Excerpted From: David Schraub, Liberal Jews and Religious Liberty, 98 New York University Law Review 1556 (November, 2023) (347 Footnotes) (Full Document)

DavidSchraubThe past few years have seen an emboldened Supreme Court effectuate a sea change across a host of constitutional law doctrines. Among the most prominent shifts has occurred in the Court's Free Exercise Clause and Religious Freedom Restoration Act (RFRA) jurisprudence, where the Court has been aggressive in granting mandatory accommodations for religious objectors who claim that various state and federal laws (particularly those centered on stemming the COVID-19 pandemic, but also laws seeking to protect LGBTQ equality and reproductive rights) violate tenets of their faith. The same period has also witnessed a striking rise in public antisemitism and anti-Jewish exclusion. The Anti-Defamation League (ADL) reported that the rate of antisemitic incidents in the United States--including assaults, harassment, and vandalism--reached an all-time high in 2021 and continued to rise in 2022. But raw numbers are only part of the story. There is also the larger sense that antisemitism is creeping into the mainstream of American politics--no longer the province of fringe cranks, but rather present amongst prominent elected officials and significant cultural figures. Political and legal protections that American Jews long have taken for granted now no longer feel quite as secure. From Elon Musk to Kanye West to Donald Trump, antisemitism has seemingly never since the McCarthy Era been closer to levers of American social and political power.

At first blush, the first trend may appear to be a welcome bulwark against the second. Increased precarity of Jews' social and political standing is matched by robust new protections given to religious communities under the new free exercise regime. The new free exercise framework, inaugurated by the Court in cases like Burwell v. Hobby Lobby, Cakeshop v. Colorado Civil Rights Commission, v. Newsom, and Fulton v. City of Philadelphia is, in concept, open to religious claimants of all denominations. Consequently, if the rise in antisemitic sentiment manifests in legal intrusions that burden or degrade Jewish religious faith or practice, the new free exercise protections will be available as a welcome shield.

Yet the assumption that the new free exercise regime will protect Jews remains largely untested. Most (albeit not all) of the prominent claims that have fed into this new free exercise jurisprudence thus far have been distinct in that they (a) have been brought by Christians and (b) are conservative-coded (that is, they challenge or seek exemption from rules that are generally associated with political liberalism). The judiciary has not had much occasion to demonstrate that it will provide similar protection to Jews, whose religious liberty claims will often take the form of liberal challenges to conservative policy initiatives. And the very fact that antisemitism is mainstreaming--in particular, the form of antisemitism which denigrates Jews for being liberal and thus (supposedly) inauthentically religious--itself provides rationalizations which may justify declining to include at least liberal Jews (which is to say, most Jews) under the expansive umbrella of new free exercise protections. Indeed, far from representing an aberration or disjuncture from the new free exercise doctrine, appealing to this form of antisemitism and leveraging it to justify anti-Jewish exclusion may well be necessary for the doctrine to function at all.

In this Article, I situate liberal Jews' religious liberty claims against both the legal turn towards robust religious liberty protections and resurgent conservative Christian nationalism. The latter two trends may seem to operate at cross-purposes insofar as liberal religious actors--which Jews typically are--could seemingly leverage the new religious liberty shields to ward off threatening conservative policy initiatives. However, I suggest that an emergent architecture of contemporary antisemitism--one which systematically degrades the validity and legitimacy of liberal Jews as Jews--will reconcile the Court's broad religious liberty doctrine with the ambition to specifically promote conservative Christian ideology, effectively cabining the former doctrine so that its protections are limited to the “right” (conservative and Christian) sort of claimants. Jews can secure protection in this doctrine, but only within a framework of shared “Judeo-Christian” values that effectively renders Jewish claims illegible except to the extent that they harmonize with conservative Christian commitments. Even as the Court superficially announces heightened protection for “religion” generally, the underlying normative motivation for its doctrine is saturated with and dependent upon the rejection of liberal Jews as valid religious claimants.

As a result, it is unlikely that liberal Jews' religious liberty claims will meet much success, notwithstanding the federal judiciary's exceptionally broad and generous application of religious liberty protections for conservative Christian claimants. More bluntly: The denigration of liberal Jews is a necessary part of the new religious liberty discourse. Far from being accidental or coincidental, the rise of this form of antisemitic denigration does essential work in providing the justificatory architecture that can cabin the new free exercise doctrine. By delegitimizing liberal Jews as valid religious claimants, this form of denigration ensures that the sweeping immunities granted to the preferred Christian caste from liberal regulation do not provide similar protections to liberal claimants seeking relief from conservative policy priorities.

For our purposes, “liberal Jews” encompasses two distinct, though overlapping, categories.

• Non-Orthodox Jews (e.g., Reform, Conservative, or Reconstructionist Jews).

• Politically liberal Jews--those who identify as (broadly) left-of-center in their politics.

These two categories are by no means synonymous. There are politically liberal Orthodox Jews, and there are politically conservative non-Orthodox Jews. Nonetheless, there is a large and widening gap within the Jewish community that follows these two delineations: Non-Orthodox Jews (who comprise the vast majority of American Jews) are overwhelmingly politically liberal; the Orthodox Jewish minority, by contrast, is increasingly politically conservative. This divergence has begun to expand beyond issues that may be thought of as having a distinctively “Jewish” character (like American policy towards Israel) to more general matters of political contestation. For example, while American Jews overwhelmingly support increased gun control initiatives, the Orthodox Jewish community has begun rallying in favor of loosening restrictions on firearms access. That said, it is important to recognize that these are distinct categories, and their boundaries are not fixed. When Chochmat Nashim, an Orthodox Jewish women's rights group, criticized other Orthodox Jewish groups for praising the Dobbs ruling, it did so on the basis of accusing the latter of prioritizing “secular law over the Torah.”

Part I provides an overview of the judiciary's new free exercise jurisprudence, which has expanded its protections dramatically over the past decade. Many of the cases which have ushered in this expansion have been brought by Christian claimants generally challenging liberal-coded policies. The Dobbs decision, however, has prompted commentators to consider whether Jews and other liberal religious denominations can leverage this doctrine to their own benefit. These arguments have substantial technical merit under the formal parameters of the new free exercise. Nonetheless, few seem convinced that the conservative court will actually extend analogous protections to liberal Jews. This suggests that the new free exercise will, and in many ways must, find limits that justify continuing to provide protections to conservative Christians while denying them to liberal Jews.

Part II explores the challenge liberal Jews present to the presumptive linkage between religiosity and conservatism. This connection is largely implicit, but is omnipresent in judicial and popular discourse about religious liberty. By naturalizing the supposedly inherently conservative quality of true religious observance, this discourse serves to occlude the invariably partial and biased application of religious liberty protections by functionally denying the possibility of a liberal religious order. At the same time, it constructs the threats to religious liberty as emanating solely from a liberal political order viewed as inherently antagonistic to religious life. Yet the general liberalism of the American Jewish community offers an image of a religious community whose spiritual commitments are predominantly progressive in character and whose religious practice is most liable to be threatened by conservative policy initiatives. While it is often assumed that Jewish religious difference is most pronounced among Orthodox Jews, with liberal Jews being more assimilated and thus less in need of specialized religious liberty protections, this assumption implicitly imagines Orthodox Jews to be more authentically religious precisely because they fit better within the model of religiosity embodied by conservative Christianity--ironically, itself a form of assimilation. The assumption that where Jews are liberal, Jews are assimilated fails to take seriously the possibility that liberal Jews are liberal as Jews, not in spite of it, and that liberal Judaism can be distinctively religious and in need of religious protections precisely because it diverges from conservative Christian paradigms. The liberal Jewish example thus destabilizes and denaturalizes core presumptions that justify the new religious liberty jurisprudence as putatively neutral even as it in practice has only thus far and likely will only in the future provide protection to a particular, favored sort of religious adherent. The liberal Jewish case therefore poses a serious challenge to the conceptual underpinnings and practical vitality of the new free exercise jurisprudence.

Part III concludes by exploring what I term “the new supersessionism,” whereby Christians claim an authoritative entitlement to declare what authentic Judaism is over and against the views of actual Jews. The new supersessionism dissipates the impact of the liberal Jewish critique by denying that liberal Jews actually count as Jewish. The claimed entitlement of Christians to declare who and what is and is not Jewish represents a semi-secularized outgrowth of classic theological supersessionism. This has grown increasingly prominent in public discourse as many conservative Christians seek to harmonize their professed love for “Jews” (in concept) with their deep antipathy for the flesh and blood Jews whose actual religious and political practices are in conflict with conservative Christian beliefs and priorities. Conservative legal advocates, searching for a mechanism to dismiss liberal Jewish claims without disturbing the basic architecture of the new free exercise, have seized on this line of logic to portray liberal Jews as regularly or perhaps even inherently insincere in their putatively religious commitments, and thereby incapable of asserting legitimate religious liberty claims. If liberal Jews are not recognized as Jewish, then the failure of the new free exercise to protect liberal Jewish religious liberty claims can be excused as simply dispensing with insincere opportunism, ensuring that religious liberty protections are reserved only for those recognized as truly devout--that is, solely for those whose beliefs comport with conservative Christianity.

[. . .]

Commenting on the terrifying sweep of the federal judiciary's new free exercise jurisprudence, Andy Koppelman bluntly declared that no “member of the Court will pursue [this variant of free exercise] to the limits of its logic. They are not anarchists. Instead, I confidently predict that they will cheat, allowing the state to pursue interests that they, in their entirely unconstrained discretion, deem worthy.” I agree. But all but the most brazen cheaters nonetheless search for ways to cloak their manipulations inside the rules of the game. Indeed, this is one of the central perils that besets the very project of legal legitimacy: “the non-obviousness of what decisions are and are not examples of 'just following the law.’ Even to educated observers steeped in the legal tradition, the lawful and lawless ruling may look remarkably alike.”

So, what will be the legitimating ideology that metabolizes the liberal Jews' challenge to the new free exercise jurisprudence? An ascendant species of antisemitism--one which persistently denigrates the status of liberal Jews as Jews; one that loves “Jews” even as it hates Jews. By denying the authenticity of Jews and suggesting that they do not count as Jews where their behavior diverges from prevailing “Judeo-Christian” (which is to say, Christian) paradigms, liberal Jews can be excluded from the realm of legitimate (or sincere) religious claimants. This same exclusion also serves as a fictive (but no less powerful) falsification of the claim that a welter of antisemitic conspiracy theorizing--“replacement theory,” “cultural Marxism,” or fanciful Soros plots--are in fact cases of antisemitism, since the Jews endangered and victimized by these theories are, of course, not real Jews. Cherry-picking the minority of Jews aligned with the dominant conservative Christian vision enables an upside-down world where “allyship” with Jews scarcely necessitates any engagement with the Jewish community as it is actually constituted. At the extreme, the median American Jew (politically liberal, including in her religious commitments) is rendered irrelevant, if not an outright threat, to the popularly conceived “Jew” (assumed to be an adjunct to conservative Christianity).

That this behavior echoes historical Christian supersessionism is no accident. It flows directly from long-standing Christian entitlements, where part of the patrimony of Christianity was precisely to declare what Judaism truly is. Under conditions of Christian hegemony, not only Jewish rights but the very concept of Judaism itself extended precisely as far as Christians permitted. Even as modernity partially secularized this entitlement, it did not undo the underlying power dynamic.

Nominally, the prerogatives of the new free exercise carry no particular political valence. In practice, the new free exercise has carried on its wings an ascendant Christian nationalism that makes few pretensions about restoring and retrenching the long-standing entitlements of the “religious” as against illegitimate “secular” encroachments. Recognizing liberal Jews as validly and authentically religious would significantly change the tenor of this restoration. It would break down the borders between those the law is meant to bind, but not protect, and those the law is meant to protect, but not bind. But the new free exercise cannot work that way; it cannot universalize all into the favored class. Its proponents need a way to lock the Jews--or at least the liberal Jews, which is to say the majority of the Jews-- out. Fortunately for the new free exercise proponents, they do not lack for options. The history of Christian supersessionism, and the presently rising antisemitic denigration of liberal Jews, offer ample opportunity to ensure that those the law is meant to bind continue to be bound even as favored others bask in the luxuriant freedom of free exercise protection without limits.

David Schraub, Assistant Professor of Law, Lewis & Clark Law School.