Religious Freedoms Swing Like A Pendulum Do

United States Supreme Court Building, Washington, D.C. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel.
United States Supreme Court Building, Washington, D.C. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The first clause is the Establishment clause. It prohibits the government from sponsoring any religion and is interpreted to require the separation of church and state. The second clause is the free exercise clause and is usually what we refer to when we talk of the constitutional guarantee of an individual’s religious freedom.

The phrase “separation of church and state” does not appear in the constitution. It was first used in Thomas Jefferson’s 1802 letter to the Danbury Baptist Association, where he wrote that when the American people adopted the establishment clause, they built a “wall of separation between the church and state.” Jefferson had seen colonies deal with combining religion and government in with varying degrees of success. In Virginia, he supported the disestablishment of the Anglican Church.

Jews generally support the separation of church and state, as it has provided us with religious freedom. What separation means has given rise to many opinions. Does it mean we should not discuss political issues in shul, or that we should be able to discuss how we think our sources inform us on issues of the day. This is a topic worthy of discussion and certainly in the news, as in three cases at the end of its term, the Supreme Court changed the rules on public aid to religious schools, prayer in public schools and abortion, and clearly swung the pendulum toward the free exercise clause and away from the establishment clause.

The statement on, predating these decisions, says, “Neither biblical mandates nor rabbinic rulings completely explain the Jewish community’s strong commitment to religious freedom and the separation of church and state…historical experience demonstrates that the Jewish people suffered religious persecution in the past when governments were controlled by a particular religion. Some suggest that government support for religion should be permitted as long as no religion is favored. Even benign, non-coercive endorsements of religion make outsiders of those who are non-adherents of the endorsed faith. America’s embrace of religious liberty has produced the most religiously pluralistic nation in history. The success of that bold experiment in liberty cannot be denied, but its future is always at risk.”

In the first case, the Supreme Court decided that the state of Maine could not exclude families who send their children to religious schools from its state-funded tuition reimbursement program, which helped children living in rural areas without public schools. The court said that excluding these families would be discrimination against religion. Many progressive groups echoed the Reform Movements position. One said that this ruling would undermine the right of states to protect their taxpayers from coerced funding of distinctly religious activities. Another said each of us should get to decide how and whether, to support religion.

But the Union of Orthodox Jewish Congregations of America, the nation’s largest Orthodox Jewish umbrella organization, applauded the U.S. Supreme Court’s ruling. It said, “All parents and families should have the right to make the best choice for their children’s education… the Orthodox Union hopes to protect all families against institutional, anti-faith discrimination not just in Maine and not only in school funding programs, but in all states and programs that attempt to favor secularism to the exclusion of faith.”

The Supreme Court also decided against a school board in the State of Washington, saying that a football coach could continue to have prayer sessions, at which he was joined by his players, on the 50-yard line after each football game. The court said there was no sound understanding of the Establishment Clause that begins to ‘make it necessary for government to be hostile to religion’ in this way. Yikes? Hostile to religion? Again, the opinions of Jewish groups were far from uniform.

Progressive groups mostly joined the dissent, which recognized the implicit coercion from peer pressure, and said that the courts have consistently recognized that school officials leading prayer is unconstitutional. One such progressive group said the Court’s see-no-evil approach to the coach’s prayer will encourage those who seek to proselytize within the public schools to do so with the Court’s blessing. Another said this change in how we approach prayer in public schools will have a negative impact in particular on students of marginalized faiths and non-religious students.

The executive director for public policy of the Union of Orthodox Jewish Congregations of America said that the Orthodox Jewish community welcomes the overruling of court precedent that had mandated government hostility to religion. He said the ruling should be applauded by all who value, quoting Justice Neil Gorsuch “a free and diverse Republic” in which there is “respect for religious expressions.”

Then the Court overturned Roe v. Wade. Justice Alito wrote that Roe was “egregiously wrong from the start.” He said “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.“ The dissent wrote that Roe affirmed a woman’s right to choose whether or not to have a child in the first stages of her pregnancy. “The government could not control a woman’s body or the course of a woman’s life. Today, the court says that from the very moment of fertilization, a woman has no rights to speak of.”

Jewish groups came out in full force with multiple positions. Agudath Israel of America, an orthodox organization, welcomed the ruling, saying it has long been on record as opposing Roe v. Wade’s legalization of abortion on demand. It opines that Jewish law requires fetal life be protected, so the termination of a pregnancy is only authorized under extraordinary circumstances.  Allowing abortion on demand, as Roe did, promotes a social ethic that devalues life.

Conservative Judaism’s Rabbinical Assembly said that it was outraged by the decision, calling it the most extreme case of government overreach in their lifetimes.” Based on our understanding of Jewish tradition and religious freedom, the RA supports the right to full access for all those who need abortions to the entire spectrum of reproductive health care.” The CCAR, representing Reform clergy, also strongly criticized the opinion, as did the Jewish Council for Public Affairs and the National Coalition of Jewish Women.

In maybe a third perspective, the Orthodox Union said it could “neither celebrate nor mourn the decision.” It could not support an absolute ban on abortion in lifesaving situations, nor support laws unless they limit abortion to situations where the life of the mother is at risk. Jewish law places paramount value on choosing life, including the potential life of the unborn fetus. That same Jewish law prioritizes the life of the mother over that of a fetus when it endangers the mother’s life, and an abortion may be authorized, if not mandated by Halacha. 

After the abortion decision, Congregation L’Dor Va-Dor, a synagogue in Florida, filed a complaint in state court, claiming that the Florida’s new law which limited the window in which women can access abortions, violates the state constitution’s religious liberty provisions. The synagogue said that while Florida seeks to ban abortion at 15 weeks, in Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, at any time until birth. This kind of religious claim, that a law substantially burdens the free exercise of one’s religion, is similar to those that have successfully obtained religious exemptions in the past.

It is not disturbing that different groups have different opinions about all these cases. After all, two Jews, three opinions. What is disturbing are the comments published by Josh Blackman, a law professor in Texas, who contends that the religious liberty claims of L’Dor Va-Dor can be defeated by challenging their sincerity. Blackman suggests that only Orthodox Jews have sincere religious duties, as they are required to follow Halacha. I can only agree with Dahlia Lithwick and Micah Schwartzman, who wrote on that these comments were not only offensive, but dangerous.

Blackman suggests that when Reform or Conservative Jews claim that Jewish law requires abortion in health and life sustaining circumstances, this claim is not serious because “if virtually every other facet of Halacha is not binding, how could it be that this one teaching on abortion is so binding that a state’s prohibition substantially burdens the free exercise of religion?” Lithwick and Schwartzman argue with Blackman about what the legal standards for exemption. I gave up my law practice, so I don’t have to argue law anymore. I want to argue that Blackman’s comments are lashon hara. Negative speech.

It’s hard enough having to deal with all the people who want to see this country returned to its “Christian roots.” It’s hard enough dealing with a Supreme Court, who has just handed down three decisions that, as Linda Greenhouse said in The New York Times, are based on religious doctrine. With a majority of the Justices followers of the Catholic faith, and seemingly willing to make decisions based on that faith, where does that leave progressive Jews, if we can’t get relief from a burden imposed by government actions because Professor Blackmun thinks…we are not Jewish enough?I don’t feel any obligation to follow all 613 commandments, nor do I think all Halacha is binding. But my belief in B’tzelem Elohim that we are all created in God’s image, requires that I respect others religious beliefs.

Neither Professor Blackmun nor the Supreme Court gets to evaluate the sincerity of my beliefs based on which rules I do or don’t follow. If Jewish folklore is accurate, my actions are reviewed by God on a nightly and then yearly basis. God may judge the sincerity of the beliefs that lead to these actions. Blackmun can’t. The Court should not. And in fact, if the court can question the sincerity of our belief, it will be creating a different standard for progressive Jews than it created for Christians whose religion was found to be burdened by baking cakes, giving out contraceptives, and limiting the attendance at worship. I just don’t think those things were more burdensome on their Christian beliefs than making my wife or my daughters, or any Jewish woman continue a life-threatening pregnancy would be upon their sincere belief in the Halacha that favors existing life over potential life.

The next step after the court creating a different standard for Christians is having people in charge who think like Rep. Lauren Boebert. She says she is “tired” of the long-standing separation between church and state in the U.S., adding that she believes “the church is supposed to direct the government.” I don’t think she means the Jewish or Muslim church. She argues that dividing religion from the system of government was not what the Founding Fathers intended. “I’m tired of this separation of church and state junk. That’s not in the Constitution. It was in a stinking letter and it means nothing like they say it does.” That is frightening coming from a legislator. Between her ilk, this court, and naysayers like Blackmun, we could have serious trouble. We really need to be vigilant. We need to stand up and fight against the governmental support of religion. Fight for our rights, for our freedom to practice our Judaism as we understand Jewish law. It definitely means we must talk about these issues in shul.

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