The New York State Commissioner of Education recently reminded Jews of their vulnerability to government meddling. In November, she empowered local public school boards to determine whether private schools’ curricula were “substantially equivalent” to those used in public schools. If public school officials determined that a private school failed to meet that standard, the state could shut down the private institution.
Leaders of yeshivas and private Christian schools protested that this created a conflict of interest. Public schools could use the regulations to shut down their own competitors. Writing in the Wall Street Journal, two rabbis acknowledged that “government may have an interest in ensuring that every child receives a sound basic education,” but expressed concern that “the new curriculum demands so much time that it crowds out Torah study, our sacred mission.” The Catholic school system indicated that it would not cooperate with public school administrators. Political pressure has forced the state to backpedal somewhat, but the issue has not been finally resolved.
Our purpose here is to highlight a related and disturbing fact: Jews in New York and New Jersey have no access to the most potent defensive measure available to religious Americans looking to protect their observances from unnecessary governmental interference. This measure, a state-level Religious Freedom Restoration Act (“RFRA”), requires the government to justify any infringement on religious exercise as strictly necessary to further a compelling governmental interest. Jews nationwide should push their states to adopt RFRAs in order to obtain this protection.
A brief history of RFRAs demonstrates why such laws are critically important to Jews.
In a case called Employment Division v. Smith, the Supreme Court held that the First Amendment’s Free Exercise Clause can only invalidate laws that specifically target religious practices, but not laws that apply to everyone and merely incidentally burden religious exercise. Under this ruling, a regulation that imposed specific burdens on yeshivas would be unconstitutional unless it was the only way to achieve a compelling government interest. But a regulation that affected all private schools and merelyincidentally impacted yeshivas would not receive any constitutional scrutiny.
In Smith, Justice Antonin Scalia suggested that if religious groups want exemptions from generally applicable laws, they should obtain accommodations through the political process on a case-by-case basis. Obtaining case-by-case consideration might be manageable for members of majority religions whose practices are well-known, but it is impractical for minority religions. Government entities are not especially likely to accidentally burden majority religious practices, because those practices are well-known and well-understood. Therefore, members of majority religions would not have to seek political accommodations very often.
Government actors are more likely to innocently burden minority religious groups like Jews, whose religious obligations are less well known. Thus, under Justice Scalia’s proposal, members of minority faiths are more likely to find themselves lobbying government agencies for accommodations. Such a requirement is likely to impose significant costs on Jews, and the success of such efforts is uncertain at best. This is borne out by the data; a law review article published in 2017, titled Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, confirmed that “minority religions are significantly overrepresented in religious freedom cases.”
Congress passed RFRA to solve this exact problem. It is certainly possible that New York’s Commissioner of Education did not understand the devastating consequences that her regulation might have on the state’s yeshivas, but that does not make the harm any less painful. RFRA offers a solution by providing blanket exemptions to laws that unnecessarily burden religious exercise–regardless of whether the burden was intentional. If religious adherents can demonstrate that a law substantially burdens their religious exercise, the government must either show that the law is strictly necessary to further a compelling government interest, or it must grant a religious based exemption to the law.
Unfortunately, RFRA’s protections are not available to protect Jews from state or local laws in either New York or New Jersey. The Supreme Court limited RFRA’s application so that it only defends against federal overreach. If a state wants to offer it citizens the same protections that Congress granted in RFRA, it must pass its own state RFRA, which neither state has done.
Where it is available, Jews have used RFRA to protect their religious freedom. For instance, Jewish military personnel often rely on it to obtain kosher meals and Shabbat accommodations. RFRA is taught in military chaplaincy curricula and is a basis upon which chaplains and commanders accommodate servicemembers of all faiths.
RFRA has a sister statute the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). That statute functions in effectively the same manner, but in limited circumstances, it still applies to states. Jews have used RLUIPA to defend their rights to build synagogues and religious schools in the face of restrictive zoning laws. Jewish prisoners have used RLUIPA to obtain kosher food, sacramental wine, and other necessary religious objects.
One way to highlight the importance of RFRA is to explore how vulnerable Jews are in instances where it does not apply.
In 2016, in California, an animal rights group sued to prevent a rabbi from performing the Kapparot ritual before Yom Kippur, a practice in which some Jews have traditionally slaughtered chickens to feed poor families. In this case, the plaintiffs sued under a generally applicable unfair competition law to prevent the rabbi from killing chickens. In its legal briefs, the animal rights group acknowledged that if California had a RFRA law, the rabbi might have a defense. But because California has no such protection, the group claimed that the California need not accommodate religious observances. The group succeeded in dragging out the litigation long enough to prevent the rabbi from performing the ritual that year.
California has seen efforts to prohibit circumcision, and there have been attempts to bring a growing European phenomenon to America – the banning of shechitah. Without state RFRAs, such restrictions would be difficult to challenge. But even if we assume that such laws could never pass in America, we ought to consider our vulnerability in an activity as vital as educating our children–a danger highlighted by the current situation in New York.
While here in New Jersey we are fortunate to live in one of the best states for curricular freedom, this could easily change. As public school curricula continue to change in ways that marginalize traditional Jewish beliefs, private Jewish schools may find themselves pressured to conform to new anti-traditional expectations. Jews in Britain, Ontario, and Alberta have already struggled with this problem, with governments forcing them to teach students the government line on topics from sex education to comparative religion.
With no RFRA in place, the problem may spread beyond mandatory curricula. Yeshiva day schools may find it difficult to maintain an expensive array of services and technologies necessary to meet baseless state requirements. The full panoply of potential conflicts is impossible to predict.
Most importantly, without a state RFRA, the observant Jewish community lacks the most effective tool needed to press for exemptions from such laws. Jews in New Jersey and New York should use their political capital to push for such legislation.
Co-authored by Mitchell Rocklin and Howard Slugh