Do Jews need to worry about the RFRA?

Does a kosher bakery have the right to refuse to bake a wedding cake for an intermarried couple? If the bakery is in Indiana, the answer might be yes.

Indiana’s passage of the Religious Freedom Restoration Act (RFRA) in March caused an uproar, especially among LGBTQ rights activists, who argued that it could encourage discrimination from devout Christian business owners. But Christians aren’t the only religious people the RFRA could affect — and the effect it could have on businesses owned by observant Jews has barely been spotlighted.

With a Supreme Court ruling regarding marriage equality expected this month, the battle between religious liberty and LGBT rights may have reached its climax. But for Jews, the RFRA is likely to have its biggest impact on issues other than same-sex marriage.

In an exclusive interview with New Voices, Shmuley Boteach, one of America’s most prominent Orthodox rabbis, stressed that the primary issue surrounding the RFRA is “respect for the dignity of God’s creatures.”

Boteach noted the importance the issue of intermarriage has to the Jewish community — it’s a significantly bigger issue than same-sex marriage, he said, because same-sex marriage affects a small percentage of the population. According to him, the RFRA’s effect on whether or not a religious-owned kosher bakery can refuse to bake a cake for an intermarried couple depends on “which halachic authority you’re asking.”

The RFRA allows businesses to refuse to honor a customer’s request if it conflicts with the clerk or owner’s religious views, as determined by a court of law. The Supreme Court’s 2014 Burwell v. Hobby Lobby decision expanded on the already-existing federal RFRA to define corporations as able to hold religious rights. University of Toledo law professor emeritus Howard Friedman wrote in The Washington Post that RFRA claimants can include “mainstream religious believers”, and that the RFRA’s aim is to create a framework that determines when cases should receive exemptions from the law.

“There’s two dimensions to the RFRA that seem to be in conflict,” Boteach said. “On one hand, it does protect the rights of religious minorities … But now, we’re seeing the RFRA used possibly to discriminate against gays and those in the LGBT community.

“It’s been used and it’s been misused,” he added.

Boteach related the RFRA to his son’s experience applying to the United States Military Academy at West Point. Though his son made it far in the interview process, Boteach said, and was even recommended by his Congressional representative, he was ultimately rejected.

Boteach and his family suspected one of the reasons his son was rejected was due to his beard, based on “kind of indication from one of the interviewees.” The military prohibits beards, though its policy on religious accommodation allows troops to request accommodation to wear a beard.

“[The RFRA] would have protected my son if indeed that was the reason,” Boteach said.

Ideas about how the RFRA could affect businesses operated by devout Jews can be traced to the National Jewish Commission on Law and Public Affairs (COLPA), which presented an amicus brief citing halachic authorities to the Supreme Court regarding Burwell v. Hobby Lobby. In that decision, the Supreme Court decided that for-profit corporations could refuse to cover contraceptives for employees due to religious objections, and cited the 1993 federal Religious Freedom Restoration Act.

In the brief, COLPA argued that Jewish law doesn’t recognize corporations existing as entities separate from the people who own shares, instead seeing them as partnerships — businesses operated by individuals who share ownership. COLPA wrote that this means a corporation owned by an Orthodox Jew must operate in adherence to Jewish law, because “his faith does not view the corporation’s conduct as independent of his own.”

Though COLPA supported the national RFRA, the Indiana version is opposed by other Jewish groups.

The state’s RFRA was opposed by the Indianapolis Jewish Community Relations Council (JCRC), which is the largest Jewish advocacy group in the state.

Judy Failer, the JCRC vice president, testified against the RFRA, then Senate Bills 101 and 568. In her testimony, she stated that although the global rise of anti-Semitism made it necessary to protect religious freedom, the JCRC believed the RFRA would do more to undermine religious minorities than to help them.

Failer cited the aspect of the RFRA that states the prohibition for the government from allowing a “‘substantial burden’ on a person’s right to the free exercise of religion unless 1) the government has a ‘compelling governmental interest’ in doing whatever it is that burdens someone’s religion, and 2) there is no other way to achieve that interest.”

She also cited three hypothetical cases that, according to David Sklar, the Indianapolis JCRC’s director of government affairs, were posed by an Anti-Defamation League (ADL) response to the law: that an employer could say that his religion requires that he pay men more than women; someone who owes money on a lien could get away with not paying his debt because he has a religious objection to paying interest; and a Jewish pharmacist could decide not to fill a prescription for a patient whom he knows to be Jewish, because the prescription contains gelatin and gelatin isn’t kosher.

But when you look more closely at halacha, the hypotheticals above aren’t likely to become reality. Judaism doesn’t condone salary discrimination based on gender (although that doesn’t stop it from happening in Jewish organizations). That can be fundamentally related to a famous teaching of Hillel the Elder about the ultimate message of the Torah: “What is hateful to you, do not do unto your neighbor.” Though this phrase isn’t actually mentioned in the Torah, according to educator Rabbi Benjamin Hecht, the situation of when Hillel taught this belief to a potential convert while the convert stood on one foot emphasized the following:

It is one thing to have a simple statement of a fundamental principle; it is another thing to think that one can apply such a statement simplistically in the reality of this complex world. Hillel is adding in his very formulation of his fundamental principle that to fully understand this principle one must accept the challenge of study, with the recognition of the further challenge that one continuously faces in balancing one’s rights and obligations with another’s rights and obligations. This takes a lifetime of study and application.

The ADL’s second concern isn’t in accordance with halacha either. Though a Jew may charge interest to a non-Jew, as well as vice versa, Jewish law prohibits a Jew from charging interest to a Jewish customer. As the verse in Proverbs states, “The borrower is servant to the lender,” and according to Rabbi Binyamin Zimmerman of Yeshivat Har Etzion, the prohibition of lending on interest to a fellow Jew also applies to the borrower and any other party to the loan.

The last concern is also not backed by halacha. Jewish law permits gelatin to be consumed if the protein is in non-food items such as medicine, as opposed to the case of gelatin in food, where it’s prohibited to consume it. According to an article by Rabbi Howard Jachter in the Journal of Halacha and Contemporary Society, almost all rabbinic authorities don’t see gelatin as a concern when taking medicine — though they advocate that Jews should seek an alternative, if possible — because people take medicine for healing, not as food. Since gel caps are tasteless and medicinal, it’s permissible to take them.

Clearly, the Jewish response to the RFRA isn’t clear-cut. As Boteach said, it’s circumstantial.

“When you ask about the Jewish community in particular, it depends on what the circumstances are,” he said. “That’s what’s so difficult about the RFRA, and especially in its current generation where a corporation, not just an individual, can treat an individual with religious liberty and religious rights.”

In relating the RFRA to halacha, Boteach gave the example of whether or not one can drive to the synagogue on the Sabbath. Although most rabbis would forbid that act, he said, they’d also say that it is “not the rabbi’s business.”

“How someone comes to the synagogue on the Sabbath has nothing to do with the rabbi,” he said. “We’re not here to scrutinize how they get there. So if someone comes to buy a cake [at a kosher bakery], they’re coming to buy a cake. What use they put it to is their business.”

Altogether, Boteach said, the Jewish stance on the RFRA should be based on what Boteach depicted as “moral choice.”

“You have to take it out of the realm of simply halacha, and have halacha married to American law. We’re not here to superimpose our halacha on other people. We’re here to practice among ourselves,” he said.

“Our religion has learned to live very traditionally in the modern world. We don’t believe [in discrimination].”

Boteach said he believes a proprietor doesn’t have the responsibility to impose his beliefs on a customer.

“He has his responsibility to keep his religious convictions for himself and not necessarily superimpose on other people,” he said, adding that dialogue can still happen if done in a “humane, friendly, loving spirit.”

Finally, Boteach noted that the RFRA comes out of a “legitimate question” regarding the division between church and state, and what to do when those two agendas conflict.

“We have to be considered, educated, sympathetic to the individuals that look at these questions one-by-one and try to find the best possible solution while respecting both principles,” he said, “which is people’s right to practice their religion amidst true civil liberties.”

 

Jackson Richman is a student at The George Washington University.