Hearing Before The U.S. Senate Judiciary Committee on S.1248, The Religious Liberty Protection Act of 1998

June 23, 1998

HEARING BEFORE THE U.S. SENATE JUDICIARY COMMITTEE ON S.1248, THE RELIGIOUS LIBERTY PROTECTION ACT OF 1998

TESTIMONY OF RABBI DAVID ZWIEBEL, DIRECTOR OF GOVERNMENT AFFAIRS AND GENERAL COUNSEL, AGUDATH ISRAEL OF AMERICA

Mr. Chairman, distinguished members of the committee, my name is David Zwiebel. I am an ordained rabbi, and I serve as director of government affairs and general counsel for Agudath Israel of America, the nation's largest grassroots Orthodox Jewish organization. It is my pleasure to offer Agudath Israel of America's enthusiastic support for the Religious Liberty Protection Act of 1998, and to explain why this bill is so important to the American Jewish community.

It will come as little surprise to this committee that American Jewry, like virtually every other major faith group in the United States, is hardly monolithic. We differ amongst ourselves on issues of theology and ritual. We debate amongst ourselves -- and often before lawmaking bodies like this one -- over questions of public policy and social legislation. However, on the particular issue before you today -- the need for legislation to protect the free exercise of religion -- the Jewish community is absolutely unanimous. No fewer than 20 national Jewish organizations, spanning the full ideological spectrum of Jewish life across the United States, have joined with numerous other religious and civil liberties groups in the Coalition for the Free Exercise of Religion to promote legislation along the lines of the Religious Liberty Protection Act.

Little wonder. Jews in the United States are a religious minority in a predominantly Christian nation. We are, moreover, a people whose long history has been punctuated by religious persecution in virtually every country we have resided. And so, when the Supreme Court handed down its 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990), severely restricting if not all but eviscerating the constitutional guarantee of free exercise of religion, a chill went up and down the collective American Jewish spine.

Entirely apart from the practical implications of the Court's ruling -- some of which I will return to momentarily -- the Smith decision conveyed a chilling reminder of how flimsy and fragile are the religious freedoms we had always taken for granted in the United States. In the words of the Court's majority (494 U.S. at 890):

"But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required...

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that [is an] unavoidable consequence of democratic government..."

Frankly, that had not been our understanding. We had always thought that the freedoms enumerated in the Bill of Rights were designed to protect the vulnerable minority from the tyrannical majority. We had always assumed that the freedom to practice one's religion according to the dictates of one's conscience was one of the bedrock principles upon which this great nation was founded. We had always understood that, as the Supreme Court stated in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Free Exercise Clause embodied a "fundamental right," and that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." 406 U.S. at 215, 216.

The Court in Smith told us we were wrong -- and we trembled. And then last year, the Court in Boerne v. Flores, 117 S.Ct. 2157 (1997), told us that Congress had exceeded its constitutional power in responding to Smith by enacting the Religious Freedom Restoration Act -- and we were shaken.

For those of us in the Jewish community who are religiously observant, the cumulative impact of Smith and Boerne is potentially devastating. There are many contexts in which laws of general applicability could substantially burden the practice of Judaism, and where the state could easily accommodate the religious practice without sacrificing a compelling governmental interest. Let me cite three broad areas that illustrate the problem:

Land Use Regulation: Orthodox Jews are prohibited from driving on the Sabbath or on Holidays. They are also directed to join together in communal prayer. Taken together, these two requirements of religious law make it necessary for Orthodox Jews to live within walking distance of a synagogue. Zoning laws that make it impossible or exceedingly difficult to build houses of worship within residential areas thus have the practical impact of excluding Orthodox Jews from those areas.

Thus, over the past decade or two, as the Orthodox Jewish population has grown and moved into new neighborhoods across the United States, we have witnessed numerous instances where battles have been waged over the implementation of neutral land use laws that substantially burden our community's religious practice. Indeed, there is some evidence that at least in certain cases local municipalities invoke land use restrictions for the specific purpose of keeping Orthodox Jews out. See, e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995). In the absence of meaningful free exercise protection, and in the absence of a willingness on the part of local communities to accommodate the needs of Orthodox Jews for local houses of worship, our community will be effectively locked out of many neighborhoods across this great land.

Religious Ritual Practices: Secular laws of general applicability often impact upon various aspects of Jewish ritual observance. The right of an observant Jew in a government controlled facility to observe the Sabbath, wear a yarmulke, or receive kosher food; the right of observant Jewish medical practitioners to abstain from performing abortions, sterilizations or other medical procedures they may deem religiously objectionable; the right of Jewish decedents to be free from religiously prohibited routine post-mortem procedures -- these are just a few examples where our community's ability to practice its religion is jeopardized by the absence of meaningful free exercise protection.

A dramatic example of the type of problem that can arise occurred several years ago when the U.S. Department of Agriculture proposed new meat and poultry processing regulations designed to reduce harmful bacterial pathogens such as salmonella and E-coli in poultry and livestock products. A careful review of the draft regulations led us to conclude that two of the proposed rules could create serious problems for the religiously mandated salting and soaking process necessary to render meat kosher. Application of these neutral laws of general applicability could thus have made it impossible for observant Jews to eat meat or poultry processed in the United States.

Fortunately, when we brought this problem to the attention of the USDA, Secretary Glickman and his staff displayed great sensitivity to our concerns and amended the final regulations in a manner that avoided the kosher problem without compromising the safety issue. The bottom line, therefore, was a happy outcome for religious freedom. However, these types of conflicts arise all the time, and not always are we so fortunate as to deal with bureaucrats who are sensitive to and willing to accommodate our religious needs. In those circumstances, the absence of meaningful free exercise protection renders our community exceedingly vulnerable.

Discrimination: The egalitarian ideal of modern secular society is occasionally at odds with Orthodox Jewish practice. Consider, for example, the issue of sex discrimination. Rabbinical schools in the Orthodox community ordain men only. The sexes are separate during prayer services in Orthodox synagogues. Many of the Orthodox Jewish schools, even at the elementary and secondary level, are single sex institutions. Across the board application of generally applicable civil rights provisions could, in many cases, render Jewish institutions vulnerable to claims of sex discrimination.

It is true that many of the statutes that prohibit sex discrimination contain built-in exemptions for religious organizations. Some, however, do not. If Orthodox Jewish institutions are to maintain their distinctive religious identities, and carry out their distinctive religious mandate, they may find it necessary to rely on meaningful free exercise protection.

These are but a few examples of why it is so important for Congress once again to step into the free exercise breach created by the Supreme Court. The Religious Liberty Protection Act represents a good faith effort to abide by the Supreme Court's guidelines governing the exercise of congressional power in this area; and, while it does not sweep as broadly as the Religious Freedom Restoration Act, its enactment will go a long way toward reassuring American Jews -- and Americans of all other faiths -- that government will not lightly interfere with their religious practice.

Thank you very much.