October 17, 2006
By Charles C. Haynes

The village of Suffern, N.Y., treats Orthodox Jews just like everyone else — and that's why it's being sued by the U.S. Department of Justice for religious discrimination.

Equal treatment, it turns out, sometimes keeps the faithful from practicing their faith.

Orthodox Jews, for example, can't drive on the Sabbath or other holy days. So a Jewish service agency in Suffern built a "Shabbos House" across from the hospital, giving believers a place to stay while visiting patients (the nearest hotel is more than three miles away).

But since the Shabbos House is in an area zoned for single-family homes, the Jewish group requested — and was denied — a zoning variance. Now both the Jewish agency and the federal government have filed suit, claiming the denial unlawfully burdens the Jewish community's free exercise of religion.

The Suffern conflict is one of many similar disputes across the country. Last month, for example, the 6th U.S. Circuit Court of Appeals heard oral arguments in a case involving the Okemos Christian Center. The church wants to build a larger structure to hold an expanding congregation, but it can't because of zoning restrictions in Meridian Charter Township, Mich. Although the church prevailed in a lower court, the town appealed the decision.

Cases like these are part of a growing national debate over religious exemptions to laws and regulations concerning everything from zoning to taxes. What critics (including many local officials) disparagingly call "special treatment," religious groups describe as needed protections for religious freedom.

According to The New York Times, since 1989 "more than 200 provisions granting accommodations or protections specifically to religious groups, their employees and their members have been woven into laws passed by Congress." In a four-part series this past week titled "In God's Name," the Times describes a plethora of regulatory exemptions, tax breaks and special rules for religious accommodation.

Some of these laws, like the Religious Land Use and Institutionalized Persons Act of 2000 (invoked in the Suffern and Meridian disputes), were passed after the 1990 U.S. Supreme Court decision in Employment Division v. Smith. Because the Court ruled the government no longer had to show a "compelling interest" when denying claims for religious accommodation, it became much more difficult for religious groups to get exemptions from laws that apply generally to everyone. In response, Congress and some states passed legislation to strengthen protection for free exercise weakened by Smith.

In a country divided by culture wars, it's not surprising that efforts by lawmakers to "restore" religious freedom meet skepticism and even resentment from people who worry about too much religious influence on government. The Times series, sprinkled with phrases like "favors for the faithful" and "special breaks," leaves the reader overwhelmed by the laundry list of religious exemptions from regulations and taxes.

A closer look, however, reveals that most of these laws passed with strong bipartisan majorities — and were urged on Congress by religious and civil liberties groups from right to left. It's true that some religious exemptions are highly controversial and, in some instances, may go too far. A number of states, for example, exempt church day-care programs from state licensing requirements that ensure kids' health and safety. Several states exempt religious publications from sales tax, an arrangement that many courts have found unconstitutional.

But most religious accommodations — from legalization of peyote for sacramental use to the ministerial exemption that prevents government from interfering with employment practices of religious groups — enjoy broad public support and are consistent with America's longstanding commitment to religious freedom.

Those who object to "special favors" for religion shouldn't blame today's lawmakers or judges — they should point the finger at our nation's founders, especially James Madison. Madison argued the state must do all it can to guard the right of every individual to "follow the dictates of conscience" in matters of faith. For the believer, he argued, the duty to God is "precedent, both in time and in degree of obligation, to the claims of Civil Society."

Our history is replete with accommodations for religious conviction to protect liberty of conscience. From the earliest days of the Republic, to cite one famous example, Quakers and other pacifist religious groups have been exempted from combat to protect their right to follow what they believe God commands.

Today, most of the patchwork quilt of laws accommodating religious groups are, at heart, efforts to protect what Madison defined as free exercise of religion.

Town officials in places like Suffern would do well to recall that religious claims get "special treatment" because the Framers gave free exercise of religion special protection. The Shabbos House is not a hotel — and under the First Amendment it should not be treated like one.

Call it "favors for the faithful" if you like. But our Framers called it religious freedom.

Gannett News Service
Charles Haynes is a senior scholar for the Freedom Forum First Amendment Center, Washington, DC. Send e-mail to chaynes@freedomforum.org.