Religious Rights: The Devil Is in the Details

In principle, freedom of religion stands as the highest of American values. In practice, however, it is a complicated issue.

Congress now is trying to legislate a solution and, like others, finding the issue to be devilishly complex.

Consider these cases:

* Orthodox Jews wanted to use a private home in Hancock Park as a synagogue, but a homeowners’ association objected and the city of Los Angeles refused to give them an exemption from the residential zoning law. They sued the city in 1997 for violating their religious rights.

* A Christian fundamentalist refused to rent an apartment in Anchorage to an unmarried couple. Alaska law forbids discrimination based on marital status, but the landlord prevailed this year before the U.S. 9th Circuit Court of Appeals in San Francisco.

* To get a California driver’s license, you must give the Department of Motor Vehicles your Social Security number. But five Southern California men refused, claiming in 1997 that their religious beliefs told them these numbers were the “mark of the beast” cited in the biblical Book of Revelation.

Finding a fair legal formula for resolving these and scores of similar conflicts has eluded local officials, judges and the Supreme Court. Their failure illustrates how difficult it can be to settle disputes that arise when some rights and laws contradict others.

On July 15, 107 House Democrats joined 199 Republicans to pass legislation that attempted to solve the problem. The Religious Liberty Protection Act said that local and state officials must bend their rules to accommodate religious claims.

“A government shall not substantially burden a person’s exercise of religion,” the House bill says, except when officials have a “compelling” need to do so. The bill leaves it to judges to decide on a case-by-case basis when the government’s interest is compelling. However, its sponsors cited the plight of the Orthodox Jews in Hancock Park as a prime example of the government wrongly suppressing religious liberty.

Already, the issue has made for strange alliances and rare divisions.

Firmly united in support of the bill are the American Jewish Congress and People for the American Way on the left and the Christian Coalition and Focus on the Family on the right.

In the House, however, Republicans who usually rail against excessive federal regulation supported forced changes in local zoning ordinances to the dismay of city officials. And two liberal Democrats from Los Angeles, Henry A. Waxman and Howard L. Berman, voted against the bill, to the dismay of the Orthodox Jewish congregation.

In recent weeks, the once-solid coalition supporting greater protection for religious rights has fractured. The American Civil Liberties Union and the NAACP Legal Defense Fund split away and now actively oppose the bill. These liberal advocates say that they fear religious conservatives could use the federal legislation to attack state civil rights laws that bar discrimination against gays, lesbians, unmarried mothers and workers with AIDS.

As the Senate prepares to take up the matter--as soon as this week but perhaps not until after the August recess--White House lawyers are having second thoughts as well.

The new opponents of the bill point to the case of the Alaska landlord who refused to rent to an unmarried couple.

“As currently written, this bill would allow people to claim their religious beliefs justify discriminating against gay individuals or a woman with a child out of wedlock or an unmarried couple,” said David M. Smith, communications director for the Human Rights Campaign, a gay-rights group.

Concerns That State Bans on Bias May Fall

California and 10 other states, as well as hundreds of municipalities, make it illegal for landlords or employers to deny housing or jobs based on sexual orientation or marital status. There are no comparable federal laws.

While the House sponsors of the bill deny that they want to nullify state antidiscrimination laws, they defeated an amendment that would have shielded these laws from its impact.

And the statements of some Christian activists who support the bill have raised alarms among those worried about civil rights violations.

Charles Colson, the former aide to President Nixon who heads Prison Fellowship Ministries, strongly endorsed the legislation in a July 13 radio commentary.

The only substantial opposition to the bill, Colson said, comes from “homosexual activists. . . . [The legislation] boils down to a very simple question: Which is the more basic liberty in America, the right of homosexuals to practice sodomy without inconvenience or the right of free religious exercise?”

But Elliot Mincberg, legal director of the advocacy group People for the American Way, believes that the measure is intended to strengthen the rights of minorities, such as Orthodox Jews or Muslim prison inmates, not to undercut civil rights.

“For now, we remain in the coalition [supporting the bill], but some of these statements [from conservatives] are troubling,” Mincberg said.

Meanwhile, the bill’s House sponsor, Rep. Charles T. Canady, a conservative Republican from Florida, finds himself in the odd position of working to reverse a decision by Supreme Court Justice Antonin Scalia, a conservative icon.

Until 1990, the high court generally had sided with the religious claimants who invoked the 1st Amendment and its protection for “the free exercise of religion.” For example, the court had ruled that the children of Jehovah’s Witnesses need not salute the flag at school, that states could not deny unemployment benefits to a Seventh-day Adventist who refused to work Saturdays and that the Amish could not be compelled to send their children to high school.

But a new coalition led by Justice Scalia reversed course nine years ago, saying in a 5-4 ruling that religious claimants deserve no special exemption from “neutral, generally applicable laws.” Scalia’s opinion rejected a religious-rights claim from two Native Americans who were fired from their jobs for ingesting peyote, an illegal hallucinogen that they said was integral to their religion.

Scalia Opinion Stuns Church Lawyers

Church lawyers were stunned by Scalia’s opinion. Could a priest be charged with violating liquor laws for giving communal wine to a child? Could a church be sued for violating state laws against sex discrimination for refusing to hire female priests?

The religious liberty coalition vowed to overturn the court’s decision.

“Our guiding light since 1990 has been that religious liberty should be restored for everyone, with no exceptions,” said J. Brent Walker, general counsel of the Baptist Joint Committee. “This is not a right-wing effort. It is about restoring the principle of religious freedom.”

It has been a long struggle. In 1993, Congress passed the Religious Freedom Restoration Act, which President Clinton hailed in a signing ceremony on the White House lawn. However, the justices struck down that law in 1997 on the ground that lawmakers did not have the power to expand constitutional rights.

Undaunted, Canady wrote a new version of the bill, this time making it a regulation on government units that receive federal funds. That, of course, includes virtually all cities, counties and states.

Among the most vocal critics of the new legislation are the National League of Cities and the National Assn. of Counties. They say that the measure would make it difficult for local officials to protect neighborhoods from noise, traffic and other problems created by building religious institutions such as “mega-churches.”

“This is zoning by Congress,” said Diane S. Shea, associate legislative director for the National Assn. of Counties.

“What church isn’t going for a 16-foot steeple on grounds that anything less is going to be a burden on religious exercise?” added Susan M. Parnas, senior legislative counsel for the National League of Cities.

Christopher K. McKenzie, executive director of the League of California Cities, said that the proposed fix may be worse than current law.

“A group may claim that constructing a building . . . in violation of local zoning laws to practice various Satanic rituals and publish and distribute hate literature is protected under this law,” he wrote California’s senators.

Local officials also expressed concern that children and animals could suffer under the bill. They said that the measure could make it difficult, for example, to collect child support from a parent who refuses to pay “because all his money belongs to the church” or to prosecute someone who sacrifices animals in the name of religion.

In an interview, Canady said that the groups representing cities and counties are grossly exaggerating the effect of the bill. “This bill is aimed at ensuring that government accommodates the free exercise of religion. That doesn’t mean that people who claim that they’re acting on the basis of their religious convictions will always be able to overcome governmental regulations.”

Home Worship by Orthodox Jews

The bill’s supporters said that a number of cases around the country, including two in Southern California, underscores the need for the legislation.

In the Hancock Park case, a small group of Orthodox Jews said they sought to meet in a home because elderly and disabled congregants were unable to walk the mile or more round-trip to the nearest synagogue outside Hancock Park. Jewish law requires that they walk rather than drive to services on the Sabbath and other holy days.

Congregation Etz Chaim sued the city. The lawsuit is pending before a state Court of Appeal. The congregation’s rabbi, Chaim Baruch Rubin, also brought the case to Congress.

“Fair housing legislation made it possible for Jews to move into Hancock Park,” he testified before the House Judiciary Committee last year. “However, today local zoning laws are being used as ‘latter day’ restrictive covenants making it essentially impossible for many Orthodox Jews to live in Hancock Park.”

Los Angeles officials said they want to ensure that religious institutions make good neighbors.

“The city’s determination was that this particular use, where it was, was not consistent with the character of the neighborhood,” Assistant City Atty. Anthony S. Alperin said in an interview.

“We have no intent of telling anybody how . . . to practice their religion,” added Frank Eberhard, Los Angeles deputy planning director. “What we get concerned about are the impacts of those activities on neighborhoods.”

During House debate on the bill, Rep. Roy Blunt (R-Mo.) said it would allow “churches in places like Rolling Hills Estates to build in an area that was zoned commercial, where the churches are told they cannot build . . . but adult businesses can be built.”

Morning Star Christian Church filed suit earlier this year against Rolling Hills Estates after the city banned churches in commercial zones.

City officials said that they wanted to preserve the commercial areas for tax-producing businesses and churches are permitted in areas zoned “institutional.” But church officials said those areas are filled up.

Michele Swanson, a spokeswoman for the city of about 8,000, said: “We’re being painted as anti-church and pro-adult business, and I don’t believe that’s the case.”

Berman, who voted against the bill, said he was concerned about its potential effect on the rights of others. “I don’t think this law should trump those [civil rights] protections,” he said in an interview.

Despite the objections from the National League of Cities, several former Republican mayors voted for the measure, including Reps. Howard P. “Buck” McKeon of Santa Clarita and Elton Gallegly of Simi Valley. Both said that the measure would not allow religious groups to ignore local zoning laws but rather would prevent local officials from discriminating against religious groups.

“I don’t doubt that it will certainly have an impact on civil rights protections,” said Michael Lieberman, Washington counsel for the Anti-Defamation League, which supported the measure. But, he added, “it’s a balancing test.”

White House lawyers are hoping that the Senate can find a compromise on the civil rights issue so Clinton can sign the bill.

“The president very much supports the goal of this bill,” an administration official said. “We don’t want to see it bog down on the civil rights issue and die because of it.”