Don’t Let First Downs Distract from Real Threats to the 1st Amendment

Recent conversations about free speech have revolved around whether it is proper to criticize or boycott football players for kneeling during the National Anthem. At the same time, however, there is a much more important albeit less publicized battle going on over the future of the First Amendment and protecting our rights to live free of government coercion.

Take the case of Joe Kennedy, a football coach at a public high school in Washington State. He was fired by the school district for silently praying on the sidelines after a game. When he sued, arguing that government entities may not ban private whispered prayers, the school district responded that Kennedy lost his ability to pray privately whenever students might be watching.

Then, there is a case from Colorado in which the state brought its enormous resources to bear against Masterpiece Cakeshop, a tiny family bakery, trying to force it to produce custom cakes for same-sex weddings. While this is likely a violation of the baker’s religious rights (i.e., his right to abstain from commerce that violates his religious beliefs), it is unquestionably a violation of his freedom of speech: the government is forcing him not merely to provide cakes to all customers, but to design cakes specifically intended to congratulate same-sex couples. This would be akin to forcing an Ultra-Orthodox Jewish baker to bake a cross-shaped cake with the inscription “Jesus Died for Our Sins.” The First Amendment is intended to protect our right to say – and not to say – what we please, regardless of how unpopular our positions might be. If the First Amendment merely protected politically correct speech, which no one would try to ban, it would not serve a useful purpose. The Supreme Court is about to hear the Masterpiece case, but progressive organizations have by and large not seen this as an instance in which the fundamental importance of freedom of speech needs to be protected. Instead many have argued that non-discrimination for same-sex couples will only be achieved when governments force people to write messages that violate their beliefs, and even that First Amendment rights are subordinate to this goal.

Religious Christians have led this fight against compulsion. And they have not merely focused on Christian problems. Religious-liberty organizations with mainly Christian members defend Jewish civil liberties – not to mention those of Sikhs, Muslims, Native Americans, and others — with equal vigor and determination. Jews ought to take notice, as these issues are already beginning to affect us more than many realize.

Jews have been on the receiving end of assaults on religious liberty for centuries. Now, in Europe, they are victims of efforts to ban kosher slaughter (shechitah), arising from both leftist and rightist circles. Six European countries currently ban shechitah and Muslim halal slaughter (Norway, Iceland, Switzerland, Lichtenstein, Denmark, and Sweden). There have been efforts to ban these rituals in other areas, including Germany and Poland. (Note that Germany banned kosher slaughter in 1933, citing its alleged cruelty, and Poland did so later in the same decade.) Flanders, the region of Belgium that includes Antwerp, with its large population of Orthodox Jews, just decided to ban kosher slaughter despite significant opposition from Europe’s Jewish leadership.

Until recently, Jews in America have been fortunate enough, most of the time, to be safe from these types of attacks. But recently, the ritual of kapparot (or “kapporos”), which for many Ultra-Orthodox and Persian Jews involves slaughtering chickens, has come under legal attack for the third time in three years. Sometimes, animal-rights organizations have alleged questionable legal compliance or alleged mishandling of animals, and sought to ban the entire practice. In 2016, they successfully hindered the ritual by using an obscure consumer-protection law in California to achieve a “temporary” ban from a court on the taking of money for payment for performing the ritual, a ban that was ordered and then lifted only minutes before Yom Kippur, the last possible moment when the ritual may be performed.

PETA, meanwhile, has made an all-out attack on shechitah a significant agenda item. If attacks on kapparot are successful, kosher slaughter will be the next major agenda item.

Nor will attacks on Jewish religious liberties be confined to how we obtain kosher meat. Circumcision has already faced attacks in Europe and some American local jurisdictions such as San Francisco and Santa Monica. And opposition to this central ritual is unlikely to wane, as our society emphasizes personal choice and sexual liberation over personal liberty and familial and religious tradition.

And just who has been defending kapparot? Most Jews haven’t even heard of the ritual. Even many Orthodox Jews use money, rather than live chickens, to perform it. Indeed, it is quite possible that most Jews who have heard of the ritual find it distasteful, if not worse. But these are not reasons Jews shouldn’t defend their coreligionists’ right to maintain their traditions. It took a courageous attorney named Aryeh Kaufman, along with University of Houston law professor Josh Blackman and the considerable efforts of the First Liberty Institute – a largely Christian organization that defends the religious liberty of all types of Americans – to defend kapparot in California courts. First Liberty has devoted an enormous amount of pro bono resources to this cause. Together with other non-denominational and Christian groups, like the Becket Fund for Religious Liberty and Alliance Defending Freedom, First Liberty has been carrying much of the burden of defending Jewish religious liberty, not only in this case, but in others as well.

There have of course been many Jews who have done, and continue to do, amazing work in this field, and this trend has been growing as this issue becomes more public. In the Colorado bakery case listed above, for instance, there were several Jewish legal briefs filed in support of the bakery, from groups including the Orthodox Union, Agudath Israel, COLPA and Jews for Religious Liberty. But there still are not enough resources committed to this rapidly escalating battle. It is time for the Jewish community to recognize the assault on religious liberty as a crisis that does not threaten merely a few Orthodox practices, but all American Jews.

We are often reminded of Jews’ role at the forefront of fighting for the rights of others. Take the Civil Rights movement of the 1960s for instance. Some would argue that Jews have a special reason to engage in these battles, not merely because they are just, but because a government that persecutes one minority group today could go after Jews tomorrow. In this current fight, one need not even argue that Jews are next – as the lawsuits over kapparot and shechitah demonstrate. Jews ought to understand that, even if they don’t swing chickens around their heads before Yom Kippur, and even if they don’t keep kosher, they should care about their religious freedom as Jews. And in this case, guarding our own freedom necessarily also requires caring about the religious rights of Catholics, Evangelical Christians, Muslims, Hindus, and anyone else whose First Amendment rights to freedom of religion are being threatened.