Compelling Case
BY Nathan J. Diament
February 24, 2005. As published in the New York Sun
http://www.nysun.com/article/9662

As night follows day, you can be certain the cable news channels will be spending time next week loudly discussing the Ten Commandments. This is because on March 2, the U.S. Supreme Court will hear oral arguments in two cases concerning the placement of Ten Commandments displays on public property. Thus, we can be sure we will see the Reverend Jerry Falwell squaring off against atheist activist Michael Newdow on one channel, while secularist Barry Lynn chastises the Reverend Pat Robertson on another.

Nuance is necessary, but often absent, in discussions about religion and politics if America’s troubled relationship with this topic is to be improved. A simplistic, but apt, summary of the media’s common story line would be: “The religiously orthodox care only about banning abortion while the religiously liberal care only about expanding the welfare state – never the twain shall meet.” This is then transposed into political categories so that a recent cover of Time magazine can ask: “Evangelicals – what does Bush owe them?”

But, as is often the case, reality is more complex. A few examples illustrate this point. The National Association of Evangelicals is disseminating a publication entitled “An Evangelical Call to Civic Responsibility” which, among other priorities, calls for policies that promote “economic justice.” The U.S. Conference of Catholic Bishops has issued a critique of the president’s fiscal year 2006 budget as providing too few resources for social welfare programs. My own organization, representing the more conservative segment of American Jewry, continues to advocate for public funding for stem cell research, while the more liberal Reform denomination has joined us in pressing for workplace religious freedom legislation opposed by the ACLU.

In the same vein, the entire spectrum of America’s organized religions – left, right, and center; Jewish, Christian, Sikh, Muslim, and more – have joined together in another case before the Supreme Court which will be argued just three weeks after the Ten Commandments cases, but is unlikely to receive much, if any press coverage. The case involves the (unfortunately named) Religious Land Use and Institutionalized Persons Act, or Rluipa, of 2000, and its outcome will unquestionably have a greater impact upon religious freedom in this nation than a Ten Commandments monument ever will.

Most Americans are probably unaware that the First Amendment’s guarantee of the “free exercise of religion” is one of the least legally protected rights we have today. This is because in 1990, the Supreme Court overturned decades of precedent and ruled that a law or regulation could infringe upon a person’s religious exercise so long as the government possessed a “rational basis” for the law and there was no explicit intent to infringe upon religion. Thus, for example, if a state outlawed all alcohol consumption for those under age 21 and made no exceptions for wine at Mass or Sabbath, a devout Catholic or Jew could not succeed in challenging that lack of exception as infringing on their Free Exercise rights.

In the wake of this startling ruling, Congress passed – by virtually unanimous votes – the Religious Freedom Restoration Act, which sought to reinstate the previous level of protection to Free Exercise claims and statutorily require that a state have a “compelling interest” in order for a law to be allowed to infringe upon religious exercise. This statute was subsequently invalidated by the high court on grounds that had less to do with religious liberty than the court protecting its turf from congressional backlash.

This resulted in religious liberty advocates and their congressional allies returning to the drawing board and passing the more narrowly targeted Rluipa, which the court will review March 22. This statute seeks to reinstate the higher level of “compelling interest” protection in the two arenas where we could document the most egregious and widespread examples of state officials infringing on religious exercise – in the use of zoning laws to discriminate against the construction or expansion of churches, and the restriction of prisoners’ access to religious materials and worship. On March 22, the court will consider the constitutionality of RLUIPA in the context of whether Ohio prison officials improperly denied inmates access to religious opportunities. This is neither a sympathetic case nor a simple one, but it will determine whether the court will grant Congress any room to reinforce religious liberty by statute or, if not, whether the court will reconsider its 1990 ruling, which created this problem in the first place.

Apart from the court’s consideration, it would be useful for the country to consider the degree to which our laws practically protect religious liberty. The press is the means by which this conversation could be catalyzed, but one can readily see that the RLUIPA prisoners case is much more complex than a predictable set of polemics about the Ten Commandments.

Mr. Diament is director of public policy for the Union of Orthodox Jewish Congregations, which joined a brief in the Supreme Court in support of Ten Commandments displays.