Testimony of Marc D. Stern

on behalf of the American Jewish congress

Before the Subcommittee on the Constitution of the

Committee on the Judiciary

United States House of Representatives

March 26, 1998

On behalf of the American Jewish Congress, I want to thank you for this opportunity to describe the ways in which the demise of the compelling interest test of Sherbert v. Verner and Wisconsin v. Yoder, and the Supreme Court's invalidation of the Religious Freedom Restoration Act as it applied to the states and local governments, have impacted on my practice as a specialist in religious liberty.

At the outset, I would note that most of the people who consult with me are without question sincere in their assertion of a conflict between religious belief and governmental action. To be sure, there are some few persons who used Sherbert-Yoder or RFRA either in pursuit of a non-religious objection or merely to harass government officials. (The latter category is limited only to a small percentage of prison suits.) These individuals abusing the law are decidedly the minority. People simply do not undertake the burden of dissent from neutral laws without good reason.

It is easy to postulate that citizens will take advantage of RFRA, and undermine the rule of law in pursuit of secular or even selfish ends. The problem exists theoretically; it does not exist in the real world. Religious groups counsel believers in ways to abide by law and religious obligations. They warn against distorting doctrine in pursuit of apparent conflicts with religious teaching, and worry about the public image of the faith if marginal cases are pursued. Lawyers like me will not take cases where the insincerity of the plaintiff is evident. People can of course file pro se--and I will concede there are some less than scrupulous lawyers--but the larger point remains true.

Second, I would tell you that in now over twenty years of practice in this area I have found it necessary to litigate only in a handful of cases. This, even though I have been involved in literally hundreds of clashes between faith and law over the years. Most who find themselves caught between government regulation and religious belief are not interested in litigation or a public vindication of their principles or publicity. They are not interested in a defeat for the secular values embodied in the challenged government action, or in defeating the forces of secularism or evil. They simply want to be allowed to put their faith into practice with a minimum of fuss or burden to themselves or others. They are prepared to do what they can to accommodate the government so long as their religious concerns are taken seriously and accommodated if possible.

Not every claim made in the name of religious liberty can or should be granted. Some claims are simply beyond the power of a civilized society to grant. Others would do too much harm to the social fabric. But in my experience, a majority of cases lend themselves to creative solutions, to compromises, to different ways of achieving the same governmental end, but in a manner that is compatible with religious practice. And some forms of government activity are just not important enough to justify imposing on religious faith. What is needed is a mechanism to force negotiations, to compel public officials to move beyond a mentality of "this is the way we do things--we don't make exceptions," and to force a recognition in these days of omnipresent government that not everything government regulates or undertakes is equally weighty or that there is only one way to do things. When a mechanism is available to force a second look (and, unfortunately, that mechanism sometimes must be the big, thick and clumsy club of litigation) it is often possible to work out compromises acceptable to both sides, compromises that value and preserve as far as possible the legitimate interests of all concerned.

Under the current state of the law, however that mechanism or club is largely missing. There is nothing with which the religious believer can force the government to try something different, or reconsider its demand for total compliance even where that something different comes at little or no cost to the government, or even where it may be better than what government demands. Certainly nothing in federal law can be used to that purpose. It is that lacunae which I hope this committee will find a creative way of addressing within the confines of federal power as determined by the Supreme Court.

I do not wish to be misunderstood as suggesting that given, the overruling of Sherbert, and Yoder religious persecution is now common in the United States. It is not. Nor can I contend that since Boerne there are numerous horror stories with which to illustrate the urgent necessity of a response.

Changes in the law rarely have such an immediate impact. There are changes which I have already felt. There will be many more as government officials from legislators on down realize that they no longer need to accommodate religion. Rules that have allowed for religion to be accommodated--from statutory exemptions to the priest-penitent privilege to the ban on official resolution of intra-church disputes--will be reexamined, and in many cases, discarded. Religious persecution and inquisitions will not take their place, but we will have relegated religious freedom to a value less weighty than any other value enshrined in law

II

As I was writing this testimony, I received a telephone call from a friend in another state. the had been asked to look into a case in which a Moslem child won a judgement for injuries which left him physically, and, to some uncertain degree, mentally, handicapped. The child's lawyer sought to invest the judgement in an interest bearing account as required by state law, and indeed, as would appear to be in the child's best interest. The parents objected that their religious beliefs forbid the taking of interest. The lawyer properly called the matter to the attention of the court. The judge has ordered the parties to show cause why the lawyer should not be appointed guardian with the obligation, over the parents' objections, to invest the monies in an interest bearing account.

At first glance, this is a difficult case. The parents' claim is evidently sincere. On the other hand, the child is too young and incapable of expressing a view on how "his" money should be invested. Perhaps at some later date the child will renounce his parents' religious beliefs against the taking of interest, but will remain saddled with the parents' choice and the resulting economic losses, The loss of interest might even someday result in the child becoming a ward of the state.

In fact, the conflict between the interests of the state and religious practice is not as absolute as appears. Islamic law as I understand it permits the taking of profits from an investment. Islamic banks have worked out arrangements under which "deposits" are treated as "investments" and "interest" as "profits," analogous in economic value to interest paid. It might also be possible to settle on relatively safe mutual funds or stocks which would achieve largely the same result for the child (perhaps with a slightly greater risk of default, but perhaps not). The difficulty with the case, as it was explained to me, is that state law does not permit alternative investments of this sort.

Under Sherbert or Yoder, or under RFRA, this would be an easy case. Assuming roughly identical rates of return and risk of loss, insisting on the traditional form of investments would advance no compelling state interest, nor would it be the least restrictive means of advancing the state's interest in protecting the interests of the child. The judge would be able to rely on Sherbert-Yoder or RFRA to justify a departure from the statutory command for investment in an interest-bearing account. And the family would have leverage to insist on such a departure. Today, however, there is no such escape valve. And while before Smith the matter probably could have been resolved short of full litigation, today there is no alternative but to bring a Sherbert-like claim and litigate it under the state constitution.

Another example. Several weeks ago I received a call from the director of an ACLU office in the western United States. The director of an Immigration and Naturalization Service detention facility refused to provide detainees--some of whom were probably seeking asylum from religious persecution--pork-free diets. His attitude was: this is the diet, if you do not want to eat it, starve. Because the President has ordered federal officials to comply with RFRA, when threatened with a law suit, the manager agreed to provide a pork-free diet. It was the availability of a club which brought this matter to a speedy conclusion. But if these detainees were held in a state or local facility under contract with the INS--as is the case in my home state of New Jersey--the detainees would have now no recourse under federal law. It is surely not plain why federal dollars should not carry with them the same obligation of religious accommodation on a local government contractor that the federal government imposes on itself. Whether an INS detainee is able to observe his faith in detention should not depend on whether the or she is incarcerated in a federal or local facility. As the law stands now, it does.

The impact of the absence of a lever with which to force thought of workable alternatives cannot be underestimated. Just weeks before the decision in Employment Division v. Smith, I received a call from a Jewish community in South Carolina. It seems that a school district had a rule barring the wearing of hats in school. The rule was applied to a Jewish boy who wished to wear a yarmulke in school as Orthodox Jewish practice requires. I told the community to inform the school board that if they did not waive the rule, I would sue it within 24 hours. Not surprisingly, the school board rethought application of its rule, and accommodated its student. I could not do that today. Indeed, it is doubtful that if I were to litigate that case, whether I would get beyond a motion to dismiss for failure to state a claim.

Rules against headgear are generally defended as an anti-gang measure. I am unaware of any gang that has adopted the yarmulke as its signature. What the adoption of rules like that of this South Carolina district tells us is that the scope of religious liberty is today determined by the least law abiding elements of society, that the most naive and otherworldly believer may have his or her liberty restricted because some lawbreaker might do something similar. The test of RFRA was well adapted to ferret out those cases where the state's interest was truly important and where it was ephemeral, and more importantly, where the state's interest could be accomplished in some other way. Today, there is no such check.

Some three years ago, a friend of mine was killed on a commuter train when another train coming in the opposite direction ran a red signal. My friend was sitting at the point of impact. No one in the whole state doubted the cause of death. The coroner insisted upon an autopsy as the condition for certifying the cause of death. The family of the deceased objected on religious grounds to the performance of an autopsy .The coroner was adamant. I asked the coroner if either a CAT scan or an MRI would be acceptable. I was told that the coroner would not accept either alternative. RFRA was in force and a lawsuit was threatened. The State Attorney General advised the coroner that the lawsuit could not be won. A CAT scan showed the cause of death was a severed spinal cord. Here again, the ability to force a second look, to force a consideration of alternatives, led to a result which was acceptable to both sides, which resulted in the preservation of the reliability of death certificates and yet respected the religious beliefs of a grieving family. But nothing in federal law now forces that second look.

Just recently, I was involved in another case involving the same coroner. But because I had no federal right to force the use of--indeed, even the consideration of--alternatives, I was forced to rely on a state law which provides relatively little flexibility and does not explicitly require the consideration of alternatives .Ultimately, the coroner and I worked out an acceptable arrangement, only because this coroner(for whom I have much respect ) is respectful of the feelings of believers. But this is personal to her and her office. Not every medical examiner takes matters of faith into account.

So when I recently wrote on the subject of autopsies and the law for a pastoral journal for Orthodox rabbis, I was obligated to tell them that in dealing with coroners they must recognize, as I am certain that many do not, that they cannot assume that because autopsies raise religious difficulties for Orthodox Jews, that the freedom of religion that they take for granted has any legal force in any concrete dispute over an autopsy, no matter how gratuitous. (Some state statues give medical examiners virtually unfettered authority to require an autopsy.) Thus, I wrote, they should begin by assuming that the decision whether to conduct an autopsy lies totally within the discretion of medical examiners. Their approach, I suggested, should be one of the supplicant seeking a favor, not a citizen demanding respect for a fundamental right.

I want to repeat that I do not contend that every religious claim must be accepted. Of course, only sincerely religious claims need be considered. As I noted at the outset, in some cases the costs of accommodations are simply too high to tolerate. Sometimes truly crucial interests are at stake. In others it will be impossible to devise a workable alternative. It does not follow that religious practice must yield to any governmental interest no matter how slight. And we need to view with some skepticism the persistent and universal response of "it is too expensive, too dangerous, too disruptive" to accommodate religious practice. Two cases, one of which I helped litigate many years ago, further illustrate the point.

Ohio requires slow moving vehicles to be marked with orange reflective tape. The Amish objected to the color of the tape but not to reflective tape of a more modest color, such as white. The state insisted on orange. The trial testimony demonstrated that the Amish's proposed alternative was more visible than the state-mandated orange. That is, it was safer. Because of RFRA, the Amish prevailed. They would not even be allowed to introduce that evidence today, let alone prevail on it.

The Illinois Athletic Association required ball players to play bare-headed. Now this is a classic facially neutral rule, and it was generally applicable. It is also the case that it would never be adopted in a league composed of Orthodox boys (or perhaps Moslem women), so that the claim of neutrality is less than it seems. In any event, the league defended its rule on grounds of safety concerns. It argued that if players wore hats, the hats might fall off and other players could trip over them. It's possible, but surely not common among young Orthodox boys (which I used to be) that a yarmulke would fall off, and someone else would trip and break a bone or otherwise be injured. When an Orthodox school sought to play in the league and have its students wear yarmulkes it was told no. Safety was invoked. (The league actually commissioned a study on whether yarmulkes made of different materials--cotton, wool, velvet, etc.-- would lessen the likelihood of injury. That document is one of the proudest possessions of my organization). But, said the schools, our boys can attach their yarmulkes to their hair with clips so they will not fall off. Under Sherbert-Yoder, the Seventh Circuit held, that alternative had to be explored. And indeed it was on those terms that the case ultimately settled, and that settlement remains in effect, as far as I can tell, without any problem.

Under current law, the case does not begin--the rule was facially neutral, and it was reasonable. End of case. But why should that be in a society which values religious diversity and relies on individual initiative? And if we require governmental bodies which receive federal funds to accommodate the handicapped in their athletic departments, and if we require them to see to it that boys and girls have an equal opportunity to participate in sports, why should we not require recipients of federal funds to give serious and weighty consideration to religious practices?

These are cases in which the costs of accommodation were small or nil. Indeed, in the Amish case it may well be that the process of exploring accommodations pointed to a better result for all.

III

Religious liberty does not have to be cost free to be worthy of protection. If religious liberty means only that practitioners may practice what others may do it is not a value of any importance in our society. Presumably, every law, every ordinance, every governmental action furthers some public purpose. Presumably, too, the public as a whole is better off for the enforcement of these rules than their non-enforcement. But it is hardly a secret that sometimes larger values, sometimes abstract in the form of what we call rights take precedence over more narrowly focused and more immediately beneficial policies. This is assuredly true, when the question is not the general enforceability of the rule, but whether total compliance is necessary to further the government's interests.

Perhaps the most obvious example is the law of libel after New York Times v. Sullivan. I do not share the view that "words can never hurt me." False statements, even about people occupying places of prominence, can and do damage reputations. I surely do not need to tell veterans of the rough and tumble political process that the truth sometimes does not catch up to the slander and libels that accompany political life. Defamation lawsuits serve an important purpose in providing redress.

But the vindication of reputation comes at a price to self governance, in self censorship to avoid the costs of a defamation suit. That is a cost we have generally deemed too high a cost for the benefit conferred in the case of public figures, at least in the absence of malice. Individuals are denied redress not because what was said about him was true, or yet because her reputation suffered no damage, but because larger social interests demand that the individual bear some of the costs of living in a democratic society that depends on an informed electorate. One could multiply examples from other fields of constitutional law; indeed from public policy generally.

The same notion applies to religious liberty. Obviously, there are limits, as there are in other fields. An important limit in the area of accommodation is the constitutionally mandated ban on forcing others to participate in another's religious practice. An inmate has the right to practice her faith--subject to the institution's interest in security and good order, and subject to legitimate logistical concerns--but she does not have the right to practice her faith in a way that compels others to participate against their will. I cannot conceive off-hand of a right to inflict physical harm on an unwilling adult.

It does not follow that no costs are appropriate to impose on society generally, or even on individuals. A liberty is a legal claim that trumps other claims. Almost by definition it comes at a cost. Those who would insist that it is inappropriate to bear any costs for religious accommodation are guilty of what Justice Goldberg warned against in another regard--an overarching secularism, which is hostile to religion, not merely neutral.

IV

The cases I have discussed until now have been relatively non-controversial. Let me turn to some harder cases. I will address areas where there has been particular controversy, either at the national level or in state legislatures as they consider state RFRA's. Some of these issues are hard, some I have personal experience with, some I know only from afar. Some I believe should be decided one way or the other, and some I am happy I do not have to decide. Overall, the approach of the second look works quite well in structuring the discussion of these hard cases.

Zoning

As the Church of Latter Day Saints has demonstrated in their comprehensive review of church zoning cases, in its amicus brief in Boerne, there is a sharp inverse correlation between a church's likelihood of being involved in zoning litigation and the number of adherents its in the community. This suggests that factors other than land use play a large role in zoning decisions. Actually, in my experience bias is often open and notorious. It is true that if one can prove a deliberate effort to exclude a group because existing residents do not want different people in their community, or dislike a particular church, the church is entitled to a remedy.

However, the lower courts have generally proved quite resistant to proof of illicit motive. In one recent case involving freedom of speech, the First Circuit held that the fact that some members of a council made illicit remarks in support of an illicit policy did not justify a conclusion that the decision of the council as a whole to take the same action was premised on illicit concerns. The Tenth Circuit recently held that illicit motive must be alleged in a complaint, and refused to allow discovery to find evidence of bad motive. On the defendants' motion to dismiss, it went on to speculate about hypothetical permissible motives for the defendants' decision at issue there. In short, under such a regime, proof of bad intent is all but impossible to adduce.

Now consider the following cases: A small congregation sought permission to convert a private home into a small synagogue. At the city council session called to consider its application, one councilman warned that if the application were granted, this nearly all white suburb would begin to resemble an adjoining city which was largely minority and full of storefront churches. I protested that bias was not a permissible basis for a decision. Would I have been able to convince a court that a decision denying the application was tainted? Not likely.

In a case still pending in Ohio, a consortium of Orthodox Jewish congregations and educational institutions seek to develop a common campus. The planning director of the city worked with the consortium to work out an acceptable plan. Community opposition developed because of fears that the campus would attract residents who would send their children to religious schools. Although the planning commissioner testified at a hearing that the plan, from a planning point of view, was perfect and should not be changed, it was defeated at a public referendum during which opponents of the plan did not conceal their biases. The defeat of the plan had nothing to do with traditional zoning concerns. But to challenge it now would require proof that bias was the motivating factor in the referendum--and it is not clear that a court would permit such an inquiry as to a public referendum. Under a RFRA-like statute, this would be far easier case. The question would be whether the denial of the permit was necessary to further a traditional zoning interest, and as to that, the testimony of the planning commissioner would have been dispositive.

That these cases are more easily treated under RFRA is relatively easy to demonstrate. But the same is true where religious institutions are excluded under traditional zoning criteria. Here the crucial point is the one I made earlier--that religious liberty is a value which is weighty and which is entitled to significant consideration in deciding how land will be used.

Where the second look doctrine is in place, religious institutions and municipalities are forced to negotiate the results are often enough results acceptable to both sides. But even if not, and the harm is not great, the larger and more permanent value ought to be dispositive.

Again some examples: The rule in New York (and New Jersey) is that a religious institution is presumed to be a good neighbor and to contribute to the welfare of the community. Wholesale exclusions of such institutions from a community or from residential neighborhoods are impermissible. However, the institution is generally required to engage in a planning process--to seek a special use permit--which allows the municipality to address the impact of the institution on a neighborhood. During that process, concerns such as noise, traffic, environment, lighting, parking, bulk, and the like, can be addressed. If it is possible to address those concerns with modifications of the plan, or by restrictions on the use of the property, this must be done. If it cannot be done, and if the harms to the community are real and substantial, the special permit may be denied. Courts, religious institutions and zoning boards have used these powers creatively to accommodate the interests of church and state, but the process also weeds out improper use of zoning laws, or applications which serve trivial interests.

Not all states have such enlightened procedures. In some, for example, religious institutions are treated as any other applicant for a variance. Not only neighborhoods, but whole towns are off limits to religious institutions. In one state, order to even apply for a variance, which is wholly discretionary, churches must first purchase a piece of property, and then seek zoning approval. And if it is denied a church is stuck with a piece of property which is useless to it. In the most developed sections of our nation, the lot size requirements for religious institutions cannot be met on available vacant land. The result in many of these cases is that the religious status quo is frozen in place.

Sometimes the result of straight forward application of zoning rules--all that is required under Smith--are wholly absurd. A good example, encountered frequently by anyone representing Orthodox synagogues, is the requirement for a number of parking spaces per set number of seats in the sanctuary--even though on the days when the sanctuary will be filled worshippers do not drive. Courts applying a second look can deal with this absurdity by requiring a more reasonable number of parking spaces. But there is now no federal requirement that they do so. Many state courts which do apply the second look principle originally adopted the rule under the assumption that the First Amendment required it. That is not the case any longer. I am confident that some states will now abandon a second look in favor of enforcement of zoning ordinances as written.

Another case illustrates how neutral laws can be hostile to religion. Several years ago I represented a small congregation which sought to establish itself in a beachside town in Long Island. The town said that the small number of people coming on Friday nights would ruin the residential character of the town. The local trial judge agreed. Unfortunately for the town, the appeals court judge who heard the case happened to own a summer home in town. He wanted the answer to one question: why was the small minion more disruptive than the large secular parties held by many residents on Friday evenings? The town had no answer and lost its case. Under RFRA that was the right result. It is not clear under present federal law that the question need be answered.

My home town of Clifton, New Jersey is currently in a dispute with a church which wants to buy an abandoned theater. The town wants an art group in the theater and has denied a permit for the church. But is this religious liberty when a town expresses an official preference for secular First Amendment activity over religious activity?

Concededly, state zoning law can be invoked to defeat some of these applications of the zoning law. But review is by deferential standards, and often by judges who are required to run for election in the very towns on whose zoning decisions they are passing. More to the point, it is simply the case that where rules are embodied in case law, zoning boards are likely to do what is politically expedient and let the courts take the heat, and the religious institution bears the expense of litigation, perhaps in the hope that it will seek a site elsewhere. They are more willing to follow statutory directions. I know the system is not supposed to work this way, but it does, not only in my experience, but in the experience of zoning officials with whom I have discussed the issue in private.

Prisons

When Congress originally enacted the Religious Freedom Restoration Act, it took note of the special needs of prison officials. In legislative history which was repeatedly cited by the courts, that history made clear that special deference was due prison officials, that concerns for security, discipline and efficient operations of prisons could, if proven, be compelling. Moreover, the history noted that prison officials could point to budgetary constraints as a justification for limiting inmate rights. There was not to be unlimited deference to prison officials, however. RFRA litigation was not reduced to the ipse dixit of prison officials. It remained the province of the courts to insure that alleged compelling interests were not exaggerated, speculative, or post hoc rationalizations for policies or decisions which were not at all well considered. The federal system continues to operate under RFRA, without apparent difficulty.

In most litigated cases, courts found for prison officials. But not in all, and these tend not to be reported. Thus, in one unreported case in which I was involved, the State of Pennsylvania took the position that it need not provide kosher food for inmates. It took a federal judge just minutes to decide to the contrary, a not surprising conclusion since the federal system and New York State all manage to provide such food without any great difficulty. Indeed, while one still encounters claims by prison officials that they cannot possibly run a secure prison system and provide religiously acceptable diets, it is strange that a variety of other prison systems manage just that.⁽¹⁾ While I recognize that prison systems differ in terms of facilities, security requirements and budgetary limitations, anyone who engages in in prison related work cannot help but be struck by the fact that what prison officials insist in one facility would bring chaos and a total breakdown of security, works perfectly well in apparently comparable facilities. RFRA works well to test which predictions of chaos are legitimate and which are nothing more than the usual bureaucratic reluctance to accept outside oversight.

Several years ago, I was involved in an effort to improve the provision of Kosher food to Jewish inmates in New York State. After much work with the Commissioner's office, the office of the nutritionist, and the state-wide office of security, we reached an acceptable arrangement. When it did not go into effect promptly we requested a meeting with the Commissioner, who told us bluntly that the corrections department was only in theory a department directed from the top down. In reality, the Commissioner had to negotiate with the administration of local facilities for their cooperation. But should such bureaucratic recalcitrance (sometimes masking bigotry), which is a reality, be a reason to interfere with religious practice?

The second look of which I have spoken earlier works in the prison context as well, if there is a reason for prison officials to sit down and talk. Although others do more of this than I do, and can give more examples, one case in which I was involved should illustrate the point. Several years ago, Jewish inmates in Michigan sought permission to light Chanuka candles. The response was that to allow them to light candles in the cell or dormitory area would be both a fire and security hazard. Fair enough. But the inmates proposed lighting one set of candles (as opposed to individual lighting, which is the ordinary, but not required, practice) in the chaplains office under, if need be, the eye of a guard. In addition, I suggested that instead of using paraffin candles which in theory could be picked up and transported to other places in the prison, oil candles be used. Such candles further minimized any minimal security risk that existed. Prison officials continued to resist even this reasonable proposal, until threatened with a RFRA lawsuit. They then yielded, all without any harm to legitimate prison interests.

When RFRA was in effect, New York State modified its rules to follow what I understand is the federal practice--to allow beards worn for religious reasons. As long as RFRA was in effect, such beards were allowed, and without any demonstrated problems. As soon as Boerne was decided, and with no other factual basis, the State reverted to its earlier ban. Now I do not doubt its right to do so, but the question which must be asked is what penological purpose was served by that change other than an assertion of raw power?

Public Schools

Some two years ago, I chaired a group of civil liberties and religious organizations--organizations which spanned the ideological and theological spectrum--in drafting guidelines for religion in the public schools. The President and the Secretary of Education used those guidelines as a basis for their own guidelines. Now, we have collectively decided to reexamine those guidelines to determine if they need modification. Those that dealt with the Establishment Clause ban on school sponsorship of religion needed no change. But we had to propose revisions to those sections dealing with free exercise rights, because, more or less, these no longer exist. Let me illustrate: The student who seeks to wear a yarmulke or who seeks to display a rosary, no longer enjoys any clear federal right to do so. The student who, out of a religiously based sense of modesty, seeks excusal from a gym clothes requirement, or from a co-ed gym class, now has no basis to approach school officials seeking an accommodation. To be sure, there are some fancy and uncertain legal theories which might prevail in some of these cases. But I am at a loss to understand why school officials should not be bound to make accommodations in these areas, unless they can prove real harm--and in these cases they cannot.

More difficult are a series of cases in which students seek to be excused from instructional units which conflict with their religious beliefs. Several courts have held that mere exposure to ideas with which one disagrees is no burden on religious liberty. Of course, if there was no burden, there was no claim under either Sherbert or Yoder or RFRA, and there is nothing more to discuss. But the correctness of that result is debatable. I myself think the result wrong, and that the correct question in those cases is whether excusing a student would create an undue burden on the school.⁽²⁾ There are other difficult questions raised by these claims concerning the rights of children vis-a-vis their parents, and the interests of society in an educated child. But these are not always implicated in important ways in these cases.

The theoretical issues are interesting. But on the ground, the picture is quite different. Most, but not all, school systems routinely honor requests for exemption, at least if the request is limited to a segment of a course.

I used to make such requests all the time and without any objection--about Christmas holiday observances. Whatever their legality under the Establishment Clause, these observances can be very painful for non-Christian children. Every discussion I have with school officials about such observances begins with my request for an excusal of children who do not wish to participate--an excusal that presumes no penalty for non-participants. This is inevitably granted. It no longer need be. Why not?

In fact, for all the legal controversy over excusal it is--or it has been--widely practiced until now. Schools which insist on resisting the principle of excusal, offer excusals any way. And the litigated cases about objection to textbooks in all but the smallest number of cases proceed on the basis that the student was offered an alternative.

To be sure, there are powerful, but not conclusive arguments for mandating sex education. But all, or almost all, states mandate exemption from such courses, which are invoked, if I remember the statistic correctly, less than 1 percent of the time. Is it really the case that reading this novel rather than that one is that important? And does not religious liberty carry some weight here? It could be that a child who does not have sex education will be exposed to life threatening illnesses as a result (of course, religious teaching on abstinence provides the same result) but is that true of a novel or a short story? Perhaps it is, but the second look process is well designed to take all the relevant concerns into account, and give them the weight they are due.

Civil Rights Law

No issue has raised greater controversy than the application of the accommodation principle to the civil rights law. Those seeking exemption protest that these laws force them to violate fundamental principles of their faith, or to directly facilitate or condone sin. I take those claims seriously. On the other hand, opponents of exemption argue powerfully that as a society we are committed to the equal treatment of all our citizens, and that religion should not be allowed to depart from this fundamental concern, particularly given the newness of the nation's commitment to those principles.

It should be noted that most civil rights laws already exempt religious institutions to one degree or another. Some of these exemptions are limited to religious discrimination by religious organizations. Some are somewhat broader, permitting religious organizations to engage in discrimination if necessary to further their religious purpose. Courts have applied those exemptions judiciously, and, I think, overall with a minimum of controversy.

Second, again as a practical matter, no church of any consequence in the United States today teaches a doctrine of racial segregation. The so-called Identity churches do, but these are small, and, it would appear, not much concerned with what the laws says one way or another. In addition to the relative handful of people who might make such a choice, passage of RFRA would not affect our commitment to ending racial discrimination, since even if one could surmount the sincere belief hurdle, there is likely a compelling interest in eradicating racial bias which cannot otherwise be satisfied.

The harder question arises in the context of sex, and, most commonly today, sexual orientation, and not so much by religious institutions, but by private persons. These are exquisitely hard cases for me, because they put into conflict two principles I value highly--those of equal rights and religious liberty.

I would not, however, foreclose the argument one way or the other. I can imagine cases where the harm to civil rights enforcement is minimal, in exempting a few believers, but the damage to religion great. Conversely, I can imagine cases where the harm to egalitarian principles is too great to tolerate. For example--and without expressing a view for AJCongress--I think that a refusal to rent to a cohabitating unmarried couple by a homeowner renting a basement apartment would stand on a different footing than discrimination by a large-scale commercial landlord. A law banning discrimination in housing might well be applied to prevent a pro-life landlord from renting to a tenant who has had an abortion, but should a public accommodation be applied (as actually happened in Vermont) to require a pro-life printer to print pro-choice pamphlets? Or to a pizza store which refused to supply pizza to pro-choice gatherings? Or (as happened in Minnesota, until reversed by an appellate court) to require a Catholic church to let space for a meeting by a group which was at odds with the church?

I do not believe that all of these cases are identical, nor that they all need be decided one way or the other. On the contrary, they together urge the wisdom of case-by-case adjudication, and application of the second look principle.

CONCLUSION

The second look approach of RFRA leads to balanced and sensible results. Its demise tips the balance too strongly towards a mindless statism, which ill serves the cause of liberty. The Committee should do what it can to restore the balance.

Judiciary Homepage

Marc D. Stern

American Jewish Congress*

15 East 84th Street

March 26, 1998 New York, New York 10028

* Neither I nor the American Jewish Congress has received any federal grants in the last two years.

1. A state prison in Ohio refused to provide Moslems with Hallal food, even though it provided Kosher food. It claimed Kosher food was available and Hallal food was not. Surely a reasonable justification. But, in fact, one firm produces TV dinners religiously acceptable to both Jews and Moslems. Had there been a way to force consideration of this product, the result in the case should have been different.

2. I should stress that I speak only of the excusal of individual students, not the suppression of an area of study because some object to its being taught on religious grounds. The latter would establish religion under Epperson v. Arkansas. The former, in my judgment, would not, at least in the general run of cases, and provided that, in order to avoid a mass demand for exemptions, a school did not engage in self-censorship.