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Richard Foltin, of the American Jewish Committee, a pro-choice, pro-gay-rights group backing the bill, says the debate over it has pitted traditional liberal allies against each other. "Our opponents are reading into this bill in a fashion that is unfair and overwrought."
Foltin thinks the bill is carefully drafted to promote religious freedom without harming individual rights. It requires an employer to provide for religious beliefs only if it doesn't create "undue hardship." And it requires employees to do "essential functions" of a job. So if a nurse denied a rape victim emergency contraception, Foltin asks, wouldn't the nurse be refusing to do a basic task? And if a counselor proselytized to a gay teen, wouldn't that create a hardship?
To hear civil rights advocates, though, the bill's language is so vague, so open-ended that it could infringe upon the rights of fellow employees and customers. They say the language not only leaves room for religious employees to disregard state and local laws banning sexual-orientation discrimination, but also enables them to deny access to women's reproductive health care.
And they're not dealing just with hypotheticals. Consider the religious-discrimination case involving a Chicago police officer who didn't want to protect an abortion clinic. Or the Ohio pharmacist who refused to dispense birth control. Or the Idaho tech worker who hung a sign with violently anti-gay scripture above his cubicle.
In these cases, the employees lost their Title VII claims in court, according to the ACLU's legislative counsel Christopher Anders. But they could have won under the current bill. That's partly because its language is so cloudyfor example, it accommodates religious objections that affect only a person's job in a "temporary and tangential way." Does that mean a pharmacist could claim a request for birth control pills was the only one received that month, and thus "tangential"?
"All the language in WRFA is new," Anders says. "So it'll be thrown to the courts to interpret, and you can be sure that some courts will go the wrong way."
Opponents find the bill especially dangerous given the pro-life agendas of some religious conservatives. The American Center for Law and Justice, Pat Robertson's litigation outfit, has used the existing federal law as a proxy for curbing individual liberty; last May, the center filed a Title VII lawsuit for a Chicago EMT who objected to taking a patient to an abortion clinic. Meanwhile, the ACLU reports a rise in the number of calls it gets about nurses denying emergency contraception to rape victims. And Christian pharmacists nationwidesome of whom are represented by the Christian Legal Society, which supports this billare already refusing to dispense a range of birth control prescriptions.
"We're not being paranoid," says Laser, of the National Women's Law Center. "A law like WRFA passed at a time like this is dangerous."
It's hard to argue that senators Clinton and Kerry jumped on a pro-religious bill just for show. Both senators have embraced it well before their party's talk of getting religionClinton has co-sponsored it for three sessions, Kerry for nine. The Massachusetts senator first introduced the act in 1996 after two Catholic constituents lost their jobs for taking Christmas off.
"This bill wasn't cooked up during the recent debate about faith and values," says April Boyd, Kerry's spokesperson. "This is an issue of conviction for John Kerry."
At the same time, it's hard to imagine that politics played no role in Clinton and Kerry's decisions to keep sponsoring the bill. Opposition to it surfaced only last June, when two years of negotiations between religious and civil rights advocates fizzled out over the particulars. Opponents have since written letters and paid visits to Democrats on the Hill, voicing their concerns, urging them not to back the bill. That lobbying may have worked on the party's rank and file. As one source close to the Hill puts it, "There are other Democrats who've not felt the need to make a political call on this bill."
Larry Sabato, a University of Virginia political-science professor, says it's no accident that the party's likely presidential candidates for 2008 have remained co-sponsors in the face of growing controversy. Clinton and Kerry's support probably seemed simpler before the opposition developed, he explains. But unlike other Democrats, they had to stay the course. "To do otherwise would confirm their critics. It'd be proof positive they were responding to the viewpoints of secular organizations."
Thinkers like Marshall Wittmann, of the super-centrist Democratic Leadership Council, agree, and point out that a potential presidential candidate has to cast a net beyond what he calls the party's "special interest groups" in order to get elected. "Any Democrat who is serious about 2008 will look at concerns expressed by the ACLU and determine they're not as significant as demonstrating to the general electorate that they're sympathetic to religiously oriented voters."
That may be the case. When asked about the bill's opposition, Boyd, Kerry's spokesperson, stresses that "the Senate has no stronger advocate for civil rights than John Kerry," who enjoys a 100 percent rating from the ACLU, the Human Rights Campaign, and most women's groups. "That's evidence that no one has anything to fear with this legislation," she says. Pressed about complaints from civil libertarians, she replies, "The bill was very carefully written to guarantee it won't infringe on civil rights or the delivery of health services."