Photo Credit: Jewish Press

Editor’s note: A few weeks ago, we ran an op-ed by Rabbi Yaakov Menken and Monica Burke titled “The Equality Act: A Direct Assault On Jewish Values.” Below is Rabbi Michael Broyde’s response to that op-ed plus further comments by Rabbi Menken.



The Equality Act Is Good For The Jews

By Rabbi Michael J. Broyde

The House of Representatives recently passed the Equality Act, which extends the basic provisions of the 1964 Civil Rights Act to sexual orientation.

Rabbi Yaakov Menken and Monica Burke oppose these changes. In a recent article in The Jewish Press, they write:

At its root, the bill declares the Torah to be a bigoted document and all those who follow it to be bigots. Why? Because the Torah says men and women are different, that marriage is between a man and a woman, and that certain relationships are pure while others are not. Attempting to remain true to these beliefs could be construed as discrimination under the Equality Act.

This basic approach is deeply mistaken. Let me explain why by asking you to ponder a question: Should we allow Jews to discriminate in business against fellow Jews who intermarry? Should we be allowed, for example, to refuse to hire an intermarried Jew to paint our home?

The Torah prohibits intermarriage categorically. Intermarriage represents a deep violation of all things Jewish. But I am not opposed to the Federal Civil Rights Act prohibiting discrimination against intermarried Jews. This act is not against Torah Judaism. Indeed, I favor secular law permitting intermarriage and would adamantly oppose a law prohibiting intermarriage. I want civil rights for all, even for those who do not obey halacha.

Secular law is not supposed to mimic halacha. It is supposed to build a just and honest society in which people are not persecuted for choices that do not harm others. Many violations of Jewish sexual ethics are legal in American law – from adultery onward. Adult incest is legal in New Jersey. Does that affect the flourishing of Orthodox Judaism in Lakewood? Halacha doesn’t need, nor should it seek, validation in secular law.

Throughout history, Jews have often been victims of discrimination. We should therefore oppose all discrimination, and be sympathetic to victims of discrimination. Indeed, I would favor a law prohibiting businesses from dismissing an employee for any reason unrelated to the employee’s conduct on the job. (Religious institutions are different. Synagogues and yeshivos are exempt from many discrimination laws, and I support those exemptions.)

We should remember that thriving Orthodox communities historically are situated in the most liberal places. Tolerance lets us prosper. Tolerance allows people to act as they see fit so long as others are not harmed.

Of course, some will engage in conduct that Jewish law prohibits, but tolerating such behavior is much better than the law permitting discrimination. New York has extensive LGBT protection laws and extensive religious protection laws; they live side by side. Laws prohibiting religious discrimination do not condone idolatry, and laws that prohibit discrimination on other bases do not approve of these bases either.

Finally, it is worth noting that the handwriting is on the wall for all to see that the LGBT community is going to win this fight. If we fight against them, we will make frightful enemies – and for naught. People, and political movements, keep track of their friends and enemies. Why would we want to increase the number of our enemies? I think we have enough and I would like even fewer. If we change our tune to a “live and let live” approach, opposition from the LGBT community toward us might go away. We can all live in a “live and let live” world and prosper.

I therefore support the extension of the Civil Rights Act to prohibit discrimination based on sexual

orientation with the current exemptions for religious institutions in place. All those who care about Orthodox Judaism in America should do the same.


* * * * *


The Equality Act Is Bad For The Jews

By Rabbi Yaakov Menken

I see little difference between Rabbi Broyde’s position and my own regarding underlying principles. I believe, however, that he has misapprehended the nature of the Equality Act.

The Equality Act is a toxic mixture of opposition to discrimination and endorsement of discrimination against those who adhere to traditional values. Rabbi Broyde says our “approach is deeply mistaken,” but does not challenge the facts my co-author and I provided in the paragraph he quotes. The Equality Act deems Torah beliefs to be bigotry and acting upon them discriminatory. It’s as simple as that.

Rabbi Broyde uses intermarriage to illustrate his point. Let me as well. Should religious Jews be forced by law to participate in an intermarriage? Should we face exorbitant fines if we decline to provide our venue, catering services, bands, flower services, or kosher certification for a forbidden union? That’s what the Equality Act imposes on those who withhold their services from a same-sex marriage.

And it doesn’t stop there. Consider “gender identity.” Should a woman be denied privacy from the eyes of biological men in a locker room or swimming pool during single-gender hours? Should a public event – the upcoming Daf Yomi siyum, for example – be required to admit biological women who will hold hands and dance with the men?

The Equality Act would also have a destructive impact on charities, women’s sports, medical care, and our children’s education.

Yes, we have often been victims of discrimination in the past, and we benefit from tolerant environments – but that is why we should oppose the Equality Act. The Equality Act is stridently intolerant towards those unwilling to actively endorse same-sex marriage and gender dysphoria. In the wrong hands, the law can be a terrible and discriminatory tool.

Rabbi Broyde writes, “New York has extensive LGBT protection laws and extensive religious protection laws; they live side by side.” The Equality Act, however, slaughters one on the altar of the other.

Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to protect religious practice from government regulation. It was spearheaded by Democrats. Congressman Chuck Schumer and Senator Ted Kennedy introduced it, and it was signed by Bill Clinton. Only three senators opposed it. The only way a federal or state law can escape RFRA is if “such law explicitly excludes such application.”

The Equality Act does precisely that, stating that RFRA “shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.” The purpose of this clause is to deem a religiously-motivated declination to participate in a same-sex marriage as bigoted as a KKK member’s refusal to cater a Latino couple’s nuptuals. This is horrifying – and frankly hateful towards our community and our values.

In his closing paragraphs, Rabbi Broyde asserts that “the LGBT community is going to win this fight,” and that we will make enemies if we resist. He seems unaware of what is happening now. LGBT activists already denounce anyone with traditional beliefs as a bigot, and they deliberately target Christian businesses in states with laws similar to the Equality Act. These are the people whom Rabbi Broyde thinks might become our enemies. They already are!

The war has arrived, and the Equality Act is one of the LGBT movement’s most powerful weapons. We cannot pretend otherwise. Because of its overreach, the more people know about the Equality Act, the less they like it. In this environment, to offer no opposition to the Equality Act is to ensure that the LGBT movement “wins this fight.” To preserve our rights, we must demand them openly, loudly, and often.


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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. Rabbi Yaakov Menken is the managing director of the Coalition for Jewish Values.