Jewish Law - Commentary/Opinion - Religious Liberty at the Crossroads

Religious Liberty at the Crossroads
Abba Cohen

RELIGIOUS LIBERTY AT THE CROSSROADS

Abba Cohen

Religious liberty. In this medina shel chesed (benevolent nation), we tend to take it for granted.

But today, in 1999, we are faced with the tragic reality that the right to practice our religion -- fully and freely -- is at a critical crossroads. It is a scary thought. Even more frightening is how we have reached this point.

For a decade, religious and civil rights groups have labored diligently in Washington on legislation that would recoup some of the religious liberty safeguards lost as a result of the Supreme Court’s infamous "peyote" ruling. In that 1990 decision, which sent shockwaves throughout America’s religious communities, the Court declared that the First Amendment’s guarantee of "free exercise of religion" provided no protection against most governmental burdens on religious practice.

Since then, pursuit and promotion of legislation to counter the peyote ruling have comprised the major focus of a remarkable coalition of some 75 organizations -- groups of all religious and political persuasions which cast aside fundamental differences to unite behind this fundamental right. Recognizing the high stakes for the Torah community, Agudath Israel, too, has been deeply involved in the effort -- helping to draft the legislation, lobbying hard for its passage, testifying at Senate hearings.

But, now, as Congress returns to Capitol Hill -- after ten years of work, after such extraordinary support, after victory by an impressive margin in the House a mere two months ago – prospects for Senate adoption of the Religious Liberty Protection Act (RLPA) appear extremely slim. And, in the current climate, it seems that any meaningful legislation to protect religious freedom has little chance of success.

The simplest explanation for the bill’s probable demise is the disintegration of support from a substantial number of groups within the coalition itself -- those generally associated with the "left" of the political spectrum. As momentum for the legislation grew, the American Civil Liberties Union began suggesting publicly that RLPA could compromise state civil rights -- read "gay rights" -- laws. Religiously observant people, the argument went, would use RLPA as a "club" to justify "discrimination" against individuals who engage in homosexuality, and enactment of the measure would effectively turn back the clock on recent legal and legislative advances.

It is worth noting that there was nothing novel in this charge. It had always been understood that RLPA might be used as a tool to challenge certain "liberal" claims. It was also a given that the legislation might be asserted against "conservative" causes. But a central unifying principle of the coalition was that the bill prejudged no case, that every religious practitioner was entitled to his or her day in court regardless of the claim, that religious litigants would win some and lose some. There were simply no guarantees.

Nonetheless, the ACLU -- now joined by "gay rights" groups, as well as sympathetic African-American and women’s organizations -- insisted on an explicit "carve out" that would insulate civil rights from religious claims or defenses. With it, a person could use RLPA to make a religion-based argument in regard to any law, except those protective of civil rights – again, read "gay rights". In other words, when religious values conflict with "gay rights," religion would always – and automatically – lose. The religious adherent would not even have an opportunity to be heard.

The pressure on certain groups in our coalition has been enormous. Sadly, some of them have walked away from an effort that was once described as "the most important religious freedom initiative since the First Amendment itself." And so, while we will carry the battle forward in the Senate and hopefully beyond, the prognosis is anything but rosy.

Those of us who have been, and remain , so strongly committed to this cause cannot help but feel stunned and wounded. The speed and the extent of the reversal, the credence given to arguments of little merit, the new constitutional and political rationalizations for not going forward, the fear of alienating political cronies taking precedence over deeply-held principle, is more than disheartening. It is crushing.

I had believed that the losses suffered by religion in today’s world – both legal and societal – were not the result of hostility to religion, per se. I felt, rather, that they were based on the contemporary, though misguided, view that all rights, all perspectives -- indeed, all values -- are to be accorded equal status. In a world where we no longer have the right to make judgments, we can no longer speak of "absolutes" or values of a "higher order." Religious liberty -- even in this land founded upon the bedrock of religious liberty -- is simply just another element in a large mix of competing "causes."

But I am more pessimistic now. "Equality" no longer seems the goal. Perhaps there does exist a desire among some to undermine religion, to force upon our society a secularism that seeks to disparage and defame religious beliefs and practices.

These individuals speak in terms of "religious liberty versus civil rights." Isn’t religious liberty a "civil right" at least on par with other such rights? They speak of religious attitudes towards homosexuality as bigotry, lies and hate. Can’t people of faith hold to religiously-based views on moral behavior without being so branded? Given the substance and tenor of the debate, I am no longer convinced that in society’s ongoing "culture wars," religion is not, in fact, under siege.

A great challenge, then, lies before us. It is to weave religious values back into the very fabric of our society, to demonstrate that religion has played – and can continue to play – a unique role in developing this nation’ s character and shaping its destiny.

The more the American public sees the positive contribution religious values make to our public discourse, and toward addressing society’s most pressing needs, the more it will become apparent how vital and indispensable religious freedom is to our communities and to our nation, and how resolutely it must be protected. If we can rise to this challenge, there is reason to be hopeful that religious liberty will once again be cherished as a core American value.

Abba Cohen, Esq. is the head of Agudath Israel's Washington, D.C. office.