Who’s Afraid of Religious Liberty? Seeking to prohibit every kind of “discrimination,” activists in and out of government threaten the free practice of, among other faiths, Judaism.
Not so long ago, doubts about the ability of Jews to live and practice Judaism freely in the United States would have been dismissed as positively paranoid: relics of a bygone era when American Jews could be turned away from restaurants and country clubs, when restrictive covenants might prevent their purchase of real estate or prejudicial quotas limit their access to universities and corporate offices.
None of that has been the case for a half-century or more. And yet recent developments in American political culture have raised legitimate concerns on a variety of fronts. To put the matter in its starkest form: the return of anti-Semitism, by now a thoroughly documented phenomenon in Europe and elsewhere around the world, is making itself felt, in historically unfamiliar ways, in the land of the free.
Statistics tell part of the tale. In 2014, the latest period for which figures have been released by the FBI, Jews were the objects of fully 57 percent of hate crimes against American religious groups, far outstripping the figure for American Muslims (14 percent) and Catholics (6 percent). True, the total number of such incidents is still blessedly low; but what gives serious pause is the radical disproportion.
The rise and spread of anti-Israel agitation, particularly on the nation’s campuses, is the most common case. Such agitation, expressed in the form of defamatory graffiti, “Israel Apartheid” demonstrations, and the verbal or physical abuse of pro-Israel students, feeds into and is increasingly indistinguishable from outright anti-Semitism. Even the most zealously “progressive” young Jews are targeted as accomplices-by-definition with the alleged crimes of Zionism. As one student who has fallen afoul of his campus’s orthodoxies has lamented, “because I am Jewish, I cannot be an activist who supports Black Lives Matter or the LGBTQ community. . . . [A]mong my peers, Jews are oppressors and murderers.” Such is the progressive doctrine of “intersectionality,” according to which all approved causes are interconnected and must be mutually supported, no exceptions and no tradeoffs allowed.
Lately, this brand of wholesale anti-Semitic vilification under the guise of anti-Zionism has leapt beyond the precincts of the academy to infiltrate American political discourse, becoming vocally evident on both the political left and the political right and insidiously infecting this year’s presidential campaign and party maneuverings. For an analysis of the campus assault’s underlying mechanisms and wider effects, Ruth Wisse’s Mosaic essay, “Anti-Semitism Goes to School,” is unsurpassed. So far, the trend shows no sign of abating.
But there is another danger, equally grave though as yet less open and less remarked upon. It is connected with longer-term shifts in Americans’ fundamental understanding of themselves and of their liberty, and consequently with the laws that embody and reflect that understanding: in particular, the laws enshrining America’s commitment to religious liberty and, relatedly, liberty of association or, as the Constitution has it, assembly. Coming to the fore over issues of personal identity, most saliently in relation to the gay-rights movement, same-sex marriage, and transgender rights, it has resulted in a legal battle in which the radioactive charge of “discrimination,” borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.
Jews are hardly the only group at risk from developments in this area of progressive agitation; up till now, its main targets have been believing Christians. Perhaps for that same reason, Jews have also not been in the front ranks of those raising an alarm. Nevertheless, the threat to them, and to the practice of Judaism, especially by Orthodox Jews, is very real. Unlike in the past, the threat comes not from private initiatives; it comes from government.
I. Liberal America
How did we get here? Truly to understand today’s trends, and to grasp why they are so serious, it would help to remind ourselves of the larger historical context.
In his famous 1790 letter responding to the “expressions of esteem” addressed to him by the Hebrew Congregation in Newport, Rhode Island, President George Washington hailed the presence of Jews in a land where, by contrast to their people’s past experience of intolerance and persecution elsewhere, everything was different. So different, in fact, that tolerance itself—an accommodation that was then selectively being extended to some European Jewish communities—was no longer an issue. In America, for Jews as for any other group, “it is now no more that toleration is spoken of as if it were by the indulgence of one class of people that another [class] enjoyed the exercise of their inherent natural rights” (emphasis added). Rather, the president stressed, directly borrowing a phrase from the congregation’s address to him, “all possess alike liberty of conscience and immunities of citizenship.”
The United States could practice this unprecedentedly “enlarged and liberal policy,” as Washington rightly called it, because it featured a very limited national government, one that allowed a large sphere of civil society to flourish outside of government regulation. Thus, in reciprocating the admiring wishes of “the children of the stock of Abraham who dwell in this land,” the president voiced his own well-founded wish that they “continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”
In summoning the prophet Micah’s words about sitting in safety under one’s “own vine and fig tree,” Washington was presuming not only the right to private property but a more general liberty to pursue happiness as one understood happiness. The government would do little to regulate the cultivation of fig trees—or work hours, or employer-employee relations. Regulation would be the exception; liberty the rule. This same open space left Jews free to be Jews just as Christians were free to be Christians; as between faiths, with a few lingering exceptions in some states, government was indifferent.
This was indeed a “liberal policy” for a liberal society—a society in which, as the philosopher Leo Strauss, echoing the first president, would put it a century and a half later, “there are no longer any legal disabilities put on Jews as Jews.” But, Strauss went on pointedly, such an arrangement “stands or falls by the distinction between the political (or the state) and society, or by the distinction between the public and the private. In the liberal society there is necessarily a private sphere with which the state’s legislation must not interfere.” Therefore, in that private sphere, such an arrangement would allow for discrimination.
What this meant in practice was that Wasps were free to keep Jews out of their country clubs, and Jews were free to organize their own clubs. Similarly, Americans were generally free to refuse service to whomever they chose, for whatever reason they chose, and to decide with whom to associate in their daily affairs.
The same held for the free exercise of religion: by its very nature, the very thing that allowed Jews to be free and equal members of American society also allowed private discrimination in matters of faith. Indeed, with some notable exceptions—the persecution of Mormons in the 19th century being a conspicuous example—America was able to guarantee a robust area of religious liberty precisely because, just as the federal government generally left Americans free to act or not to act, to speak or not to speak, so it also left them free to worship or not to worship, to conduct or not to conduct their religious lives, as they chose.
Is that still the case?
II. The Collapse of Civil Society
One can occasionally still see, usually in an old diner somewhere, the venerable sign “We reserve the right to refuse service to anyone.” The sign is an anachronism; it does not carry either the force of law or the weight of public opinion. But it once did, and more recently than we might think. For most of American history, for better or worse, the common view was that private institutions, companies, clubs, and so forth had the right to choose with whom to associate and not to associate, whom to accept as customers, whom to decline or refuse to serve. There were, to be sure, exceptions: by law, a small class of businesses, most notably railroads and other conveyances, as well as inns and public amusements, had to take all comers. Somewhat more broadly, the same rule applied to monopolies, like the local grain elevator. The class was narrowly defined precisely because the liberty to associate with whom we choose was recognized as essential in a liberal nation that made a hard distinction between the realm of the state and the realm of civil society.http://mosaicmagazine.com/essay/2016/08/whos-afraid-of-religious-liberty/
Comments are closed.
