WASHINGTON — Opposition from a growing coalition of national civil rights organizations, as well as a tight legislative schedule in Congress, appear to be damaging the chances for approval of a religious freedom bill that is a top priority for Jewish groups, congressional aides and Jewish activists say.
The bill, the Workers Religious Freedom Act, which defends certain religious practices of employees in the workplace, hit a snag two weeks ago when the American Civil Liberties Union publicly stated its opposition. Now the nation’s largest gay rights and pro-choice organizations have joined the opposition. So has a major Jewish group that formerly supported the bill, the National Council of Jewish Women, the NCJW’s director of Washington operations, Sammie Moshenberg, said.
In a last-ditch effort to get the bill approved during this Congress, supporters are pleading with one of the bill’s two co-authors, Senator John Kerry, to take the lead in pushing it through, hoping that his leadership would convince liberal Democrats to support it, the Forward has learned. Kerry’s people were told by religious groups that pushing the bill through the Senate would increase Kerry’s popularity with various religious constituencies. Sources familiar with the legislative process said that it is difficult to get Kerry’s full attention, because the presumptive Democratic nominee is too busy campaigning.
While proponents of the bill are trying to associate WRFA with Kerry, opponents are trying to associate it with the other co-author, Senator Rick Santorum, whom many liberals view as a representative of the religious right. Groups on the opposing camp are referring to the bill as the “Santorum amendment,” and are emphasizing the role that conservative evangelical Christian groups play in the coalition supporting the bill.
The short time left for legislative action in this congressional session — only eight weeks — also is complicating the efforts of a coalition of religious groups, which includes almost all the major Jewish national organizations, to get the legislation through Congress.
Despite diminishing odds for success, however, Jewish groups are determined to pursue the fight.
“We are making strong efforts to find a legislative vehicle” to which to attach to the bill, said American Jewish Committee Legislative Director Richard Foltin, who coordinates the actions of the Jewish coalition supporting the bill. “It certainly doesn’t help when you have opposition from significant voices such as the ACLU, but we are pushing forward.”
In addition to the ACLU, which sent a letter to senators contending that the bill may violate women’s reproductive rights, gay rights and other civil rights, the Human Rights Campaign — America’s largest gay rights group — has joined the opposition and sent a similar letter to senators. Americans United for the Separation of Church and State has done the same, as did the National Women’s Law Center. Two other pro-choice groups, Naral-Pro Choice and Planned Parenthood, are reportedly in the process of drafting such letters, as well.
ACLU staffers spent most of last week lobbying senators and their aides in an attempt to block the bill from being brought to the floor without first holding hearings or at least discussing it in a Senate committee, said Christopher Anders, legislative counsel for the ACLU. Anders added that groups opposing the bill intend to intensify their lobbying efforts in the coming weeks.
Proponents of the bill intend to do the same, in what is now becoming the most intense confrontation in years between religious groups — including the major Jewish civil rights organizations — and secular national civil rights groups. Supporters are drafting a Kerry-Santorum “dear colleague” letter to fellow senators, highlighting the virtues of the bill and arguing that concerns over the likelihood that the bill would serve as a tool to undermine rights of others are overwrought and largely theoretical.
WRFA attempts to establish higher standards for accommodating religious practices of employees than the ones in the existing Civil Rights Act of 1964, known as Title 7. It deals with the rights of employees to wear traditional religiously required garb or hairstyles — such as beards — in the work place and to take time off for religious purposes. The bill also refers to “other practices” required by an employees’ religion, which employers should accommodate, and which, if accommodated, “may have a temporary or tangential impact on the ability to perform job functions.” The bill makes it clear that employers would not have to accommodate employees’ religiously motivated conduct if it conflicts with the “essential function” of the job and if it involves “significant difficulty or expense” to the employer.
The portion of the bill that addresses accommodating religious practices that go beyond garb, hair or taking time off has been the subject of an intense dispute between the religious coalition supporting the bill and the ACLU. For more than two-and-a-half years, the two sides negotiated quietly, agreeing not to make their positions public and not to lobby Congress. Two weeks ago, the negotiations broke.
The ACLU on June 2 sent a letter to senators, warning them of the “unintended consequence” that the bill would have “of harming critical personal and civil rights” of others. The ACLU’s letter charts out scenarios in which defending the religious rights of workers would violate the civil rights of clients, patients or co-workers. All these scenarios are taken from lawsuits brought by employees in the past several years against employers. In one, for example, an anti-abortion police officer who refused to protect an abortion clinic sued his department; another was brought by a state-employed nurse who told an AIDS patient and his partner that God “doesn’t like the homosexual lifestyle” and that they needed to pray for salvation.
Although all these suits lost in court, the ACLU’s Anders said: “We believe that lots of these cases would turn out differently when and if WRFA passes. That is a risk that is not worth taking.”
Proponents of the bill say that the risk is worth taking, because it’s minuscule. “People will bring cases which are outlandish, which make claims that don’t hold up under the law,” said AJCommittee’s Foltin. “You can’t write laws on the basis that courts are going to engage in wholly unlikely and unreasonable interpretation of what the legislation says.”