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.

Comments

[Seamus]

A State could "enforce[] a rigid rule prohibiting attorneys from wearing any form of head covering in court."

The Supreme Court upheld a military policy that pretty much did exactly this, in Goldman v. Weinberger, 475 U.S. 503 (1986), even before it decided Smith.

[Bored Lawyer]

Well, yes, but that is the military. That opinion relied heavily on the military need for uniformity of dress and the deference owed the military on its regulations.
It would be harder, though not impossible, to uphold such a rule in a civilian court. Especially since lawyers have been appearing with all kinds of headgear in court for decades, and the court system still seems to be functioning well.

[Cal Cetín]

They used to *have* to wear headgear (wigs) in England, I don't know about today.

[Cal Cetín]

They used to *have* to wear headgear (wigs) in England, I don't know about today.

[Bored Lawyer]

When was the last time that happened in an American court?

[CJColucci]

Antonin Scalia, deliberate or inadvertent anti-Semite? Discuss.

[Commenter_XY]

Regarding the eruv, there have been an interesting series of cases in the People's Republic of NJ (Mahwah), and Rockland county NY. Parts of those cases are pretty ugly.

[Cal Cetín]

Poor Scalia, he thought he was drawing a bright-line rule: Religious *exemptions* are up to legislatures, not to courts, but religious *discrimination* remains unconstitutional.

The line isn't really as bright and clear as Scalia may have thought in his ivory tower.

For one thing, the line between (constitutional) callous indifference to religion and (unconstitutional) hostility to a religion or religions, is fairly blurry.

For another thing, what if the government arbitrarily hands out exemptions to secular people but refuses to exempt religious people? Hypothetically speaking, think of a regulation which applies to churches but not to liquor stores.

If Scalia was looking for a bright line, all he got was more gray areas, and he supposedly abhorred gray areas.

So you know what I say? I say it's time to acknowledge that Scalia's experiment failed on its own terms, and to judge all religious-freedom claims under the same undue-burden standard.

[Cal Cetín]

I meant compelling interest standard, not undue burden, I beg y'all's pardon.

[OtisAH]

What a timely piece, coming so close on the heels of Mike Flynn’s call for a state religion. He probably meant Judaism, too, ya think?

[Cal Cetín]

Une fois, une loi, un roi.

Flynn is, what, a drinking buddy of Blackman's? Or related to this discussion in some way?

[Milhouse]

He didn't call for a state religion. What exactly he did mean I'm not sure, but claiming that it was a state religion is pure speculation.

In fact it's less than that, since back when we did have state religions we still didn't have one religion; there were always people who subscribed to different religions.

The establishment clause and the free exercise clause are two different things. And while there's no doubt that the latter is incorporated in the 14th amendment, I agree with Clarence Thomas that the former is not, and to this day there is no bar to a state establishing a religion, so long as it doesn't compel anyone to join it. In the 1790s there were several states with religious establishments, but none that restricted other religions.

[bernard11]

WTF was he saying then?

"If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God,"

Sure sounds like a state religion to me.

[ducksalad]

I have no clue what Flynn was trying to say.

However, you seem to not distinguish the state from the nation. That's a bit disturbing too.

[OtisAH]

He wasn’t trying to say anything. What he said is perfectly clear and requires no interpretation. And in this context, “state religion” means “national religion.” Obviously.

[Milhouse]

Because you said so? So it's you saying that, not him.

[OtisAH]

No, because I’m literate and know what words mean. Everybody in the world is not a dumbass just because you are.

[Milhouse]

As I said the first time, I don't know what he meant, but neither do you. You can't just arbitrarily read a meaning into it and claim that he called for that.

And of all the things he could have meant, a state religion is one of the less likely ones, since back when we did have state religions we didn't have one religion. So going back to that time (which in my opinion, and that of Clarence Thomas, wouldn't require an amendment) wouldn't give us one religion.

There is one thing that would give us one religion, and that is everyone being convinced of the truth of some religion and adopting it. So if I had to guess what he meant, that would be my guess. But I'd rather not guess at all. I don't need to know what he meant. I don't care enough.

This reminds me of the time recently when Marjorie Taylor Greene said something really crazy, and Democrats unanimously decided that she had "really" meant something antisemitic, and went around falsely quoting her as saying that instead. They did this because the antisemitic interpretation had the advantage of being less crazy. But they dismissed the possibility that she meant exactly what she said, crazy as that made it.

[OtisAH]

“I have no idea what he was saying but he wasn’t saying that” is art.

[Milhouse]

I know what he said, and it wasn't that. I don't know what he meant, and that is one possibility, but it's not one of the more likely ones.

[OtisAH]

You clearly don’t know what he said or you’d know what he meant. Nothing he said was cryptic or requires interpretation.

[Bob from Ohio]

UK and Sweden, among others, have state religions.

[Seamus]

Which pretty much blows away the justification for claiming that the establishment clause was incorporated by the 14th amendment's due process clause. The entire theory of incorporation is that there are some rights that are "of the very essence of a scheme of ordered liberty." Not only is the absence of an established church an institutional arrangement rather than any kind of "right" or "liberty," but Sweden and England (not the UK--there is no established church in Wales or Northern Ireland) demonstrate pretty clearly that it's possible to have simultaneously a state church and ordered liberty.

[Noscitur a sociis]

Now do gun control and free speech!

[Milhouse]

That is a good point; the UK and Sweden don't have liberty any more, at least not in the American sense. But at the time the 14th amendment was ratified both countries did have liberty, more or less, and yet had state churches.

Still, I don't like this argument. I'll stick with the simple assertion that not having a state church isn't a right at all; having one doesn't restrict the rights of those who don't subscribe to it, in any way that we generally recognize today. Therefore it can't be one of the rights the 14th incorporated.

Being taxed to support it doesn't count, because the courts have consistently said taxpayers have no standing to challenge government programs they are being taxed to support; why should a state church be any different? If given a choice I'd rather pay for a state church than for the public schools.

[Milhouse]

And yet they do not have one religion. So it's not all that likely that that is what he meant when he called for us to have one religion.

[Krayt]

We already have a state religion. It feeds the poor, gives money to those down on their luck, heals the sick, cares for orphans, promises you to make your afterlife better, sorry, your after-my-5-year-plan, and threatens you with eternal damnation if you don't listen to the priests.

Oh, and makes you give money to them. Don't forget about that!

[Bored Lawyer]

At least one of the examples, banning ritual slaughter, was done in Europe for the purpose of burdening Muslim and Jewish practice, and discouraging Muslim immigration. Its proponents said so. And the same countries that require stunning for slaughter (which invalidates it acc. to Jewish and most Muslim authorities), still allow animal hunting, which is far more cruel.
In this country, that would be covered by the Babalu Aye case, but of course it is a gamble whether a court will see the case fitting within its holding.

[Milhouse]

For that matter, stunning cattle is probably more painful to them than is kosher slaughter.

[Sidney r finkel]

As an American who is Jewish (not a Jewish-American) I for one do not need individuals like Prof. Blackman and his colleagues protecting me from Anti-Semitism in a way that provides for more Anti-Semitism.

We know that those who oppose Smith do so because they want religion freedom to impose their religion on others in the name of religious freedom. The Jewish religion does not want to impose itself on anyone, we just want to be free to practice our own religion, free of attempts of other religions to exercise their religious freedom by restricting ours.

This opposition to Smith is similar to those who engage in anti-Jewish activies and speech, yet claim to be not Anti-Semitic because they suppot Israel.

Thanks, but no thanks, or as my people say, 'Do me a favor, don't do me any favors'. If you really want to work against Anti-Semitism and for freedom of religion, condemn those who support Gen. Flynn, and do so loudly. So far your silence speaks loudly.

[Cal Cetín]

"This opposition to Smith is similar to those who engage in anti-Jewish activies" etc.

Are you including President Clinton and the overwhelming majority of Congress in your condemnation? They passed the Religious Freedom Restoration Act.

[Armchair Lawyer]

"We know that those who oppose Smith do so because they want religion freedom to impose their religion on others in the name of religious freedom."

Really? We "know that"? I don't know that. Sometimes I think when people want to be free to worship as they like, it means exactly that.

[Bored Lawyer]

"in a way that provides for more Anti-Semitism."

How is reverting to the pre-Smith law (the Sherbert/Yoder standard) going to "provide[] for more antisemitism?" Was this an anti-semitic country from 1960s to the time that Smith was decided?

"those who oppose Smith do so because they want religion freedom to impose their religion on others in the name of religious freedom."

In what way are they trying to impose their religion on others? How would your personal freedom be affected if Smith were overturned?

And let me guess. Jewish observance is unimportant to you, so you do not worry about the state encroaching on your freedom. Those of us who do, and who see what is happening in Europe, do.

And to up the ante, what would your position be on a state (or municpality) that banned child circumcision? Because there is no better way to make an area Judenfrei than to do that. Under Smith, that could easily be done (although I do not yet see any significant movement in this country to do so.)

[Don Nico]

BL,
You missed that very kerfuffle in San Francisco

[Milhouse]

A municipality banning it wouldn't do that, because Jews could simply take the baby to the next town over and have the bris there. Even when Denmark was considering such a ban, Jews could just have driven to Malmö for the bris. But it would be a sign that said "Jews not welcome", and what if all the towns within practical reach do the same thing?

I will note, however, that Belgian Jews have long buried their dead over the border in the Netherlands, because the laws there are more amenable to Jewish practice.

[Commenter_XY]

Didn't San Francisco try to ban circumcision a while back? But as I recall, the ballot measure never made the cut.

(Okay, I had to make that joke - sorry!)

[Don Nico]

C_XY,
That was Bad, very Bad.
The proponents lost because they didn't have enough skin in the game

[Sarcastr0]

Well the comments here sure are showing where the theocratic danger comes from.

[Cal Cetín]

I wonder if you could elaborate on that a little bit?

[Sarcastr0]

Conservatives above saying religious protections only apply to Christians, or that states can establish state religions.

My understanding talking to Jews is that they believe allowing such policies would not be great news for Jews, in the long run.

[Armchair Lawyer]

See, this is why you're called Gaslightro. The things you say just aren't true.

[Sarcastr0]

Don't call me a liar, asshole.

The First Amendment and constitutional things like no religious tests for office, was culturally at least, designed to deal with various Christian denominational squabbles. I don't think it works well with Muslims.

I agree with Clarence Thomas that the former is not, and to this day there is no bar to a state establishing a religion, so long as it doesn't compel anyone to join it.

Which pretty much blows away the justification for claiming that the establishment clause was incorporated by the 14th Amendment's due process clause.

[Armchair Lawyer]

You're a liar. You repeatedly, consistently, lie.

Here's what you said "Conservatives above saying religious protections only apply to Christians"

Which is a blatant lie. What was ACTUALLY said was "The First Amendment and constitutional things like no religious tests for office, was culturally at least, designed to deal with various Christian denominational squabbles."

The two are not the same, and are in fact, very different.

You lied, as is typical of you.

[Sarcastr0]

What are you talking about? Did you see the part about Islam?

I don't think it works well with Muslims.

That's present tense.

Read better.

[Armchair Lawyer]

I saw the part.

But thinking something doesn't work well with a particular group, doesn't mean you think they should be denied the protections. Even not liking a group doesn't mean you think they should be denied constitutional protections. If the poster didn't SAY he thought they should be denied constitutional protections, then he didn't say it.

I don't like Nazis for example. That doesn't mean I don't they should be denied the 1st amendment right to speech.

Again, you gaslight. Consistently. You twist, reinterpret, and put words in people's mouths that aren't there.

Don't want to be called a liar? Stop lying. Stop making assumptions about what people "meant", and just ask them directly, if you're confused.

[Milhouse]

Since I'm one of the people you quoted, I'm calling you a liar.

I would suggest that the Jews you talk to, whose opinion you project onto Jews generally, are ones who don't practice the Jewish religion, or care much about it; whose entire Judaism consists of ostentatiously not celebrating Xmas. Those of us who do practice Judaism tend not to be bothered by the prospect of a state church, so long as we still have the free exercise clause.

[Sarcastr0]

Gatekeeping Judaism to get at who really cares about a bit of local theocracy.

You're not making things better.

[Cal Cetín]

Looking over the comments, it seems one guy has a fairly narrow view of A1. Did I miss the extra guy(s), because you did use the plural.

[Cal Cetín]

Oh, I see, yes, that's too bad, isn't it?

[Bored Lawyer]

"Conservatives above saying religious protections only apply to Christians" -- really? Where? I do not see anyone saying that.

"or that states can establish state religions" -- that was the original understanding of the Establishment Clause. I do not see any movement towards going back to that. And, in any event, one can have an established religion and freedom of religion. Unless you think England does not have freedom of religion.

[Noscitur a sociis]

The First Amendment and constitutional things like no religious tests for office, was culturally at least, designed to deal with various Christian denominational squabbles. I don't think it works well with Muslims. It only works with Catholics when they, like Charles Carroll, the only Catholic signer of the Declaration, give up the idea of intergralism.

[Bored Lawyer]

Right, which is not what Sarcastro said. He was making an historical/cultural observation, which was totally accurate. The primary impetus for the Establishment Clause was the fact that there were different Protestant denominations in the states, and they did not want the federal government to impose a national religion the way the Church of England did in England. (In fact, in the early federal period, some states did have established churches.)

That does not mean he is advocating that we establish any religion today nationally or at the state level. To say so is sheer gaslighting.

[Sarcastr0]

He's wrong on the history, and he's wrong on the history because of how he wants to narrow religious protections of Muslims in the present a present.

The comment is right there. Reposted for your convenience even.

[Armchair Lawyer]

"how he wants to narrow religious protections of Muslims in the present a present."

He didn't actually say this. Saying you think something not working well is not the same as saying you want to deny someone constitutional protections.

[Armchair Lawyer]

And that's why he's Gaslightro.

[Sarcastr0]

Because you don't like what I say, so you decide I'm lying about it.

[Armchair Lawyer]

Because you gaslight.

[DWB]

Then perhaps you should give up the idea that you are god and stop imposing your will and beliefs on other?s

[Sidney r finkel]

This Forum has a lot of posts on the Bill of Rights, and Prof. Blackman is a Constitutional scholar who both teaches and publishes on Constitutional issues. So when this happened,

"A Republican Senate candidate in Ohio is doubling down on a controversial campaign ad, insisting voters need to be aware of an important fact: that the frontrunner in the primary is Jewish.

Mark Pukita, an IT entrepreneur in the crowded GOP race, during a Thursday night candidate forum defended a campaign ad that questioned the faith of opponent Josh Mandel.

A moderator at the debate, held by the Ohio Press Network at North Columbus Baptist Church, asked for Pukita to respond to claims that he is “antisemitic and intentionally divisive and inflammatory.”

"In terms of antisemitism, all I did in an ad was pointed out that Josh is going around saying he's got the Bible in one hand and the constitution in the other. But he's Jewish,” Pukita said. “Everybody should know that though, right?" "

I expected an outpouring of commentary on this site, and from the conservatives in the Republican party who I was sure would all speak out in condemnation, as they would also condemn Trump's great friend and supporter, Gen. Flynn for proposing one religion, and of course Clarence's claim that the Constitution allows, and even supports states establishing a state religion. (Don't think Flynn or Clarence were thinking Judaism would be the one religion).

Still waiting . . .

[Bob from Ohio]

Nutpicking does not require a post.

Pukita is a fringe candidate with zero chance of being nominated.

[Cal Cetín]

This Pukita fellow sounds like a bad guy. I'm shocked and disappointed that an IT entrepreneur could do anything evil.

[Bored Lawyer]

"I expected an outpouring of commentary on this site, and from the conservatives in the Republican party who I was sure would all speak out in condemnation"

Right, something that a nutcase that no one ever heard of should elicit an "outpouring" of condemnation.

You are either lying about what you expected, or you need to go back to your crack dealer and get a refund.

[JasonT20]

What I'm still waiting for is a post about how Thomas, Alito, and Kavanaugh questioned the attorney for a death row inmate in Ramirez v. Collier. Those justices questioned the sincerity of Ramirez's religious request and whether those on death row would use a series of religious demands to continuously delay their executions if they ruled in his favor. I guess if you're on death row, then your religious beliefs are inherently suspect, but religious employers and bakery owners are always assumed to be sincere.

There is a great deal to comment on with those lines of questioning from justices that normally bend over backwards to credit those with religious objections as following their beliefs.

[Toranth]

When you've spent 13 years playing questionable games delaying your execution, it it more reasonable to ask if this belief, that was not mentioned in the previous 12 years on death row, is actually something he believes, or another attempt to delay to execution.

[Sarcastr0]

There's currently a pretty stark line drawn in the law on questioning sincerity of religious beliefs.
Some Justices didn't just explore overturning it, they ignored what the law was.

That kinda sucks.

[Milhouse]

No, there isn't. Not a stark one, not a fuzzy one, not even a purely notional one. If there is reason to suspect a person claiming to have a religious belief is lying, the government is always entitled to challenge it.

[CJColucci]

This is correct, but, for obvious reasons, was rarely an issue worth pursuing. Judicial skepticism may be on the increase, however, given so many plainly opportunistic "religious" objections to the COVID vaccine.

[Cal Cetín]

"but religious employers and bakery owners are always assumed to be sincere"

That's cute, but in, say, the Masterpiece Cakeshop case, the bureaucrats were offended precisely *because* of the sincerity of the guy's beliefs.

[Sarcastr0]

The substance is not the issue Jason (and I) have, though. It's the hypocrisy and legal incoherence.

[Cal Cetín]

Yes, but can you cite a case where a "religious employer[]" or "bakeshop owner[]" was insincere?

I'm more interested in their rights than about the bona fides of some death-penalty supporters.

[Sarcastr0]

That isn't even a question asked in that line of cases. (As it should be) And yet it was here.

That you're endorsing two different standards of justice to apply between two different American citizens says quite a bit about your legal philosophy.

[Cal Cetín]

*Sigh*...let me help you follow the ball here. Don't get distracted by

Here's the remark to which I replied: "religious employers and bakery owners are always assumed to be sincere"

...which suggests some of them were *insincere,* so naturally I asked for examples of such cases.

You had none.

In fact, you said the question wasn't asked, and think there's something wrong with that.

These were adversary proceedings, and the adversaries of the business owners could have raised issues about sincerity, but you seem to be saying they never did.

Yet you're trying to blame these death-penalty supporters for the failures of the actual people who were arguing *against* the business owners.

Let me know if there's any other logical path where you've gotten lost and need some guidance.

[Cal Cetín]

Don't get distracted by *shiny objects.*

Yes, I must have been distracted. But no worries, I can expose your bad arguments with one hand tied behind my back.

[JasonT20]

How about this case? Or are you going to try and say that Bob Jones University had sincere religious reasons to keep its students from interracial dating rather than plain ol' racism? Note that the ruling against the university was that the anti-discrimination policy was strong enough to override their religious reasons, not that they were insincere.

And that wasn't my point anyway. I was pretty clearly commenting on the double standard used here against an unsympathetic petitioner

[Toranth]

Well, an example from 1976 isn't the best case for almost 50 years later, but congratulations! You did what Sarcastro couldn't and tried to find an example.

The problem here is that the prisoner here seems to have discovered these firm deeply-held religious beliefs sometime in the last year, after his previous appeal fell apart, rather than in the previous 12 years on Death Row or the years before his crime.
That is worthy of being questioned, at the least. It might be insufficient for outright rejection, but again - like the people suddenly discovering that they have deeply-held religious objections to the COVID vaccines - it is worthy of being questioned.

[Milhouse]

It has always been legitimate for the government to question the sincerity of someone's claimed beliefs. That is why the government does not have to accommodate Pastafarians, even though it does have to accommodate those Wiccans and other neopagans who appear to sincerely believe what they say.

In the cases of religious employers and bakers their sincerity was self-evident, and nobody ever questioned it. So it is simply a lie to claim that any Justice bent over backwards to credit it.

[Cal Cetín]

Oh, please, there's an abstract, isn't there?

[Cal Cetín]

Human sacrifice, dogs and cats living together, mass hysteria?

[Commenter_XY]

I thought it was 'high brow' humor, too. 🙂

[CJColucci]

Justice Alito did the work for me, pointing out the obvious anti-semitic implications of Smith, which Justice Scalia authored. Presumably, these implications were apparent to Justice Scalia, as he was not stupid -- even if he didn't know that different translations of the Bible have different numbering systems for the Ten Commandments. (I suppose that, as Catholics notoriously do not read the Bible, he can be forgiven for not knowing this.)

[Sarcastr0]

The First Amendment and constitutional things like no religious tests for office, was culturally at least, designed to deal with various Christian denominational squabbles.

You're making shit up. It was quite clearly not meant just for Christianity. Beyond contemporary letters on the issue, the Founders knew how to say the word Christian.

I don't think [protections of religion in the Constitution] work well with Muslims.
Well, you're a bigot, and a shitty American.

The world outside of Islam is in a permanent state of war (Jihad/holy war) because Muslims do not rule there
Ah yes, insisting Wahhabism is all of Islam.

[bernard11]

Before the amendment was fully ratified, there was this, to a definitely non-Christian congregation:

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

[bernard11]

What are you, in the tenth grade?

[Don Nico]

Not to mention San Francisco