The pandemic is making visible how important ‘religious liberty’ is to Orthodox Jews in America

(JTA) — In the more than 30 years that Rabbi Chaim Dovid Zwiebel has worked at Agudath Israel, an umbrella organization and advocacy group representing haredi Orthodox Jews, he can’t remember a single year where as much of the group’s work took place in court.

There was the lawsuit challenging New York state for applying different standards on attendance at houses of worship than at businesses. Agudath Israel filed an amicus brief supporting the plaintiffs. 

There was the case in which Orthodox summer camp directors sued the same state for shutting down overnight camps. Agudath Israel backed the camps.

There was the case in June, when the U.S. Supreme Court ruled that a state-run scholarship program funded by tax-deductible gifts could not exclude religious schools. Agudath Israel had filed a brief in favor of the plaintiff, a parent who wanted to use the scholarship to send her children to a religious school.

And just last week, there was a late-night victory that resounded across America: The Supreme Court ruled in favor of the organization’s petition against New York Gov. Andrew Cuomo’s restrictions on houses of worship in areas with climbing COVID cases. In what the group hailed as a “high court victory for religious liberty,” the court ruled that Cuomo could not restrict capacity in houses of worship to 10 or 25 people regardless of building size while businesses were allowed to operate in the same areas without capacity restrictions.

Zwiebel doesn’t expect the court cases to end anytime soon.

“More and more, the action will be in the judicial arena … because the legal challenges to our way of life are coming up with greater frequency and we have to turn to the court to protect us,” said Zwiebel, Agudath Israel’s executive vice president. The organization’s advocacy also includes legislative work in Washington and in state legislatures.

The ruling against Cuomo was the latest in a series of Supreme Court decisions on religious freedom that Orthodox Jews have seen as critical. That interest in religious liberty isn’t new — it’s been a central priority for as long as Orthodox Jews have been involved in advocacy.

But the centrality of the issue to Orthodox Jews has become more apparent as high-profile social issues have thrust religious liberty into conflict with other values. That passion for religious freedom exploded on the streets of Brooklyn in October as Orthodox Jews there protested closures of synagogues and yeshivas due to rising COVID cases.

“What has changed in recent years is the self-confidence and asserting that very loudly into the public sphere,” said Rivka Schwartz, an associate principal at SAR High School in the Bronx’s Riverdale neighborhood and a research fellow at the Shalom Hartman Institute who writes frequently about politics and the Orthodox community.

The public discourse on religious liberty, particularly high-profile Supreme Court cases that turn on the issue, has contributed to the rightward political shift among American Orthodox Jews. The perception of stronger support for Israel within the Republican Party has drawn some Orthodox Jews to the political right. But for many Orthodox Jews — particularly the haredim, or ultra-Orthodox, most of whom would not identify as Zionists — religious liberty has become the key issue binding them to the GOP.

“I think it’s primarily, right now, because of the religious liberty issue,” Eli Steinberg, a politically conservative Orthodox writer who lives in Lakewood, New Jersey, said of his community’s move to the political right. “Everything else sort of flows out of that.”

Pre-election polls indicated that Orthodox Jews overwhelmingly supported President Donald Trump, whose four years in office led to a conservative majority on the Supreme Court. Three of those justices are in their 40s with decades of rulings ahead of them, but Steinberg said last week’s victory is no reason to grow complacent. 

“It’s a 5-4 majority,” he said. “We know how tenuous those are.”

Steinberg cited several major Supreme Court cases as bringing the idea of religious liberty to the fore for Orthodox Jews.

They include the 2014 Hobby Lobby case, in which the high court ruled that requiring a corporation to provide insurance coverage for contraception violated religious liberty, and the 2018 Masterpiece Cake case, in which the court ruled in favor of a baker who refused to bake a cake for a gay couple’s wedding.

Both cases pitted religious liberty arguments against changing social norms. Agudath Israel filed briefs in both cases: In Hobby Lobby, on behalf of the store, and in Masterpiece Cake supporting the baker.

“Religious liberty has come into conflict with other social values that has raised very serious questions about how society and courts are intended to balance the claims of different groups,” said Michael Helfand, associate dean for faculty and research at Pepperdine University’s Caruso School of Law, who noted that several new Orthodox organizations have formed to work on religious freedom issues in recent years. “It pulls religious liberty into the culture wars and as a result, everyone has gotten louder.”

The pandemic has made the conflicts over religious liberties even starker as government officials have placed restrictions on religious practice in an attempt to curb the spread of the coronavirus. Over the past several months, religious groups have gone to court repeatedly asserting that the restrictions have gone too far and infringed on religious liberties.

“In a non-pandemic world, you just wouldn’t have things like capacity limits on a house of worship, so there’s just a lot more opportunity,” said Akiva Shapiro, a lawyer who represented the Brooklyn Diocese in its petition to the Supreme Court challenging Cuomo’s restrictions on houses of worship in areas with increasing COVID cases. (The court decided the cases together brought by the Roman Catholic diocese and Agudath Israel.) “In a regular time, things don’t move so fast and so radically.”

While the number of religious freedom cases this year has been particularly high, Helfand said Orthodox Jews have long been involved in filing amicus briefs on issues of religious liberty.

So have non-Orthodox Jewish groups, but many have targeted issues of church-state separation and keeping religion out of the public sphere. Orthodox groups have been more focused on the free exercise clause and more open to governmental support for religion, particularly in the form of funding for religious schools.

“For those of a certain political mindset, the right to equality is the most central right and therefore it couldn’t be that religious liberty trumps because it imposes too great a cost on others,” Marc Stern, chief legal officer of the American Jewish Committee, said of the position taken by much of the non-Orthodox parts of the Jewish community. “The other side says there’s no reason to give priority to equal protection.”

While religious liberty fights like abolishing blue laws that kept stores closed on Sunday and keeping prayers, usually Christian, out of public schools were important to non-Orthodox groups, those issues have largely been resolved. But for Orthodox groups, Stern said, religious liberty questions, such as about government interference in private religious schools, are still live issues with a clear impact on the rank-and-file of the community.

And that impact was clear in the case of the restrictions on houses of worship in parts of New York with climbing COVID cases.

To Agudath Israel leaders, their lawsuit over those restrictions, which pitted the organization directly against New York’s governor, felt like a last resort.

“It’s a cultural thing, we try to lay low a little bit,” said Rabbi Avi Schnall, director of Agudath Israel in New Jersey. “We’re in an amazing country that does a tremendous amount for the Jewish community, and we’re forever grateful for that and we don’t want to come off as ungrateful.”