Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
—U.S. Constitution, First Amendment
Religious freedom in America is under threat, and the battle is already in progress. For the most part, the burden of the struggle has been borne by Christians. America’s Jews, living safely behind the front lines, have paid little heed. But that safety is likely to be ephemeral. If freedom falls for those now fighting for their religious rights, it can fall for all, prominently including a community characterized by its attachment to an ancient and traditional moral code and defining ritual practices.
The threat emanates from a classic question: what is the proper relationship between church and state? The tension is as old as recorded history. It appears in the Epic of Gilgamesh and throughout Greek mythology. Some societies, from the pharaohs of ancient Egypt to Japan’s chrysanthemum throne, imbued their rulers with divinity. In Christendom, western kings answered to the pope while eastern churches supported the emperor. In Islam, the caliph held titles of both temporal and spiritual authority. England maintains an established church still today, while France severed its formal ties to Catholicism more than a century ago. In Jewish tradition, the Second Temple period was replete with conflicts between royals and priests—hence the rabbinic reluctance to embrace the Hasmoneans, priestly usurpers to the throne whose victories are celebrated annually by today’s Jews at Ḥanukkah. In modern-day Israel, selected areas of civil governance have been relegated entirely to religious authorities.
The U.S. Constitution, steeped in classical liberalism, attempted a novel—and ingenious—resolution. It combined the absence of an official, “established” religion with the individual’s freedom to choose and follow his faith. Unlike in most of Europe, where the local faith provided (and in places still provides) an effective monopoly, this American formulation generated a fully competitive religious marketplace. Americans who fail to find meaning in their own community can taste the offerings of numerous competing churches, synagogues, coffee houses, and seminar rooms until they find something that speaks to their own spiritual needs.
As a result, both traditional and nontraditional faiths thrive in America to a far greater extent than elsewhere. What is more, their adherents, while claiming no legal advantage over those arriving from different orientations, are free to take the ideas and convictions inspired by their faith into dealings with the broader public. This quintessentially American formulation, which recognizes aspects of human belief, behavior, morality, and expression into which no government may legitimately intrude, has long served the needs of both church and state. From a Jewish perspective in particular, the American market-based ethos, providing fertile ground for flourishing religious communities, has been a godsend.
But this governing ethos is now under attack. Among the educated, secular urban elites with whom American Jews identify most closely, recent decades have seen a growing tendency to regard membership in a faith community as ominously parochial, traditional moral codes as divisive and exploitative, and attachment to tradition as retrograde. In this cultural environment, there seems decreasing reason to exempt any aspects of human belief, behavior, morality, or expression from legitimate government intrusion. American society is thus rethinking the relationship between church and state, returning once again to a fundamental question: once the state has spoken, why should it make room for what the church, any church, has to say?
I. Freedom of Worship or Freedom of Religion?
A telltale sign of this broad rethinking of church and state is the confusion that has crept into the vocabulary framing discussions of religious toleration. Consider, for example, this recent statement by Senator Tammy Baldwin (D, WI): “the First Amendment says that in institutions of faith there is absolute power to, you know, observe deeply held religious beliefs. But I don’t think it extends far beyond that.”
In fact, the First Amendment makes no mention of either “deeply held religious beliefs” or “institutions of faith.” Those terms relate to the freedom of worship: the unfettered right to pray in whatever way one chooses to pray. But the First Amendment does not guarantee the freedom of worship; it guarantees the free exercise of religion—a much broader concept that explicitly includes the right to lead a faith-based life and to behave in a manner that faith dictates and eschew choices that faith prohibits. The distinction between the two concepts is profound, and it comes into sharp focus whenever contemporary mores and religious doctrines point in opposite directions. If contemporary society can define morality, and the state promulgates a law embodying that definition, to what extent should the law also tolerate the behavior of those who follow contradictory religious codes? Freedom of worship provides no clear answer to that question. Freedom of religion does: the right to exercise your faith freely means the right to follow a minority moral code (subject, as we shall see, to certain limitations), or it means nothing.
Throughout much of American history, most legal scholars believed that the First Amendment recognized precisely that right. If that belief has changed—and it has—when did it happen?
We can pinpoint the moment. In 1990, Alfred Smith and Galen Black, two members of a Native American church in the state of Oregon, lost not only their jobs but also their unemployment benefits for ingesting sacramental hallucinogenic peyote: a controlled substance illegal in Oregon. Their challenge to the state’s denial of their unemployment claims made it all the way to the Supreme Court.
The issue was straightforward: does the Free Exercise clause protect a person’s participation in a religious ceremony that violates an individual state’s general criminal laws? Justice Antonin Scalia, writing for the Court, concluded that Oregon could have (and perhaps should have) followed the lead of other states in creating a religious exemption to its drug laws, but, he argued, it was under no constitutional obligation to do so. The Free Exercise clause prevents states from targeting religious practices, Scalia wrote, but when a religious practice coincidentally runs afoul of a generally applicable law, the Constitution does not exempt believers from following that law. On these grounds, the Court ruled against the believers and for the state.
The ruling in Employment Division v. Smith shocked the conscience of the nation. Justice Harry Blackmun, dissenting from the Court’s majority, set the stage in his opening statement:
This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the state’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.
Revulsion at the Smith decision was nearly universal. To align the law with Blackmun’s understanding, Congressman Charles Schumer and Senator Edward Kennedy sponsored the Religious Freedom Restoration Act of 1993 (RFRA). According to the act, a state law may infringe upon a religious practice only if doing so is the least restrictive means of furthering a compelling government interest. The House passed the bill in a unanimous voice vote. The Senate voted 97-3 in favor. In signing RFRA into law, President Bill Clinton spoke for a united country in reaffirming the classical American approach:
We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom. . . . The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our founders cared a lot about religion. . . . They knew that there needed to be a space of freedom between government and people of faith that otherwise government might usurp. . . . Let us . . . respect one another’s faiths, fight to the death to preserve the right of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
In light of the recent conflation of freedom of religion with freedom of worship, Clinton’s emphasis on the right to practice religious convictions was particularly telling—a point he specifically drove home: “What this law basically says is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.”
That was not quite the end of the matter. Four years later, the Supreme Court ruled that the federal government had overstepped its authority by imposing RFRA on the states. In response, various states then began to adopt their own RFRAs. By 2014, with little or no fanfare, twenty states had enacted state-level RFRAs and the courts of eleven others had recognized similar protections. Thus, one way or another, the right of the faithful to act in accordance with a minority moral code that did not impair a compelling government interest remained a matter of overwhelming bipartisan consensus. Even a generally applicable law, enacted with no particular animus, could not trump an individual’s right to exercise his or her faith.
Over the years, that consensus seemed to hold firm and to remain robust; as recently as eighteen months ago, there appeared to be no organized opposition to the idea that government should carve narrow exemptions for religious believers from any but the most critical of our laws.
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Appearances, however, can be deceiving.
II. The Rising Anti-RFRA Movement
The 2010 passage of Obamacare presaged the attack on religious practice by creating a conflict between two sets of rights that Americans hold dear—religious rights and abortion rights. The administration ignited the controversy first by mandating that employers provide their employees with extremely comprehensive health insurance, and then by authorizing the Department of Health and Human Services (HHS) to specify the details of that mandate. Taken together, these two provisions of Obamacare required employers to give their employees free access to a full range of contraceptives, including four that could function as abortifacients.
Some Christian employers, including the privately owned Hobby Lobby stores, complained that this requirement ran counter to their own religious views, effectively forcing them to participate in what they saw as the murder of innocent unborn children. In what could have been a textbook RFRA challenge, all parties noted the conflict between the law and a religious practice for which the faithful sought an exemption. The Supreme Court, while stipulating that the HHS regulation did serve a compelling government interest, nevertheless determined that there were ways to meet that interest even if religious objectors were granted waivers. In its June 2014 decision, written by Justice Samuel Alito, the Court exempted Hobby Lobby from the requirement.
Justice Ruth Bader Ginsburg dissented, witheringly and at length. Though her primary legal objection was that RFRA should apply only to individuals, and that people who chose to run their businesses through corporations had necessarily relinquished any religious considerations to which they might otherwise have been entitled, the emphasis of her discussion told a very different story: “Accommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.” In her view, once the government had determined that the abortifacients in question were important in promoting women’s health, and that employers were required to make those drugs available via health insurance, religious accommodations were inappropriate.
Ginsburg’s view drew widespread support from the left half of the political spectrum—including both President Obama and Senator Schumer, RFRA’s living original sponsor. Within weeks, a movement was under way to narrow or repeal the federal statute. A scant nine months later, when Indiana became the 21st state to enact a state-level RFRA, opposition to the move was instantaneous and ferocious. Governor Dan Malloy of Connecticut—one of the twenty states that had preceded Indiana in adopting a state RFRA—issued an executive order banning state-paid travel to Indiana. Marc Benioff, chief executive officer of the cloud-computing firm Salesforce, was perhaps the most prominent business leader to announce a boycott of the state. More sensationally, in March of this year Tim Cook, CEO of Apple, took to the pages of the Washington Post to proclaim:
There’s something very dangerous happening in states across the country. A wave of legislation . . . would allow people to discriminate against their neighbors. Some . . . say individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.
Cook’s articulation of the new anti-RFRA movement captures its spirit perfectly—as well as its misconceptions. Every RFRA, including Indiana’s, incorporates a balancing test. For a claim to prevail under the statute, the party claiming a religious exemption must establish either that the law in question does not serve a compelling government interest or that (as in Hobby Lobby) a narrow waiver would not harm that government interest. Given the near-universal agreement that the prevention of discrimination is indeed a compelling government interest, it’s unclear how anyone could take seriously Cook’s caricature of these laws as “allow[ing] people to discriminate against their neighbors.”
Yet many do take the caricature seriously—and Cook’s decision to devote his time, his energy, and the reputation of the world’s largest company to this issue suggests that he himself believes the caricature fully. Indeed, while anti-RFRA commentary of a more legalistic bent has tended to focus on unclear or idiosyncratic language in the Indiana law in particular, most opponents of the statute have followed Cook’s lead in challenging its and RFRA’s putatively overarching purpose. By its very nature, they say, RFRA allows religious believers to follow their own moral codes and exempts them from the governing moral judgments of mainstream society. For those who adhere to those governing judgments, such an exemption is, by definition, immoral.
The latest occasion for this antipathy, and in particular for the singling-out of Indiana, is clear. It is gay marriage, a touchstone issue no less politically charged than the issues of abortion and Obamacare. In the years since gay weddings have become commonplace, a handful of Christian bakers and photographers have declined on religious grounds to work at gay weddings. Several of those declining have found themselves facing civil-rights charges; in widely reported judgments in New Mexico and Oregon, such rejections have been found to constitute human-rights violations worthy of penalties that have driven the convicted violators out of business.
This was explicitly the concern behind the anti-RFRA pillorying of Indiana—the idea that, through some hypothetical scenarios that few critics bothered to square with the actual law, people claiming religious convictions might conceivably seek inappropriate exemptions that the courts might conceivably grant. Thus, in an attempt to prove that Indiana’s Christians were hopelessly biased against gay rights, anti-Christian reporters fanned across the state seeking a villain. They finally found one in Memories Pizza, a Christian mom-and-pop shop in rural northern Indiana whose wall signs bore inflammatory messages like: “Every day before we open the store, we gather and pray together. If there is something you would like us to pray for, just write it down and drop it in the box and we will pray for you.” The reporters asked the proprietor whether she would cater a gay wedding. After noting that, as a pizza parlor, Memories Pizza had never been asked to cater a wedding, and noting further that it would never deny service to anyone, she conceded that if asked specifically to cater a gay wedding, she would have to decline.
Her answer should have satisfied everyone. When it came to serving individuals who entered their business seeking the same service provided to all paying customers, Memories Pizza was explicitly nondiscriminatory; in this respect, its moral judgment mirrored that of mainstream society. Only when asked to participate in a specific event did the proprietors of Memories Pizza reserve the right to live in accordance with their own moral code: “We don’t like gay marriages, so we won’t go to them.”
Far from satisfying those seeking blood, however, the proprietors’ answer was viewed as proof of their bias. Within days, venomous attacks from around the Internet forced Memories Pizza to announce that it was closing. As if on cue, RFRA’s opponents, following Tim Cook’s careful stipulation that “I have great reverence for religious freedom,” explained that it is not they who disregard the religious feeling of certain Christians, but rather Christians who disregard their feelings by persisting in an immoral preference for the dictates of their creed.
The furor in Indiana abated when the state acceded to the specific demands of its more legalistic critics by amending some of the linguistic differences between its own RFRA and the federal law—and a crowd-funding campaign allowed Memories Pizza to reopen. But the battle lines had been drawn, and the quiet proved fleeting. In the months since Indiana passed its RFRA, more and more media sources have begun putting the term “religious freedom” in quotation marks, insisting that the entire concept is merely a pretext for the right to discriminate. In June of this year, on the day before the Supreme Court, in its landmark Obergefell decision, announced a constitutional right to marry that includes gay couples, the Washington Post deployed the new convention in an opinion piece by Louise Melling, deputy legal director of the American Civil Liberties Union: “ACLU: Why We Can No Longer Support the Federal ‘Religious Freedom’ Law.” Noting that her organization had campaigned for the federal RFRA in 1993, Melling now called upon Congress “to amend the RFRA so that it cannot be used as a defense for discrimination.” She did not explain why a law that explicitly refuses to grant religious accommodations if they impair a compelling government interest would require such an amendment.
Similar distortions plague other anti-RFRA statements and arguments. In one widely invoked example, a parallel is to be discerned between bakers who refuse to craft gay wedding cakes and lunch counters that once refused to serve black customers. Yet there is a clear—and easy—distinction between businesses that cater to the general public and those that interview each potential client who seeks a personalized, customized product or service. A sarcastic Internet meme asks: “If selling a gay couple a wedding cake means a ‘Christian’ baker participated in their marriage, does selling a gun to a murderer mean the ‘Christian’ gunstore owner participated in the murder?” The joke on those posting this anti-Christian meme is that the answer is yes. The customization and sale of a weapon for use in a murder qualify the provider as (at least) an accessory to murder. Flipped the other way, the distinction is just as clear. In the case of customers buying baked goods off the shelf, none of the bakers claiming a religious exemption has asked who these customers were and what they were celebrating.
But these distinctions, though true and vital, are also in some sense beside the point. The larger truth is that we have reached a watershed moment in American law, society, and culture: for the first time, avoiding participation in a given event or activity can now be construed as violating someone else’s civil (or human) rights—and can be actionable as such—even when the avoidance has been dictated by a religious conviction.
Consider the signs: within the activist base of the gay-rights movement, there has been a tectonic shift from seeking equal rights within an inhospitable society to seeking to curtail the rights of those deemed responsible for that lack of hospitality. In response, many of those who long saw themselves as guardians of America’s moral mainstream have experienced an equally momentous shift in the opposite direction, to a defensive posture of seeking religious accommodation within an increasingly hostile and energized secular culture.
These oppositional shifts create a quandary for those—religious and secular, gay and straight, liberal and conservative—who remain committed to classical American liberalism. How will they respond to this realignment in the battle for toleration and accommodation? Having in many cases long opposed the sanctioned suppression of homosexuality, will they also now oppose a sanctioned suppression of religious behavior—behavior backed in this case by an explicit rather than an implicit constitutional charter?
To put the question more broadly, RFRA’s opponents seek to remove a critical procedural safeguard necessary to preserve religious freedom—long considered, as President Clinton noted, the “first freedom, that which originally sparked the development of the full range of the Bill of Rights.” The threat is thus not only to religious liberty but to all forms of free expression. Should it succeed, the result will weaken the foundations of American liberalism itself. Will liberals rise to the challenge?
III. Religious Freedom and the Jews
The current and likely future front in the RFRA wars pits gay-rights activists and their supporters against practicing Christians. The vitriol may be brutal and offensive, but it is not directed against Jews. So far, as I noted at the beginning of this essay, most of the American Jewish community has been enjoying the quiet safety of the sidelines. In a group noted for its zealous attention to issues of civil liberty, this may seem surprising. But given the unease with which many (if not most) Jews view Christians, Christianity, the Catholic church, and the evangelical movement, and given the overwhelmingly liberal tenor of the Jewish community on social issues like abortion and gay marriage, it may also be understandable that few Jewish voices have been raised publicly on behalf of the handful of targeted Christian bakers and photographers.
Yet Jews ignore the plight of these Christians at their own peril. The legal, moral, and philosophical principles deployed to constrain Christian behavior will inevitably constrain the behavior of all who follow moral codes other than those enshrined in law.
In the absence of RFRA protection, there is no way to predict which aspects of Jewish ritual or morality, viewed today as sufficiently commonplace to escape notice, may soon conflict with governing moral judgments. Yet, to pick just two obvious candidates of cardinal importance, movements are now afoot seeking to ban both kosher slaughter (sheḥitah) and circumcision (brit milah). Though they have achieved but minimal success in the U.S. so far, there is ample reason to worry—and the evidence from elsewhere is hardly encouraging.
In Scandinavia, opposition to traditional forms of slaughter—opposition typically cast as an attempt to protect animals—has rendered sheḥitah illegal for decades. Other European countries are beginning to follow the Scandinavian lead. Should a U.S. state choose to do likewise, it is only RFRA that will guarantee a religious exemption. Absent that, and in contravention of Jewish religious law (halakhah), a general ban, mirroring EU law, could require the stunning of all animals prior to their slaughter. Under the Smith standard, such a ban would likely be constitutional.
And then there is the “intactivist” movement, which sees all circumcision—long a widespread practice across America, thanks to its numerous health benefits—as a form of genital mutilation. In 2011, intactivists placed on the San Francisco ballot a referendum banning circumcision for any reason, and nearly succeeded in doing the same in Santa Monica. Though religious groups persuaded California’s courts to remove the issue from the ballot prior to Election Day, they did so without relying on religious-freedom arguments. Instead, the courts ruled that modifications of the state’s business and professions code, which a circumcision ban would entail, were impermissible topics for a referendum.
The San Francisco experience did, however, call attention to an area in which the intactivists have already achieved some quiet success. A “defunding” project has eliminated Medicaid support for circumcisions in certain jurisdictions, thereby reducing the number of poor families in which newborn males would otherwise be circumcised on medical (as opposed to ritual) grounds. The movement’s objective in reducing Medicaid funding is transparent: for a ban to become feasible, a practice must become uncommon.
Once again, as with kosher slaughter, the day of reckoning may be far off, but in the absence of RFRA it is unclear how Jews (and Muslims) might fight a proposed ban on circumcision. While it is possible to envision defining the practice as a matter of privacy and choice (like abortion), it is hard to see winning that fight in a culture that has already begun to equate circumcision with female genital mutilation. Without RFRA, indeed, there is unlikely to be any constitutional or statutory provision exempting the single most commonly practiced Jewish ritual from the danger of a general proscription.
Ironically, the Jewish community has much to offer in this debate, having spent decades confronting an issue that parallels the tension between adherents of traditional Jewish-Christian moral codes and proponents of broadening the definitions of marriage and family. That issue is intermarriage. American Jews have had ample experience grappling with family and community celebrations in which many rejoice while others fret and grieve. Yet for all the animosity and acrimony that such situations entail, no one has ever suggested that a refusal to perform, cater, attend, or even acknowledge an interfaith marriage is a human-rights violation—and no one has ever called for government intervention.
American society at large would do well to heed the lesson. It can be devastating to learn that someone, anyone, finds immoral or worse the relationships and celebrations that give your life meaning. Those whose faith drives them to make such judgments about their neighbors should be unsurprised when their own expression of faith is in turn met with moral outrage. But, to say it again, understandable interpersonal antipathy does not justify government intervention.
In its press release following Obergefell, the Orthodox Union got the weights right:
Our religion is emphatic in defining marriage as a relationship between a man and a woman. Our beliefs in this regard are unalterable. At the same time, we note that Judaism teaches respect for others and we condemn discrimination against individuals. We are grateful that we live in a democratic society, in which all religions are free to express their opinions about social issues and to advocate vigorously for those opinions. . . . We . . . recognize that no religion has the right to dictate its beliefs to the entire body politic and we do not expect that secular law will always align with our viewpoint. Ultimately, decisions on social policy remain with the democratic process, and today the process has spoken and we accord the process and its result the utmost respect.
There is no contradiction between believing that the civil authorities can determine who is married in the eyes of the state while each denomination may determine who is married in the eyes of God. The debate should resolve itself in line with RFRA, with the government defining civil marriage, each faith defining religious marriage, and suitable accommodations extended to those whose faith renders them conflicted between the two. Should the country ever find that such minority religious convictions result in a broad societal injustice—as did the racial codes of Jim Crow—a declaration may be warranted that overcoming the injustice is sufficiently compelling to override the offending minority morality. Such a declaration, however, must always be a matter of last resort, announced with reluctance and humility.
IV. New Dogmas
The attack on RFRA is an explicit, intentional attack on religious freedom. It seeks to remove a safeguard that balances the critical liberal goal of religious freedom with the potentially competing and contradictory critical needs of a liberal society. No one who understands how the law functions, or the subtle balancing test that RFRA incorporates, could reasonably foresee its use to justify slavery, human sacrifice, segregation, honor killings, or religious executions—all items in the litany of horrors that opponents have ascribed to it. Should we ever reach or come anywhere near that point, we will face far greater challenges than a religious-freedom statute.
Yes, some people will attempt to abuse RFRA, claiming exemptions that should not be granted, and using faith as a pretext to achieve nefarious goals. And yes, some of those attempting such abuse will succeed. But such is the case with many of our laws; it is but one cost of life subject to the rule of law. In actuality, successful RFRA abuses are likely to be few and far between—as they have been in the 22 years since it first became federal law.
In the meantime, those attempting to roll back religious freedom to some combination of the Smith standard and the “freedom to worship” follow their own dogmas. They believe that religious conviction is little more than an opinion due no particular deference. They believe that those citing religious concerns do so callously, meaning only to exempt themselves from the broad obligations that define our compassionate society. And they believe, above all, that any moral judgment written into law must instantly displace any expression of minority morality.
In so doing, the opponents of religious freedom, properly understood, explicitly reject the foundational liberal value of tolerance. They are wrong. In this debate, the Jewish answer, the traditional American answer, and the answer that RFRA embodies—vive la différence—remains the right one. Freedom of religion falls when we refuse to allow people to align their lives, their families, and their businesses with the dictates of their faith. And if freedom of religion falls, so do all of our other rights. In an irony of epic proportions, the attack on religious freedom is an opportunity for America’s Jews to help America’s Christians secure the Christian nature of their community as a necessary step toward securing the Jewish nature of their own.