When religion meets law

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For most of the 21st century, public debate on religious liberty issues has largely focused on the conservative Christian community. Deep disagreements over whether merchants should be required to serve customers in same-sex relationships and whether religious institutions should provide access to abortion in their employees’ health plans have stirred political and legal debate , and the recently reconfigured Supreme Court looks poised to weigh decisively on these issues. controversies in the years to come.

But Jews also have considerable experience in matters of religious freedom, and several millennia of being victims of religious prejudice should make us very careful to understand the religious beliefs and practices of others. So it’s worth watching two court cases that have emerged this month, putting American Jews front and center in two very charged cases related to our religious freedoms.

The first and less complicated of the two takes place at Yeshiva University in New York, where the administration has been unwilling to grant official status to an LQBTQ student organization. Lawyers for the school argued that recognizing the group would violate the university’s Orthodox faith, which prohibits same-sex sexual relations. A New York court previously ruled in favor of the student group, determining that Yeshiva University is primarily an educational institution, which is bound by a city human rights law, rather than a religious organization, which is not. But Judge Sonia Sotomayor issued a temporary ruling last week allowing the university to continue to deny official status to the organization, almost certainly giving the full court an opportunity to consider the matter at its next session. .

Meanwhile, half a continent away, opponents of Indiana’s recently passed abortion ban have filed a lawsuit on behalf of Jewish plaintiffs challenging the restrictions as a violation of a law of State on Religious Liberty passed by Republican legislatures several years ago. The tenets of Reform Judaism do not recognize a fetus as a living person until birth and state that the health of the mother takes precedence until that point. The lawsuit follows similar action taken in Florida earlier this summer and raises many of the same arguments that the Yeshiva University case and similar lawsuits from conservative Christians have offered over the years – but from the end left of the political spectrum.

Presumably, if legal doctrine recognizes the primacy of religious beliefs when those beliefs represent conservative values, a consistent interpretation would give equal consideration to liberal values ​​represented by Reform Jewish plaintiffs in Indiana. But as we watch the Supreme Court navigate this uncharted judicial territory, it also raises broader questions about the extent to which the inalienable rights granted to Americans in the US Constitution can be restricted when they interfere with the rights of others. .

Some of these questions are quite easy: we know that the right to free speech does not allow us to shout fire in a crowded movie theater and the right to bear arms does not allow us to ride a loaded Uzi on the lawn of a public primary school. But legal disputes over libel and slander law, campaign finance reform and conditional gun possession are far more complicated.

The strong temptation is to avoid complex constitutional issues and simply retreat into our ideological comfort zones.

The strong temptation is to avoid complex constitutional issues and simply retreat into our ideological comfort zones. If you’re in favor of abortion rights and same-sex marriage, it’s easy to ignore the legal inconsistency and support pro-choice plaintiffs in Indiana and oppose religious conservative petitioners – whether they’re Orthodox Jews or Evangelical Christians. It is equally convenient for cultural conservatives to align themselves with the opposite side of the two issues.

But religious freedoms – and all individual freedoms – must apply to everyone equally. It’s not an easy path to follow, but it’s why many Jews supported the American Nazi Party’s right to demonstrate in Skokie, Illinois many years ago. And why those of us who have faced so much religious oppression in the past need to stand up for the rights of other religious minorities in the future – both when we share their beliefs and when we oppose them.


Dan Schnur is a professor at the University of California – Berkeley, USC and Pepperdine. Join Dan for his weekly webinar “Politics in the Time of Coronavirus” (www/lawac.org) on ​​Tuesdays at 5 p.m.


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