Open the Kotel and Close the Nunnery: On Religious Liberty and Hypocrisy

For some time, liberal American Jewish leaders have condemned Israel’s government for refusing to devote sufficient resources to an egalitarian prayer site at the Western Wall (Kotel). In doing so, however, some of these leaders have acted in a hypocritical and shortsighted manner, taking a maximalist position on religious liberty abroad and a minimalist position at home. Indeed, we could describe their behavior as worse than hypocritical. For while they have demanded that the government of Israel build a public prayer space suited to their own religious sensibilities, here in America they have opposed the individual rights of Catholic nuns to practice their own faith without government compulsion. This contradictory conduct begs the question: do American Jews support religious liberty unreservedly, or are we merely looking out for our own interests?

As a reservist military chaplain, one of my roles for over a decade has been to provide for the free exercise of religion by all military personnel. Countless Jewish chaplains carry out this mission, whether in the military, hospitals, prisons or other institutions. In fact, one of the hallmarks of a good chaplain is that he takes the free exercise of religion so seriously that he works equally hard to help members of other faiths as he works for his own coreligionists. And while not all Americans are obligated to provide for others in the way that a chaplain is, we should all fight for the right of others to freely practice their religion. Jews, more than most, should certainly understand the importance of this freedom and of peaceful coexistence.

In the case of the Kotel, liberal Jewish groups have argued that the State of Israel, a country with an established and government-supported religion, must accommodate a minority: egalitarian worshippers who wish to conduct communal egalitarian services at the Kotel. Whatever one’s views on this issue, this is a coherent argument. In Israel, the state both protects individuals’ free exercise of religion and regulates the practice of religion in those religious facilities which are public (as opposed to private) – whether they are synagogues, ritual baths, or the Kotel plaza. Therefore, the argument goes, the state ought to accommodate all worshippers who wish to worship in these public places, providing them with the opportunity to pray as they please. This is complicated in Israel, since it involves the government investing resources, as opposed to merely allowing individuals their free exercise rights. The Israeli government’s compromise regarding the Kotel, for instance, involved spending money and dealing with archeological problems in order to expand the current egalitarian space on the southern end of the Kotel. This is, therefore, a political decision, and not a simple one of individual rights. But the liberal argument is still quite logical here.

The same cannot be said, however, for what the Union for Reform Judaism, the Central Conference of American Rabbis, the American Jewish Committee, and the Jewish Council for Public Affairs argued in a “friend of the court” brief to the US Supreme Court just last year. The case in question was called Little Sisters of the Poor v. Burwell, and it involved the Federal government requiring a charity run by Catholic nuns to violate its fundamental religious beliefs by helping the government provide employees with contraception, abortifacients, and sterilizations.

The very first brief filed in this case was submitted by a group of Orthodox Jewish rabbis, of which I was one. Other Orthodox Jewish groups soon lined up behind the nuns as well. The Conservative movement did not submit a brief in the case. The URJ, CCAR, AJC and JCPA, however, went so far as to tell the Court that Catholic nuns have no right to determine when their own religious beliefs are being substantially burdened by government action. Only a judge, they claimed, can make this determination. It is not clear to me how these Jewish groups are being any more generous to the nuns than Israel’s government, influenced by Haredim, was to the Women of the Wall when it told them that they are not substantially burdened by being unable to publicly gather for prayer at the Kotel in the way that they please. In one case, they argued, Catholic nuns effectively had no private freedom of religion in the face of government demands. In the other, they argued that Israeli government demands must not only make way for egalitarian prayer groups, but must fund and provide for them in a governmental prayer area as well.

If liberal Jewish organizations cannot find it in their hearts to protect religious liberty in the US, a country without established religion, then we can only wonder what it is that they are trying to accomplish by trying so hard to promote religious access at government-run places in Israel, a country with an established religion. Espousing both of these views at once is incoherent in the extreme.

Unfortunately, the URJ, CCAR, AJC and JCPA have not displayed any signs of changing their views on religious liberty right here in America. Indeed, the Anti-Defamation League took a similar position, supporting a Colorado government effort to force a Christian bakery to make a customized wedding cake with a message that it did not agree with. This constitutes not merely a violation of freedom of religion, but a violation of freedom of speech.

But it is not too late. The Supreme Court recently decided to grant an appeal for the above-mentioned case in Colorado: Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case marks an opportunity for Jews of all denominations to rally behind the First Amendment, insisting that we will protect freedom of speech and freedom of religion for all, regardless of whether we agree with any particular speech or religion. As American Jews, we have enough to do in our own backyard before delving into Israeli matters. The question is whether this time, unlike in Little Sisters of the Poor, liberal Jewish organizations will support the cause of protecting the most fundamental rights we have as Americans: the rights of private individuals to speak and worship as they wish.