Photo Credit: Open Access, the Met Collection
"Committee model" of Statue of Liberty, part of an edition of replicas sold to help finance the colossal statue project.

There has been yet another reply to my article advocating accommodation. I rise again in defense of the accommodation, both as a matter of principle and as a matter of matter or practice.

First, as a matter of principle, I think the most articulate version of the Jewish ideal of accommodation by the secular government was stated by the greatest of American Jewish Law authorities, Rabbi Moshe Feinstein, in his derasha celebrating the 150th anniversary of the United States Constitution. Rabbi Feinstein wrote.

One hundred and fifty years ago, the government of the United States established its law that it will not maintain any faith or viewpoint. Instead, each person will act according to his own will, and the government will ensure that no one swallows up another [i.e., harms another person, as per Avot 3:2]. It thus follows the will of [G-d], may He be blessed, and it has therefore succeeded and grown during this time. We are obligated to pray for their welfare so that [G-d] may He be blessed, shall cause them to succeed in whatever they undertake.

(Rabbi Moshe Feinstein, Darash Moshe (New York, 1988), Derushah 10 of the additional derashot, p. 416.)


Rabbi Feinstein’s point is that it is not the job of the secular government to determine right from wrong on a moral level; rather it is to prevent “might from making right” by allowing the bigger fish to swallow the smaller because it can. The job of the government is to prevent theft, murder, religious coercion and the like. America is blessed – Rabbi Feinstein avers – because this defense of the smaller fish is the core mission of our government. It has never been the central mission of the United States legal system to proselytize a moral view of the world. America is neither a Christian nation nor a Judeo-Christian one. All people and all faiths are welcome. That is why we have prospered as Jews.

Rabbi Feinstein, himself a firsthand witness to Stalin’s repressions, understood that European history is littered with alternatives to “live and let live.” There are countless examples of state power used to advance a coercive moral value from Christianity to communism or fascism. This coercion repeatedly resulted in war which, time and again, lead to violence against Jewish communities. We do not want to be coerced and thus we do not want to coerce. We certainly do not want people forcing their religious values on us and we should not force our values on others.

American Orthodox Judaism gains much more than it loses by adopting Rabbi Feinstein’s view; we should oppose secular laws that restrict citizens’ personal moral, religious or ethical choices when they are harmful to no one but the person making the choice.

Many years ago, at a Yeshiva University Orthodox Forum, one of the speakers noted a failure as a matter of practice to articulate why same-sex marriage is bad for secular society. Unlike abortion, where a secular person could make a good argument that life starts at some point in utero, there is no evidence that anybody has produced to demonstrate that same-sex marriage is actually harmful to any non-consenting third parties. So in the end, the only grounds I have to oppose same-sex-marriage in America is my rabbinic tradition that homosexuality is prohibited for all men and same-sex marriage is a religious offense. I accept that wholeheartedly and with no doubt, but I would no more choose to try to impose my particularistic religious views on this topic on a broad American society by the force of law, than I would want Christian Americans to impose their universal religious views on me legally. Because I have no secular argument to make, I hesitate to impose my religious values, and I do not want others to impose their religious values on me.

Freedom in matters of personal conscience is the better approach for America, American Jewry as a whole, and American Orthodoxy in particular; we should persuade people and not coerce them. The alternative approach, which suppresses people’s liberty by enforcing a view (even a halachic view) regarding widely disputed moral issues, is plainly against our interests.

Moreover, halacha permits that policy of accommodation, by not requiring Jews to seek enforcement of the Noahide laws. Within the ordinary ambit of secular law, Orthodox Jewry should seek to increase religious, social, and cultural freedoms even though this will lead to violations of Jewish or Noahide Law. The alternative reduces our communities’ ability to function consistent with Jewish law. We support the right of our fellow American citizens to intermarry, to engage in ritual animal sacrifice, and freely worship their gods. This is no different.

Let us assume, for a moment, arguendo, that you are not convinced. You read my analysis and you reject it. Indeed, perhaps you agree with what my good friend Rabbi Avi Goldstein wrote in response to one of my articles:

The reason the radicals have succeeded is because they are more willing to fight for their beliefs than their opponents are prepared to fight for traditional morality. Generally battles such as these are won by the party more willing to go to the mat. It is high time that traditionalists mount a vigorous counterattack on destructive immorality. We must push for the Supreme Court to overturn Obergefell v. Hodges, the case that legalized same-sex marriage.

If you think this is factually true – that generally these fight can be won if only we tried harder – I would urge you to look closely (and honestly) at today’s America and examine the data before claiming this fight is winnable. All experts I am aware of agree that same-sex marriage is here to stay for the foreseeable future. Indeed, the law in the United States recently codified this, with 60 votes in the Senate. Furthermore, the social consequences of the push by the Orthodox community against this tide will be very bad for our Orthodox community. We should not suffer this loss if we can avoid it.

We should all be deeply opposed on a practical level – as bad for the Jewish community and bad for the Orthodox community – the encouragement or support of any conduct that legalizes discrimination based on conduct unrelated to the job or in housing. It is a bullet that kills on the rebound. It is sad, truth be told, to see of the regular support of employment and housing discrimination against the LGBTQ community advocated for in our Orthodox community in America as it is a policy that is harmful to our own community.

Rather, we should favor non-discrimination against people in all commercial matters. All should be obligated to sell bagels or provide medical care or rent an apartment to anyone who wants to pay for them. Race, religion and orientation should be treated the same. Practically, commercial discrimination of every type is bad for Jews of any type in America. If we think we can discriminate, but not be discriminated against, we are being foolish as a community.

Consider for example a modern and small example: Sunday Blue Laws under which our parents and grandparents lived imposed significant costs on the observant Jewish community. The state’s support of a day of rest, which the Jewish tradition supports as an ideal, morphed into Sunday as the “true” day of rest, which at least symbolically – and frequently more – ratified pressure on Jews to work on Shabbat. Many were forced to choose between keeping Shabbat and feeding their families, in the name of public morality. Public, state-backed, morality based in religious conviction is not a good bet for Observant Jews.

Indeed, our community has made an implacable enemy out of a LGBTQ community that need not have been our political enemy in the name of that public morality.

Just like we supported the rights of the Santería polytheistic community to engage in animal sacrifice as worship in Church of the Lukumi Babalu Aye v. City of Hialeah, notwithstanding the deep Jewish opposition to animal sacrifice idol worship, that could have been the case here. We are both victims of historical discrimination, and both want our liberty to live our life as we see fit. Our support of the rights of Catholic churches to worship freely is no endorsement of the Catholic faith and the same is true here. Our endorsement of housing non-discrimination independent of sexual orientation is no endorsement of what happens in the bedroom.

It is important to note that we have the ability – and the secular law clearly allows us the religious freedom rights – to educate our families and our community in our Torah values on this and any other topic. We need to educationally acknowledge the serious and legitimate concerns we have as a religious community for our traditional family as the first means of transmitting moral values. Family is a bedrock of religious values and we need to work in our synagogues, yeshivot and every religious institution we can to protect our right to raise our families as we see fit. That is the right we need to protect. We can and should educate people that our lifestyle choices are better. Furthermore, as a matter of American constitutional law, our religious institutions fully have and should use their right to discriminate consistent with their values in their educational mission. Both of these are precious and important and protected.

We all recognize that we are living in complex times and there are significant communal risks and dangers this wider reality poses to us as a sub-community trying to live our halachic life – and this has always been true. Our community needs to prepare for this challenge. But what we ought not support is the right to discriminate in the secular commercial marketplace. The right to refuse to host same-sex weddings in a for-profit wedding hall can easily become the right not to host Jewish weddings in the same hall. Commercial discrimination will harm us in the short and long term.

Public policy matter are not always won by the people who try the hardest; it is never that simple. My initial article opened with the example of the destruction of Jerusalem and the salvation of Yavneh and I return to that example in closing here. No one doubted that the extremists in Jerusalem had zeal – they went to the mat as hard as they could for their Jewish values and yet they lost and died. The Jewish tradition sided with the great Rabbi Yochanan Ben Zakai who blew the trumpet of retreat, surrendered to Rome, and saved as much as could be saved. He saw that the siege of Jerusalem would not be broken, and the Romans would win and the Beis HaMikdash destroyed – even as the pious Jewish zealots “went to the mat” perished a martyrs’ death.

In sum, Jewish law and Jewish common sense neither mandate a policy of non-accommodation nor advocate for discrimination. Jewish law explicitly tells us that we have no responsibility to force upon the non-Jews a compliance with their Noahide obligations. We should seek to persuade and role model to people that the life we live is better. And Jewish common sense teaches us that when faced with the option of either fighting an un-winnable battle or crafting a partnership with a powerful, useful, and natural ally, selecting the partnership is the better choice. The practical wisdom of the times we live in teach us that we cannot win every battle and thus we need to make sure that we do not enter into battles that harm us as a community. Let freedom ring.

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Rabbi Michael J Broyde, author of a dozen books and countless articles, is a law professor at Emory University and the Berman Projects Director in its Center to the Study of Law and Religion. He has served in a variety of rabbinic roles in the United States, from director of the Beth Din of America to Rabbi of the Young Israel in Atlanta and much more.