Test of Faith

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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.

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