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Statement of Rabbi David Saperstein Director and Counsel, Religious Action Center of Reform Judaism on the Religious Liberty Protection Act of 1999 (H.r. 1691)
MAY 12, 1999

I. Introduction

Thank you, Mr. Chairman, for the opportunity to address this Committee on an issue of vital importance to the American people and of special concern to the American Jewish community. I am Rabbi David Saperstein, and, in addition to representing 1.5 million Reform Jews and 1,800 Reform rabbis in 870 congregations nationwide, I come before you today as an attorney who teaches church-state law at Georgetown University Law Center, and as a member of the clergy who cherishes America's religious vitality.

This afternoon the Committee is hearing from some of the nation's leading authorities on religious liberty. Their testimony makes clear, in great detail, the perilous state of our first freedom, and the urgent need for this legislation. In my brief comments, therefore, I will focus on two issues: first, the importance of the Religious Liberty Protection Act (RLPA) to religious minorities in general, and to the Jewish community in particular; and, second, the concerns that have been raised about the interaction of RLPA and our nation's civil rights statutes.

II. RLPA and Religious Minorities

At the outset, I need to express, in the strongest terms possible, that the Reform Jewish community, as with most mainstream Jewish religious and secular organizations support this legislation. The organization I represent, the largest in American Jewish life, has made passage of legislation addressing the Smith decision one of our top legislative priorities, believing that failure to pass such legislation would make empty the 16 words that have allowed Judaism to flourish in America as it flourishes nowhere else outside Israel, words that have provided Jews with more freedom and opportunities than we have ever known in Diaspora life: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

For much of American Jewry, 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.

Our history, so often marked by oppression at the hands of societies intolerant of minority religions, has taught us the cost of governmental interference with religion. The fundamental freedoms enshrined in our nation's Constitution have allowed minority faiths to develop their rich and varied traditions free from majoritarian protections and as Jews, we are painfully aware of the danger of governmental restrictions upon religious freedom.

In fact, the American experiment teaches us the value of religious freedom. Today, we live in the most religiously diverse nation in the history of the world, where more than 2,000 religions, denominations, and sects thrive and co-exist in harmony. We rejoice that America—the golden land of inalienable liberties—is the nation where all religions, including minority religions, enjoy the most freedoms, the most rights, and the most opportunities in the world.

But today, 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. Even Justice Scalia acknowledged in Smith that, religious minorities would suffer disproportionately as a result of the decision.

For instance, the Jewish principle of kavod hamet, respect for the dead, mandates that a dead body is not left alone from the moment of death until burial and that we must not disturb the body in any manner. For this reason, autopsies, in all but the most serious situations, are forbidden. Following Smith, courts in both Michigan and Rhode Island forced Jewish families of accident victims to endure intrusive government autopsies of family members, even though the autopsies directly violated Jewish law and there was no finding that the autopsies were necessary for compelling government purposes (e.g. suspicion of foul play or a contagious disease).

A court in Los Angeles declined to protect the rights of fifty elderly Jews to meet for prayer in the Hancock Park area, because Hancock Park had no place of worship and the City did not want to create precedent for one. Similar cases involving land use have arisen across the nation.

III. Interaction Between RLPA and Other Civil Rights Statutes

Before turning to the concerns about RLPA raised by the ACLU and some of my colleagues in the civil rights community, I want to emphasize a point that, too often, has gotten lost in this debate. Whatever disagreement there may be over the concerns raised by the ACLU, I ask each of you on this Committee to remember that the issue is not about RLPA on the one hand and "civil rights" on the other. Because, of course, the right to "free exercise" of religion is, itself, a protected civil right. Our nation's civil rights laws must, and generally do, offer protection to religious individuals and organizations.

Equally importantly, those here with me who will argue for changes in RLPA to accommodate non-religious civil rights concerns are deeply committed to the cause of religious liberty; and those who will argue for a uniform, indivisible standard for the protection of religious liberty are also passionate advocates supporters of civil rights more generally. However the members of this Committee vote on specific proposals which may be offered to address the concerns raised by the ACLU and others, I believe that their commitment to the twin causes which are discussing today—religious liberty and civil rights more broadly—should be measured by their broader records rather than on this specific question.

There are two categories of valid concerns that the civil rights community raises, although, as this panel indicates, the civil rights community is split—albeit respectfully so—about how to best address them. 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 deny protection to a whole category of civil rights. The Court does not need this legislation to bring those issues before it; there are a number of civil rights and women's rights cases in the courts that run the same risks.

The other set of concerns 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. In some cases, the argument goes the civil rights claims will lose. And even where the civil rights claims prevail, the diversion of resources and staff necessary to litigate such cases may well weaken important civil rights efforts.

There are, I believe, three fundamental principles implicated by this set of concerns.

First, the very purpose of the Bill of Rights was to enumerate certain fundamental liberties that are so sacred that they cannot be limited without a compelling governmental interest. There is almost universal agreement, including from those segments of the civil rights community questioning RLPA, that Smith was wrongly decided - that the "compelling interest/least restrictive means" test is the right approach. In that sense, let me remind all the members of the Committee: If the Court had not abandoned its role as the protector of our fundamental rights, the traditional test would still be in effect and we would face this very dilemma in pursuing civil rights and gay rights claims. If we believe that the framers of our Bill of Rights were right, and if we want to restore the strong protection of religious freedom they sought, than whether the Court reverses Smith or we pass this legislation, all claims will need to meet the same test. I would assume that the entire civil rights community would support a reversal of Smith. Why then a different standard when seeking a legislative remedy to the damage wrought by Smith?

Second, with one difference (which I will discuss in a moment), these issues exist with every one of the claims that might be subject to the "compelling interest/least restrictive means" test. Pro-life and pro-choice groups in our coalition, including a number of those testifying today, agreed that they would not seek an exemption for their concerns or claims. Thoughtful law and order advocates, deeply concerned about security and discipline in prisons, rejected an exemption. Historical preservationists and zoning authorities were willing to forgo exemptions. The military and school officials—all of whom had legitimate concerns—were willing to forgo an exemption. 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) and the entire conceptual and political support structure for the bill topples. Religious freedom ought to be indivisible.

One aspect of the concerns of those of us who care about gay rights particularly, however, bears special attention and sensitivity. Unlike most of these other categories of 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.

On the third concern, however, I must acknowledge that there is no consensus at all among the most passionate supporters of RLPA in our coalition or this committee. It is the view of my organization, and many with whom I work, that governmental efforts to prevent discrimination constitute a compelling state interest. Because of our differences on strongly held concerns, we have all agreed that what is or is not a compelling interest should not be written into the law.

Whether the "least restrictive means" prong of the traditional test requires or allows religious exemptions in certain situations—ranging from religious organizations to the grandmother who rents out two rooms in her own home—is not the issue here. The compelling concern of eradicating discrimination is. We cannot, however, guarantee the outcome of any particular court decision. But 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. Indeed, the hurdles religious liberty plaintiffs must surmount are quite high. To prevail, they must first demonstrate that there is a "substantial burden" on their Free Exercise right. As the California Smith case , illustrates, this is often not an easy standard to meet. Further, they must show why the effort to prevent discrimination is not a compelling interest. Despite ebbs and flows, the direction of the cases has been toward rejecting religious claims to the right to discriminate.

Mr. Chairman, the stamp of the divine is found in the souls of all God's children—gay, lesbian, and straight. 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. We believe that preventing discrimination is a compelling interest. 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.

IV. Conclusion

Whatever our views on civil rights generally and gay rights particularly, I hope all of us can agree that there should be a universal, uniform standard of religious freedom. We, therefore, urge the Committee to reject any "carve-outs." They are conceptually problematic and would open political floodgates that would, practically speaking, kill this legislation. However, if this standard applies to the civil rights concerns, so too does it apply to the claims of prison officials, zoning authorities, military brass and educators. You will be hearing from some of them. 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.

Mr. Chairman, I thank you for the opportunity to share my views this afternoon. I look forward to your continued leadership in advancing this important legislation.

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The Religious Action Center of Reform Judaism is the Washington office of the Union of American Hebrew Congregations and the Central Conference of American Rabbis, representing 1.5 million Reform Jews and 1,800 Reform rabbis in 875 congregations throughout North America.




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