By Jonathan S. Tobin/JNS.org
President Donald Trump’s decision to throw out the ObamaCare contraception mandate as well as to largely exempt religious groups from non-discrimination statutes has drawn withering criticism from most liberal Jewish organizations. The Religious Action Center of Reform Judaism, the National Council of Jewish Women and a number of other groups are united in their dismay at the measures which will now ensure that businesses and institutions are no longer compelled to pay for all forms of contraception demanded by their employees, including abortion-inducing drugs. In this, they probably speak for the majority of Jews who are politically liberal and deeply opposed to Trump.
As far as these groups, and other mainstream organizations that have taken similar positions in court briefs, are concerned, Trump is waging war on women and granting a license to discriminate against the LGBT community. But you don’t have to agree with Catholics, evangelical Protestants and even some Orthodox Jews about abortion, contraception and gay rights to understand that the trouble here is not Trump, but the way some of us have abandoned the principle of religious liberty now that the people whose rights are in the government’s crosshairs are believers with views on social issues that we don’t share.
In 1990, when the Supreme Court ruled Native Americans could not claim constitutional protections for religious practices that were banned by government laws, there was a broad, bipartisan consensus that this was an injustice. The result was the passage of the Religious Freedom Restoration Act (RFRA), which stipulated the state must not place a burden on the free exercise of religion absent a “compelling government interest.”
Jewish groups also understood that the RFRA protections not only applied to the smoking of peyote, but could also ensure that any possible future attempts to ban kosher slaughter or circumcision would similarly run afoul of the law. But a quarter century later, now that a different religious minority faces pressure to conform to the cultural imperatives of the secular majority, they are singing a different tune.
Most Jews don’t agree with groups like the Catholic Little Sisters of the Poor or private businesses like the family-owned Hobby Lobby chain of craft stores, and others that successfully sued to stop the government from forcing them to pay for services that offended their consciences, like contraception and abortion-inducing drugs, under the ObamaCare mandate. Nor do they sympathize with conservative Christian bakers or florists who don’t think they should be compelled to use their artistic talents to celebrate events like gay marriages that are contrary to their faith. Indeed, most Jews, like most Americans these days, think opposition to contraception absurd and believe opponents of gay marriage are bigots.
But if you can force the Little Sisters of the Poor or an evangelical baker to surrender their rights, there is no guarantee that the time will not come when a majoritarian culture will, as they have in some places in liberal Western Europe, deem the free exercise of Judaism as unworthy of protection.
Even if you think you are entitled to free contraception, does that newly minted right really supersede someone else’s religious liberty? The right to free exercise of religion is the first one listed in the Bill of Rights.
Arguments that allege the right to practice your religion legitimizes discrimination are also misguided. There is no comparison between allowing bakers and florists to refuse to take part in gay ceremonies (though not to refuse service for simple purchases) and Jim Crow laws. Do we think a neo-Nazi would have the right to compel a Jew to design placards for another Charlottesville march? That doesn’t mean gays and Nazis are morally equivalent, but this should remind us that governments mustn’t be given the power to pick and choose which faiths are valid. Freedom of religion isn’t merely the right to believe as you like in private—it must allow us to practice our faith in the public square. Such a cribbed view of religious freedom is both wrong and dangerous.
Jewish liberals believe expanding health care coverage and promoting marriage equality is more important than the religious liberty of people they couldn’t care less about. But that’s a slippery slope we wouldn’t accept if it were our beliefs that were disdained by the majority.
Rather than aiding bigotry, Trump is standing up for a principle that Jews ought to be defending. Religious liberty for me but not for thee is the sort of hypocrisy we shouldn’t accept from those who purport to represent a Jewish community that knows only too well the importance of defending our first constitutional right.
Jonathan S. Tobin is opinion editor of JNS.org and a contributing writer for National Review. Follow him on Twitter at: @jonathans_tobin.