In the wake of a series of U.S. Supreme Court decisions in defense of religious freedom, including two delivered at the conclusion of the historic session that ended in June, some of those groups that purport to speak for American Jewry are alarmed. Along with that of their secular liberal allies, the advice of the Anti-Defamation League and the American Jewish Committee was rejected by the court in Carson v. Makin and Kennedy v. Bremerton.
In both cases, the court argued that the clause of the First Amendment which guarantees the “free exercise” of religion ensured that the state could not discriminate against the expression or practice of faith. While the constitution forbade the specific establishment of a state religion by a 6-3 majority in both cases, the court upheld the notion that religious liberty was not merely protected by the Constitution but was given priority as truly our “first freedom.”
Why then do liberal Jewish organizations oppose the defense of religious liberty? The answer is rooted in one of the key elements of the growing division in our politics between the right and the left, as well as in the Jewish community’s troubled past. That was on display in the dismay of the ADL and the AJC, as well as other liberal and left-wing Jewish groups. Their opposition to the decisions in these and other religious freedom decisions can be summed up in one word: fear.
Liberal Jews fear that if, as in Carson, the state isn’t allowed to discriminate against parents who send their children to religious schools by denying them benefits given to everyone else, it will mean that the monopoly of secular public schools on government support will be threatened and thus inevitably create a situation in which Jews will be discriminated against.
The decision in Kennedy was even more disturbing to them because the court refused to discriminate against religious speech. It concerned a high school football coach named Joseph Kennedy, who kneeled at the 50-yard-line after games for a moment of silent prayer. Since some of the athletes and students present would volunteer to join him, the school district treated it as a violation of the separation between church and state, and let the coach go. He sued, and the Supreme Court said he was right. As Justice Neil Gorsuch correctly summarized the issue in the majority opinion, “religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” What was at stake in the case was not compulsory school prayer, which was ruled unconstitutional by the court in 1962. Rather, as Gorsuch stated: “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance.”
Yet the ADL and the AJC thought the punishment appropriate since they termed even voluntary silent prayer to be inherently “coercive” and thereby a threat to minority students.
Indeed, the liberal Jewish groups’ position seemed to be summed up in a recent essay published in The New York Times, the publication that is still viewed by many Jews as a sort of secular bible. Linda Greenhouse, the Times’ longtime Supreme Court correspondent, is infuriated by the willingness of conservative justices to think of religious freedom as something that deserves greater respect than any other form of ordinary expression. She thinks it’s wrong for the court to “elevate the free exercise of religion over civil society’s other values.”
She said this attitude was on display in a recent speech by Justice Samuel Alito, who was in the majority in both Carson and Kennedy. In it, Alito put forward the following hypothetical about the difference between religious freedom and ordinary forms of speech:
“Suppose a court had a rule against attorneys wearing headgear. Attorney A, a “rabid Green Bay Packers fan,” insists on wearing a Packers green and gold cap in the courtroom. Attorney B is an Orthodox Jew who wears a skullcap. Attorney C is a Muslim woman in hijab or any other head covering. “If A can’t wear his Packers hat, is it still possible to accommodate B and C?” asked Justice Alito. “Well, for me, the Constitution of the United States provides a clear answer. … The Constitution protects the free exercise of religion. It does not protect the free exercise of support for the Packers.”
The logic is irrefutable. Though Greenhouse sees danger in public faith, the Constitution prioritizes the right of religious expression. It did so for good reason because the founders understood that history teaches that suppression of religious dissent is an essential element of tyranny. In their day, it was the fear of one religion banning another. In the 20th century, murderous totalitarian Marxist regimes declared war on all religions except their own idolatrous secular faith. In contemporary America, it is the new secular woke faith about race that seeks to silence dissent.
Why are Jews so afraid of protecting religious expression? As a religious minority that has suffered discrimination or proscription in other lands, it would seem that Jews would be the first to stand up for the rights of people of faith who are being silenced. But so great is this liberal Jewish fear of non-Jewish faith that organizations like the ADL and the AJC are part of an effort to sweep the public square of all signs of religion, a position that would have left the founders incredulous.
As a religious minority in a country that was overwhelmingly Christian and because of their experiences elsewhere, Jews have always tended to view the public expression of faith as inherently dangerous. Jews had thrived in America in a way that was unmatched in the long history of the Diaspora, and at the core of the safety and acceptance that they found here was the fact that no faith was “established” as the official state religion. Judaism has always been on an equal basis with Christian denominations, whose adherents made up the overwhelming majority of the population. But to many Jews, fear of faith in the public square has led them to see the Constitution’s sensible balance between non-establishment and defense of free exercise as worrisome.
In the 20th century, politically liberal Jews who saw the issue solely through the prism of past fears were part of a movement that sought to rid the public domain of religion. Yet that hasn’t made them any safer or freer. While liberal Jewish groups remain obsessed with a non-existent threat to Jewish rights from religious Christians, who are now more likely to be philo-Semitic than hostile to Jews, they are blind to other more pertinent dangers.
The woke left, which is now ascendant in academia and exerting increasingly greater control over public-school curricula, is hostile to Judaism and expressions of Jewish identity because they see it as an expression of “white privilege.” Liberal Jewish groups who have gone along with the toxic myths of critical race theory and intersectionality in order to avoid being called racists are now therefore complicit with a cultural trend that is endangering Jews while simultaneously supporting efforts to repress religious expression, whether it took the form of a silent football prayer or the erection of Hanukkah menorahs on public property.
That those who are tasked with the job of defending Jews against discrimination are lining up with those who seek to discriminate against faith is more than ironic. Their extremist separationist position has also caused them to oppose reasonable school choice programs that would aid religious schools that are essential to the survival of Jewish communities.
In America, Jews have always been equal citizens rather than a tolerated minority. As George Washington said in his 1790 letter to the Hebrew Congregation of Newport, R.I., in America, “all possess alike liberty of conscience and immunities of citizenship.” The government of the United States,” he went on, “gives to bigotry no sanction, to persecution no assistance.”
Those great words apply just as much to the right of non-Jews to pray or live religious lives in public as it did to the protection of Jews. How sad that Jewish groups lining up with those seeking to brutally repress religious expression haven’t learned that important lesson.
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.