Freedom For Religion; Where We Are Right Now
Nathan J. Diament, Esq.
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Freedom For Religion; Where We Are Right Now
by Nathan J. Diament, Esq.
Director, Institute for Public Affairs -- Union of Orthodox Jewish Congregations of America
As published in the Washington Jewish Week, October 22, 1998
The fight over whether the laws of the United States provide its
citizens with the freedom to fully practice their religions or,
conversely, strive to ensure that society's public square is free from
religion continues to be waged in our nation's courts and legislatures.
It is worthwhile -- particularly in the Jewish community which rightly
trains much attention and effort on these issues -- at the start of a
new year and its coincidence with our civic society's renewal - in the
form of elections - to assess the status of religious freedom
initiatives.
Of course, on one fundamental level, the United States remains the
preeminent bastion of religious freedom. More religions are observed
here than anywhere else. Yet, our nation still remains a place where
the secular is favored over the religious in concrete ways. While few
suggest the reverse should be the case, many citizens of many faiths
believe that the U.S. Constitution contemplates religion being treated
with respect equal to non-religion, and certainly not discriminated
against. On this account, there have been some gains in our nation's
courts and legislatures, but a great deal of work lies ahead.
Perhaps the most daunting tasks remain in the legislative arena. Over a
year ago, the Supreme Court stuck down the Religious Freedom Restoration
Act. As a result, state or local laws can unintentionally restrict an
individual's freedom to practice his or her religion even if the state
has no compelling reason to do so. The day the Supreme Court rendered
its decision, leading senators and representatives as well as state
legislators committed themselves to passing new laws that would respect
the high court's ruling yet redress the threat to religious freedom.
Unfortunately, due to a variety of political challenges, such
legislation remains unpassed and religious citizens and institutions
remain vulnerable to laws and regulations that restrict their freedom.
We have also been working in congress to pass legislation that would
redress some of the burden that the private sector can place upon
religious people. While laws have been loudly championed and enacted to
require employers to accommodate "secular" needs of their employees
(with regard to family and medical leave, for example), current law asks
little of employers in terms of accommodating employees' religious
needs. Thus, we've been working in congress to pass the Workplace
Religious Freedom Act. This law would ask employers to reasonably
accommodate the religious needs of their workers within appropriate
circumstances. Despite having a bipartisan group of sponsors and a wide
range of religious groups behind the bill, it too has failed to overcome
its opponents (such as the business and organized labor lobbies) and
will be held over for the next congress.
The news is not all bad, however, on the legislative front. Congress
has begun to pass pieces of legislation that open the opportunity for
"charitable choice" with regard to social services. Such laws allow
religiously affiliated social service providers to compete alongside
private secular providers for federal grants to provide their services
such as drug rehabilitation or job counseling. In the education policy
arena, congress has also passed a variety of initiatives - from voucher
proposals to tax free education savings accounts - that embrace the
concept of treating religious and secular families equally. While this
is the greatest progress such proposals have ever made, they have been
thwarted by presidential vetos.
In our nation's courts, the results for those of us who champion
religious freedom and equality are mixed as well. In the specific
context of school funding cases, rulings have varied. Wisconsin's
supreme court found Milwaukee's pilot voucher program to be
constitutional as did an intermediate Ohio court with regard to
Cleveland's. On the other hand, federal trial courts in Vermont and
Maine ruled that even though rural communities subsidize their students'
attendance at public or secular private schools in larger towns, they
need not provide the same benefit to families that choose to send their
children to parochial schools. However, a federal appellate court has
more recently ruled that a Minnesota school district cannot discriminate
against religious school students in the provision of in-class aides for
the disabled if it provides such aides for secular private school
students.
While these rulings seem confused, we can expect the Supreme Court to
take up some of these cases and the more general issue of equality for
religion sometime this year. In light of the fact that the Court's
decisions in recent years have tended toward championing the equality of
religion, there is real hope that some progress will be made in the
courts in the very near term.
In sum, the task for us in the coming year is serious and requires
commitment. It requires the entire Jewish community to recognize that
there are differences with the community over some of these issues.
These differences can be traced to policies that were adopted by some
elements of our communal leadership over four decades ago and, it would
seem, should be reexamined in light of the current interests of the
Jewish community and the current state of American society. Our
legislatures and courts seem to be finally moving toward ensuring the
freedom for religion, in all spheres, that the Orthodox community has
long been committed to. We will be fighting for that freedom in the
coming year; we hope the entire Jewish community will join with us.
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