Why are liberal Jewish organizations undermining religious liberty?
What sort of groups would you expect to file a Supreme Court brief arguing that laws providing exemptions for Sabbath observant workers are unconstitutional? Certainly not organizations that represent the interests of the American Jewish community. Unfortunately, the groups who recently filed a brief positively citing that argument included the Anti-Defamation League, the Jewish Council for Public Affairs, and the Union for Reform Judaism.
The offending brief was filed in the case Little Sisters of the Poor v. Pennsylvania, which involves an organization of Catholic nuns who object to providing their employees with a health care plan that includes abortion inducing drugs, sterilization procedures, and contraception as part of their health care plan. The Sisters have fought for a legal exemption for years, and in 2017, in the midst of an ongoing legal battle, the Department of Health and Human Services exempted religious organizations like the Sisters from the mandate that they provide such services, on the grounds that failure to do so would violate the Religious Freedom Restoration Act.
Incredibly, states including New Jersey, Pennsylvania, and California sued to get rid of the exemption and force the Sisters to cover contraception, arguing that government agencies do not have the power to protect religious people, and that the only recourse for religious objectors is lengthy and expensive litigation. And the case has made its way to the Supreme Court, which heard oral arguments on Thursday about whether the Trump administration can allow the Sisters and other employers with religious objections to contraception to opt out of covering it.
You might expect Jewish groups to fall on the side of religious liberty in this case. But if you did, you would be mistaken. In a brief opposing the Sisters, the ADL argued that religious accommodations that impose a cost on nonbelievers are unconstitutional. According to the ADL, the burden of religious liberty cannot be imposed on the public. Nonbelievers cannot be forced to “underwrite objector’s religious choices,” per the ADL’s brief. “When nonbeneficiaries would be detrimentally affected, religious exemptions are forbidden.”
It’s a problematic argument for the simple fact that if such an argument were taken seriously, it would invalidate most religious accommodations. When an accommodation benefits one party, it almost always burdens someone else. Take, for example, kosher food, which can cost prisons or the military in excess of three times the cost of non-kosher meals. Yet no one would argue that Jewish prisoners or military personnel should not have their religious liberties protected by having kosher food provided to them.
Similarly, when Quakers were exempted from going to war because of their religious beliefs, this imposed a significant cost on the soldiers who went in their place. But despite these substantial costs, America has a proud history of protecting religious liberty — because we value conscience rights and religious diversity.
The ADL’s position would turn this proud tradition on its head and declare that America only protects religious liberty when it is easy and inconsequential to do so.
Furthermore, the ADL brief’s position would significantly harm American Jews. To support its view that the Supreme Court rule against accommodating the Sisters’ religious liberty, the ADL brief cites a 1985 Supreme Court case which struck down a Connecticut law that required employers to accommodate people who observe the Sabbath. The court struck down the Connecticut law on the grounds that the Constitution does not give anyone the right to force nonbelievers to conform to their needs. But for the Supreme Court to consider expanding this precedent would undermine the work of Jewish groups, which have long sought more robust protections for Jewish employees who wish to observe the Sabbath.
Even more dangerous is the brief’s claim that courts — and not religious adherents — determine whether a law conflicts with an adherent’s religious exercise.
According to the ADL, courts do not have to accept a religious person’s “sincere belief that she would be spiritually harmed” by a government action. Instead, courts must somehow determine as “as an objective legal matter” whether the religious burden is “substantial” enough to merit accommodation.
Allowing courts to engage in fact finding to determine the contours of religious belief would inevitably disadvantage religious minorities. Judges will likely understand the requirements or importance of popular Christian rituals, but they are significantly more likely to err when trying to rule on the “objective legal” requirements of keeping kosher or celebrating a Jewish Holiday like Shavuot.
Take, for example, Estes v. Clark, a case in which a Jewish prisoner named Bruce Estes sued his prison for refusing to provide him kosher food. The prison argued that while Estes sincerely believed that the food it served him was not kosher, the court should conclude that as a matter of law, the food was kosher enough. It maintained that Estes failed to provide “sufficient proof that he has consumed non-kosher food” according to the prison’s understanding of what constitutes kosher food. The prison even hired a rabbi to testify that Estes misunderstood Judaism’s kosher laws. In response, Estes presented his own rabbi, who testified that the food was not in fact kosher. How was a secular court supposed to determine which Rabbi presented the “objective legal” definition of kosher?
Fortunately, the court rejected the prison’s argument and refused to allow the prison to determine what foods were “kosher enough” for Estes. But the ADL’s argument would have forced the court to make a formal legal finding regarding what renders a food kosher or non-kosher. If that had occurred, there is no way to know which side would have prevailed. If the court had been swayed by the prison’s expert, Estes and others like him may have been forced to eat food that they considered not kosher.
This case was not an isolated incident. In Ben-Levi v. Brown, two federal courts allowed a prison to deny Jewish prisoners (and only Jewish prisoners) the right to study the Bible, under the absurd justification that Judaism supposedly prohibits adherents from reading the Bible unless 10 men and a rabbi are present. The prison seems to have misunderstood the requirement for certain public readings from a Torah scroll as a ban on reading the Bible in the absence of a quorum. But the real issue is not the prison’s substantive mistake in interpreting Jewish law; it is the fact that the prison tried to parse religious law in the first place.
Similarly harmful outcomes are likely to recur if judges are tasked with answering theological questions before granting religious accommodations — which is the rule promoted by the ADL.
The positions advocated in the ADL’s brief would therefore significantly diminish religious liberty protections in a manner that would be most detrimental to Jews and other religious minorities. Leading Jewish organizations should distance themselves from such positions, and hopefully, the groups who signed the ADL brief will reconsider doing so in the future.
Howard Slugh is the General Counsel of the Jewish Coalition for Religious Liberty. Rabbi Mitchell Rocklin is the President of the Jewish Coalition for Religious Liberty.