Religious Rights and the Common Good

I grew up in a high-rise on the Lower East Side of Manhattan. The dominant group in our micro-neighborhood were Orthodox Jews, though there were also numerous Hispanic families and some Irish, Asian, and liberal Jewish folks (like my family). Our building had 20 floors with seven or eight apartments each. Many modern Orthodox Jews interpret the prohibition on lighting a fire on Shabbat to forbid activating electrical devices. You may have heard of the tradition of the “Sabbath goy”, the non-Jewish person who helps his Jewish neighbor by turning on her light switch or oven on Friday night. In our building, from sundown Friday to sundown Saturday, one of our two elevators was set to run continuously, stopping at every floor on the way up and the way down, so that observant Jews wouldn’t have to push the buttons.

This arrangement irritated me, perhaps unreasonably. It’s hard to separate my judgment from my general feeling that the Orthodox in our neighborhood acted superior and unfriendly to those outside their tribe. (See, for instance, the recent New York Times exposé on how Rep. Sheldon Silver and his Orthodox supporters blocked low-income housing for Hispanic families for 40 years.)

The Sabbath goy routine, legal fiction though it be, potentially builds interfaith friendships. It might foster gratitude for the kindness of strangers, and awareness of one’s dependence on the goodwill of others. The Sabbath elevator imposed that role on all of us without asking. The impact on the environment could be considered selfish as well, though maybe they offset their carbon footprint by not driving cars on Shabbat. A longer wait for the elevator on Friday night is a relatively minor imposition, but symbolically, it felt like a statement that some people thought they were more important than their neighbors.

On the other hand, every accommodation of someone’s rights may come at a cost to someone else. My church is undertaking a major capital campaign to make the building handicapped-accessible. We also hire a sign language interpreter for every 10 AM service. A skeptic could say that’s money being taken from “the rest of us” to benefit “a few”. However, we recognize that the space and priorities that we may have considered normal are designed to benefit the majority and ignore others, and that’s not acceptable for a community whose motto is “Given to Hospitality”. The Orthodox in my old building may have felt marginalized and handicapped in the wider society, where they had to work hard every day to maintain their purity boundaries. They wanted one place where they would have the privilege of not thinking about how to get from point A to point B.

The complex power dynamics of the Sabbath elevator are on my mind because of the Supreme Court’s Hobby Lobby ruling on religious exemptions for employers, which I blogged about in my last post. We’ve reached a peculiar juncture in Free Exercise Clause law, where the right to do something religious has morphed into the right to make someone else do something, for religious reasons. That is to say, at what point are you offloading so much of the burden of your religiously motivated behavior that it is no longer “your” free exercise?

The many Sabbath observance rules, adapted for modern times, stem from the central directive to let yourself, your servants, and your animals rest and honor God. But if you’re causing another human being to work on Shabbat, isn’t that worse than making a machine work? Or does he matter less than a machine because he’s a goy?

Classic case law on the free exercise of religion involved personal choices that were at odds with bureaucratic uniformity. No third parties were being burdened by the observance. Even then, religion didn’t always win. In Goldman v. Weinberger (1986), the Court said the Air Force could forbid an Orthodox Jewish officer from wearing his yarmulke while in uniform. In Employment Division v. Smith (1990), the Court said the government could ban sacramental peyote use under the generally applicable drug laws, notwithstanding the Free Exercise Clause. While these specific outcomes seem too harsh and rigid to me, they stand for a principle that today’s Court has all but forgotten: Sometimes you have to play by the rules of the wider society and eat the cost of your difference, because civil society would become ungovernable if every law were vulnerable to a thousand individual carve-outs.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) to restore a more generous standard of review for Free Exercise claims than the court had applied in Smith. RFRA affirms that Free Exercise challenges apply not only to laws deliberately targeting religious practices, but also to neutral laws that incidentally burden a person’s exercise of religion. Hobby Lobby brought its objection to Obamacare’s contraceptive mandate as a RFRA claim.

RFRA expanded the class of laws to which Free Exercise objections could be made. Meanwhile, this Court has been stretching the definition of religious practices to encompass virtually any behavior that is religiously motivated. Together, these trends exacerbate social inequality and fragmentation.

How is it “your” freedom of religion to fire disabled workers, or prevent your employees from unionizing, or impede women’s access to healthcare? Why should the state help you shift the cost of your religious preferences onto nonbelievers? This takes Free Exercise too far beyond the personal acts of worship or ritual observance that the Founders likely envisioned. The logic of the Hobby Lobby exemption is the logic of theocracy, where there is no legitimately secular realm of human action. Maybe that’s your sincere religious worldview, but it’s not the worldview behind our system of government. The Constitution is meant to preserve a separation between church and state. It’s bad faith, in every sense of the word, to exploit the Bill of Rights to reach a result hostile to its values.

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