Religion in the Public Square, Part II

May 19th: Behar/B’chukkotai

Rabbi David E. Ostrich

As we observed last week, the sensibility of the Bible is that of a covenantal community—one bound to God and communally responsible for maintaining certain behaviors. Last week, we studied two passages where deviance by individuals brought severe punishment. This week’s portion brings us an extended promise of either communal reward or communal punishment.
“If you follow My laws and faithfully observe My commandments, I will grant your rains in their season, so that the earth shall yield its produce and the trees of the field their fruit. Your threshing shall overtake the vintage, and your vintage shall overtake the sowing; you shall eat your fill of bread and dwell securely in your land…But, if you do not obey Me and do not observe all these commandments, if you reject My laws and spurn My rules…I will wreak misery upon you…and I will break your proud glory. I will make your skies like iron and your earth like copper, so that your strength shall be spent to no purpose. Your land shall not yield its produce, nor shall the trees of the land yield their fruit.”  (Leviticus 26.3-20)

Given this need for community-wide obedience—in order to receive community-wide reward and avoid community-wide punishment, it behooved the institutions of society to enforce certain rules and protect everyone from the disobedience of a few. Though certain elements of individuality were certainly allowed, choosing to disagree with the community’s covenant and refusing to comply with its rules were simply not allowable options.

In the modern, secular world, we do not assume this communal covenant. In fact, we spend a great amount of effort figuring out where the community’s rights require individual acquiescence and where individual liberty should prevail. A line drawn in this balancing act is the First Amendment to the U.S. Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The first passage, known as the Establishment Clause, has been at the heart of the gradually developing doctrine of what Thomas Jefferson called “the wall of separation between Church and State.” There are two issues here: (1) avoiding a situation in which the government establishes or supports a religion, and (2) avoiding a situation in which the government interferes with the free practice of a religion.

As with most freedoms and boundaries, exact lines are matters of continuing negotiation: the needs of the group must be compared to the rights of the individual. As with other civil liberties, there has been a gradual trend in America to allow religious individuals exemptions from some governmental regulations. During Prohibition, religious people needing sacramental wine were given exemptions to the law. Religious pacifists were allowed exemptions in from the Draft. Jehovah’s Witnesses are allowed not to participate in the Pledge of Allegiance. Native Americans are allowed to take Peyote Cactus in religious rituals, even though it is otherwise illegal. In some prisons, Orthodox Jews and Muslims are allowed or provided special meals according to their dietary laws. And, Jews and other religious minorities are allowed to miss work or school on religious holy days and not be penalized. In other words, American society has generally been working toward allowing religious groups exemptions from laws that compromise or violate their religious beliefs or practices.

This trend was continued by the Obama Administration in the struggle to pass the Affordable Care Act. The contraceptive medical care mandated by the ACA was of great concern to the Roman Catholic Church and its many institutions—churches, schools, colleges, and hospitals, and the Obama Administration worked out a way to exempt their insurance plans from including something anathema to their beliefs. Then, in the Hobby Lobby decision, the Supreme Court extended this exemption to privately held companies whose owners also have religious objections to contraceptive medical care. The decision rankled many advocates of family planning, but it can be seen as part of a pattern of allowing religious exemptions from governmental policies.

So, when it comes to recent state laws or President Trump’s recent executive order allowing vendors to deny various goods and services to same-sex weddings, it can be seen as another in a long line of governmental exemptions for religious people based on their religious beliefs.

I do not know whether these so-called freedom of religion state statutes or orders will pass constitutional muster, but, if they do, the LGBT community and its many supporters may have to find relief from this discrimination using strategies other than legislation or adjudication. Perhaps our Torah portion’s notion of a holy community may provide some hints.

The spirit of the covenantal community called for a sense of camaraderie and fair play—a sense of mutual purpose and cooperation. If supporters of LGBT rights would see themselves this way—as a covenantal community, then here is a possible scenario. If a local florist in a small Indiana town would refuse to provide flower arrangements for a same-gender wedding, what would happen if supporters of LGBT rights would band together to (1) provide the flower arrangements—put together by volunteers rather than professionals, and (2) let it be known that a big part of the community would no longer be doing business with that uncooperative florist? The flowers would be provided, the community support would be obvious and emotionally powerful, and significant pressure would be brought to bear on that florist. Profit margins make controversial stands by business owners very dangerous, and organizing community pressure for a matter of conscience—giving LGBT individuals the respect due to all human beings—can put major pressure on vendors. In other words, if legal remedies—legislation or law-suits—turn out not to work in this particular struggle, community organizing and developing the conscience of a community—making it clear that LGBT rights are a religious principle—can fight against narrow-mindedness.

There are lots and lots of people who support LGBT rights. Organizing and leveraging this community support can keep us on the right road—the road to dignity and respect for all of God’s children.