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Jews, Public Policy and Civil Rights: A Religious Jewish Perspective
Rabbi Michael Broyde, Esq.

Jews, Public Policy and Civil Rights: A Religious Jewish Perspective

by Rabbi Michael Broyde * , Esq.


Abstract

The decision by Jewish organizations to support, oppose, or remain neutral in a dispute where certain people desire to expand their civil rights is not determined solely by whether the group under discussion is one generally in compliance with Jewish law or morality. It is in the best interests of Judaism to support the continued granting of basic civil rights to all, while making clear our moral opposition to the underlying conduct of those who exercise their freedom in violation of basic ethical norms of Judaism. We are providing no moral legitimization for an activity if we seek to prohibit firing a person from his or her job because of it. Judaism should seek to prohibit people from being fired from their jobs or evicted from their homes for reasons unrelated to their suitability for the job or the place of residence. This rule is in our own best interest, whereas a rule which allows economic discrimination based on society's perception of a person's private morality or religiosity is not.

Introduction

The questions related to political rights and religious freedom in the Jewish tradition are significant. Should Jews support civil and political rights for all, whether we view the conduct we are supporting the right to engage in as ethical or not; or should we seek to use the civil legal system to buttress the Jewish moral view of the world, and prevent activity that violates our ethical norms?

A number of years ago an article appeared in a Jewish Action addressing various issues relating to homosexual rights, which is a fine example of the political problems that those of us who adhere to Jewish law (halacha) as the moral, ethical and religious touchstone of our lives confront.[1] In the course of that article, the authors note:

It is critical to object to the so called gay-rights law. They are paraded as innocent, indeed heroic, human rights protections for individuals. In fact, any homosexual who does not identify himself by his sexual practices or preferences is, both in theory and practice, already protected under the law. The same law that protects all citizens protect homosexual citizens equally. The underlying point is this: Citizens have a right to not be involuntarily exposed to overt sexual behavior or preferences, whatever the nature. So-called rights of homosexuals really amount to a campaign to legitimize homosexuality to obtain society's stamp of approval. This is the real issue and it must be vocalized. The real issue is not individual rights for homosexuals, but collective coercion of everyone else to bend to the legitimization of homosexuality. Homosexual activists' goal is to subvert all of society's laws that protect or promote marriage and morality.

Essentially I agree with neither the factual underpinning of this statement nor the policy it embodies; indeed, I feel that it is a mistaken approach to Religious Jewish public policy. I say this not because the prohibitions involved in homosexual activity are unclear or minor from a Jewish perspective (they are neither); but rather because the public policy decision to seek to deny political rights is fraught with many practical dangers like the proverbial double-edged sword, this weapon, once unsheathed in battle, can well be used to do Judaism generally and Religious Judaism specifically profound harm.

My theme and thesis can be summarized as follows: Religious Judaism is providing no moral legitimization to an underlying activity when it seeks to prohibit firing a person from his job, or eviction from his house, because of that (unethical) activity. This is the basic rule of civil rights. Like free speech, where we all understand that supporting the right of another to speak is not the same as agreeing with what the person says, supporting civil rights for people is not synonymous with morally approving of their actions. Thus, Religious Judaism should support the right of all individuals to be free from harassment and discrimination in their jobs and homes and to insure everyone's physical safety. Judaism should seek to prevent or prohibit people from being fired from their jobs or evicted from their homes for reasons unrelated to their suitability for the job or as a tenant.[2] Indeed, I would suggest that perhaps this should be the primary mandate of many Jewish political groups, which should limit themselves as "Jewish" groups to the topics of combating anti-semitism, pro-Israel advocacy, and protection of freedom of religion, speech and other related rights.[3]

A

Certainly, traditional Judaism would oppose a law that seeks to give homosexuals a preferred place in the legal or social spectrum. Thus, school curricula that teach the moral equivalency of homosexuality, governmental attempts to redefine marriage to include homosexual relations and governmental attempts to prohibit religious organizations from declining to hire overt homosexuals should be opposed.[4] Merely because we favor the decriminalization of what we religious insist is odious conduct and the granting of civil rights for those who engage in such conduct does not mean that, in the name of religious freedom we need to support the placement of such conduct in a privileged position within society.[5] Indeed, it is a nearly risk-free fulfillment of the Jewish people's mandate to be a moral "light onto the nations of the world" and demonstrate our moral and religious disagreement with such conduct.

However, many in the various "religious right" communities advocate policies that seek to go much further than that. They seek to deny basic civil (political) rights guaranteed to all based on a lack of observance of private religious morality or law.

This becomes clear immediately if the word "Hindu" is substituted for "homosexual" or "gay" and "religious" for "sexual" in the above quoted paragraph. The paragraph would read:

It is critical to object to the so called Hindu rights law. They are paraded as innocent, indeed heroic human rights protections for individuals. In fact, any Hindu who does not identify himself by his religious practices or preferences is, both in theory and practice, already protected under the law.... So-called rights of Hindus really amount to a campaign to legitimize Hinduism-to obtain society's stamp of approval. This is the real issue and it must be vocalized. The real issue is not individual rights for Hindus, but collective coercion of everyone else to bend to the legitimization of Hinduism. Hindu activists' goal is to subvert all of society's laws that protect or promote freedom of religion.

Certainly, even if Hinduism were classified as idolatry according to Jewish law and thus a prohibited form of worship for all, we would still favor a Hindu civil-rights law, as a matter of self-interest. This would be particularly so were those who discriminate against Hindus to be the same elements that have in the past sanctioned or encouraged anti-semitism and discrimination against Jews. Jewish society justifies this support for Hindus by asserting that mere political equality is not legitimization of the underlying action.[6] As explained above, Judaism should oppose discrimination in employment and housing for reasons unrelated to suitability for the job or house.

Indeed, the record is full of even Orthodox Jewish organizations advocating support for religions and beliefs that are completely foreign to Jewish law or ethics. For example, in Decker v. O'Donnell, 661 F.2d 598 (7th Cir. 1980) the Union of Orthodox Jewish Congregations filed an amicus brief supporting the right of the Roman Catholic Archdiocese of Milwaukee to use taxpayer-provided money for job training. In Webster v. Reproductive Health Services, 429 U.S. 490 (1989), Agudath Israel of America filed an amicus brief arguing that a state's finding that human life begins at conception violated the First Amendment, but that the abortion right should only be fundamental in the exceptional cases of a threat to maternal life or an abortion mandated by sincere religious belief whether such beliefs are Jewish or Gentile. It is hard to justify these and many other public positions except by asserting that our legislative agenda is not solely based on seeking to legislatively prohibit that which is prohibited by Jewish law. Rather, what we seek to codify into secular law must be based on a balance between Jewish law mandates and realpolitik factors.[7]

B

Legislative goals which do not necessarily seek to enforce Jewish law can be well supported from a pure Jewish law perspective. For example, in 1977 Rabbi Moses Feinstein was asked what statutory changes Orthodox Judaism should seek from the New York State government on the issue of time of death. He replied that Orthodox Judaism should seek a legislative mandate that allows each person (or family) to determine the time of death in accordance with their own religious or personal beliefs; he did not suggest that the proper governmental policy to seek is that New York state should be urged to adopt Jewish law in this area. The public policy advocated by Rabbi Feinstein in the context of time of death one of Orthodox Judaism seeking to allow Jews to follow Jewish tradition, without forcing our standards on non-believers was the preferred one. This was so notwithstanding the certainty that some people, given this new freedom, will adopt a standard for time of death which violate Jewish law by withdrawing care before a time permitted by Jewish law and thus commit suicide (or even murder). Rabbi Feinstein did not feel compelled to seek the enforcement of Jewish law by the secular state.[8]

Now comes the difficulty: Do we, as Religious Jews, seek to grant equal civil rights to all or should we join hands with those groups that seek to deny political rights to those engaging in a consensual, but immoral, activity. It requires nearly an act of prophesy to determine which position is in our best long term interest. Frankly, this writer is inclined to answer that we should err on the side of more political freedom, rather than less.[9] The fact is that many of the non-Jewish groups that seek to curtail the political rights of those who deviate from the "Judeo-Christian" ethic, have historically been the profound enemy of the Jewish community.

Thus we are confronted by a set of difficult choices:
  1. We can politically join with those who practice immoral acts to protect our own political future; or
  2. We can associate with those who have oppressed (and murdered) us in the past, (and who we fear will oppress us in the future) to make illegal an activity that we agree is immoral; or
  3. We can decline to publicly involve ourselves in this dispute and adopt an institutional policy of silence while not actively opposing civil rights to all.

I would suggest that, as a matter of political expedience and survival, that the best path for Religious Jews is to generally favor (and certainly not oppose) granting civil rights and political freedom to all, including those whose activity we find religiously repugnant, providing that the prohibited activity is one that is consensual and harms no one other than its voluntary participants; hand in hand with that, we should seek to prohibit commercial discrimination against people based on factors unrelated to the commercial activity, such as religious affiliation, national origin, marital status, race or sexual orientation. This position is based not on the assertion that all such conduct or statuses are acceptable to Jewish law and tradition (they aren't); but on the assertion borne out by history that many of those that seek to curtail activity based on a "religious" sense of ethics quite plausibly will seek, when they are in control, to advance the cause of "Christian ethics" in a way that will be incompatible with the continued successful existence of Judaism in the United States. If we do not seek to protect the civil and political rights of those with whom we theologically disagree, we may find these groups will not seek to assist us when our rights are settled. At the very least, Jewish public policy should not publicly and institutionally oppose granting civil and political rights to all. * * [10]

C

We must realize that the political freedoms granted to minority religious communities through laws which prohibit religious, racial, and sexual discrimination in commerce are quite vital to the economic survival of Judaism in America. These laws are not guaranteed by the Constitution. They have been passed through the support of a broad consensus of minority religious and political organizations. Should each of these groups conclude that they no longer support civil rights for the other groups due to philosophical or theological opposition to the underlying conduct, all of the groups risk losing the protection granted by law. In such a climate, one could easily imagine feminist groups supporting laws which discriminate against Judaism based on their understanding of our ritual practices.

There are those who will reply by asserting that I am understating the countervailing factor: the cultural influence secular society has on religious Judaism. The advocacy of governmental non-intervention in "private" matters will, these people claim, lead to a society so morally and socially disfavored by classical Judaism that our political freedoms will be of no value in such a society as we will not be able to religiously function. That is a danger; however, it seems to this writer that historical precedent runs counter to the belief that such a danger is the most serious. While one can cite numerous examples of Jewish societies within the last thousand years that have been destroyed by cultural and religious intolerance (the Crusades, the expulsion from Spain, the many pogroms, the Holocaust), one is hard-pressed to cite a Jewish culture destroyed by pluralism. Indeed, the Golden Age of Jewish life in Spain six hundred years ago and the incredible religious accomplishments of the Jews of Babylonia more than one thirteen hundred years ago can be attributed to the religious freedom found in that time and each magnificent era ended as religious freedom was abolished in the area. In fact, the political, economic and cultural resurgence of Religious Judaism in America since the 1960's can be directly attributed to precisely the pluralism in American society. The ability to work as a white-collar professional while keeping kosher, taking off for the Jewish holidays, and even wearing a yarmulke at work, is a result of tolerance by the secular society for cultural deviance. While Judaism does face certain challenges in a morally pluralistic society, these are challenges that we can (and will) overcome through heightened observance and additional outreach to the unaffiliated. Governmental persecution, massive societal anti-semitism or significant commercial discrimination against Jews are obstacles that pose much greater danger and are frequently beyond our ability to overcome.[11]

The tenuous basis of our religious freedoms is continuously demonstrated. In 1990 the United States Supreme Court, in Employment Division v. Smith[12] ruled that when a State passes a criminal law, it need not exempt from prosecution people who violate the law even if they harm no one and are motivated by a sincere religious belief. It was only through the efforts of a multi-denominational broad ecumenical coalition of very diverse religious groups that the detestable result the Supreme Court sought to make the law of the land was avoided through congressional legislation, The Religious Freedom Restoration Act of 1993, which was struck down as unconstitutional by the Supreme Court as it applies to the States in Boerne v. Flores.[13] The right to the free exercise of religion remains unclear in America.

Political vigilance and networking is eternally required to insure the ability of Jews observant of Judaism who wish to remain part of the American political, economic and cultural community and also remain loyal to the Jewish traditions of worship of the One Above. After all, Jewish worship and tradition, with its own unique practices and belief might one day be subject to attempted governmental regulation by those who view it as profoundly foreign and perhaps even unethical, and it is then that we hope our common allies in the battles for religious freedom whose own religious practices we really do not agree with will join us in protecting our rights, as we have joined in protecting theirs.

Conclusion

Judaism should not support the denial of civil rights or the criminalization of those whose victimless actions run contrary to Jewish law or morality, lest we too fall prey to those who disapprove of our own laws or morality. In order to vigorously protect our rights, we must be prepared to defend the rights of others even others we do not agree with. Those who benefit from political pluralism and tolerance must be prepared themselves to be politically pluralistic if they wish to see pluralism continue and to benefit from it.

----------------------------
Notes

* [BACK] Michael J. Broyde, Emory University School of Law, Atlanta, GA 30322; Voice: 404 727-7546; Fax: 404 727-3374; Email: mbroyde@law.emory.edu.
Michael Broyde is an Associate Professor of Law in the School of Law, Emory University in Atlanta, Georgia, and Academic Director of the Emory University Law and Religion Program. He is also the Rabbi of the Young Israel of Toco Hills, Atlanta. Portions of this piece were previously published in "'Bullets that Kill on the Rebound': Discrimination against Homosexuals and Orthodox Public Policy," Jewish Action 54(1):52, 74-78 (1993) and in "Jewish Law and the Obligation to Enforce Secular Law," The Orthodox Forum Proceedings VI: Jewish Responsibilities to Society, (D. Shatz & C. Waxman eds.) pp. 103-143 (1997).

* * [BACK] The exact details of this approach are left to be spelled out later and it certainly does have some limitations. It is clear to this author that Jewish public policy need not favor the legalization of prostitution and pornography in the name of (religious) freedom; as a general matter, activity entered into purely for financial gain creates a different set of issues unrelated to this one. So too this approach should not be understood as preventing systemic governmental (financial) assistance to all religions in some of their charitable or educational acts. For example, governmentally sponsored tuition tax credits or payment vouchers to parochial day school-a governmental policy that would vastly increase Jewish education and thus continuity-is certainly proper under this rationale (and should be supported by all those concerned with the future of the Jewish community).
    [BACK]
  1. Marc Angel, Hillel Goldberg, and Pinchas Stolper, "Homosexuality and the Orthodox Jewish Community" Jewish Action 53:2 p.54 (1992).

    2. [BACK]
  2. New York State has precisely such a law. The new "legal activities law" essentially prevents a person from discriminating against employees or job applicants based on their participation in legally permissible activities unrelated to employment outside of times and places of employment; see New York Law Journal "Employment Law Update" September 3, 1992.

    3. [BACK]
  3. Freedom of Speech, Religion, Association, and a number of other rights - most, but not all, found in the First Amendment to the United States Constitution, are so deeply inter-related that, in reality, advocacy cannot be confined to just one of them.

    4. [BACK]
  4. There historically have been statutory exemptions for religious organizations from anti-discrimination laws.

    5. [BACK]
  5. Thus, while homosexual activity should be legal, and economic discrimination against homosexuals should be prohibited, homosexual marriages should not be allowed. Not all conduct which is legally permissible is morally commendable or encouraged by government.

    6. [BACK]
  6. This author is uncertain if Judaism should specifically join a political campaign to legalize an actual form of worship or sexual practice that is morally repugnant to us; perhaps tacit agreement, but institutional silence, is the preferred course.

    7. [BACK]
  7. The only doubt in this author's mind is whether a curtailment of sexual rights would in fact lead to a curtailment of religious rights. One could argue that such has not been the pattern of American Constitutional law and indeed, one would be correct in that analysis. However, the statutory protections found in American law, such as Title VII, which prohibit commercial discrimination by individuals have been law for less than thirty years and do appear to be a product of the general governmental restrictions on discrimination by individuals based on private (religious, racial, sexual) conduct. The repeal of these recent protections, which have been vital to the economic vitality of Judaism, even if the formal Constitutional privileges remained, would return Judaism to the state in which it was languishing during the 1920s to early 1950s when Sabbath observant Jews found white collar employment difficult to find. The mere possibility that such would occur should be enough to indicate that a credo of non-discrimination for all should be our political maxim.

    8. [BACK]
  8. Letter of Rabbi Feinstein dated 8 Shevat 5737 provided to this author by Chaim Dovid Zweibel of Agudath Israel. See Chaim Dovid Zweibel (General Counsel, Agudath Israel), Determining The Time of Death: Legal Considerations, Journal of Halacha and Contemporary Society, 17:49 (1989) who ends his discussion of this issue by stating:
    The principle of religious accommodation is one that has stood the American Orthodox Jewish community in good stead in a wide variety of secular legal contexts ... For what is really at issue here is ... whether it is in the interest of the Torah observant community to combat secular laws that preclude individuals from following the guidance of their individual [rabbi].
    9. [BACK]
  9. This case is readily distinguishable from the abortion issue, as the fetus in that case is not consenting to its own abortion. From the perspective of Jewish law, the propriety of legalizing abortion-which is murder or near murder in the eyes of some decisors in some circumstances-is a completely different matter as because it involves the possibility of physical harm to another without that one's consent.

    10. [BACK]
  10. Thus, even in situations where the realpolitik factors indicate that advocacy of civil rights is in error (such as in a highly politicized environment where no matter which position one favors, there are significant consequences) institutional silence would be the preferred policy as it minimizes the fallout resulting from actively supporting the denial of rights policy.

    11. [BACK]
  11. For example, in response to a number of European countries banning shechita (kosher slaughter) in the early part of this century, Judaism sought and Congress passed a law which states "No method of ... slaughtering shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following two methods of slaughtering and handling are hereby found to be humane: .. or (b) by slaughtering in accordance with the ritual requirements of the Jewish faith"; See 7 U.S.C. '1902. If we adopt the principle of refusing to support legislation that explicitly violates any provision of Jewish law, can we really expect others to support our legislative needs that violate their ethical norms?

    12. [BACK]
  12. 494 U.S. 872 (1990).

    13. [BACK]
  13. RFRA is found at 42 U. S.C. '200bb-1, and it was struck down in Boerne v. Flores, 117 S.Ct. 2157 (1997).


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