RFRA Battles and Us

The controversy surrounding the passage by the Indiana legislature of a RFRA (Religious Freedom Restoration Act) should be a great concern to all Torah Jews. Agudath Israel of America played a major role in the passage of a federal RFRA statute in 1993. That legislation gained unanimous passage in the House and the support of 97 senators in the Senate, before being signed into law by President Bill Clinton. Since then 20 states have passed their own RFRA statutes, and another 11 have judicially extended similar protections under their state constitutions. Yet suddenly RFRA statutes are culturally anathema.

The federal RRFA statute came in response to the Supreme Court’s decision in Employment Division v. Smith (1990), the so-called peyote case. Smith effectively reversed Sherbert v. Verner (1963) and its progeny. In the latter case, the Supreme Court ruled that South Carolina could not deny unemployment benefits to a woman whose religious beliefs prevented her from being “available to work” on Saturday. Justice Brennan, one of the Court’s leading liberal lights, enunciated a two-part test for state infringements on the exercise of religion: (1) the state would have to enunciate a “compelling state interest” for the infringement and (2) demonstrate that the same interest could not be achieved in a less restrictive fashion.

Smith, however, ended religious exemptions. The narrowly divided Court held the right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Ironically, Justice Scalia, a devout Catholic, authored the opinion.

RFRA restored the Sherbert test at the federal level, as a statutory, rather that constitutional, requirement.

DESPITE THE OVERWHELMING SUPPORT for the original federal RFRA statute, in recent years, RFRA state statutes have suddenly become highly controversial. Last year, Arizona governor Jan Brewer, a Republican, vetoed a RFRA statute passed by the Republican-controlled legislature. And within the past month, Indiana governor Mike Pence and Arkansas governor Asa Hutchinson, both conservative Republicans, backed down from RFRA statutes passed by their states. All three governors did so in the face of well-organized campaigns, joined by some of the nation’s largest companies and even other states, threatening their states with boycotts if the proposed legislation was enacted.

Why the seismic shift? Because RFRA statutes have been targeted by activist supporters of same gender marriage. Those supporters are not content with their success in gaining legalization of their unions in state after state. They want to force the nay-sayers, including religious Christians, Muslims, and Jews, to acknowledge those unions.

Thus a religious Christian florist in Washington state was hit with a ruinous $150,000 fine for declining to prepare a floral arrangement for a “wedding” that offended her deepest religious beliefs, even though the celebrants were regular customers. Bakeries have been sued for refusing to prepare wedding cakes with two grooms or two brides on top.

And during the hullabaloo over the Indiana statute a small-town pizzeria was nearly forced to close down by negative national publicity after the owner told a reporter that she would sell pizza to any buyer, but would not prepare pizzas for a wedding that violated her religious beliefs.

The proposed RFRA statutes in Arizona, Indiana and Arkansas were introduced largely to protect the right of individuals, even ones engaged in business, from having to participate or implicitly affirm their support for rites that they consider to be repugnant on religious grounds.

And precisely that tolerance for diverse beliefs is what the extremist supporters of same-gender marriage cannot countenance. They are impelled to be ferocious precisely because what they advocate is so fundamentally at odds with the teachings of every major world religion and every known human society until thirty years ago.

They seek to compel affirmation that same-gender marriage is essentially no different than marriage between a black man and a white woman, which was also once prohibited by anti-miscegenation statutes in Southern states. But skin color is wholly incidental to the definition of marriage, whereas same gender relationships — whatever one’s personal view of them – are decidedly something different than those between a man and a woman, not least in their procreative capacity. To affirm otherwise is to deny nature and three thousand years of cultural understanding.

THE AMERICAN FOUNDING FATHERS spent a great deal of their intellectual energy on the proper relationship between private religious belief and government. Most were deeply religious themselves, and they well understood the power of religion both as a positive force and as one of potential devastation. The horrors of the Hundred Years War were still fresh in their memory. Many of the first arrivals in America were members of dissenting sects and had been the victims of religious persecution in Europe. They had no wish to import to the New World either ruinous religious wars or religious persecution.

Recognition of the demands of religious conscience and tolerance for religious diversity are both part and parcel of the constitution’s religion clauses. James Madison, the principal draftsman of the American constitution, fiercely opposed Patrick Henry’s proposal for a tax for the support Christian ministers in his native Virginia. In his Memorial and Remonstrance Against Religious Assessments,Madison wrote, “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe. . . . [A]ny man who becomes a member of a particular Civil Society [must always] do it with a saving of his allegiance to the Universal Sovereign.”

Madison’s recognition of a G-d to whom men owe a superior duty of conscience does not resonate with the modern progressive mind. Not only do most modern progressives deny any higher authority, but they have little tolerance for views that deviate from the consensus of the “best and brightest.” If the state can enforce that consensus, all the better. They are only too happy to stifle dissent where possible, whether through the proliferating campus speech codes, an eagerness to declare “the debate is over” on a panoply of issues, such as anthropogenic global warming, or the imposition of anti-discrimination statutes on religious believers.

Yuval Levin rightly describes the campaign to compel religious wedding vendors, through the civil authority, to affirm something that violates their understanding of their proper religious obligations as tantamount to the compulsion exercised in a society with an established church (something expressly forbidden by the First Amendment’s Establishment Clause). Only now the established church is progressive liberalism.

In a way, the imposition on religious believers in the wedding vendor cases is greater than on the Sabbath-observant employee in Sherbert. There she was subject to an indirect financial penalty by virtue of her religious beliefs, but not prevented from observing her religion. Here the state seeks to compel vendors tacit affirmation and participation in a ritual that violates their religious beliefs.

THE IMPLICATIONS FOR TORAH JEWS of these recent events are immense. I once heard Rabbi Herschel Schachter say at an OU convention that one should not address an intermarried couple as Mr. and Mrs. so as not to acknowledge a relationship to which the Torah attaches no significance. And the father of one of my closest friends once refused to sell a very valuable diamond after learning that it was to be used in the wedding ring at an intermarriage. He refused to be part of what he viewed as a desecration of Hashem’s Name.

Secular liberalism will prove no more tolerant of opposition to marriage between a Jew and a gentile than to opposition to same gender marriage. My friend’s father would be subject to suit on the same anti-discrimination grounds as in the wedding vendor cases. Testamentary dispositions that penalize intermarrying heirs might well be forbidden on similar grounds or as “against public policy,” if they haven’t been already.

Nor are proponents of same-gender marriage the only highly organized group that might not scruple at riding roughshod over religious sensibilities as the culture in general comes to devalue religious conscience. Animal rights activists could easily frame facially neutral statutes, with a secular purpose, that nevertheless banned kosher slaughter. And so too child right’s advocates with respect to bris milah, an even greater burden on the free exercise of religion since it would ban the performance of a supreme religious duty.

The zeitgeist is moving so fast against traditional religious values, and at the same time against sympathy for demands of religious conscience, that every beleaguered religious citizen’s parade of horribles is fast upon us before we know it. Twenty-five years ago, who would have predicted that same gender marriage would be imposed, even by judicial fiat, anywhere outside of ultra-blue states, like Massachusetts. As late as 2008, both Barack Obama and Hillary Clinton campaigned as supporters of the traditional definition of marriage embodied in the Defense of Marriage Act, signed into law by the latter’s husband. Six years later, Brendan Eich would be forced out in one day as CEO of Mozilla, a company he helped found, when it was revealed he had had contributed $5,000 to a successful California campaign to amend the state constitution to include the same traditional definition of marriage.

In light of the rapidity of the formation of a cultural consensus hostile to tolerance for traditional religious belief, The New York Times’ Ross Douhat poses a series of questions for those eager to compel florists, bakers, and photographers to provide services for which there are multiple alternative suppliers. Here are just a few: Should religious institutions that impose codes for faculty and students based on traditional religious norms lose their tax exemptions? Should public institutions be allowed to employ chaplains who do not perform same gender weddings? Can tenure be denied to an Orthdox Jewish professor based on his expressed support for traditional halachic norms? Should institutions affiliated with faith communities that do not sanction same gender unions lose their tax exemptions? Should the state recognize marriage performed by clergy of those faith communities?

That such questions can be posed without the answer being obvious demonstrates how fast we may be approaching a day when being a traditional Torah Jew marks one as an irredeemable bigot unfit for participation in the larger society.

This article first appeared in Mishpacha Magazine.