The landscape of church-state issues is increasingly fluid, but even so, few people probably expected Yeshiva University (YU), a Modern Orthodox Jewish institution in New York, to ask the Supreme Court to permit it to block recognition of gay student groups on campus. (A New York court had ordered the school, which is chartered as a secular institution, to recognize the student groups, saying that singling them out constituted discrimination.) What about the lawsuits by Jews in three states, including a Florida synagogue, seeking to block abortion bans, arguing that such bans infringe on their religious freedom to obtain an abortion when their religion permits it? You have to wonder: Whose religious freedom is under attack, and by whom?
Steven Waldman knows a thing or two about the odd ways religious liberty claims have morphed over time. His 2019 book Sacred Liberty: America’s Long, Bloody, and Ongoing Struggle for Religious Freedom traces the surprising twists in such claims over the years and why they don’t belong exclusively to the left or the right. He spoke with Opinion and Books Editor Amy E. Schwartz.
Is it unusual for a Jewish institution, rather than an evangelical one, to use religious claims against gay rights?
For conservative Christians, views on gay marriage and gay rights generally have become the biggest rallying cry for what they consider their religious freedom. Having the Orthodox Jewish community take that same kind of stance is not surprising. It shows how ideology increasingly trumps religion now. Orthodox Jews have more in common with conservative Christians than they do with Reform Jews. It happened with conservative Catholics and evangelical Protestants, who hated each other for hundreds of years and then got together and decided that they hated secular liberals more.
Where does the idea come from that religious freedom protects the right to discriminate?
That’s what’s so interesting about these cases: It’s come from both left and right. For most of American history, the courts agreed that if a secular law with a secular purpose accidentally infringed on some religion’s beliefs or behaviors, too bad! The most famous example: U.S. laws against polygamy ran smack up against a central belief of Mormonism, but the state’s secular interest prevailed. But in the mid-20th century, some liberals on the Warren Court argued that, for religious freedom to be robust, it should protect, or “accommodate,” religious behaviors accidentally infringed on by secular laws. Justice William Brennan wrote the opinion saying that a company that required all its employees to work on Saturdays must exempt Seventh Day Adventists. The progressive position was that there should be lots of religious accommodations. And when in the 1990s Justice Antonin Scalia ruled against granting a religious exemption from the drug laws to Indian nations who used peyote in religious rituals, there was a bipartisan uproar. Congress then passed the Religious Freedom Restoration Act, sponsored by two liberal Jews from Brooklyn, Senator Charles Schumer and the late Representative Steve Solarz, ensuring the right to such exemptions.
So it was progressives who created a strong philosophical and legal foundation for the idea that religious convictions should exempt people from certain secular laws. Then conservative evangelicals started using it for their own purposes: A baker shouldn’t have to bake a gay wedding cake; a pharmacist opposed to contraception shouldn’t have to fill a prescription for it. The YU appeal is part of the latest extension of this idea, in which conservatives use theories developed by liberals in order to opt out of anti-discrimination laws.
So, can pro-choicers use religion to challenge abortion laws?
I kept wondering when someone was going to do this. Once progressives saw how conservatives were using this doctrine, it was inevitable that they’d look for ways to turn the tables. Pro-choice Jews are using the same argument as the anti-gay Yeshiva University administrators. Literally, if you put these two cases side by side, it’s the same exact jurisprudence. And it’s not a crazy argument in a world where this much deference is paid to religious freedom claims.
Does YU as an institution have religious rights, like a person?
One way these claims have gotten more robust is the idea that institutions and corporations have the same rights as individuals. The Hobby Lobby case, about coverage of employees’ contraception, was about the religious rights of a company. That’s the trend. In the YU case, there’d normally be restrictions on their ability to opt out because they accept government funding. But with each case, there’s an opportunity for the line to move.
Where else might the line move?
Before COVID, the one thing everyone seemingly agreed on was that you couldn’t use religious exemptions to get out of public health measures like vaccination. But lots of religious exemption claims were made about vaccination, including some where the legal reasoning was a bit…creative. There was such a mishmash of religious exemptions on COVID, I don’t think we have a final answer. But it’s going to be a continuing struggle over where to draw the line. At what point do religious freedom claims become so muscular that they become absurd, and counterproductive to the First Amendment and society?
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