Point / Counterpoint: Is the Equality Act Good for the Jews?

A few weeks ago, the Jewish Press ran an Op-Ed by Monica Burke and myself titled “The Equality Act: A Direct Assault On Jewish Values,” which was reprinted here on Cross-Currents. Rabbi Michael Broyde submitted a piece responding to mine to both outlets, and the Jewish Press offered me the opportunity to counter his response and published them together — as you will find below.

The Equality Act Is Good For The Jews
By Rabbi Michael J. Broyde

The House of Representatives recently passed the Equality Act, which extends the basic provisions of the 1964 Civil Rights Act to sexual orientation.

Rabbi Yaakov Menken and Monica Burke oppose these changes. In a recent article in The Jewish Press, they write:

At its root, the bill declares the Torah to be a bigoted document and all those who follow it to be bigots. Why? Because the Torah says men and women are different, that marriage is between a man and a woman, and that certain relationships are pure while others are not. Attempting to remain true to these beliefs could be construed as discrimination under the Equality Act.

This basic approach is deeply mistaken. Let me explain why by asking you to ponder a question: Should we allow Jews to discriminate in business against fellow Jews who intermarry? Should we be allowed, for example, to refuse to hire an intermarried Jew to paint our home?

The Torah prohibits intermarriage categorically. Intermarriage represents a deep violation of all things Jewish. But I am not opposed to the Federal Civil Rights Act prohibiting discrimination against intermarried Jews. This act is not against Torah Judaism. Indeed, I favor secular law permitting intermarriage and would adamantly oppose a law prohibiting intermarriage. I want civil rights for all, even for those who do not obey halacha.

Secular law is not supposed to mimic halacha. It is supposed to build a just and honest society in which people are not persecuted for choices that do not harm others. Many violations of Jewish sexual ethics are legal in American law – from adultery onward. Adult incest is legal in New Jersey. Does that affect the flourishing of Orthodox Judaism in Lakewood? Halacha doesn’t need, nor should it seek, validation in secular law.

Throughout history, Jews have often been victims of discrimination. We should therefore oppose all discrimination, and be sympathetic to victims of discrimination. Indeed, I would favor a law prohibiting businesses from dismissing an employee for any reason unrelated to the employee’s conduct on the job. (Religious institutions are different. Synagogues and yeshivos are exempt from many discrimination laws, and I support those exemptions.)

We should remember that thriving Orthodox communities historically are situated in the most liberal places. Tolerance lets us prosper. Tolerance allows people to act as they see fit so long as others are not harmed.

Of course, some will engage in conduct that Jewish law prohibits, but tolerating such behavior is much better than the law permitting discrimination. New York has extensive LGBT protection laws and extensive religious protection laws; they live side by side. Laws prohibiting religious discrimination do not condone idolatry, and laws that prohibit discrimination on other bases do not approve of these bases either.

Finally, it is worth noting that the handwriting is on the wall for all to see that the LGBT community is going to win this fight. If we fight against them, we will make frightful enemies – and for naught. People, and political movements, keep track of their friends and enemies. Why would we want to increase the number of our enemies? I think we have enough and I would like even fewer. If we change our tune to a “live and let live” approach, opposition from the LGBT community toward us might go away. We can all live in a “live and let live” world and prosper.

I therefore support the extension of the Civil Rights Act to prohibit discrimination based on sexual orientation with the current exemptions for religious institutions in place. All those who care about Orthodox Judaism in America should do the same.



The Equality Act Is Bad For The Jews
By Rabbi Yaakov Menken

I see little difference between Rabbi Broyde’s position and my own regarding underlying principles. I believe, however, that he has misapprehended the nature of the Equality Act.

The Equality Act is a toxic mixture of opposition to discrimination and endorsement of discrimination against those who adhere to traditional values. Rabbi Broyde says our “approach is deeply mistaken,” but does not challenge the facts my co-author and I provided in the paragraph he quotes. The Equality Act deems Torah beliefs to be bigotry and acting upon them discriminatory. It’s as simple as that.

Rabbi Broyde uses intermarriage to illustrate his point. Let me as well. Should religious Jews be forced by law to participate in an intermarriage? Should we face exorbitant fines if we decline to provide our venue, catering services, bands, flower services, or kosher certification for a forbidden union? That’s what the Equality Act imposes on those who withhold their services from a same-sex marriage.

And it doesn’t stop there. Consider “gender identity.” Should a woman be denied privacy from the eyes of biological men in a locker room or swimming pool during single-gender hours? Should a public event – the upcoming Daf Yomi siyum, for example – be required to admit biological women who will hold hands and dance with the men?

The Equality Act would also have a destructive impact on charities, women’s sports, medical care, and our children’s education.

Yes, we have often been victims of discrimination in the past, and we benefit from tolerant environments – but that is why we should oppose the Equality Act. The Equality Act is stridently intolerant towards those unwilling to actively endorse same-sex marriage and gender dysphoria. In the wrong hands, the law can be a terrible and discriminatory tool.

Rabbi Broyde writes, “New York has extensive LGBT protection laws and extensive religious protection laws; they live side by side.” The Equality Act, however, slaughters one on the altar of the other.

Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to protect religious practice from government regulation. It was spearheaded by Democrats. Congressman Chuck Schumer and Senator Ted Kennedy introduced it, and it was signed by Bill Clinton. Only three senators opposed it. The only way a federal or state law can escape RFRA is if “such law explicitly excludes such application.”

The Equality Act does precisely that, stating that RFRA “shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.” The purpose of this clause is to deem a religiously-motivated declination to participate in a same-sex marriage as bigoted as a KKK member’s refusal to cater a Latino couple’s nuptuals. This is horrifying – and frankly hateful towards our community and our values.

In his closing paragraphs, Rabbi Broyde asserts that “the LGBT community is going to win this fight,” and that we will make enemies if we resist. He seems unaware of what is happening now. LGBT activists already denounce anyone with traditional beliefs as a bigot, and they deliberately target Christian businesses in states with laws similar to the Equality Act. These are the people whom Rabbi Broyde thinks might become our enemies. They already are!

The war has arrived, and the Equality Act is one of the LGBT movement’s most powerful weapons. We cannot pretend otherwise. Because of its overreach, the more people know about the Equality Act, the less they like it. In this environment, to offer no opposition to the Equality Act is to ensure that the LGBT movement “wins this fight.” To preserve our rights, we must demand them openly, loudly, and often.

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6 Responses

  1. Steve Brizel says:

    If one takes R Broyde’s position to its logical conclusion, then the advocates of Torah observance have no business arguing for their way of life in the public arena. That is precisely why there is a Free Exercise clause in the First Amendment. When proponents of equal protection argue that adherents of any religious denomination must always yield when it comes to deeply held beliefs, that is tantamount to urging nullification of the Free Exercise Clause and its protections

  2. Steve Brizel says:

    FWIW, the SCOTUS has granted certiorari to a case from Montana that challenges the constitutionality of the Montana version of the Blaine Amendment, which prohibits state aid to parochial schools — thus setting up a major decision as to whether the decisions on the Establishment Clause ( as evidenced by the case involving a cross in a veterans’s cemetery) are due for substantial revision and retrenchment from a posture that elevates concerns for atheists at the expense of those who thank God every day that there is a Free Exercise Clause.

  3. Tal Benschar says:

    I am astounded by Rabbi Broyde’s argument, which appears woefully ignorant about the basics of civil rights laws, their operation, and recent controversies about their application.

    Federal law does not ban all forms of discrimination, it bans discrimination in certain areas (employment, public accommodation, housing). And it only bans discrimination on certain bases – race, sex, religion, etc. The Equality Act would add sexual orientation to that list. A good summary is on Wikipedia: “The Equality Act is a bill in the United States Congress, that, if passed, would amend the Civil Rights Act to prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, public education, federal funding, credit, and the jury system.”

    So, first of all, it is not illegal for a private person to discriminate in hiring a painter to paint his house, even under the current recognized forms of discrimination.

    Second, where the most conflict with religious principles has been in “public accommodation,” which has been very broadly construed to encompass any business generally providing goods or services to the public. Hence the repeated wedding cake baking controversies (one of which went to the Supreme Court).

    So how would that affect Orthodox Jews? Here are some likely scenarios:

    (1) A shul operates a wedding hall (or smaller simcha hall) on its premises, which it rents out for weddings or simchas. Someone wants to rent it out for a same-sex marriage, or an engagement party for a same-sex engagement.

    (2) An Orthodox person lets out a room for rent to make extra money. A gay person wants to rent it, and makes clear he or she will be entertaining friends there. Alternatively, an Orthdox single wants to rent an apartment near work or school, and lists an ad for a roommate. Again, a gay person answers the ad, and says he or she wants the room and is willing to keep a kosher kitchen. (The latter was ruled discrimination in San Francisco under local law.)

    (3) A Jewish publication takes advertisements of all kinds of businesses and events, and also carries a “Mazel Tov” listing for various simchas. Someone wants to place an advertisement about an event for a same-sex weekend, or wish a Mazel Tov to a recently engaged same-sex couple.

    (4) A rabbi regularly performs wedding for his congregants and their children. The child of one congregant decides they want to marry someone of the same sex, and demands the rabbit perform it.

    (5) An out of town Orthodox school accepts students of various backgrounds, including some families that are not fully observant. A same-sex Jewish couple decides they want to sign up their child.

    All of these would be illegal discrimination under the new law, most as public accommodation, No. (2) as housing discrimination.

    Remember that the proposed law expressly states that RFRA does not apply. Some of these might be subject to Constitutional challenge, but that will take significant resources to litigate.

    So this can and will impact Orthodox life. And in this case, there has been a concerted effort by those who are the beneficiaries of the law to seek out businesses they can sue. The would-be customers of the cake-baker in Colorado did so, as did the current plaintiff suing him. They want to make a point, not buy a cake. There are enough in the Jewish community who would do the same.

  4. Steve Brizel says:

    One can argue that R Broyde’s logic and conclusions as to the vitality of religious values in the market place of ideas have been rejected by the SCOTUS which has repeatedly upheld the rights of religiously based and oriented clubs to organize as an extracurricular activity on public school grounds and in so doing has rejected arguments that the Establishment Clause bars such activities.

  5. nt says:

    Many people on the left care more about replacing American society- which is essentially Judeo-Christian- with their version of an ideal society. Naturally, they would be the ones running the show. To achieve their aims, they constantly condemn America as discriminating against “marginalized”, i.e. not Judeo-Christian, groups such as LGBT and Muslims. They don’t actually care about the individual members of either group; supporting both at the same time is logically impossible. Instead, they just want to claim the moral high ground as they reconfigure society around their whims.

  6. Bob Miller says:

    Knowing who is pushing a piece of legislation takes us a long way toward understanding what it’s really for. The actual wording in the legislation can be to inform us or to delude us.

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