July of 1999.  We then turned our attention to the Senate.

The Senate's rules are much different from those of the House; it is very easy for a single senator to block the consideration of a bill. Senator Kennedy, a former co-sponsor of RFRA, expressed his serious concerns over RLPA and its impact on civil rights protections and clearly, was not about to allow the bill to proceed on a "fast track." Additionally, many liberal groups within the coalition (such as the ADL, AJ Committee, Reform RAC, and others) withdrew their support for the bill fearing a more public battle between the religious communities and the gay/civil rights communities. 

Over the second half of 1999 and into early 2000, a smaller coalition of groups (including ourselves, AJ Congress, Catholic Bishops, Southern Baptists) tried to move RLPA through the working closely with Senator Hatch.  This effort, however, was to no avail.  The gay rights groups recruited many of their traditional allies beyond the civil rights community (such as education groups, children's advocates and others) to oppose the bill.  With this array of groups by their side, opponents of RLPA ensured that no Democrat would support the measure.

Thus, in the early spring, our coalition working for RLPA was faced with a stark choice:  Inasmuch as Majority Leader Trent Lott promised us a vote on the bill, we could force members in an election year to 'vote against religious liberty,' with the full knowledge that we would loose that vote; or we could shift to a more narrow bill which did not implicate any of the interests of the gay community.  Some conservative Christian groups favored the former approach.  But along with Matt Dorf of the AJ Congress, we persuaded them not to allow the perfect to be the enemy of the good.  This allowed us to approach Senator Kennedy and begin the discussions of a narrower bill - focused upon the most documented trouble-areas of religious liberty today (including within the Orthodox community) - the use of zoning laws against houses of worship and the ability of prisoners to access religious items and services.

Several weeks of intensive negotiations and drafting sessions ensued to shape a targeted bill.  The key players in these discussions were counsels to Senators Hatch and Kennedy and Rep. Canady, Professor Laycock, Marc Stern, Carl Esbeck of the Christian Legal Society, Bill Marshall of The White House Counsel's office, an attorney for Prison Fellowship Ministries, and myself.  By mid-June we had a bill largely drafted and all agreed to.  This allowed us to reconstitute the old RFRA coalition and bring groups such as the ACLU, Baptist Joint Cmte. and Reform Religious Action Center back into the process.  This was fortunate for it would take all of these groups working together to secure the passage of even this consensus measure. 

The narrower, targeted religious liberty measure did not address the areas of land use and prisons in any way different from how the broader RLPA bill would have. However, it did address these two areas directly and explicitly challenged the free reign of those with power in these two realms. Thus, the targeted bill generated fierce opposition from local government authorities whose power it would check; The National Association of Counties and the National League of Cities lobbied against the bill on this front. As did groups promoting historic preservation laws. The prospect of prisoners having an increased measure of protection generated opposition from some state attorney general offices. Our work was still cut out for us especially if we wanted to pull the measure before Congress' August recess so that our opponents could not kill the bill over those long weeks. 

A handful of us constituted a legislative task force to coordinate the efforts of coalition groups with Hatch, Kennedy and staffers. As part of this effort, IPA Associate Director Josh Sussman solicited letters from OU rabbis and lay leaders in communities of key senators. The response from communities in Arizona, Ohio, New York Missouri, and Texas was both swift and helpful. Senator Kyl of Arizona was asking serious questions about the text impact on prison administration and I coordinated the response to his office. But the key battle, somewhat surprisingly, was in New York over the issue of historic preservation. 

Historic preservation activists in Washington (via the National Trust) and New York (via the Municipal Arts Society) got it into their heads that our bill would lend to historically landmarked churches and synagogues having free reign to be torn down or altered. While this was substantively incorrect this did not hamper their activism against the bill. These influential groups pressured Senators Moynihan and Schumer to delay the bill's consideration; they persuaded Mayor Giuliani to publicly oppose the measure, and the New York Times to editorialize against it. While we solicited grass roots letters to New York's senators supporting the bill (special kudos to the Y.I. of New Rochelle) we kept in close touch with the senators' staffs to keep them in our camp.  Ultimately, we offered the preservationists some legislative history language through Senator Kennedy's office to address these concerns. This was Wednesday, July 26; we had one day left to pass the bill before Congress adjourned. 

Thursday, July  27. We had already cleared the bill for action with Republican senators and now awaited clearance on the Democratic side. We got early word that Senator Biden placed a hold on the bill. A rush of phone calls revealed that he did not have any substantive objections to our bill, but wanted the Violence Against Women Act considered first. We also learned that "VAWA" was not ready, as far as other senators were concerned, for consideration. We scrambled to have key people reach Senator Biden. I reached out to the Jewish Council for Public Affairs and the Nat'l Council of Jewish Women - key supporters of VAWA and they asked Biden to release his hold, but to no avail. We asked Senators Kennedy and Lieberman to speak to Biden, and this too didn't seem to be working. Finally, Senator Biden released our bill after a conversation with the Bishop of Delaware. The time was 4:00pm. 

While we waited for the Senate to pass the bill by unanimous consent, some of us dared to inquire if we could get the House to act on it as well. Senator Canady had been keeping the leadership informed by of our progress in recent weeks. I spoke with a contact in Majority Leader Armey's office. She informed me that the House was expected to adjourn at 5:30pm, but if the Senate voted and we rushed the papers across to the House, and Minority Leader Gephardt consented, the House would act. Many key coalition partners reached out to Mr. Gephardt and he consented to the bill's consideration. 

At 5:15pm the Senate had still not acted. A Senator was on the floor delivering a speech about prescription drugs...and he had charts! Finally, at 5:30pm he yielded the floor which Senator Hatch took, and sought and received unanimous consent for the Religious Land Use and Institutionalized Persons Act. The papers were rushed across the Hill to the House where Representatives Canady and Nadler waited to take them to the floor. But the House had already completed its last vote.

Luckily, a number of members had various resolutions or other items to speak to and the House hadn't yet adjourned. We told key leadership staffers that our papers were on the way. As a matter of course, the House Judiciary Committee  (that with jurisdiction over this bill) e-mailed its members to gain clearance for RLUIPA's consideration. A last minute obstacle - Rep. Bobby Scott (D-VA) objected! 

While the ACLU located Mr. Scott, I reached Rep. Nadler in the House cloakroom and relayed to him a telephone number where he could reach Scott. David Saperstein gained the cooperation of civil rights community leader who also reached Mr. Scott - who withdrew his objection. 

Shortly after 6:00pm before the House adjourned the R.L.U.I.P.A. was passed by unanimous consent. It now awaits the president's signature.  

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