Why all Jews should rally to protect the freedom of their day schools

In 2017, the American Jewish community faces a series of governmental actions and court rulings that threaten to undermine religious liberty in the name of preventing discrimination.

We face both a crisis and a good opportunity to unite strongly across denominational lines.

We have banded together before to preserve our freedom of worship. In 1993, Congress passed the Religious Freedom Restoration Act to protect religious liberty from the impact of laws that incidentally burden it. This law was passed nearly unanimously and without controversy, and its supporters included some of the most progressive politicians and advocates in the United States.

But the tides have been shifting. And while liberals and conservatives concurred on this issue in the 1990s, this mutual agreement broke down during the last several years. In a series of controversial cases decided between 2012 and 2017, Jews often have split along the same lines as most other Americans, with conservatives supporting religious liberty and liberals opposing it.

Consider one 2016 case that is most relevant to our Jewish communities in New Jersey. The Jewish community largely has been silent while a guidance counselor sues a Paramus Catholic high school, claiming that the school illegally terminated her employment after she entered into a same-sex marriage, thereby violating school policy. The school asked the trial court to dismiss the lawsuit, on the grounds that its decision should be protected by the Supreme Court’s precedent on the “ministerial exception” that prevents the government from dictating who may function in roles that are important to religious education. But the judge decided that since the faculty member functioned as both a basketball coach and a guidance counselor, the court would not defer to the school’s contention that she functioned in a ministerial capacity. The case therefore continued, and the school will be required to spend an enormous amount on legal fees to prove that the employee — a guidance counselor whose job involves helping form the character and personal decisions of young religious students — is employed in a ministerial role.

If this decision turns against the school, and a pattern of challenging and circumscribing the ministerial exception becomes precedent, it will lead to open season on religious schools. Employees will be free to violate their schools’ religious policies at will, confident that they can threaten to bring lawsuits that, while they will likely be dismissed later due to the ministerial exception, will cost schools large amounts of money to defend for many months.

Jews have a particularly unique perspective to contribute to this case.

Opponents of discrimination are well-meaning in their arguments that a trial court must decide whether an employee is enough of a religious employee to warrant an exemption from anti-discrimination laws. But Jews understand more than others that education is intertwined inherently with religion. Indeed, it always was among Christians and Muslims as well. For most of U.S. history, Bible readings were the norm in schools. But Jews have an even longer history of understanding and living this connection in our communities, and we continue to articulate it most clearly today.

Judaism teaches that teaching our children religious law is fundamentally important. And as Maimonides and other Jewish sages explained, this necessitates teaching both the law and general knowledge, since the law is only understandable within the context of a general education. There is, therefore, no purely “secular” education. Jews of different denominations agreed on this point until very recently. In 19th and 20th century Germany, for example, both Reformist and Orthodox schools emphasized the intrinsically religious nature of education in their dual curricula.

We would lose much if we were to lose the independence of our Jewish schools and their ability to offer integrated educations. As the Pew Report and other data have demonstrated, day school attendance is the top factor associated with limiting assimilation and promoting Jewish demographic survival. Data similarly has demonstrated that informal or part-time educational programs are inadequate to the task of ensuring and promoting the sort of cultural formation and socialization that is key to Jewish continuity. The legal and political conditions that allow day schools of any Jewish denomination to exist and function well must be protected.

Yes, the reality is that most Jewish day schools are Orthodox-run. They teach traditional views concerning family life, and they are demographically successful because of the traditional lifestyles that they promote. But Jews of all denominations ought to support the freedom of all schools — Orthodox, Conservative, Reform, pluralistic, and others — to make decisions independently for their own good and for the good of the Jewish people. Not everyone has to agree with Orthodox social views, but we all ought to be able to protect the right of Orthodox Jews to educate their children in line with the traditional values that allow them to contribute so much to Jewish growth.

Moreover, the battle over religious liberty will not stop. While it might seem preposterous now, if the fight continues to go badly, it is only a matter of time before the United States joins some European countries in penalizing kosher slaughter. Circumcision is not immune from attack either, as we have seen from events in California, in which anti-circumcision activists have attempted to put a ban on circumcision on local ballots. Nor do we need to use our imaginations to imagine what governments could do to organizations that fall out of favor with majority beliefs. The Obama administration’s solicitor general, after all, told the Supreme Court that religious schools could lose their tax exempt status if they oppose gay marriage.

Tragically, many Jews, in their zeal to protect the dignity of individuals, have forgotten their own experiences as a minority. We Jews, who at times have been forced to embrace other religions, ought to be outraged by lawsuits that punish people on religious grounds. Instead, some Jews are now involved in the fight to impose the majority’s morality on minorities, using the same line of reasoning used in too many attempts to bring truth to Jews whose souls seemed to need saving.

This does not mean that religious liberty functions as a license to discriminate based on people’s characteristics. RFRA already requires that federal laws that incidentally burden religion must advance a compelling governmental interest and must constitute the least burdensome means possible. This standard works. It does not lead to discrimination. It allows people freely to choose to participate in activities that they support, while ensuring that everyone has options.

The best example is provided by the military, where operational necessity is a greater concern than in perhaps any other sector of society. As a military chaplain, I am obligated to help commanders provide service members with religious accommodations whenever possible. The only time religious accommodations are not granted is when they would inhibit the military from carrying out its mission. People are respectful to each other, and no one is expected to engage in activities that violate his or her religion when there are perfectly viable alternatives.

If we use this same standard with our businesses, charities, and schools, we have nothing to fear from discrimination. In a free society, everyone ought to be free to send their children to the schools of their choice, to be taught by the teachers of their choice. If members of the Jewish community unite behind this conviction, we might make a currently divisive issue into a victory for unity in the Jewish community, New Jersey, and the nation.