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Orthodox Groups Lead Conservative Court Battles Over Religion
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Orthodox Groups Lead Conservative Court Battles Over Religion

Recent suits against pandemic restrictions show a confidence in challenging liberal positions on church and state.

Men exit a yeshiva in Brooklyn's Borough Park, Sept. 29, 2020. (Daniel Moritz-Rabson)
Men exit a yeshiva in Brooklyn's Borough Park, Sept. 29, 2020. (Daniel Moritz-Rabson)

(JTA) — Orthodox Jews have embraced a “religious liberty” agenda in one of the busiest years ever for attorneys representing various groups and synagogues.

A recent Supreme Court victory for Agudath Israel of America, challenging New York State’s Covid-19 restrictions, is the latest in a series of court battles by Orthodox groups. Suits have challenged other pandemic restrictions and sought public funding for private schooling, and groups have supported efforts to exempt businesses from laws and regulations that go against their religious beliefs.

“More and more, the action will be in the judicial arena,” Rabbi Chaim Dovid Zwiebel, Agudath Israel’s executive vice president, told JTA, “because the legal challenges to our way of life are coming up with greater frequency and we have to turn to the court to protect us.”

In the more than 30 years that Zwiebel has worked at Agudath Israel, an umbrella organization and advocacy group representing charedi Orthodox Jews, he can’t remember a single year where as much of the group’s work took place in court.

There was the lawsuit challenging New York state for applying different standards on attendance at houses of worship than at businesses. Agudath Israel filed an amicus brief supporting the plaintiffs.

There was the case in which Orthodox summer camp directors sued the same state for shutting down overnight camps. Agudath Israel backed the camps.

There was the case in June, when the U.S. Supreme Court ruled that a state-run scholarship program funded by tax-deductible gifts could not exclude religious schools. Agudath Israel had filed a brief in favor of the plaintiff, a parent who wanted to use the scholarship to send her children to a religious school.

And just last week, there was the late-night victory that resounded across America: The Supreme Court ruled in favor of the organization’s petition against Gov. Andrew Cuomo’s restrictions on houses of worship in areas with climbing Covid cases. In what the group hailed as a “high court victory for religious liberty,” the court ruled that Cuomo could not restrict capacity in houses of worship to 10 or 25 people regardless of building size while businesses were allowed to operate in the same areas without capacity restrictions.

The ruling against Cuomo was the latest in a series of Supreme Court decisions on religion in the public space that Orthodox Jews have seen as critical. The agenda isn’t new — it’s been a central priority for as long as Orthodox Jews have been involved in advocacy.

But the centrality of the issue to Orthodox Jews has become more apparent as high-profile social issues have thrust religion into conflict with other values. Agudath supported Hobby Lobby in its successful 2014 Supreme Court case that exempted religiously run corporations from providing contraception in their insurance coverage.

Agudah also filed a brief in support of a Colorado baker who refused to bake a cake for a gay couple’s wedding. The Orthodox Union joined an amicus brief in support of a Catholic agency in Philadelphia that was excluded from the city’s foster-care system because it does not work with same-sex couples.

Agudah has also fought against campaigns and state guidelines calling for higher secular education standards in yeshivas.

The pandemic has made the conflicts over religious liberties even starker.

“In a non-pandemic world, you just wouldn’t have things like capacity limits on a house of worship, so there’s just a lot more opportunity,” said Akiva Shapiro, a lawyer who challenged Cuomo’s Covid restrictions on behalf of the Roman Catholic Diocese of Brooklyn. (The court decided the Diocese and Agudah cases together.) “In a regular time, things don’t move so fast and so radically.”

What’s Changed

The clash between religious values and secular law exploded on the streets of Brooklyn in October as Orthodox Jews there protested closures of synagogues and yeshivas due to rising Covid cases.

“What has changed in recent years is the self-confidence and asserting that very loudly into the public sphere,” said Rivka Schwartz, an associate principal at SAR High School in the Bronx’s Riverdale neighborhood. A research fellow at the Shalom Hartman Institute, she writes frequently about politics and the Orthodox community.

The public discourse on religious liberty, particularly high-profile Supreme Court cases that turn on the issue, has contributed to the rightward political shift among American Orthodox Jews. The perception of stronger support for Israel within the Republican Party has drawn some Orthodox Jews to the political right. But for many Orthodox Jews — particularly the charedim, or ultra-Orthodox, most of whom would not identify as Zionists — religious liberty has become the key issue binding them to the GOP.

“Everything else sort of flows out of that,” said Eli Steinberg, a politically conservative Orthodox writer who lives in Lakewood, New Jersey, said of his community’s move to the political right.

For many Orthodox Jews — particularly the charedim, or ultra-Orthodox, most of whom would not identify as Zionists — religious liberty has become the key issue binding them to the GOP.

Pre-election polls indicated that Orthodox Jews overwhelmingly supported President Donald Trump, whose four years in office led to a 6-3 conservative majority on the Supreme Court. Three of those justices are in their 40s with decades of rulings ahead of them, and the latest Trump appointee, Amy Coney Barrett, provided the key vote in last week’s victory. Justice Samuel Alito gave a frank speech last week saying “religious liberty is fast becoming a disfavored right.”

Such support is no reason to grow complacent, said Steinberg.

“It’s a 5-4 majority,” he said, referring to the Covid case. “We know how tenuous those are.”

Opponents of the right’s “religious liberty” agenda say religious belief should not be allowed to trump the common good. “The freedom to worship is one of our most cherished fundamental rights, but it does not include a license to harm others or endanger public health,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, in response to the Supreme Court’s decision on Covid restrictions.

The New York Jewish Agenda, a liberal advocacy group, had similar objections.

“By ruling in the name of ‘religious freedom,’ the court amplified the message that protecting religious practice necessitates endangering lives,” it said in a statement.

The religious liberty agenda of non-Orthodox Jewish groups tends to focus on church-state separation and the Establishment Clause of the First Amendment, seeking to keep religion out of the public sphere. Orthodox groups have been more focused on the free exercise clause and more open to governmental support for religion, particularly in the form of funding for religious schools.

For non-Orthodox groups, “the right to equality [under the law] is the most central right,” said Marc Stern, chief legal officer of the American Jewish Committee. They interpret religious liberty as ending where it imposes too great a cost on others.

“The other side says there’s no reason to give priority to equal protection,” he said of the prevalent Orthodox view.

If the religious liberty fight has shifted to Orthodox groups, said Stern, it is in part because many of the Establishment Clause issues of the past — like keeping prayers out of public schools — have largely been resolved. But for Orthodox groups, Stern said, religious liberty questions, like those about government interference in private religious schools, are still live issues with a clear impact on the rank-and-file of the community.

To Agudath Israel leaders, their lawsuit over Covid restrictions, which pitted the organization directly against New York’s governor, felt like a last resort.

“It’s a cultural thing, we try to lay low a little bit,” said Rabbi Avi Schnall, director of Agudath Israel in New Jersey. “We’re in an amazing country that does a tremendous amount for the Jewish community, and we’re forever grateful for that and we don’t want to come off as ungrateful.”

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