SCOTUS ‘Religious Freedom’ Ruling: Supremely Irresponsible, Immoral and Profoundly unJewish

We Jews already made a crucial decision about what religious freedom really means some 2,000 years ago. And it isn’t about defying COVID, shirking social solidarity and sanctifying death

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U.S. Supreme Court: We Jews already made a crucial decision about what religious freedom really means some 2,000 years ago. And it isn’t about defying science and sanctifying death
U.S. Supreme Court: We Jews already made a crucial decision about what religious freedom really means some 2,000 years ago. And it isn’t about defying science and sanctifying deathCredit: J. Scott Applewhite / AP
Rabbi Daniel Lande
Daniel Landes

Agudath Israel of America, the ultra-Orthodox representative organization, along with the Brooklyn Roman Catholic Archdiocese, have achieved a supreme victory from the U.S. Court of the same name: A victory for scientific illiteracy. 

The damage that absolute victory will cause for the ultra-Orthodox community in America is comprehensive: it has the trajectory to deliver severe harm in the short term, social mischief in the longer term, and above all, a repudiation of a core Jewish value, in its ultimate sense. 

The Supremes have eliminated governmental restrictions on the number of people who can attend prayer services, enacted in response to a spiraling and lethal COVID pandemic, for being a deathly infringement on the freedom of religion

The Court, composed of justices raised as Catholics or Jews, has given its imprimatur to illness and death for God’s greater glory. They have allowed majestic cathedrals to manifest the divine presence with fuller attendance and fuller contagion; it has enabled the shtiebels and shuls to squeeze their heimische attendants into their infectious closed spaces. A decision made with no regard to well-proven, and thus tragically predictable, results. 

Associate Justice Gorsuch can’t understand how city and state officials allow liquor stores to be open, while effectively closing houses of worship, which he posits as having a special right to be open. That is a good sounding equation.

Except people spend a few minutes buying their beers and spirits, while Catholics (for a speedy 50 minute mass) and Orthodox Jews (davening for two hours, not counting kiddush) marinate in their respective Holy Spirits, but laced with COVID. Every priest and rabbi knows that at least one congregant is bound to come to pray bearing the dreaded virus.

Orthodox spokespersons claim that they will enforce some form of safe behavior consistent with CDC guidelines. Don’t believe that scam. They have never, and they never will. 

Haredi Orthodoxy evidently has accepted the fact that it will have losses. They have chosen to prioritize the public and group celebration of prayer, study, and life cycle events over individual lives: they feel that without these mass manifestations of identity they will (or actually are) losing their adherents. If adherence to traditional Judaism as they practice it is endangered, they must all sacrifice, or at least risk, their embodied lives for the continuity of the holy collective, and their own immortal souls.

The SCOTUS decision not only gives them a license to do all this, it also strongly encourages them to do so – and to even extend their "right of religion" to other realms. 

The SCOTUS decision effectively endorses the extension of 'religious freedom' to other realms, such as enshrining anti-LGBTQ prejudiceCredit: Manuel Balce Ceneta/AP

We shall see movement to remove basic legal educational requirements for young people in insular religious communities, requirements which have, in practice, already been eliminated in many communities; exemptions for early marriage will increase, LGBTQ prejudice will be enshrined, as religious bakers won’t have to prepare cakes for the weddings they detest so much. And what will be adjudicated about abortion could be too terrifying to even anticipate. Their identification with right-wing politics will certainly increase. 

For Orthodox groups who sanctify narrow traditionalism, it’s a package they’re more than happy to endorse: their insularity and unaccountability has now been newly baptized as "religious freedom." Indeed, the SCOTUS decision will be understood in the Haredi world as a yeshua (act of divine salvation).

Even better, the Supremes have "confirmed" the wisdom of the Haredi world’s rabbinical authorities. They have always urged "No" on all real cooperation with governmental authority. Here the stances of Haredim in the U.S. and Israel merge: Best to be obdurate, always quiet –although a quasi-riot at times can be helpful – and promise full cooperation in some intangible future. Do not publicize those who have died from COVID.

And as much as this is all deathly problematic in the immediate here and now, and bodes ill for the long-term, it is also, profoundly, a gross misinterpretation and corruption of Judaism. 

We Jews already made a crucial decision on the issue of what religious freedom really means some 2,000 years ago. 

During the persecution of the Jews ordered by the Emperor Hadrian, the Jewish Supreme Court of the time, sitting in the attic of the house of a man named Nitzah in Lod, voted for this dramatic decision, as narrated in the Talmud (Tractate Sanhedrin 71a): "In every other law of the Torah, if a man is commanded: Transgress and suffer not death, he must transgress and not suffer death, excepting idolatry, incest, and murder." 

A NYPD officer speaks with Ultra-Orthodox Jews as they gather in the Borough Park neighborhood of Brooklyn amid the coronavirus disease (COVID-19) outbreak in New York, U.S. October 7, 2020. Credit: YUKI IWAMURA/ REUTERS

Clearly the Sanhedrin, sitting in an attic, was in hiding; prior to this new ruling, the situation was dire. We can imagine that people were faced with a choice: either martyring themselves to avoid any transgression of Jewish law, or they were breaking Jewish law to save their lives, but at the cost of their Jewish identities. 

The rabbis, caught in this terrible bind, reached a brilliant and bold decision. They ordered Jews to break Jewish law, putting 610 of the Torah’s 613 commandments on hold, in order to save life. With this, they waited out the end of the bad times. 

But what was the warrant for this decision? In Leviticus, full compliance with the Torah is urged; a section of it concludes: "ve-Chai ba-Hem." (18:5 In context, this means: "Through which you shall live by them [the commandments]." According to the literal meaning, the only conceivable good life is that of mitzvah (commandment) observance, and there is no apparent permission to break the law – even for survival. 

Nonetheless, during those bad times, the rabbi-judges were compelled to radically alter the reading of the verse. They translated those same two Hebrew words as: "However, [you shall] live by them," implying: "and not die by them." 

Preserving life itself now became the prime criterion of Jewish observance, as if a 614th commandment had been discovered. And since then, this idea has been ingrained into the very soul of Judaism. 

The present-day Haredi position, perfectly aligned with the present-day Supreme Court majority, is  to allow for loss of life, to discount it, to deny it.

Ultra-Orthodox Jews gather in the Borough Park neighborhood of Brooklyn to protest against COVID-19 restrictions in New York. October 7, 2020.Credit: YUKI IWAMURA/ REUTERS

There is no concern here for the outcome of one’s actions, and not only for their own families and communities, but also for the greater good for the nation and the world. It is a stunning repudiation of one of the greatest tenets and moral victories of rabbinic Judaism, a moral tradition of which they constantly declare themselves the sole authentic heirs.

Short-term, the SCOTUS verdict means more will get sick, and more will die. Long-term, the precious idea of freedom of religion has been hijacked: it no longer means being responsive to other human needs, but rather as an excuse for running away from making hard decisions. 

For Jews, our faith is directed to the exaltation of, and delight in, life. But another, dystopian and death-embracing model of community is gaining ground, whose defining prayers will be not of thanksgiving or praise, but only the Kaddish.

Rabbi Daniel Landes is founder and director of YASHRUT, building civil discourse through a theology of integrity, justice, and tolerance. YASHRUT includes a semikhah initiative as well as programs for rabbinic leaders

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