A new bill co-sponsored by senators Hillary Clinton and John Kerry would seem, on the surface, the perfect chance to carry out the Democratic Party’s fresh-minted strategy of getting religion. Supporters of the Workplace Religious Freedom Act say it would guarantee the right to religious expression on the job—whether that means a Sikh wearing a turban or an Orthodox Jew honoring the Sabbath. Its backers include a 40-strong coalition of leading clerics representing nearly every denomination—from Jewish to Catholic, Hindu, Muslim, and Seventh-Day Adventist.
Sounds straightforward, right?
The problem for Clinton and Kerry—two of the Democratic Party’s biggest names and its most likely presidential candidates—is that a broad swath of their left-wing base thinks the bill is a backdoor means to curb individual rights, and has come out hard against it. Heavyweights like the American Civil Liberties Union, Planned Parenthood, and the Human Rights Campaign contend that, in practice, “workplace religious freedom” could allow a nurse to refuse to give the morning-after pill to a rape victim. Or it could allow a school counselor to proselytize on “sins of the homosexual lifestyle” to a gay teen.
“None of us say we don’t want religious freedom,” says Rachel Laser, of the National Women’s Law Center, which opposes the bill. “We just don’t want something that would harm women’s and gay people’s and, for that matter, anyone’s civil rights.”
Most other Democrats have shied away from signing on to the bill so far. Indeed, among Senate Democrats, Clinton and Kerry stand nearly alone. (Of the five Democratic backers, four, including Senator Charles Schumer, are from the tristate area—where the Catholic and Orthodox Jewish bases are important.)
Clinton’s office has been notably quiet about her involvement, perhaps indicating that any credit she hopes to get for pushing the bill would come not from the larger public, but from the kind of select religious interests she’s been courting lately as she lays the groundwork for a possible White House run in 2008 (see “God Is a Centrist Democrat,” March 2). Her office says the senator will work to fine-tune the bill as it moves to the Senate Committee on Health, Education, Labor, and Pensions, where she sits.
“Senator Clinton has responded to the concerns raised by offering to work to make improvements that will satisfy all stakeholders,” says Philippe Reines, her spokesperson.
Kerry, by contrast, has positively crowed about the bill, perhaps because he learned the value of the values vote when his own presidential bid sank last year. On March 17, he stood shoulder to shoulder with one of his most hard-right colleagues, Rick Santorum, to introduce the act, hailing it as a defense of religious liberty. “Our nation was founded on freedom of religion,” Kerry said at a Capitol Hill press conference, “and it should be clear in our laws that no American should ever have to choose between keeping a job and keeping faith with their cherished religious beliefs.”
No one can know for sure what Kerry and Clinton’s motivations are for putting their names on this bill. Maybe they’re true believers in the measure itself, or maybe they’re trying to win over churchgoing voters who’ve turned away from the party. Maybe each just can’t afford to be “out-religioned” by the other. Whatever the reason, it seems clear to political observers that the leading Democrats are looking to send some kind of message.
“They’re doing it to say, ‘Hey, look, I’m not an anti-religious person,’ ” says Hank Sheinkopf, a Democratic political consultant. “By getting your name on the bill, you prove that you’re not like the rest of those dirty Democrats refusing to support religious liberty.”
Religious freedom in the workplace has long been an issue in Washington. There’s already a law on the books designed to prevent employees from suffering religious discrimination on the job—Title VII of the Civil Rights Act of 1964. But religious and civil rights advocates alike say three decades’ worth of court rulings have chipped away at its protections.
The Workplace Religious Freedom Act, or WRFA, would restore teeth to the existing law. Currently, an employer must accommodate an employee’s religious practices only if doing so doesn’t cost much—financially or otherwise. The new bill would raise that threshold and protect such forms of religious expression as clothing, time off, and so-called “conscience” issues. That means that a Muslim receptionist could wear a head scarf, a Catholic supervisor could take off Good Friday, and an Orthodox Jewish saleswoman could defer from shaking the hands of male customers.
Nathan Diament, director of the Union of Orthodox Jewish Congregations of America’s Institute for Public Affairs, which has made the bill’s passage a top priority, says the religious community has tried for years to correct a real problem. “We’ve seen people of all faiths having to choose between their careers and their conscience.”
His organization is part of the Coalition for Religious Freedom in the Workplace, the comprehensive group pushing the bill. It includes avatars of the Christian right like the Family Research Council and the Traditional Values Coalition, as well as social-justice crusaders like the Religious Action Center of Reform Judaism.
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 cloudy—for 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 nationwide—some of whom are represented by the Christian Legal Society, which supports this bill—are 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 religion—Clinton 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.”
Clinton’s office sounds a more sympathetic note, offering to make improvements as the Senate committee considers the legislation. “We’ve heard the concerns raised, and we’ve responded,” says Reines, her spokesperson.
Civil rights advocates can only hope that both senators are listening. Already, they’ve begun circulating an alternative they think better balances the rights of religious employees and everyone else. One of those activists is Aaron Schuham, of Americans United for Separation of Church and State. He argues that Clinton and Kerry could please religious voters without selling out core principles: “The political gains in showing that people are friendly to the needs of religious people could be accomplished by a compromise bill that would not endanger civil and personal rights.”