Religious freedom is something to which many are now actually voicing opposition. Returning to the roots of the Reynolds Mormon anti-polygamy cases of nearly 150 years ago, people are seeking limitations on religious freedom, opposing expansive Religious Freedom Restoration Acts (RFRA), and even calling for the repeal of the widely supported Federal RFRA of twenty years ago.
Maybe, as one pundit put it, religious freedom is like a fine wine – too much of a good thing is unwise. Indeed, we in the Orthodox community are very aware of this issue. We need to be exceedingly careful when we wish for rights in the area of religious discrimination least we be harmed when those same laws are applied against our interests.
Three religious freedom problems are front and center now – each slightly different, albeit with a common flavor. It is worth exploring what ought to be the view of these issues within the Orthodox community.
The first question is this: When should the government exempt individuals from laws because such laws burden religious free exercise rights? In the 1878 case of Reynolds v U.S., the Supreme Court told us that government need not ever exempt people from laws of general applicability, and that the government could therefore prohibit polygamy, even when it is religiously motivated. In 1990 the Supreme Court affirmed this rule in Employment Division v. Smith (albeit with the significant limitation in the 1993 Lukumi Babalu case, which held that the government may not gerrymander the legislation to functionally regulate only religion).
Congress sought to overturn the Smith rule, and RFRA was quickly passed, struck down, and repassed in modified form. Current Federal law mandates that the “[Federal] Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
Of course, the law provides an exception in cases where the universal application of the law is needed for the “furtherance of a compelling government interest” and the regulation imposed is the least restrictive way in which to further that government interest. Many have proposed modifying RFRA precisely because it grants religious organizations, people, and companies too much religious freedom. On the other hand, many are campaigning for expanding RFRA under the theory that this protects the religiously motivated conduct of our community from government interference.
This is an easy issue to the extent it is confined to governmental actions – as Federal RFRA is. Orthodox Jews ought to support all attempts to minimize Smith and its progeny. Allowing laws of general applicability to incidentally prohibit central religious conduct (circumcision is just one important example) is bad for religious freedom in the United States. Governmental regulation of religious conduct – whether directly or indirectly, whether as the focus of the law or just a byproduct – ought to be held to the standard of strict scrutiny and generally not permitted.
The second question was highlighted by the 2015 Supreme Court decision in Holt, addressing the question of the beard rights of a Muslim prisoner in Arkansas, where prison regulations prohibited such beards. Unanimously, the Supreme Court struck down the prohibition on beards, but the two-sentence concurrence by Justice Ruth Bader Ginsberg is pithily on point. She writes “Unlike the exemption this court approved in [the Hobby Lobby decision], accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”
The issue of permitting private commercial discrimination is much harder than direct governmental regulation, and I suspect that expanding the right to discriminate against others in commercial matters beyond religious corporations (such as synagogues, yeshivot, and the like) is an idea we should not support. The policy explanation is clear: allowing people (or for-profit corporations) to decline to engage in commercial conduct with others whose religious beliefs or conduct they find objectionable will open the floodgates of discrimination against Jews.
We do not want to return to the discriminatory times of decades ago when religiously motivated commercial discrimination was okay. Does anyone really think a kosher butcher shop ought to be permitted to have a sign up that says “No gays served”? This is true even as we recognize that the same-sex marriage movement is a profound deviation from the historical Jewish tradition.
Protecting religiously motivated commercial discrimination is very bad for Jews. Permitting someone to decline to rent an apartment (in a commercial building), or discriminate in employment, or decline to treat a patient, or engage in almost any other form of economic discrimination because one objects to a person’s lawful private conduct or faith is not a rule we benefit from.
We ought to support laws that prohibit any discrimination in commercial activity and permit only religious corporations to discriminate generally.
In short, (1) The government should whenever possible accommodate religious beliefs; (2) religious corporations (synagogues, yeshivot, and the like) can discriminate in every aspect of their work; (3) individuals and corporations should not be allowed to discriminate in commercial matter based on their race, religion, gender, or sexual orientation.
Of course, there will be gray cases: consider a kashrut agency that will not give a hashgacha for food served at a wedding whose performance violates Jewish law (e.g., intermarriage or same-sex marriage events). Such a policy is completely legally protected since the agency is a religious corporation and entitled to engage in religious discrimination.
Furthermore, this same kashrut agency may have a policy that precludes any caterer subject to its certification from catering events not under its certification. If, as a result of this rule, the caterer (a for-profit entity) is practically compelled to refuse to cater intermarriages, he could be protected as well. This is like the cases decades ago that permitted for-profit kosher wine producers to hire only Jews as employees who touched the wine, notwithstanding anti-discrimination laws. Organizations that provide uniquely Jewish services that want to discriminate in this way will have to closely affiliate with a not-for-profit religious corporation in order to gain this right. Such cases will be the exception and not the rule: non-discrimination in general commercial matters ought to be the norm.
The third question, while not so much in the news right now, is perhaps more important. When may religious communities be allowed to use arbitration law as a tool to enforce religious values? Fear of Islamic religious family law drove the Canadian province of Ontario to prohibit family matters from going to arbitration. As the attorney general for Ontario states simply:
Nothing in Ontario law prevents people from turning to a religious official or someone knowledgeable in the principles of their religion to help them resolve their family dispute. However, if that person made a decision based on religious principles, the decision would not be a valid family arbitration award under the law. . . . The court may only enforce awards made in arbitrations conducted exclusively under Canadian law. [http://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/faith-based.asp]
Such restrictions are at present unique to Ontario in North America – but the problem, while still nascent in the U.S., will grow increasingly acute as more and more states restrict arbitration in family law matters.
In the desire to limit Sharia law, some are willing to destroy all religious arbitration. This poses a deep threat to rabbinical courts and needs to be resisted. Instead, we ought to support the enforcement of the Federal Arbitration Act and its various state enactments that limit the risk of unethical religious arbitration. These acts require that arbitrations be without bribery or bias, have reasonable procedural safeguards, and be subject to classical contract rules.
In the area of family law, rabbinical courts need to accept that secular law with regard to matters such as child support and the best interest of a minor are binding. To limit the risk of total abolition in the area of family law, we need to make sure our rabbinical courts are adhering to proper secular law standards of fairness. Every horror story of unfair and unprofessional religious arbitration proceedings adds to the weight of those who seek to abolish all religious arbitration. As we evaluate and support various rabbinical courts, we need to be aware of this.
Every generation confronts different problems in the field of religious freedom. We confront three.
The first is governmental regulation that prohibits (either intentionally or not) religious conduct. We need to campaign for expansive religious freedom rights for all against governmental regulation. So too, our religious corporations must have the right to religiously discriminate.
The second problem involves calls to permit religiously motivated discrimination in commercial matters. We need to resist the temptation to encourage such discrimination and should support the rights of all whose conduct is lawful to work and live without discrimination.
Finally, we need to recognize that there is a real and long term challenge to the arbitrational authority of our rabbinical courts. We have to be prepared to defend, on religious freedom grounds, the right of people to submit disputes to rabbinical courts.