The case of Burwell v. Hobby Lobby Stores, Inc., presented a classic conundrum in American constitutionalism: a conflict between religious expression and the lengths to which such expression may infringe on the rights of others. The case also raised controversial questions of personhood and gender equity, and ultimately seemed to pit the interests of religious freedom and gender equity against one another. That the latter two values are each deeply American, and deeply Jewish, are what makes this case so controversial.
As the American Jewish Committee (AJC) notes in its amicus brief in favor of the government, it is very rare that these values come into conflict with one another. In the case of Hobby Lobby, where they do, the AJC urged “rigorous scrutiny” that would enable the Court to “uphold the equality and dignity of women while preserving and safeguarding sincerely held principles of faith.” That balance, however, is a precarious one. Further, achieving that balance forces us as Jewish Americans to critically consider our commitment to religious observances as they intersect and conflict with the secular American governance which has allowed Jews, among others, to live freely in the United States.
The AJC, along with the Jewish Social Action Policy Network (J-SPAN), who filed briefs on behalf of the government, recalled a Jewish tradition of progressivism in line with the precedent of the Court. We are taught that Rabbi Abraham Joshua Heschel marched alongside Martin Luther King, Jr., and as J-SPAN reminds us, Jewish Americans have long been involved in efforts to expand civil liberties of all kinds, from commerce to gender equality. Jewish American women have played an active role in the contraception movement since its inception in the early 1900’s, and studies spanning multiple decades reveal a Jewish American tendency towards commitment to family planning, involving “access to the full range of FDA-approved reproductive health care options.”
Further, as even the amicus brief in favor of Hobby Lobby, Inc. from the National Jewish Commission on Law and Public Affairs (COLPA) notes, Judaism is arguably unopposed to contraceptive use, and in fact a majority of Conservative and Orthodox rabbis had no qualms with Plan B when it was first approved for over-the-counter purchase. This, says Orthodox Rabbi Jeffrey Fox of Englewood, N.J., is because the pill must be taken within 72 hours, while according to the Talmud, in its first 40 days an embryo is called mayim be’elma — “simply water.”
Talmudic influences aside, the AJC recalls the Court’s historical tendency to favor the authority of the federal government over religious exemption. In the case of U.S. v. Lee (1982), when an Amish farmer claimed that social security taxes violated his freedom of religious conscience, a unanimous Court ruled in favor of the government’s right to impose a uniform tax for certain aspects of the public good. Writing for the majority, Chief Justice Warren Burger wrote:
“The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest… Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
The same logic was employed in the ruling on Adams v. Commissioner of Internal Revenue (1999), wherein the Court ruled against a Quaker woman who declined to pay taxes on account of her religious opposition to war. That argument is arguably applicable to the Hobby Lobby case, in that closely-held corporations such as Hobby Lobby, Inc. have voluntarily entered into interstate commercial activity.
For many secular Jewish Americans, the deference to secularism over religious freedom in this manner is acceptable, and even preferable. The Court does not ignore religious rights entirely, and in fact has drawn clear limits on government powers with regards to religion (see Lemon v. Kurtzman, among others); but ultimately, in the eyes of secularists, deference to public interest is the best way to promote justice and shared values while preserving a degree of religious freedom outside of the public sphere.
For many other Jewish Americans, however, the protections of secularism are not enough. That is the foundation of the argument brought before the Court by COLPA in their amicus brief: while they recognize that Jewish law does not oppose contraceptive use, they argue that Hobby Lobby raises the larger question of the rights of employers. They maintain the Jewish tradition of defending liberty for all religions, recognizing that just as a Jewish business owner would resent being forced by law to remain open on Shabbat, so too would a Catholic business owner reject the government intervening in their decision-making processes. And following rulings such as that of Citizens United, there is a growing precedent for “corporations are people;” or at the very least, closely-held corporations are extensions of those who own them (See Gallagher v. Crown Kosher Super Market, for a Jewish perspective on this). Justice Burger’s argument that religious infringement is necessary and even justified in the field of commerce is outdated in this line of thinking, given the Citizens United decision and an increasing drive to protect religious decisions from any government entanglement.
So, who is right? COLPA is clearly motivated by Jewish values, and a desire to maintain freedom of religion. J-SPAN also claims to be motivated by its Jewish roots, citing the Jewish values of equality, public health, and tikkun olam. This incongruity is unsurprising given that just as Jews have well-maintained traditions of religious freedom and tikkun olam, we also have a healthy tradition of argument. But given two drastically different views: on the one side, pro-Hobby Lobby, on the opposite, pro-contraceptive use, how do we reconcile these different views with our values, and with American constitutionalism?
In the case of Hobby Lobby, the Court made the decision for us, ruling 5-4 in favor of the religious rights of employers. This was a victory for the Orthodox, the right-leaning, and those who favor religious conviction above deference to governmental authority to intervene. Studies show, however, that American Jewish Millennials are progressive and less religious than their parents, and increasingly committed to social justice values—such as women’s health care—as a means of expressing their Judaism.
So when we ask the classic question, “Is it good for the Jews?” neither side of the Hobby Lobby case can expressly claim victory or defeat. But all those who care about both the future of American Judaism and of women’s health care in America should be concerned with the answer, and with defining it. The way in which we balance secularism, religion, and constitutionalism will define American Jewry in the 21st century on more issues than just this one—for example, where our community will fall on hot-button issues like same-sex marriage, immigration reform and abortion, not to mention American military aid to Israel. All of these issues hold religious and traditionalist rationals, pitted against progressive idealism in ways foreshadowed by the Hobby Lobby debate. How we continue to debate these ideas, the environment in which we debate them, and the manner in which we act on our emerging commitments, will define the values we call Jewish and American for our generation.
Maddie Ulanow is a student at Carleton College.