The Volokh Conspiracy

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New Paper: "Fighting Antisemitism by Protecting Religious Liberty"

"Protecting the free exercise of religion is a key aspect of fighting antisemitism."


I have co-authored a new backgrounder for the Heritage Foundation, titled "Fighting Antisemitism by Protecting Religious Liberty." I am proud to partner with my colleagues at the Jewish Coalition for Religious Liberty, Howard Slugh and Rabbi Mitchell Rocklin.

Here is the abstract:

Protecting the free exercise of religion is a key aspect of fighting antisemitism. Regrettably, modern discourse often restricts the notion of antisemitism to those acts that deliberately target the Jewish people because they are Jewish, overlooking facially neutral policies that burden Jewish religious practices. This position parallels the United States Supreme Court's current approach to the Free Exercise Clause pursuant to Employment Division v. Smith. Strict adherence to the Smith rule creates blinders to the full spectrum of potentially antisemitic conduct. As Justice Alito contemplated in his opinion in the recent Fulton case, Smith might countenance prospective policies that would seriously undermine Jewish practices. Those who fight antisemitism should decry the Smith rule, advancing instead a robust understanding of religious freedom.

We started writing this paper before Fulton. But the Fulton case, and in particular, Justice Alito's concurrence, provided much support for our position. Here is an excerpt from our paper:

In Fulton, Justice Alito recognized that "Smith's interpretation can have startling consequences." He identified three types of laws that would undermine Judaism, yet still would likely be consistent with Smith. To wit:

  1. "[A] State, following the example of several European countries" could make "it unlawful to slaughter an animal that had not first been rendered unconscious."
  2. The government, "following the recommendations of medical associations in Europe, [could] ban[] the circumcision of infants."
  3. A State could "enforce[] a rigid rule prohibiting attorneys from wearing any form of head covering in court."

Justice Alito observed that each of these neutral and generally applicable laws would probably comply with Smith. This Backgrounder will consider each of these three hypotheticals, plus one involving eruvs, a ceremonial boundary. These examples demonstrate that facially neutral laws can still negatively impact the free exercise of Judaism.

Heritage will host a virtual forum on the paper on December 6 at 1 ET. Stay tuned for details.