It has been a rather long time, I think, since I devoted a blog to a single topic, but this is well worth it.
I am gratified and grateful to welcome a new ally to the “front ranks” of the fight for religious freedom; a somewhat distinctive voice; a voice ironically in better tune with my knowledge of the history of legal development than what I usually hear and read (the irony being that the voice comes from Judaism, not now or ever my own religious tradition). A big, grateful shout-out to Ben Craton for posting this on Facebook, too:
Coming to the fore over issues of personal identity, most saliently in relation to the gay-rights movement, same-sex marriage, and transgender rights, it has resulted in a legal battle in which the radioactive charge of “discrimination,” borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.
Jews are hardly the only group at risk from developments in this area of progressive agitation; up till now, its main targets have been believing Christians. Perhaps for that same reason, Jews have also not been in the front ranks of those raising an alarm. Nevertheless, the threat to them, and to the practice of Judaism, especially by Orthodox Jews, is very real. Unlike in the past, the threat comes not from private initiatives; it comes from government.
The United States could practice this unprecedentedly “enlarged and liberal policy,” as Washington rightly called it, because it featured a very limited national government, one that allowed a large sphere of civil society to flourish outside of government regulation …
Regulation would be the exception; liberty the rule. This same open space left Jews free to be Jews just as Christians were free to be Christians; as between faiths, with a few lingering exceptions in some states, government was indifferent.
This was indeed a “liberal policy” for a liberal society—a society in which, as the philosopher Leo Strauss, echoing the first president, would put it a century and a half later, “there are no longer any legal disabilities put on Jews as Jews.” But, Strauss went on pointedly, such an arrangement “stands or falls by the distinction between the political (or the state) and society, or by the distinction between the public and the private. In the liberal society there is necessarily a private sphere with which the state’s legislation must not interfere.” Therefore, in that private sphere, such an arrangement would allow for discrimination.
One can occasionally still see, usually in an old diner somewhere, the venerable sign “We reserve the right to refuse service to anyone.” The sign is an anachronism; it does not carry either the force of law or the weight of public opinion. But it once did, and more recently than we might think. For most of American history, for better or worse, the common view was that private institutions, companies, clubs, and so forth had the right to choose with whom to associate and not to associate, whom to accept as customers, whom to decline or refuse to serve. There were, to be sure, exceptions: by law, a small class of businesses, most notably railroads and other conveyances, as well as inns and public amusements, had to take all comers. Somewhat more broadly, the same rule applied to monopolies, like the local grain elevator. The class was narrowly defined precisely because the liberty to associate with whom we choose was recognized as essential in a liberal nation that made a hard distinction between the realm of the state and the realm of civil society.
When it came to race, early America did not simply allow individuals to “discriminate” if they chose to do so. On the contrary, the government positively required such discrimination. Both slavery and segregation were creations of law. Throughout the South, government not only segregated public places and activities but also forced private corporations—railroads, restaurants, and other places where Americans gathered—to maintain separate sections for blacks and whites. [N.B. This is a truth I tend to forget. I’m not certain the 60s Civil Rights laws would even have been needed had it not been for Jim Crow laws that forced businesses to behave in a manner that was economically irrational.]
… In principle, the 1964 Civil Rights Act held that people were still generally free to decide with whom to associate, being prohibited from discriminating against only a small list of people in what the Act designated as “protected classes.” As Epstein has observed, the original law exempted some small businesses like the proverbial “Mrs. Murphy’s boarding house.” But it also declared that henceforth almost all businesses, and all charitable institutions, were, in essence, “public accommodations” in the eyes of the law. As such, the federal government had the right to tell every business whom it must serve or, even, hire.
Since 1964, moreover, the list of officially “protected classes” has grown beyond the list (defined, again, by race, color, sex, national origin, and religion) stipulated by the Civil Rights Act to include such markers as age, pregnancy, citizenship, familial status, disability, veteran status, and genetic information. Nowadays, the Justice Department has been creating new “protected classes” on its own recognizance, without even a pretense of seeking congressional approval for so radical a change from the originating statute.
This captures our situation today. A large body of American opinion holds that it is the government’s job to prevent any and all discrimination. [N.B. This opinion is authoritarian progressive dogma, a huge historic departure, unwarranted by anything like Jim Crow] That belief is pushing government more and more deeply into our daily affairs. Along the way, instead of easing social tensions, it has exacerbated them by establishing a permanent legal relationship between growing classes of legally recognized victims and their designated protectors at every level of society. As each generation assimilates the mindset more thoroughly, we begin to see situations like those on today’s campuses, awash in the frantic demand for “safe spaces.” There, Jonathan Haidt has written, “the very presence of administrative bodies” in charge of enforcing non-discrimination “gives rise to intense efforts to identify oneself as a fragile and aggrieved victim.” In such a culture, students “must not obtain redress on their own; they must appeal for help to powerful others.” And so the cycle of dependency on one side, suffocating paternalism on the other, perpetuates itself.
III. Today’s Threats to Religious Liberty
Do any Americans still understand the prohibition of discrimination as an exception, and a carefully hedged one, to the general rule of liberty? …
Today, even as it claims to defend religious liberty, the civil-liberties lobby proclaims a new danger: namely, that “religion is being used [by religious believers] to discriminate against and harm others.” The better to camouflage this piece of verbal jujitsu, the organization has also adopted a definition of religious liberty as a matter of belief only, separate from the realm of conduct or, as the First Amendment explicitly has it, “free exercise.” In similar fashion, the Obama White House has taken to quietly replacing the phrase “freedom of religion” with “freedom of worship,” a purely private affair with no permissible impact on either speech or conduct.
… Already in his 1962 lecture, “Why We Remain Jews,” from which I have been quoting, Leo Strauss warned against efforts to end “discrimination,” period. This enterprise, he predicted, would kill liberalism. “The prohibition against every ‘discrimination,’” he said, “would mean the abolition of the private sphere, the denial of the difference between the state and society, in a word, the destruction of liberal society.” (Sensitive to the newly invidious sense of the term “discrimination,” Strauss insisted on using it only with quotation marks. “I would not use it of my own free will.”) Absent that private sphere, he concluded, Jews would no longer be free to be Jews in America.
(Richard Samuelson, Who’s Afraid of Religious Freedom, Mosaic, August 1, 2016; emphasis added)
This is a very long ready by internet standards, but it is excellent — I would even say “essential” for friends of religious liberty. I heavily annotated and saved it.
Let us begin demolishing Leviathan and returning to Civil Society.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)