My conversation with Professor Avi Helfand and Jewish advocacy of religious liberty

I very much enjoyed my conversation this past week with Professor Avi Helfand, Professor of Law and Vice Dean for Faculty and Research at Pepperdine Caruso School of Law, on the topic of “Religious Liberty after the Agudath Israel Decision:  What Happened and Where are We Headed?”  We discussed two broad topics.  First, we discussed the narrow question of the Supreme Court’s decision in the Agudath Israel of America v. Cuomo case when the Supreme Court struck down Governor Cuomo’s COVID restrictions on houses of worship as being too restrictive and then we discussed the broader question of the importance of advocacy of religious liberty by American Jews.

What I found especially fascinating was Professor Helfand’s analysis on the history and evolution of Jewish advocacy of religious liberty.  In the 1960s and 1970s, the goal of Jewish advocacy in, for example, challenging Sunday closing laws and discrimination against Sabbath observers, was to help protect Jews’ equal rights as American citizens.  We did not wish to give up our religious commitments in order to become full participants from an economic or political perspective in American life.  We still felt like “galut Jews” and we wanted to be afforded full acceptance into American society.

As Jews became more established in American society and felt less like “galut Jews,” in the 1980’s the Jewish community split as to their view of advocacy of religious liberty.  Professor Helfand cited the case of Bob Jones University vs. United States when the court ruled on the legality of stripping this university of its tax-exempt status because of the school’s policy to expel students who engaged in interracial dating.  This policy was based on their fundamentalist Christian beliefs.  This case pitted the value of race discrimination against the value of free exercise of religion.

Some Jewish groups felt very strongly that we must side with the US government against the university because we must protect the rights of minorities.  After all, in the 1960s we Jews fought strongly for our rights as minorities.  Other Jewish groups felt that although the university’s policy was detestable, the Court should side with the university because once you can pull a university’s tax-exempt status based on their religious policy then where do you draw the line and this can threaten religious liberty in the future.

In fact, in the past ten to fifteen years, the Jewish left has advocated for greater minority rights at the expense of religious liberty and the Jewish right has advocated for greater religious liberty rights, but they have actually gone further than that.  They have actually advocated that American law should reflect Jewish practice.  They want to become authors of the American story by proactively using Jewish values to shape legal discussions reflecting societal values, whether the topic is same-gender marriage or the public display of religious symbols.

I am a big proponent of this proactive approach of sharing our story and values with the rest of American society.  Rabbi Jonathan Sacks once wrote:

“Abraham, at the end of his life, having all that time living apart from his environment, nonetheless had a level of influence such that his neighbors turn to him and say — we recognize the Prince of God in our midst. It was the very same challenge that Moses faced at the end of his life. He said to the Israelites, don’t think this Torah that I am giving you is for you alone, it isn’t — this is your wisdom and understanding in the eyes of the nation — because when they hear and see this way of life, this Jewish way of life, they will say what a wise, understanding people is this great nation. Or, in the simplest and most lucid of all formulations found in the aleinu prayer, it is the promise and the challenge l’takayn olam b’malchut Sha-dai – to perfect the world under the sovereignty of God. It is the last task of Jewish history, and it is the hardest task. It is perhaps the most paradoxical task that we are the people who live apart and are not reckoned among the nations and should nonetheless be the people of whom it is said ‘the nations will see that you are the people of God.’ In other words, by transforming ourselves into a people we transform the world.”

We are in “galut” in America, but we should not feel as “galut Jews” insofar as our mission is to transform the world.  In order for us to shape the world, though, we cannot fall prey to “Whataboutism.”  We cannot shirk from our responsibility to share our message even if members of our group do not act in a principled manner, in a manner that brings glory to our people and to our mission.

In practice, I believe that there are both right-wing causes (e.g., religious liberty) and left-wing causes (e.g., anti-racial discrimination) that have strong support from Torah sources and values.  However, when we advocate for right-wing causes, like, for example, fighting against Governor Cuomo’s overly broad COVID restrictions against houses of worship, someone can respond, “What about all of those religious Jews who irresponsibly don’t practice social distancing and masking, thereby flouting medical recommendations and state laws?”  Our response must be that we reject these individuals, but we stand true to our principles because our uniquely Jewish story has a message to share with the American people about religious liberty.  Additionally, when we advocate for left-wing causes like, for example, fighting racial discrimination, someone can respond, “Why are we aligning ourselves with non-orthodox Jewish denominations in this fight?  What about the fact that they view their Judaism merely as a source for social values and nothing more?”  Our response must be that we have a unique message to share that is neither politically left nor right, but it is authentically grounded in Torah values.

I very much enjoyed my conversation with Professor Helfand and I hope that we as Jews take on the challenge to become upstanders and not bystanders in helping shape the values of American society while rejecting any “whataboutism” challenge to this sacred mission.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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