Are the Dreams of the Founding Fathers and Our Fathers in Jeopardy?

religious liberty

The shifting tides of religious liberty in America and their implications for the Orthodox community.

From the moment the first Pilgrim set foot in Plymouth (be it on the fabled rock or not), the story of America has been deeply enmeshed with the ideal of freedom for all religious groups to worship as they see fit. The Jewish People’s sojourn on American shores, too, has been uniquely molded by this promise, which has allowed it to flourish as it has at few points in its long exile among the nations.

Emblazoned as the Bill of Rights’ First Amendment, the guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” has been the banner of freedom of conscience touted by American political leaders for more than two centuries. One need not have too long a historical memory to recall when, in many countries where Jews lived — if not in most — being Jewish, and certainly practicing Judaism, were factors taken for granted as legitimate grounds for discrimination. As such, most Jews felt that the American exile held an opportunity as did few before it.

Yet the most recent epoch in America has proven to be a confused if not difficult one for religious liberty, particularly for groups whose beliefs are incompatible with much of the “progressive” social agenda, a conflict that has been the subject of no shortage of public battles over the last decade.

Orthodox Jews in this country find themselves in the crosshairs of this threat, together with other traditionalists. The compounding challenges of exponential communal growth and an ever-present dose of “the world’s oldest hatred” has left them on the defensive on a multitude of once-safe fronts, from the right to construct Eruvin and shuls where needed, to the practice of bris milah according to tradition, and the ability to operate yeshivos in the manner determined by the leaders of each community. The weakening of values that were once presumed to be a solid foundation of American life has left many religious believers around the country — and perhaps more so, keen observers from the Orthodox community — wondering what the future might hold.

religious liberty
(Gershon Elinson/Flash90)

“A New, Unfortunate, Era”

The last quarter-century in America began on a high note in matters of religious liberty. Following the Supreme Court’s 1990 ruling in Employment Division v. Smith, a case that many felt gutted the free exercise clause of the constitution, a remarkably wide coalition of religious and civil liberty organizations rallied to support legislation that would place the burden on government to ensure that laws did not interfere with religious observance. The result was the nearly unanimous passage of the 1993 Religious Freedom Restoration Act (RFRA), which stated that “government shall not substantially burden a person’s exercise of religion,” even if it ostensibly does not target any specific religious group.

At its signing, then-President Bill Clinton noted the broad consensus that brought the law into being, saying “I’m told that …many of the people in the coalition worked together across ideological and religious lines…which shows, I suppose, that the power of G-d is such that even in the legislative process miracles can happen.”

Yet the harmony would soon turn to dissonance. A 1997 Supreme Court ruling partially defanged RFRA, saying that it applied only to federal laws, but not those of individual states. Some of the advocates from the original coalition called for new legislation that would counteract this ruling as well. But by then, against the background of an increasing push for legal protection of concepts anathema to traditional values, and a fear among many on the left that strengthened religious liberty would endanger this movement, consensus was not forthcoming.

After much haggling, most of those who had supported RFRA threw their support behind a bill which came to be known as the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed in 2000. RLUIPA strengthened the rights of prisoners to observe their religious practices while they were incarcerated, and also provided protection against discriminatory zoning laws. Recently, RLUIPA has played a key role in each of the many legal battles against townships looking for ways to roll up the welcome mat for Orthodox Jews looking to settle within their boundaries. At the same time, Rabbi Abba Cohen, Agudath Israel’s Vice President for Federal Affairs and Washington Director, who was involved in the passage of both RFRA and RLUIPA, said that its limited scope made RLUIPA a bittersweet accomplishment.

“Just a few years before, a huge, remarkable coalition of organizations from a variety of religious and political persuasions — groups that rarely sat around the same table — all agreed to broad protections for religious freedom, and now, suddenly, the only areas we could coalesce around were prisons and zoning,” he told Hamodia. “RLUIPA has done a lot of good, especially for our community, but the story of how it came to be certainly showed us that religious liberty was in a new, unfortunate, era.”

Since RLUIPA’s enactment, religious liberty has still seen significant victories. Over the past five years, the Supreme Court has upheld the right of a Muslim convict in Arkansas to sport a beard, denied the state of California the right to force Christian-run medical centers to display messages that are against their beliefs, put Abercrombie & Fitch in the wrong for denying a job to a Muslim woman for wearing a head scarf and allowed the Hobby Lobby chain to refuse to participate in an Obamacare mandate that required it to supply employees with certain medical services that violate their beliefs. This year, the court ruled narrowly in favor of a baker who was sued by the state of Colorado for declining to produce a cake for an event that conflicted with his religious principles, but the long-term ramifications of that decision have yet to play out.

At the same time, left-leaning states, media, and organizations have steadily warned that religious liberty is no longer a cause they endorse.

In 2015, when then-Indiana Governor Mike Pence attempted to pass a state version of RFRA with broad protections for traditionalists, it set off a national outcry — New York Governor Andrew Cuomo banned all non-essential state travel to Indiana in protest. The pushback was so intense that even the solidly conservative Governor Pence and his Republican legislature had to pass a subsequent bill rolling back some of the initial provisions.

Decades ago, the Southern Law Poverty Center (SLPC) won wide praise for its legal battles against the Ku Klux Klan and neo-Nazis. Now the organization lists the Alliance Defending Freedom (ADF), the law firm that has argued nearly every major religious liberty Supreme Court case in recent years, as a “hate group” together with the same violent racist entities SLPC was initially formed to fight.

Conservatives looking to emphasize the dire state of religious liberty have often quoted a statement by left-wing Harvard Law Professor Mark Tushnet that “For liberals, the question now is how to deal with the losers in the culture wars…My own judgment is that taking a hard line…is better than trying to accommodate the losers…Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown [v. Board of Education]. And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

“Not in My Backyard”

Against this somewhat foreboding background, one area where legal protections against religious discrimination have consistently helped the Orthodox community is in the now-constant struggles against municipalities seeking to use zoning laws as a barricade against the construction of shuls, schools, and Eruvin.

While these efforts on the part of townships have had the effect of limiting religious practice — and often kick up a good deal of anti-Semitic sentiment — most agree that the moves are primarily rooted in provincialism rather than in an attack on faith. Nevertheless, land-use attorney Roman Storzer sees these struggles as bona fide religious liberty battles.

“This attitude of ‘not in my backyard’ is what the First Amendment is here to prevent. The fact that you can’t treat people differently because of their religious beliefs, and that even without discrimination, you have the right to exercise your beliefs without undue restraints are basic principles of religious freedom that are both under attack in these cases,” he told Hamodia. “The main factor in winning these cases has been RLUIPA, which gave courts clear guidance on these issues of religious freedom and has been an effective shield against this type of hostility.”

Mr. Storzer has been on the winning side in efforts to build a kollel and adjacent housing in Pomona, New York; a yeshivah in Ocean Township, New Jersey; and to allow the Toms River’s Chabad House to continue operation. He remains involved in mediation with Jackson Township over laws implemented that would block the construction of dorms, schools, and Eruvin.

The list of wins for the Orthodox community has been impressive. After prolonged and bitter litigation, the towns of Tenafly in northern New Jersey and the posh summer resort town of South Hampton Beach were told they could not stand in the way of eruv construction. After the state attorney general sued Mahwah, New Jersey, for its efforts to block eruv construction and other measures seen as targeting Orthodox Jews, the township was forced to reverse its course. A federal lawsuit, initiated by former Attorney General Jeff Sessions — who initiated a RLUIPA task force — is currently pending against the town of Woodcliff for its actions against a Chabad house there.

religious liberty
Then-Attorney General Jeff Sessions speaks about religious liberty last June. (AP Photo/Alex Brandon)

“These victories didn’t happen by accident,” Professor Michael A. Helfand of Pepperdine University’s School of Law — a recognized expert on religious liberty — told Hamodia. “The Jewish community put in a lot of resources and political influence to get politicians to take a stand. On eruv cases in particular, a lot of credit for the positive settlements has to do with Orthodox partners convincing their firms that these are cases worth spending time on.”

Prof. Helfand added that the Supreme Court’s recent decision for the Colorado baker would likely add additional strength to those fighting targeted zoning laws, because the Justices’ argument was closely tied to determining whether bias played a part in a law or ruling, even a ruling that, on the surface, appears not to be directed at any one group.

Despite the losing track record, many towns have not given up their attempts to use zoning as a means to obstruct the growth of the Orthodox community. Just two weeks ago, the town of Woodbury, a neighbor of Kiryas Joel, held a meeting to discuss implementing laws to restrict Eruvin, and Satmar’s school network filed a lawsuit against the Rockland County Town of Airmont, challenging its efforts to block construction plans.

“Unfortunately, I do not think there will be an end to this type of discrimination and hostility based on race or religion so soon; … I will be kept busy for some time,” said Mr. Storzer.

Yiddishkeit in the Crosshairs

For the Orthodox community, the legal supports available today stand on the shoulders of decades of important accomplishments in protecting observant Jews from discrimination and ensuring vital accommodations.

Throughout the 1960s and ‘70s, several activists — many working under the banner of the National Jewish Commission on Law and Public Affairs (COLPA) — rode a wave of national civil rights legislation to secure legal protections for Sabbath observers in the workplace and fought other forms of discrimination that had held back many Orthodox Jews in business and industry. In the 1980s, a team of dedicated advocates were successful in establishing a legal right to make a religious objection to the performance of an autopsy in many states around the country.

However, for more than a decade now, several communal practices have been increasingly found in legal jeopardy and as a subject of routine ridicule by the media.

Courts have steadily rejected attempts of a small and radical group of “animal liberationists” to challenge the right of Jews to perform kapparos before Yom Kippur. New York State’s highest court recently reaffirmed lower court rulings protecting the practice, but a state and federal suit in California is still pending. Despite consistent affirmation of the ceremony’s legality from judges, news coverage with inflammatory headlines about the “chicken-killing ritual” have remained.

Throughout the administration of former New York City mayor Michael Bloomberg, traditional bris milah came under fire as the Department of Health and others in the city carried on a long campaign to regulate the practice of metzitzah b’peh (MBP). The struggle went through many stages, with opponents of the practice pushing for an array of changes in city law aimed at discouraging mohelim and parents from adhering to the tradition.

Attorney Yerachmiel Simins was one of those on the frontlines, battling for the legal right of the community to continue the performance of bris milah according to age-old custom. He felt that the city’s decision to attack the practice, in spite of what he cited as overwhelming evidence of the lack of danger presented by MBP, was something made possible by shifting attitudes in regard to religious belief.

“If MBP was as dangerous as they were claiming, then there should have been a far higher rate of herpes simplex among Orthodox Jews than the rest of society, but there isn’t,” Simins told Hamodia. “I think it was clear that the city was coming from a position of bias against religion, and only since they were starting from the position that tradition has no value, the next step was to say that this practice should not be tolerated, no matter how minuscule the risk is.”

Mr. Simins added that while the struggle was in its initial stages, when the issue was discussed with Harav Yosef Shalom Elyashiv, zt”l, he cautioned those involved to treat the matter not as an attack on MBP, but rather on bris milah in general. His words rang true when, a few years later, the city suggested the formation of a government-organized board to oversee mohelim and all aspects of milah.

After years of negotiation and litigation, the remarkably broad coalition — which represented the gamut of Orthodox groups — was successful, and, after a court action, the city repealed its anti-MBP regulation.

While the issue has largely disappeared from the media and government agenda for the last few years, Mr. Simins said that he still frequently receives calls from parents seeking guidance in dealing with objections to MBP from certain pediatricians and hospitals; he is concerned that it could resurface at any time.

“Unfortunately, it’s one of those canaries in the coal mine, a practice that is not understood by the general public and easy to misrepresent and pick at,” he said. “It’s been under the radar, but it never really went away, and I’m still getting calls about false alarms.”

More recently, attacks on yeshivah education in New York State have grabbed center stage in the Orthodox community’s now continuous effort to maintain the way of life it has been free to live by in America for decades.

The campaign, initiated and largely sustained by an organization formed by a former member of the community, with the support of a small group of others who have rejected the values of the homes and institutions in which they were raised and educated, has become a cause célèbre in secular media, ranging from sensationalist tabloids to The New York Times.

“If anybody would study the issue objectively they would see that these complaints are coming from a few individuals, not any quantifiable number of people who have gone through the yeshivah system. But in the present atmosphere that has a general lack of respect for anything that they see as ‘fundamentalist’ religion, people who are willing to criticize the community as insiders immediately get held up as heroes and are given a respectable stage upon which to air their grievances,” Rabbi Chaim Dovid Zwiebel, Executive Vice President of the Agudah, who has been heavily involved in defending yeshivah education, told Hamodia.

A lawsuit brought by the group, together with efforts to lobby some in city government and a savvy public relations campaign, have successfully moved city government to place many schools under scrutiny and to revisit the regulations and oversight under which they operate. The issue is very much still an ongoing one; only three weeks ago, the city issued new guidelines for all non-private schools, which raised deep concern among many Rabbanim and activists.

“There is very minimal appreciation out there for what yeshivah education does, and in a climate with a lot of fear and animosity against Orthodox Jews, the story they are telling finds a lot of traction,” said Rabbi Zwiebel.

religious liberty

‘Clouds Gathering on the Horizon’?

In recent decades, the rapid population growth and ascendancy of Orthodox Jewry in America has been a source of deep pride to the community. It at once told an emotional story of resurrection from the ashes of the Holocaust and a victory of those who stubbornly held fast to Torah and tradition against prevailing winds that, until less than 50 years ago, were blowing very much against them. The community’s physical expansion has a clear correlation with the prohibitive zoning laws and other attempts by towns to discourage observant Jews from settling in their borders.

Mr. Simins pointed out that the external challenges faced by Orthodox Jews on many fronts are likely rooted in this phenomenon as well.

Baruch Hashem, the Jewish community has thrived, but we have also become more visible, which historically has not been very good for us. As a result, the way we live our lives has attracted a lot more attention,” he said. “We have a tendency to forget that we are still in galus and need to be aware of that. Now that the community has grown, we have become a political target, and that’s not just part of the housing issues, but it plays a role in bris milah and education as well.”

Rabbi Zwiebel also said that growth, which in and of itself is obviously a great blessing that has also brought increased political clout, has attracted far more focus on the community’s practices, especially those seen as not in line with “progressive values.”

“At least theoretically, liberalism is supposed to mean that we want to protect everybody’s right to live as they see fit, but progressivism is what it sounds like: They see themselves as moving away from antiquated prejudicial ideas made by religion, and progressing towards a better place. In that new world, MBP, kapparos, and a lot of the basic foundations of Orthodoxy or any traditional community don’t seem consistent with the progress they’re looking for,” he said. “Our community has to recognize the serious danger this poses and work to assert our rights and constitutional protections, and work to get the legal carve-outs we need. But it’s getting harder to do that with more and more challenges coming with far more intensity than there were 20 years ago.”

As proven as far back as 2000 by largely unsuccessful attempts to strengthen RFRA, achieving wide protections for religious groups was no longer something that would attract wide consensus, nor in many cases was that a realistic goal. Prof. Helfand said the shift defines the present era in legal treatment of faith groups.

“The reluctance to introduce these laws is the result of a growing perception that many religious liberty claims ‘discriminate’ against other groups… And the fundamental threat to religious liberty is therefore this dynamic that paints religious liberty as a tool for discrimination,” he said.

Despite shifting social mores, he took an optimistic view of the Orthodox community’s future vis-à-vis religious liberty, pointing to the political clout that he said will continue to rise with continued growth and “trend rightward” among America’s judiciary since the Trump administration began.

“We have challenges, but we have a voice; not all communities are so lucky,” said Prof. Helfand. “The question will be whether we use our voice to promote protection for other faith communities who might need our help.”

Harking back to an earlier era when Jews enthusiastically embraced the equality they achieved through civil rights legislation and judicial rulings, Prof. Helfand warned that a wholesale embrace of exceptions for religious groups could be a double-edged sword for the Jewish community.

“American Jews are in a funny spot,” he said. “On the one hand we’re a religious group, but we’re also a minority that is a target for discrimination. We don’t fit easily into either bucket and protections for both are important for us.”

Though, Rabbi Zwiebel said, not only government actions, but societal attitudes in general towards the Orthodox community give him reason for concern, pointing to a recent New York Times article that took note of the tepid response of broader society to a recent rise in vandalism and assaults targeting Orthodox Jews in New York City.

“It seems a lot easier to be against anti-Semitism when the victims are people who look and live like the rest of society, and if the attack is against someone from the chareidi world, that same support isn’t there,” he said.

The combination of societal and political factors, Rabbi Zwiebel said, seems to spell out new and unwelcome uncertainties for the community.

“I don’t have a very optimistic outlook as to where things are headed,” he said. “We have some political power that we have to use, but clearly we’re moving in a dangerous direction. The American galus has been very good to us, but Jewish history teaches us that nothing lasts forever and it’s easy enough to see the clouds gathering on the horizon to have concern for what the future might hold.”