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In Testimony Before Key House Subcommittee Saperstein Calls for Passage of Religious Liberty Protection Act, Address Concerns of Other Civil Rights Groups

There Should be a Universal, Uniform Standard of Religious Freedom

Washington, May 12, 1999—In testimony presented today to the House Judiciary Committee's Subcommittee on the Constitution, Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, called for passage of the Religious Liberty Protection Act (RLPA). Saperstein, an attorney who teaches church-state law at Georgetown University Law Center, focused his remarks on the importance of RLPA to religious minorities generally, and to the Jewish community in particular, and on "concerns that have been raised about the interaction of RLPA and our nation's civil rights statutes."

"For much of American Jewry," Saperstein testified, "the struggle to protect our religious liberty, to ensure that we, and our neighbors, are free to follow the dictates of our conscience, is a survival issue." Referring to decisions by the United States Supreme Court which stripped away much of the First Amendment's guarantee of "free exercise of religion," Saperstein noted that "in the wake of the Supreme Court decisions in both Smith and Boerne, religious groups in general, and religious minorities most particularly, are no longer guaranteed the protections that have made our religious experience in America so unique and remarkable."

Turning to the interaction between RLPA and other civil rights statutes, Saperstein began by emphasizing that the current discussion is "not about RLPA on the one hand and 'civil rights' on the other." "The right to 'free exercise' of religion is, itself, a protected civil right," he noted.

Saperstein observed that "there are two categories of valid concerns that the civil rights community raises." He testified that "The first set of issues arises from concerns that a new civil rights law based on the Commerce Cause and/or Spending Clause may result in an unsympathetic Supreme Court issuing a decision repudiating the validity of rooting civil rights in those clauses. This would, of course, greatly restrict civil rights coverage generally. Needless to say, this is a very serious concern but one that, while shaping our subsequent decisions regarding timing and nature of litigation and appeals, should not be used to deny protection to a whole category of civil rights."

"The other set of concerns," Saperstein continued, "is that this legislation may have a negative impact on civil rights claims by providing a new legal right to make a religious claim to engage in discrimination." Saperstein turned first to the question of the proper standard for adjudicating claims that present a conflict between religious rights and other civil rights. He argued that "there is almost universal agreement, including from those segments of the civil rights community questioning RLPA, that Smith [the case in which the Supreme Court struck down a traditional test for evaluating Free Exercise claims"] was wrongly decided—that the 'compelling interest/least restrictive means' test is the right approach." I would assume that the entire civil rights community would support a reversal of Smith," Saperstein noted, asking "Why then a different standard when seeking a legislative remedy to the damage wrought by Smith?"

Saperstein went on to testify that the same concern would apply to "every one of the claims that might be subject to the 'compelling interest/least restrictive means' test." He reviewed some of the history of the debate that led to the passage of the Religious Freedom Restoration Act, and to the drafting of the Religious Liberty Protection Act, and argued that "this legislation works only when there is a uniform standard. " "Grant an exemption or 'carve-out' in any area (either directly or by exempting many areas via a limited 'carve-in' bill)," he warned, "and the entire conceptual and political support structure for the bill topples." "Religious freedom ought to be indivisible," Saperstein argued.

Saperstein did note that "unlike [other] claims, there is an organized effort from some segments of the religious community to use religion as a basis to justify discrimination against people because of their sexual orientation." "The political atmosphere in which this hearing occurs should not be ignored—but it does not justify abandoning a universal standard of religious freedom," he said.

Finally, Saperstein testified that "It is the view of my organization, and many with whom I work, that governmental efforts to prevent discrimination constitute a 'compelling state interest.'" He noted, as well, that "over the past 30 years the courts of America have increasingly found a compelling interest in limiting religious claims for discrimination." "Even the limited case record in the area of anti-sexual orientation discrimination bears that out," he observed. "Discrimination against any individual because of their race, sex, religion, national origin or sexual orientation is wrong and violates the highest ideals of American democracy," Saperstein argued, adding that "Together with many of the national organizations that hold our view on RLPA, we will work tirelessly in the legislatures and the courts to ensure that every state and locality across the nation enacts legislation that repudiates that discrimination."

Saperstein concluded by testifying that "If this Congress sees fit to abandon the concept of universal coverage, if it allows an exemption or 'carve-out' in any area or limits the bill's coverage by depriving all those religious activities that would come under the Commerce Clause from protection, then we, and a number of the other groups in the coalition, will immediately and vigorously endorse a civil rights 'carve-out' generally or a gay rights "carve-out" specifically—for no area of concerns has a greater claim for such an exemption than our government's efforts to end the scourge of discrimination."



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