June 23, 1999
United States Senate
Committee on the Judiciary

In support of
Greater Protection for Religious Liberty in America

This distinguished Committee has examined the challenges to religious liberty in previous hearings. Chairman Hatch, you have been a leader in the fight to protect religious liberty in America for much of your career and I well recall standing in the room with you – two years ago this week (?) -- the day the Supreme Court rendered its decision striking down the Religious Freedom Restoration Act in the City of Boerne case. Your passion and commitment to religious liberty, a commitment similarly shared and displayed that day by Senator Kennedy, was clear. Sadly, it is now two years later and we are still working to repair the damage that has been done to our "first freedom." Congress must act to restore religious liberty to its venerable position in this session.

This Committee is familiar with the Supreme Court’s decisions in Employment Division v. Smith, 474 U.S. 872 (1990), and City of Boerne v. Texas, 117 S.Ct. 2157 (1997) and has heard preeminent legal scholars discuss those decisions as well as legislative options for redressing the harm they have caused to religious liberty in the United States. What I hope to share with you in my brief statement is the traditional Jewish community’s perspective on this issue and the need for legislation addressing it. I will do so with one illustrative example – land use regulation and its abuse.

Orthodox and traditional Jews can often be found living in geographically concentrated communities. This phenomenon flows from a simple religious fact – traditional Jewish law prohibits driving to the synagogue on the sabbath. This restriction, combined with the fact that there are portions of the sabbath prayer service that may only be said with a quorum in the synagogue – not by an individual in his or her home – makes living within walking distance of a synagogue a religious necessity. In recent decades, Orthodox Jewish communities throughout the United States have been flourishing. Long existing communities are growing and new communities are being developed. This wonderful trend often requires the expansion of older synagogues or the construction of new ones. Expansion or construction often requires permits, variances or waivers from zoning boards. Thus, the flourishing of traditional Jewish communities has given rise to another, more unfortunate trend, the use of land use regulations and zoning boards to discriminate against religious communities.

While we, of course, recognize that land use regulation is an important state interest and religious institutions, like other public institutions, must be sensitive to them and cannot automatically override them, it is clearly the case that zoning rules are being used in inappropriate and religiously discriminatory ways.

As recently as June 11, The Forward, a national Jewish weekly newspaper, reported but one example of this disturbing activity¹. The Westchester, New York community of New Rochelle now has a growing Orthodox Jewish community. The members of the Orthodox synagogue are homeowners who pay their taxes and contribute to the community in all the usual ways. The community has outgrown its synagogue and is seeking to build a larger one on a plot that is, of necessity, in the same neighborhood as its current structure. And it is the zoning board that has become the method of choice for those who seek to thwart the growth of the Orthodox community in New Rochelle.

But this is but one of many instances of this unacceptable abuse of land use regulations. In the last session of congress, this Committee heard an extensive report of the refusal of the Los Angeles zoning board to allow elderly Jews to establish a place of worship in the Hancock Park section of that city². In Miami, Florida, a group of Orthodox Jews have been refused a permit to rent a hotel conference room for weekly sabbath services even though the very same hotel room can be rented for a myriad of other functions. In the Cleveland, Ohio suburb of Beechwood, the Orthodox community’s desire to construct a new synagogue was also blocked at the zoning board. The pattern is familiar and must be put to an end.

Legislation reinstating the requirement that a general law of neutral applicability must serve a compelling state interest via the least restrictive means before it can burden the free exercise of religion is the best means of thwarting those who would restrict religious liberty and restoring to religious liberty the level of protection and priority it deserves in this country.

There are other issues of concern to the Orthodox Jewish community that such legislation would address and I would be happy to elaborate them for you throughout the course of this hearing. Permit me, then, to make two closing observations.

Religious liberty was established as America’s "first freedom" by our founders when they chose to make it the first topic addressed by the First Amendment to our Constitution. Two years ago, when the Supreme Court struck its most recent blow to this freedom in the Boerne case the justices issued another ruling relying upon another part of the First Amendment – the free speech clause – when they struck down most of the Communications Decency Act, legislation that was designed to address another issue of concern to the Orthodox Jewish community – obscenity on the internet. It seems that the justices missed the irony that they could read the same opening clause of the First Amendment – that "Congress shall make no law" – shared by the subsequent clauses: "prohibiting the free exercise [of religion]" and "abridging the freedom of speech" in such opposite ways in a matter of days. That week the court gave internet pornographers a greater stake in the First Amendment than it gave people of faith. This, to say the least, is deeply troubling.