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Protecting Religious Freedom

While I was tempted to support grants that might provide some relief to a number of shuls, I was not willing to trade that potential short-term benefit for the likelihood of real long-term harm to religious freedom protections.

Rep. Jerrold Nadler

Rep. Jerrold Nadler

Recently, I voted against legislation to allow the federal government to provide cash grants to rebuild houses of worship damaged by natural disasters. Many have asked me to explain why, given my long record of promoting religious liberty, I felt I had to vote “no.” Simply put, my objections went precisely to my determination to protect the rights of the Jewish community and other religious minorities.

The Constitution defends the rights of minority religious communities through the twin mandates of the First Amendment – the guarantee of the free exercise of religion and the prohibition of a government establishment of religion. While I was, of course, tempted to support grants that might provide some relief to a number of shuls, I decided that I simply was not willing to trade that potential short-term benefit for the likelihood of real long-term harm to the religious freedom protections upon which the Jewish community depends. And I certainly wasn’t willing to risk such harm without a single hearing to examine the serious constitutional questions the bill raised.

Some argue that denying these particular grants amounts to a form of religious discrimination. In fact, the Constitution treats religion differently precisely to protect religious minorities from government meddling. Government involvement with religion, while potentially conferring short-term benefits, has historically resulted in governmental interference and favoritism – and that has inevitably worked to disadvantage minority religious communities like ours. The people who wrote our Bill of Rights understood this because they had experienced it, and they, therefore, insisted on the separation of religion and government.

The Supreme Court has been very clear that the core principle of the First Amendment’s Establishment Clause is that government may not directly fund religion or religious objects. So, while the courts have permitted government funding for religious institutions’ buildings used for hot lunch programs and for math books used in yeshivas, the courts have consistently rejected using taxpayer money to pay for the types of things this bill would authorize – spaces reserved for religious worship and religious articles such as Bibles, Torahs, and Korans. The record is clear: the Supreme Court has rejected every single case brought before it that attempted to provide the type of funding made available in this bill. So, while the bill may be a nice political gesture, it is highly unlikely that any shuls will ever see any actual funds from it.

And the Supreme Court has ruled this way for good reason. Experience shows that once government starts funding religion, it starts demanding a say in how its money is spent. That has been true of every governmental expenditure. There have even been frequent attempts – which we have worked to beat back – to tell religious institutions how they must spend their own money and to impose governmental oversight of these institutions’ finances. For minority religious groups, including the observant Jewish community, that is a dangerous vulnerability that history has shown can – and will be – exploited by unfriendly outsiders.

The frum community knows government meddling all too well. It is no secret that there are those who are hostile to core Jewish religious practices. There have long been efforts to outlaw shechitah, ban or severely restrict bris milah, and prevent observant Jews from settling in communities where they haven’t previously lived. We have largely prevailed in these fights because of the twin guarantees of the First Amendment, which work together to preserve minority religious rights.

I have fought to preserve those protections because I believe in them, and because I know how the observant Jewish community can be abused without them.

One of my first acts in Congress was to fight for passage of the Religious Freedom Restoration Act(RFRA), which provides stronger safeguards for religious practices when they conflict with federal governmental requirements – like the right to have kosher food in federal prisons, or to be protected from autopsies.

When the frum community fights attempts by local governments to use zoning laws to block shuls, mikvehs, and shtibelach, or by local residents to block an eruv, it relies on the Religious Land Use and Institutionalized Persons Act (RLUIPA), which I helped write and got passed into law. The mere threat of a RLUIPA lawsuit often makes local governments back down.

While keeping government away from religion is critical to protect religious minorities’ liberty, that does not mean government is powerless to help religious institutions. When religious institutions provide essential services – and many have been important partners in the post-Sandy recovery – they are perfectly eligible to receive federal grants. And they should.

I was also deeply troubled by the reckless way in which the legislation was forced through the House in just a few days, making it impossible to even consider constitutional defects or to try to find a way to provide further assistance that would survive the inevitable court challenge. I urged my colleagues to take a little time to try to “get it right.” They chose instead to “get it now.” That careless haste will likely leave us with nothing.

I will continue to fight to ensure that our community – including our vital religious institutions – receives all the assistance government can provide. But I will do so in a manner that is consistent with our Constitution and the preservation of our most precious liberties. I understand that some will not always agree – nor will everyone like some of my decisions – but our religious liberty is too important to sacrifice for apparent short-term advantage or political popularity.

About the Author: Jerrold Nadler represents the 10th Congressional District of New York and is ranking member of the House Judiciary Subcommittee on the Constitution.


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