"This is an imperfect world, and Washington often stands out
in the area of imperfection. . . . Half a loaf is better than
none." That is how Abba Cohen, Agudath Israel of America's
Washington Office director and counsel, explained the
thinking behind a new religious liberty bill introduced last
week in both the United States House of Representatives and
Senate.
The bill, the "Religious Land-Use and Institutionalized
Persons Act", would enhance the rights of religious
institutions seeking to avoid restrictive provisions of local
zoning or landmarking ordinances; as well as protect the
religious freedom of state prisoners and other persons who
reside in government-operated institutions.
"These are areas where there is broad recognition of the need
for greater legal protection of religious rights," said Mr.
Cohen, "and it would be a meaningful step forward were
Congress to pass this legislation."
Supporters believe that they have the votes to pass the bill,
but their chief enemy is time, with only about six weeks left
to have the bill passed by the Senate and the House of
Representatives and be signed by President Clinton.
The bill represents a scaled-down version of an earlier law,
the Religious Freedom Restoration Act, which the U.S. Supreme
Court in 1997 declared unconstitutional on the grounds that
Congress had exceeded its constitutional authority to
regulate state and local legislation. The proposed new bill,
which Mr. Cohen played a role in drafting, is carefully
crafted to avoid similar problems.
UNder the proposed legislation, state and local governments
will be prohibited from blocking the establishment of a place
of worship unless there is a "compelling reason" to do so,
and then to do so by the "least restrictive means."
A number of zoning battles have emerged over Orthodox places
of worship over recent years, including a Rockland County
village which established zoning laws that prevented -- and,
some charged, were engineered to prevent -- the use of
private homes as synagogues. In another case that attracted
national attention, a group of Hancock Park, California
Orthodox Jews, including elderly and disabled individuals
unable to walk to the closest synagogue on the Sabbath, were
prevented by local zoning laws from meeting to pray in a
private home. The bill would provide protection against such
restrictive applications of land use regulations. In some
cases, for example, Orthodox congregations had to find room
for a required amount of parking spaces even though the
congregants walk to the synagogue on Shabbos for services.
Another tactic was requiring extensive ecological surveys.
The bill would further apply the "compelling reason/least
restrictive means" standard in evaluating governmental
efforts to restrict religious practice in institutional
settings. Religiously observant Jews in state prisons, for
example, would have greater protection for kosher dietary
needs and Sabbath and holiday observance.
Much as Agudath Israel welcomes the new bill and will work
hard toward its enactment, the group's preference would have
been a bill offering broader religious protection to
religious citizens -- like the original Religious Freedom
Restoration Act or a later proposal, the Religious Liberty
Protection Act, which passed through the House last year but
fell prey to political squabbling over the contentious issue
of religious entities and anti-discrimination laws. But, Mr.
Cohen notes, "For now, the new bill seems to be the only
approach that stands a serious chance of getting enacted, and
there is no question that its passage will make a substantial
difference in the lives of religious Americans, including
Orthodox Jews."
The earlier version of the legislation was much broader,
providing that Jewish children be allowed to wear
yarmulkes in school, that minors can drink wine for
religious purposes and providing extensive protection for
Jewish sensitivities on the issue of autopsies.
However, opponents of the earlier law said that the way it
was written could allow for abuses such as protecting
landlords who refuse to rent to certain prospective tenants
citing religious principles as their reason, or employers not
hiring people and citing religious grounds. Thus that version
did not pass. With its narrower focus on just land use zoning
and prisoners, the new proposal is not vulnerable to the
criticism that defeated last year's version.
