Liberal Jews and Religious Liberty

77 Pages Posted: 8 Nov 2022 Last revised: 30 Nov 2023

Date Written: November 28, 2023

Abstract

The Supreme Court’s new religious liberty jurisprudence has dramatically expanded the circumstances in which religious objectors can claim exemption from general legislative enactments. Thus far, most of the claimants who’ve taken advantage of these doctrinal innovations have been conservative Christians seeking to avoid liberal policy initiatives (on matters like COVID restrictions, vaccines, or LGBT inclusion). And the rhetoric from legal and political elites regarding religious liberty has generally acceded to the conflation of religiosity with conservatism. Liberal Jews challenge this conflation, as they offer an example of a religious community whose spiritual commitments tend to align with progressive rather than conservative politics.

Nominally, the new religious liberty doctrine should also provide protections to more liberal Jewish denominations who may seek relief from conservative statutory enactments, such as restrictive abortion laws following Dobbs. Assuming that this outcome is undesirable for conservative legal elites, the question becomes how to justify locking liberal Jews out while ensuring conservative Christians remain protected. To this end, jurists may find tempting a modern version of Christian supersessionism—the claimed entitlement of Christians to authoritatively declare who and what truly counts as Jewish. An ascendent form of antisemitism, increasingly mainstream in conservative political circles, insists that authentic Judaism is only that which is compatible with conservative Christian commitments, and so seeks to delegitimize liberal Jews (which is to say, most Jews) as not counting as actual Jews. Where this delegitimization is successful, seemingly blatant exclusion, marginalization, or hatred of (most) Jews can be removed from the ambit of religious liberty or antisemitism, since the targets are not recognized as religious Jews in the first place, and so cannot claim access to the expansive protections given to religious practitioners.

Keywords: First Amendment, religious liberty, free exercise, Jews, Judaism, antisemitism, abortion

Suggested Citation

Schraub, David H., Liberal Jews and Religious Liberty (November 28, 2023). 98 New York University Law Review 1556 (2023), Available at SSRN: https://ssrn.com/abstract=4269319 or http://dx.doi.org/10.2139/ssrn.4269319

David H. Schraub (Contact Author)

Lewis & Clark Law School ( email )

10101 S. Terwilliger Blvd.
Portland, OR 97219
United States

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