As American Jews, we have grown used to having the right to say what we please.
But an ongoing legal battle will have major implications for the rights of Jews to run organizations in accordance with their consciences. The Jewish community must organize now in defense of free speech and religious liberty, both to secure its own interests and for the sake of our broader society.
The case in question involves pregnancy crisis centers that provide mothers with financial, emotional, and sometimes medical support so that they can choose life over abortion. Naturally, these institutions tend to harbor moral or religious objections to abortion and therefore generally do not discuss or post signs to advertise it as a viable alternative. You might think that this choice is protected under the First Amendment’s guarantee of free speech, but cities and states have recently tried to compel pregnancy centers to promote the availability of abortion. The Fourth Circuit Court of Appeals struck down such a regulation on free speech protection grounds, but the situation was very different in the Ninth Circuit Court of Appeals.
The Ninth Circuit recently upheld a California law that requires pregnancy crisis centers to advertise state-funded abortions — when their very raison d’etre is to promote other alternatives. The law further requires that the advertisement be made in 13 languages, needs to be in the largest font of any material disseminated by the center, and must be made available at the beginning of the organization’s dealings with the client. This draconian requirement, passed by a legislature with a pro-abortion agenda, effectively undermines the ability of pregnancy crisis centers such as the National Institute of Family and Life Advocates — which has over 100 centers in California — to effectively and independently offer their own advice to women as they see fit, and without violating their consciences.
NIFLA is currently appealing to the Supreme Court. The outcome of the case will determine how easily government mandates can require organizations to promote the opposite mission for which they were formed — or risk shutting down entirely.
For centuries, American Jews have established institutions that allowed them to function as a small community within a larger American community. These included synagogues, schools, cemeteries, burial societies, libraries, lodges, social service organizations, charities, community centers, and even hospitals. Sometimes these were created by choice, other times as responses to discrimination. Undeniably, American Jews have been able to fully participate in civil society without compromising our Jewish identity. But without the ability to express its Jewish identity in Jewish institutions — including engaging in practices conforming to our religion and morality — our community will be greatly hindered.
Despite the decline of many Jewish institutions over the years — a phenomenon largely due to the acceptance of Jews into all facets of American society — the ability to operate Jewish values-driven organizations remains as vital as ever to Jewish continuity. Orthodoxy, the only growing denomination in America, is dependent upon communal institutions that send the message that it is possible to offer a full range of services in America without any compromise of passionate devotion to Judaism.
To this end, Orthodox Jews have a particular need for protection — the same protection that NIFLA is asking for in its lawsuit: the freedom to promote a message without being forced to comply with a governmentally favored alternative. When a government forces a Jewish service provider to promote something that runs counter to its goals, organizational morale is undermined, and the mandate helps foster the false impression that it is not possible to be fully American and fully Jewish at the same time. Moreover, imposing these requirements is just plain wrong. No one should be forced to sacrifice their free speech rights for the sake of a majority opinion.
Let’s consider a few examples of how governmentally compelled speech could affect other Jewish organizations. Many Orthodox communities run rapid-response ambulance services, usually under the name Hatzolah, which often have an unparalleled response time by relying upon volunteers embedded throughout the community. Assuming they are effective, would it be appropriate for a government to force Hatzolah to advertise another EMS system as an alternative? Should private rabbinical courts be required to advertise civil courts? Should Jewish rehabilitation centers or hospice programs be required to advertise secular alternatives? Finally, what about In Shifra’s Arms, a Jewish organization that provides support for women with unplanned pregnancies?
Orthodox Jews are particularly vulnerable to majority messages because they exist as an independent community that is in many ways separate from the rest of American society. To thrive, they must be free to cultivate their differences. While the cultural trend disfavoring traditionalist religion may be against Christian groups right now, there is nothing preventing it from turning against Jewish issues like circumcision and kosher slaughter. Indeed, the latter is already banned in several European countries, and has been legally challenged multiple times in the United States.
Orthodox Jews have begun to realize this vulnerability. The Orthodox Union, Agudath Israel of America, the Rabbinical Council of America, the National Jewish Commission on Law and Public Affairs, the Rabbinical Alliance of America, and the Coalition for Jewish Values have all taken stances in a variety of religious liberty cases. This effort ought not to be limited to the Orthodox, however. It should involve a broad cross-section of Jews representing our communal interest.
For this reason, I have co-founded Jews for Religious Liberty, a non-denominational Jewish group filing amicus briefs to bolster religious liberty in federal court cases. We have worked with many of these organizations and with Jews of other denominations in this cause. Our latest success involved partnering with the Becket Fund for Religious Liberty in lawsuits that successfully convinced FEMA to change its policy denying houses of worship equal chances to apply for disaster relief money. Yet there is much more to be done, and Jews for Religious Liberty, soon to be incorporated as the Jewish Coalition for Religious Liberty, will seek to spread awareness of these critical issues and build alliances to protect and advance religious liberty throughout the entire Jewish community.
One of the greatest tragedies we face as Americans right now is an apparent partisan division over First Amendment rights. We see it in lower court judicial rulings against free speech and freedom of religion. We see it in divisions between Democratic and Republican lawmakers over what used to be a national consensus behind Religious Freedom Restoration Acts to protect religious liberties.
And perhaps most ominously, we see it in data showing the public’s (and especially college students’ and millennials’) low opinion of free speech. We are witnessing the tragic weakening of the spirit of classical liberalism that we have taken for granted in this country for some time. As a community that has so benefited from the protection of religious liberty, Jews have a particularly important role to play in supporting a revival of the spirit of freedom that makes this country so great. It’s time to take up that mantle.