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Test of faith

A bill to protect religious freedom in the workplace gives Democrats a chance to change their image. But first they’ll have to agree it’s a good idea.

ONE OF THE enduring mysteries of the 2004 presidential race is why John Kerry failed to highlight, or even mention, one of his major Senate initiatives: legislation to protect the rights of religious individuals in the workplace. Kerry first introduced the Workplace Religious Freedom Act, or WRFA, in 1996-long before the Democratic Party started to worry about ''values'' voters-after two of his Catholic constituents were fired from their jobs because they refused to work on Christmas Eve. He has reintroduced the bill in every congressional session since, joined by fellow Catholic, and odd political bedfellow, Republican Senator Rick Santorum of Pennsylvania, an arch social conservative.

One would think that for Kerry, who was hounded by criticism from conservative Catholic bishops and looking to prove his religious bona fides during the campaign, an effort appealing to people across the religious and political spectrum should have been something he'd trumpet from the rooftops. Religious minorities love the bill because it would protect the right of Sikhs to wear their turbans on the job, for example, or of Orthodox Jews to swap work shifts in order to observe Yom Kippur. And Christian conservatives have embraced it because it reflects the fact that religious individuals have special concerns. A coalition of nearly 50 religious organizations-everyone from the Southern Baptist Convention and Family Research Council on the right to the National Council of Churches and American Jewish Committee on the left-supports WRFA.

What's more, the mere mention of a Kerry-Santorum bill causes heads to snap around in a double take. Best of all from the Kerry camp's perspective, because WRFA had been blocked by the business lobby-business groups oppose the idea that employers should have to make accommodations for religious workers-Kerry could present the bill as a measure to protect religious Americans that had been obstructed by Republican supporters.

Yet Kerry never mentioned his pet religious project on the campaign trail; the single campaign reference to the bill was one line at the very bottom of the ''People of Faith for Kerry'' page on the campaign's website. And on election day, the ''religion gap'' once again favored the Republican ticket.

Now, WRFA is back-and gaining momentum. On Thursday, a House subcommittee held a hearing on the legislation for the first time in the bill's almost decade-long history, an indication of the renewed enthusiasm for WRFA on the part of its congressional sponsors, which now include other unusual pairings such as Republican Senator Sam Brownback and Democratic Senator Hillary Clinton. Santorum is trailing badly in his 2006 reelection campaign, and could use a win on a bill that reaffirms his appeal to religious conservatives. For his part, Kerry-who told the Globe after the 2004 campaign that one of the main lessons he had learned was the need to reach out to religious voters-is no longer reluctant to promote the bill.

There's just one problem. This time, the primary opposition to WRFA comes not from conservatives, but from liberals. After raising no objections during the first eight years of the bill's life, abortion rights and gay rights organizations are now pressuring congressional Democrats to oppose the bill, and they're having some success. Their involvement creates the first serious showdown between those Democrats who want to reach out to religious voters and the advocacy groups that have traditionally been among the party's strongest supporters.

. . .

If Democrats do come out en masse against the legislation, it will be an odd ending to a year in which they have struggled to gain some footing in the area of faith and values. After the 2004 election, the Democratic Party had a ''come to Jesus'' moment. Party leaders realized that they had been ignoring religious voters, allowing Republicans to corner the market. They resolved to change this, and in the past year have hired a religious outreach coordinator for the Democratic National Committee, placed religion consultants on campaign staffs, held caucus meetings on the topic, and tried to inject religious rhetoric into their messages.

Even so, a late-August poll by the Pew Research Center for the People and the Press found that the percentage of American voters who think the Democratic party is ''friendly'' to religion has actually dropped significantly over the past year-from 42 and 40 percent in 2003 and 2004, respectively, to just 29 percent in 2005.

No one knows for sure why these numbers have plummeted, but it seems likely that conservative efforts to paint Democrats and liberals as antireligion had something to do with it. The cable talk show debates last winter over the ''war on Christmas'' supposedly being waged by liberal secularists-as well as the Justice Sunday events in the spring and summer that singled out liberal judges and accused them of being antagonistic to religion-may have struck most Democrats as hyperbolic and absurd. But they appear to have done damage to an already vulnerable Democratic image.

Supporters of WRFA seek to reassure skittish Democrats by insisting that the legislation simply gives teeth to protections that already exist. As originally passed, Title VII of the Civil Rights Act required employers to make reasonable accommodations for the religious observances of employees unless doing so would impose an ''undue hardship'' on a business. Over the past few decades, courts have interpreted that phrase to set a fairly low bar, making it easy for an employer to get out of the requirement. ''Any minimal inconvenience gets them off the hook,'' says Nathan Diament, director of public policy for the Orthodox Union, one of the earliest supporters of WRFA. The legislation would rewrite the definition of ''undue hardship'' to match the standard in laws such as the Americans with Disabilities Act.

The law would do more than protect religious dress or holiday observance. It is also written to allow accommodation for religious belief. So a Catholic legal secretary could be reassigned from a death penalty prosecution. Or Muslim workers who want to schedule their work breaks to coincide with ritual prayers could do so. These types of negotiations take place all of the time in the workplace. But they are at the discretion of the employer, who does not have to oblige the worker's request.

Abortion rights organizations protest that the bill would allow nurses and pharmacists to refuse on religious grounds to perform such tasks as assisting with abortion procedures or filling birth control prescriptions. But the bill states that it would not provide an accommodation for religious beliefs that precluded employees from fulfilling the ''essential functions'' of their jobs. In this respect, WRFA codifies the policy already in place for the American Pharmacists Association, which says that pharmacists may, for reasons of conscience, refuse to fill certain prescriptions only if another pharmacist is available to take over the order. (When asked, some abortion rights leaders admit that remedies for the pharmacist problem already exist-but, they say, it's been an incredibly successful issue for mobilizing their members and donors.)

But couldn't a conservative Christian who is opposed to homosexuality use the law to claim protection for harassing gay colleagues? Actually, no. Last year, the Ninth Circuit ruled on such a case involving a Hewlett Packard employee, and it determined that religious accommodation was not an entitlement to harass gay co-workers or make them uncomfortable. Nothing in WRFA would allow religious employees to ignore existing harassment or hostile work environment laws.

. . .

Perhaps the worst outcome for Democrats if they get behind WRFA is that no one notices and they get no credit for their efforts. There is, however, the tempting possibility for them that this issue could exacerbate tensions between what Diament calls ''values Republicans'' and ''chamber of commerce Republicans.'' If Democrats were united in support, congressional Republicans would be put in the difficult position of either disappointing their business supporters or further alienating conservative evangelicals who were frustrated by the Harriet Miers nomination and the lack of progress on socially conservative issues.

Some Democrats understand this. In March, Hillary Clinton signed on as a cosponsor to the Senate version of WRFA despite furious lobbying by liberal organizations and the reported opposition of her own staff.

The truth is that there may not be much for Democrats to gain by aligning themselves with religious interests in this debate. But the consequences of aligning themselves against those interests could be disastrous. It doesn't take a genius to imagine the conservative campaign that would follow. ''You should be fired if you don't work on Christmas (or Yom Kippur or Eid al-Fitr)'' isn't exactly a winning slogan.

Amy Sullivan is an editor of The Washington Monthly.

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