Rabbi Moline Submits Testimony To House Committee on Religious Freedom Restoration Act

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Written Statement for the Record of Rabbi Jack Moline, Executive Director of Interfaith Alliance

House Committee on the Judiciary Subcommittee on the Constitution and Civil Justice

Hearing on “Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act”

March 2, 2015

Chairman Franks, Ranking Member Cohen and members of the Subcommittee, thank you for the opportunity to submit this statement for the record on behalf of Interfaith Alliance for the hearing on oversight of the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Person’s Act (RLUIPA). Interfaith Alliance, which seeks to mobilize people of all faiths and those of no particular faith tradition in defense of religious freedom, has a long history working on the implementation of both of these of the laws.

It is no coincidence that my organization celebrated its 20th anniversary last year – just one year after RFRA marked that same milestone. RFRA was born out of the anxiety and legal uncertainty created in the wake of the Supreme Court’s ruling in Employment Division v. Smith. Religious advocates and legal scholars alike recognized that ruling had dramatically changed the nature of religious freedom in America. If the plaintiffs in Smith had no claim because the law they violated did not specifically target their religious practice, then the protections we assumed for any number of religious practices and practitioners were called into question. Particularly as American religious life grew more diverse and less familiar, requiring that lawmakers had the knowledge and intent to target a religious practice appeared to be an untenable standard.

The founders of Interfaith Alliance saw that protecting the civil rights of all Americans and rectifying the damage done to religious freedom by Smith were profoundly linked. That is why, since our inception, Interfaith Alliance has partnered with people of a wide-range of faith traditions to ensure that no federal law or policy stands in the way of a person practicing the tenets of their own faith. Over the years both RFRA and RLUIPA have served as important legal and rhetorical tools toward achieving that goal.

However, even in the immediate aftermath of RFRA’s passage, it was clear that many advocates sought a drastically different definition of religious freedom than we – or, we believe, the framers of the Constitution – had in mind. The years after RFRA saw the ascendancy of a political movement that distorted religious freedom and sought to transform RFRA into a weapon to impose their own religious ideology onto others. Activists have tried to turn RFRA into a private right to discriminate, seeking exemptions for private companies from non-discrimination policies. Others have sought the ability to foist their religious beliefs onto their employees by controlling their access to benefits and rights at work. This perspective seeks to present religious freedom and civil rights in opposition with one another, rather than forces that grow in tandem.

Since our inception, Interfaith Alliance has fought to counteract this dangerous view of religious freedom. Our work continues to be guided by these twin goals – to defend the personal rights of conscience for people of every faith, while pursuing a definition of religious freedom that expands the Constitution’s guarantee of freedom and equality for all. While we believe that RFRA, RLUIPA, and most importantly the First Amendment, support that approach, dissenting activists and their political and legal allies have not relented.

The proponents of a religious freedom that respects the civil rights of all were dealt a significant blow by the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. This case found that the owners of Hobby Lobby were entitled, under RFRA, to an exemption to the mandate that they provide comprehensive reproductive healthcare coverage to their employees. Emboldened by this decision, RFRA cases have been filed across the country seeking to wildly expand religious exemptions and grant certain people of faith the right to force their beliefs on those around them. In turn, the anger and resentment this decision has sparked across America threatens to alienate many of religious freedom’s most important allies and defenders.

All of us who cherish religious freedom – including the distinguished members of this Committee – must determine whether RFRA, as currently interpreted by the Supreme Court, is the right vehicle to defend our first freedom. Religious freedom rights are too important for us to allow them to be jeopardized by those who would use them to pursue their own sectarian, partisan agenda. If we allow the status quo to continue of Congress remaining inactive while activists push for the broad and vigorous implementation of the Hobby Lobby ruling, the very freedoms that RFRA sought to enshrine will be made vulnerable to attack from all sides.

There is a simple fix to RFRA that Interfaith Alliance and I would propose to you today. Congress should pass legislation that clarifies what many of us have always argued was the true intention of the Constitution: All Americans are guaranteed accommodations for their religious beliefs, unless such an accommodation would result in meaningful harm to identifiable third parties. Such a solution would enable RFRA to embody the idea that civil rights and religious freedom grow together.

Justice Ginsburg envisioned such an approach in her concurring opinion in the case Holt v. Hobbs that defended a Muslim prisoner’s right to grow a beard. She wrote, “Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”

The real lesson of RFRA is in how, after a dangerously misguided Supreme Court decision, religious advocates and civil libertarians came together with politicians from both parties and crafted a solution. The time has come for Congress to do so once again. I urge you to look past the political and religious divisions of today and come together to pass legislation that will protect the religious freedom of all and endanger the civil rights of none. Justice Ginsburg has given you a framework in her concurrence in Holt – let those words be your guide.