Opinion: When faith goes out of fashion

If the First Amendment’s protections don’t apply to Catholics and conservative Christians, when push comes to shove, they won’t be there to shelter Jews either.

By Jonathan S. Tobin, Editor-in-Chief, JNS

On New Year’s Day, a law banning Jewish religious slaughter went into effect in the Flanders region of Belgium. But as far as the legislators who passed the legislation and the voters who support them, this abridgement of the religious freedom of the Jews of Antwerp is a small price to pay in exchange for a measure that they think is kinder to animals.

Like efforts to make it harder for Jews to observe their religious traditions elsewhere in Europe—a list that includes not only attacks on kashrut, but also efforts to ban circumcision—there’s little doubt that anti-Semitism can be blamed for the enthusiasm for such initiatives. But the response from supporters of laws that take aim at kosher slaughter or other practices that fashionable European opinion deems beyond the pale is that unenlightened behavior doesn’t deserve protection.

Flemish legislators take the position that if Jews want to practice their religion they can do so, but only in such a manner that doesn’t impinge on the majority’s ideas about how to behave.

That’s a standard for religious liberty that you’d think most American Jews and the groups that represent them would be morally bound to oppose. The notion that the majority has the right to tyrannize the minority and to force religious believers either out of the public square or underground is antithetical to both the Constitution of the United States, as well as the principle of support for minority rights that has always guided Jewish community policy.

But while such groups might rally to the defense of Jewish religious liberty if a Flanders-style kashrut ban was attempted on these shores, you’d be wrong if you assume that they are willing to defend other religious communities. To the contrary, liberal Jewish organizations are taking the same attitude towards Catholics and other conservative Christians when it comes to the state impinging on their religious freedom that is meted out to European Jews.

An example of this disturbing trend of Jewish support for the idea of “religious freedom for me but not for thee” arose this week when two separate federal district judges ruled against the Trump administration in cases involving its rules for the administration of the Affordable Care Act.

The administration had carved out an exception to the contraception mandate that was imposed by President Barack Obama’s health-care legislation. The rule allowed religious employers to be allowed to opt out of the requirement that they pay for insurance that covered both abortion-inducing drugs and other more conventional forms of contraception.

The Trump rules followed the example set by the U.S. Supreme Court’s ruling in the case of Burwell v. Hobby Lobby Stores, Inc. in which the objections of the owners of the chain to being compelled to pay for services that violated their religious beliefs were upheld. The court said that the First Amendment’s free exercise clause protected business owners from being forced to violate their faith simply because Obama thought free contraception was more important than religious freedom.

But liberal Jewish groups like the Religious Action Center of Reform Judaism, the National Council of Jewish Women and the Bend the Arc coalition denounced the court for protecting both the owners of Hobby Lobby, as well as the Little Sisters of the Poor, an order of Catholic nuns who were similarly compelled to pay for practices that offended their beliefs.

The same trio was appalled when Trump’s Department of Health and Human Services put in the religious freedom exception to the ACA’s contraception mandate, and is now among those celebrating the successful legal efforts of a group of Democratic state attorney generals who challenged the new rule.

Given the precedent set by the Hobby Lobby ruling, it is likely that the lower-court decisions will be overturned when the Supreme Court eventually considers these cases. Moreover, this attempt to chip away at religious freedom by liberal federal judges will only harden the resolve of conservatives to stick with U.S. President Donald Trump no matter what else is going on with his chaotic administration because the stakes in the battle to control the judiciary overshadow just about every other issue.

Priority: Religious liberty or free contraception?

But what’s really troubling here is not so much the partisan divide on judges as it is the willingness of so many Jews to treat religious liberty as being of less importance than their desire for free contraception, let alone the war on everything connected to Trump.

Just as Europeans shouldn’t have to be Jewish to understand that threats to Jewish practices ultimately diminishes the rights of everyone—believers and non-believers alike—so, too, should liberal American Jews remember that if the rights of the nuns of the Little Sisters of the Poor are unworthy of protection, the same thing can be done to Jews.

Even if they don’t believe that the Constitution guarantees a right to free contraception (an entitlement that was unknown in this country prior to the debate over the law popularly known as Obama Care) as opposed to a general right to use it, the vast majority of Americans aren’t offended by the ACA’s contraception mandate. But you don’t have to share the religious convictions of the Hobby Lobby owners or the Little Sisters to understand that protecting their rights ensures our own.

Yet because the Little Sisters’ beliefs are unpopular, liberal Jewish groups and politicians like Pennsylvania Attorney General Josh Shapiro (an active member of the Jewish community), who is pursuing the legal challenge to the Trump administration, think their rights can be trashed with impunity.

You may think that what’s happening in Europe can’t happen here to American Jews. But if the Little Sisters can have their rights restricted because their faith is considered unenlightened or unfashionable, anything is possible. If the First Amendment’s protections don’t apply to Catholics and conservative Christians, when push comes to shove, they won’t be there to shelter Jews either.

American Jewsreligious freedom