Does Religious Liberty Apply to Jewish Americans?

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Brian Lehrer: Brian Lehrer on WNYC. Now the religious liberty case for abortion rights and a new church and state ruling that came down from the Supreme Court this morning, a progressive synagogue. This is the religious liberty argument congregation [unintelligible 00:00:26] in Palm Beach County Florida has filed a complaint against the State of Florida. In Jewish law, the suit holds, people are allowed to seek abortions and government bans clash with their beliefs.

The complaint filed asked for a religious exemption from such restrictions. The decision this morning, of course, after the decisions last week with major implications for healthcare reproductive rights and the separation of church and state among other rights and issues, the Supreme Court this morning sided with a high school football coach who had been barred by his public school district from praying on the field after games

. The opinion delivered by Neil Gorsuch says, "The Bremerton Washington School District violated coach Joseph Kennedy's rights to free speech and free exercise of religion by forbidding him to pray on the 50-yard line." It was a six to three ruling with three usual liberal judges dissenting. We'll get into both things now with Micah Schwartzman, Professor and the director of the Karsh Center for Law and Democracy at the University of Virginia School of Law. Thanks for joining us this Monday morning, professor Schwartzman. Welcome to WNYC.

Micah Schwartzman: Thanks so much for having me

Brian: Listeners, your questions or comments on either of these two cases, welcome at 212-433-WNYC. That's on the religious liberty case for abortion rights and also this football coach praying on the 50-yard line while employed by the public school district at the end of every game. 212-433-9692 or tweet @BrianLehrer. Tell us more about Kennedy versus Bremerton school district. What was the case and how did they rule?

Micah: The case was about a football coach in Bremerton Washington, who was fired from his job because he refused to follow the school district's policy which forbids school officials from engaging in public prayer and encouraging their students to participate in it. The facts are complicated and the conservative majority of the Supreme Court disagrees with the dissenters on how to describe them. The majority describes the coach as engaging in private prayer praying basically for himself not encouraging students. The dissenters say what he was doing was engaging in school-led public prayer on the 50-yard line during football games.

They've got a factual disagreement, but more importantly, there's a legal one here. The conservative majority in the Supreme Court wants to allow more room for prayer in schools.

Brian: There are two cases about separation of church and state as it pertains to schools in the last week. Last week, the court struck down the state of Maine's ban on tuition assistance for religious schools. Taking these two together, what about religion and public schools is different today than it was a week and a half ago?

Micah: I think there was a lot different. The main case involves tuition assistance from the state to the parents of children who live in school districts that don't have public schools in them. You've got rural jurisdictions or school districts that Maine isn't offering a public option. What the court said there is that the state is required to fund religious schools to the extent that it's providing tuition assistance for private schools that are not religious or that are non-sectarian.

It also has to provide funding for parents who want to send their kids to religious schools that are sectarian. That's just a sea change in the law that's happened over the last decade or so. Now, it's not just that states are permitted to fund religious schools, they have to do it if they're providing funding for any private schools. The long and short of this in conjunction with the decision from this morning is that we're going to see a lot more public support for religion, both in private schools and in public schools.

Brian: By way of context, a little bit of context from the New York Times today as recently as the year 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendment's prohibition of government establishment of religion. The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. Justice John Paul Stevens wrote for the majority in the year 2000 says the New York Times. That's an example of how much things have changed if the coach of the team can take a knee at the end of the game and pray, take a knee for a very different reason.

Then Colin Kaepernick took a knee once upon a time at football games. All right, now to the synagogue in Palm Beach County and its lawsuit against the State of Florida having to do with abortion rights, according to the complaint petition, the synagogue noted, "In Jewish law, abortion is required if necessary to protect the health, mental, or physical wellbeing of the woman, or for many other reasons not permitted under the act." That's a new law in the State of Florida, I presume. Tell us how the State of Florida is now restricting abortions and what their defense to that religious liberty case might be.

Micah: Right after the fall of Roe v. Wade which the Supreme Court overruled last week in Dobbs, many states including Florida are enacting quite stringent abortion prohibitions. This congregation is saying to the extent that these prohibitions conflict with Jewish law and Jewish understandings of abortion, there ought to be religious exemptions from those prohibitions. The Supreme Court has been very solicitous of religious exemptions in other context, it said, "If there are any secular exceptions to a law that burdens religion, the state has to grant religious exceptions as well."

This lawsuit is an attempt to test that commitment on the part of the Supreme Court. If you're going to grant religious exemptions, hobby lobby when it comes to paying for contraception or to religious organizations, churches, and the context of COVID regulations, then you ought to seriously consider granting religious exemptions in the abortion context too. That's what this suit is about.

Brian: We have some clergy people calling in. Let me take a couple of calls. Here's Matt, says he's a rabbi in Brooklyn. Matt, you're on WNYC. Hello.

Matt: Oh, hi, thanks. Yes, actually, I just called in to say the part too that earlier, Brian, in the way that you described it, you didn't mention that it's particularly about a requirement. Just the overall idea that this court wants to protect people's ability to practice their religion is obviously can't really be taken seriously when Judaism requires, not just permits but requires us to do this in certain situations that they're now prohibiting.

Brian: Explain that idea of requirement because that may strike people as not pro-choice, either if there's a requirement and if the language in the lawsuit is the same that you use that it's required in Jewish law if necessary to protect the health, mental, or physical wellbeing of the woman. Those are very broad categories.

Matt: Sure. Obviously, every rabbi is going to have a bit of a different take on when it meets that level. Yes, the overall idea that Judaism isn't exactly a keep your laws off of my body religion. We do have rules that relate to people's bodies and we do make requirements about it, traditionally speaking. The synagogue, I believe, is a reform synagogue. I'm not a reform rabbi, so I don't want to speak with too much authority about their movement, but yes, it's required. The life of a woman or of the person carrying the fetus is the life of a person and a fetus is not regarded in [crosstalk].

Brian: Secondary for that. Matt, thank you very much. Let me go right onto [unintelligible 00:09:21] Carpenter. She says she is in Manhattan, you're on or is it Carpen? Sorry. Did I make up a last syllable to your name, [unintelligible 00:09:32]? You're on WNYC.

Carpen: Yes. You did but that's okay. Thanks for taking my call. I just wanted to say from point of view of Christianity that there's not a single way of looking at abortion from point of view of the Christian movement. I and most of my clergy friends would be very supportive of a woman's right to choose. My wife and I have contacted planned parenthood and from a place of compassion, offered space in our parsonage church-owned housing for women who would need to come for abortion cure. I just wanted to offer that perspective.

Brian: [unintelligible 00:10:10] Carpen, thank you very much for chiming in. Professor Schwartzman, for you, as a law professor, this all suggests a larger religious liberty which is First Amendment argument to protect abortion rights that what a state would in effect be doing, if it bans abortion, is establishing one religion over the others which you're not supposed to be able to do. Do we have professor Schwartzman? Did we lose him? All right.

Micah: Can you hear me?

Brian: All right. Now we have you.

Micah: I'm sorry. I think there are two different arguments here. One is about whether an abortion law can be justified on secular grounds without requiring the state to make religious commitments. Some people think that these abortion prohibitions are really justified on the basis of religion, especially a conservative Christianity, and they form a establishment of religion and imposition of that religious view on everyone else.

That's one set of arguments under the establishment clause. The second set of arguments is, look, even if these rules are secular in their justification or their motivation, there's still a question about whether the state has to grant an exemption for people who have religious disagreements with those laws. The Florida congregation is pursuing, I think, for the most part, that second argument about exemptions: do state officials have to grant exemptions to these restrictions in the same way that they've had to grant exemptions in lots of other contexts?

Brian: If you have a moral objection to serving in the armed forces, you could get a conscientious objector status during times of a draft. Is it something along those lines?

Micah: Yes. There is a federal law that allows for conscientious objector status for military conscription or for being in the draft. This would be a First Amendment claim. This would be an argument under the constitution under what's called the free exercise clause of the First Amendment which protects religious liberty. The idea would be if I have a religious objection to following these abortion prohibitions and I ought to be able to get an exemption from them. For example, a Jewish woman who is religiously motivated to terminate a pregnancy, there might be lots of reasons for that, would seek an exemption under the First Amendment saying that she has a religious liberty under the constitution not to be subject to those prohibitions. That [crosstalk].

Brian: This could be a very broad loophole, if that's the right word, to the state laws banning most abortions, again, to use the conscientious objector law example from the Vietnam war days, eventually-- correct me if I'm wrong, I think the courts held that you didn't have to be objecting on the grounds of an organized official religion that you belong to. It could have been your private moral objection. If that's the case, if this Palm Beach County synagogue wins this case, wouldn't that give license to any woman in America to say, "I am exempt from my state's abortion restrictions because my personal morality is different"?

Micah: In the late 1960s, the Supreme Court considered a couple of Vietnam draft protest cases in which extended conscientious objector status to people who did not have what the court deemed to be Orthodox religious beliefs that is beliefs in God or in a Divine being, their views were grounded in a broader conception of ethics. The court said that the federal statute, in that case, had to be interpreted or construed quite broadly to cover those objectives even though they didn't have a belief in a Supreme being or at least some of them didn't.

You might think that if the Florida congregation wins, something similar would have to happen, the court would have to take a very broad understanding of the first amendment, but I will just tell you as a prediction, I don't think that the Florida congregation's going to win that suit. I don't expect to see the Supreme Court grant these exceptions and even if they did, I can't imagine that they would expand them in the way that your question is worried about.

Brian: Why do you think the Palm Beach County synagogue is going to lose in the first place?

Micah: I think they're likely to lose not because their claims lack merit. I think they do have some merit under their current doctrine but because I think conservative Supreme Court is not going to recognize religious exemptions from abortion regulations, they're going to say that those regulations are justified by the state's compelling interest in protecting fetal life and that that interest overrides any claim for religious exemption.

Brian: Even way before we get to the Supreme Court, you don't think it's going to win in this first round?

Micah: This case is coming up in state court and I can tell you I don't know enough about the state court in Florida that we'll be reviewing it initially. There are also some procedural questions, in this case, setting aside the merits of the exemption claim, there are lots of procedural issues in cases like this about whether the claimants, the congregation here has standing. I think this case is going to have lots of obstacles but it won't be the only one. There are going to be other cases like this, I expect to see in the next several years, filed along similar lines. This question will be tested in other courts not just in Florida. We'll have a chance to see it worked out.

Brian: Here's a surprising first time caller. My colleague, Elliot Forest, who host a classical music show on our sister station, WQXR, part of the New York public radio family, is calling in about this. Elliot, you're on WNYC. Hello.

Elliot: Hey, Brian. What a pleasure to speak to you. Can you hear me okay?

Brian: I can hear you okay. You're not calling to recommend a symphony or a Sonata or anything, right?

Elliot: No, I'm not. I was passionate about this issue only because I learned about the separation of church and state very early in my life in West Texas when the Catholic church came and taught the Easter story in my fifth-grade class. My mother made sure that never happened again. Then, as I marched in the band in high school in West Texas, they were praying to Jesus during the football games and I asked them to stop and they did. That they could pray on the way to the game or after the game if they wanted, but during the game, at a public school seemed inappropriate to me and my family and we were able to stop it. I don't really understand this new ruling and how it regards to separation of church and state.

Brian: Elliot, thank you so much. In our last 30 seconds, professor, you want to go back to that ruling? It sounds like in Elliott's family's case, they were just being nice. Elliot didn't have to sue them. They were like, "Okay, we get it. If this makes you religiously uncomfortable, we won't do it anymore." What can you say to Elliot in 20, 30 seconds?

Micah: I think when Elliot was growing up, the law was very different and so they might've been that they weren't only being nice but they were also trying to follow law once someone had directed their attention to it. Now, the law has changed. Now, when they're be asked to do what Elliott's family asked, I think there'll be some pushback and the schools, many of them, will invite more religious activity, more ceremony, more prayer that will be divisive and exclusive of religious minority non-believers in those schools, sadly.

Brian: There you have it, more from the Supreme Court this morning on separation of church and state in schools, and a possible separation of church and state avenue for litigation to protect abortion rights. We thank Micah Schwartzman, Professor and Director of the Karsh Center for Law and Democracy at the University of Virginia School of Law. Thank you so much.

 

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