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November 30, 2015 / 18 Kislev, 5776
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Stephen Solarz: The Jewish Constituent’s Best Friend

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Congress has never seen a better friend of the observant Jewish community than Stephen Solarz, who died of esophageal cancer on the 22nd of Kislev. Yonoson Rosenblum’s recently published biography of Rabbi Moshe Sherer describes Solarz as an “invaluable ally” for many Agudath Israel projects and there are 20 references to Solarz in the book’s index.

I repeatedly witnessed Solarz’s dedication to protecting religious observance for Orthodox Jews. In 1978 – when he was still a relatively junior congressman – he initiated a call to me to brainstorm over how observant Jewish postal workers in his district could avoid using up all their annual leave for early departures on winter Fridays and taking days off for the Yomim Tovim. We drafted a Religious Observance Compensatory Time law that Solarz introduced in Congress.

Jimmy Carter’s Department of Justice first objected to the bill, claiming it created an unconstitutional preference for religion because it did not authorize compensatory time for non-religious commitments. Solarz did not cave but demanded a meeting at which the merits of his bill could be aired and discussed before representatives of all interested federal agencies.

Solarz invited me to attend this huge meeting, held at what was then the Bureau of the Budget, with him. We managed, with a forceful presentation, to swing the administration into support for the Solarz bill. It is now federal law (5 U.S.C. 5550a) and enables hundreds, possibly thousands, of federal employees to enjoy some vacation time during the summer with their families.

In 1984, a federal court of appeals ruled that an Air Force psychologist had no constitutional right to wear his yarmulke while he was in uniform seeing patients. I filed an application to the Supreme Court for review of that bad decision but I honestly had little hope the court would agree to hear the case. Solarz leaped into the breach. He called me and suggested he would introduce a bill that, regardless of whether there was a constitutional right, would require the military – as a matter of Congressional statute – to permit the wearing of “unobtrusive” religiously-motivated articles of clothing.

The colloquy on the floor of the House in May 1984 between Solarz and Congressman Wilson of Texas is priceless. Wilson wanted to know whether Texas Indians who wear war bonnets would be covered by Solarz’s law. Solarz noted that bonnets, unlike yarmulkes, were pretty obtrusive. He agreed, however, that one unobtrusive feather might qualify if worn under a hat.

Much to our surprise, the Supreme Court agreed to hear the yarmulke case, and the Solarz legislation, which had run into much greater difficulty in the Senate than in the House, was put on the shelf while the Supreme Court was considering the issue.

The court ruled 5-to-4 against a constitutional right to wear a yarmulke. Solarz promptly revived his bill with some minor modifications. With Solarz’s encouragement a yarmulke of camouflage material was distributed to senators and congressmen to prove that a yarmulke would not reduce the will or ability to be a dedicated U.S. soldier. On September 25, 1987, the Senate voted 55-42 in favor of Solarz’s yarmulke bill. .

Justice William J. Brennan had ended his strong dissent to the Supreme Court’s ruling against the yarmulke with a powerful plea that Congress enact a law protecting the right, so when the bill became law Solarz sent a thank-you letter to Brennan. He enclosed a camouflage yarmulke with the letter, and Brennan acknowledged, in a letter to Solarz (and in conversation with me), that he had put the yarmulke on his head while working at his desk and had forgotten to remove it for the entire day – until he arrived home and his wife asked him what he had on his head.

Solarz’s yarmulke bill is current federal law (10 U.S.C. 774). Military personnel may not be denied the right to wear neat and conservative articles of clothing required by their religious faith while in uniform.

Solarz again led a legislative battle for religious liberty after the Supreme Court ruled in a 1990 case involving the ingestion of peyote by American Indians in a religious ceremony that the First Amendment did not protect religious observance that violated a neutral law. This decision effectively wiped away protection for religious practice that Supreme Court majorities had articulated in the preceding quarter century.

To reverse the effect of this decision, Solarz took the lead in drafting a “Religious Freedom Restoration Act.” It restored the old constitutional rule as a matter of federal law. The bill was adopted unanimously by both Houses of Congress in 1993 – after Solarz had been redistricted out of his seat – but it was held unconstitutional as applicable to the states in a sharply divided 6-to-3 ruling by the Supreme Court. The law still controls the federal government, however, as a unanimous Supreme Court held a few years ago.

Solarz asked me to reserve a seat for him in the courtroom for the oral argument of the case in which the constitutionality of the Religious Freedom Restoration Act was challenged. When we left the courtroom and it looked as if most of the justices would rule against the law, he shook his head in disbelief. “These questions,” he said, “were never seriously debated in the Congress. We thought protection of religious practice was fundamental.”

Solarz was dealt cruel blows in political infighting. His Congressional district – in which he enjoyed enormous popularity – was cold-bloodedly carved up in 1992 and he was left to run a futile race in an overwhelmingly Hispanic district. His drive for government service remained strong, however. On the very day that one of Bill Clinton’s many girlfriends publicly revealed her relationship with the then-presidential candidate, Solarz – by then a former congressman who had won an international reputation – announced his support of Clinton.

Solarz thought he was entitled to some loyalty after Clinton was elected. He knew more world leaders personally than probably any other leading Democrat, and he had his eye on either the UN ambassadorship or becoming ambassador to India. Because the press had aired a phony story concerning Solarz’s efforts to get a U.S. visa for someone who was suspected of being a Hong Kong Mafioso, the Clinton White House withdrew Solarz’s ambassadorial nomination. He would have been a phenomenal ambassador, given his personal, political, scholarly, and rhetorical skills.

Rosenblum’s book on Rabbi Sherer quotes a letter from Solarz to Sherer in which the congressman wrote: “There is nothing more important to me than saving Jewish lives.” His record of accomplishment proved that he not only saved Jewish lives but substantially enhanced Jewish life.

Nathan Lewin is a lawyer in Washington, D.C.

About the Author: Nathan Lewin, a former president of the Greater Washington Jewish Community Relations Council, has argued 28 cases in the Supreme Court of the United States and is an adjunct lecturer at Columbia Law School where he teaches “Religious Minorities in Supreme Court Litigation.”

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