Photographing Same-Sex Weddings and Teaching Evolution in Yeshivas

August 26th, 2013

In Belgium, private orthodox Jewish schools that receive government funding will soon be required to teach  about evolution and human reproduction, even tough teaching these topics goes against their religious beliefs. Private schools that do not receive funding will still be required to test their students on these subjects. Students that fail will be required to enroll in a state-recognized school. In other words, religious schools that do not teach these subjects will be punished, one way or the other.

Earlier this summer, the Flemish government issued decrees that would force both state-funded and private Jewish schools to teach mandatory curricula that include evolutionary biology, human reproduction and other subjects considered taboo by Antwerp’s 18,000 orthodox Jews.

Beginning this year, schools that refuse to comply stand to lose hundreds of thousands of euros in annual subsidies. Even private Jewish schools that don’t receive such public funding will be forced, beginning in September, to test their children on mandatory subjects. Two failures would lead to enrollment in a state-recognized school.

I don’t think I should have to, but let me pause to stress that I think teaching about evolution and reproduction is a good thing. But forcing religious institutions, both those that receive government money, and even worse, those that decline it, to teach those topics is troubling.

The article notes that some Jewish parents would rather send their children abroad to study, rather than learn these topics.

“For us, the new regulations could mean exile,” said Menachem, a Hasidic father of eight from Antwerp. “I will send my children to England. It’s tough, but it’s better than having their minds polluted.”

Sending young children to jewish schools abroad is fairly common in Orthodox circles. Historically, this was done because there were no Jewish schools in the area, or it was not safe for a Jew to learn in the area due to anti-semitism. These recent developments in Belgium–which I’m sure may spread elsewhere in Europe–provide a modern flavor to this history.

Last month, the education ministry in neighboring Holland announced a plan to forbid home tutoring, which is favored by some very devout Christians, Muslims and Jews. In France, where the principle of public secularism reigns, strict legislation limits state subsidies for religious schools and conditions such subsidies on students’ knowledge of core mandatory subjects that is assessed in yearly state exams.

In Britain, religious schools still enjoy a fair degree of autonomy, but even they are facing “increasing demands by authorities to teach things which are not appropriate,” according toRabbi Yehuda Brodie, registrar for the Beth Din, or rabbinical court, of Manchester.

Let’s juxtapose this story with the recent New Mexico Supreme Court decision holding that a photographer cannot refuse to photogram a same-sex union because it goes against her deeply-held religious beliefs. One way to rationalize that decision would be with respect to the common law doctrine of common carriers. Inn-keepers and other common carriers could not discriminate against customers on the basis of race. (This was not raised in the Hearts of Atlanta case, as the arguments focused on the Civil Rights Act, but this could have been an alternate argument). So, the argument would go, if you are engaging in business such as photography, you cannot discriminate against who you photograph. No more could a photographer decline to photograph a wedding of an African-America couple. (As a practical matter, I can’t imagine the couple would hire someone morally opposed to their union to photograph it. She may have to photograph it, but she would not have to do a good job. This was clearly a test case.)

I see a striking similarity between the issue in Belgium, and the issue in New Mexico. In both cases, private parties are being forced to do something that conflicts with their deeply held beliefs. The countervailing interests are also strong. Education is a public good, and the state has an interest in ensuring that students are educated (how far that interest goes, I will not address here). Anti-discrimination laws are also a public good, and the state has an interest in ensuring that people are not discriminated against.

I don’t think the New Mexico case is as much about gay rights, as it is about free exercise, and Employment Division v. Smith. This is another incarnation of the debate over the contraceptive mandate. As Gerard noted at Balkinization:

I see this as an excellent opportunity for the U.S. Supreme Court to revisit its holding in Employment Division v. Smith, which I believe was wrongly decided.  The New Mexico Supreme Court relied on Smith in rejecting the photographers free exercise claim.  The state anti-discrimination statute, the Court concluded, was a neutral law of general applicability.  As a result, that law did not violate the Free Exercise Clause under Justice Scalia’s analysis inSmith.  Now people can quibble with this reasoning.  The photographers contended that the state law was neither neutral nor generally applicable and that the case fell under the “hybrid rights” exception in Smith.  If these objections and the free speech claim are deemed meritless on appeal, however, then the Court could reach the issue of Smith and stare decisis.

In the comment thread of a previous post, Jacob Berlove framed the issue in an interesting way:

Without these protections, sincere believers are forced between a rock and a hard place, having to either run the risk of terrible consequences from a heavenly ruler, or face potentially life-ruining consequences from the government for obeying a more supreme ruler

I have no doubt that at some point, these developments in Belgium will come to the United States. Churches that refuse to admit same-sex couples, or even who refuse to officiate same-sex weddings, can stand to lose tax-exempt status, federal or state funding, or a host of other benefits afforded by the government. Or, members of the clergy who refuse to perform these ceremonies will not be able to be recognized by the state as officiants for any marriage. Good luck finding an orthodox rabbi or catholic priest to legally marry a couple in a state with such laws. Like those in Belgium, the clergy will be forced to just opt out. (Again, as a practical matter, I find it difficult to understand why a same-sex couple would ask a Priest who opposes gay marriage to officiate as their ceremony. This seems likely only for purposes of a test case, which is unfortunate).

As a libertarian, I don’t think churches should receive any of these things anyway. As a civic republican, and someone who patronizes religious charities, I still think these houses of worship contribute an important moral fiber of the American culture (even if I disagree with certain aspects of their doctrine), warranting certain governmental entitlements.

I am loathe to think of what will happen to organized religion if the state crosses this line, and begins to mandate speech and action that affects religious doctrine, albeit indirectly.

Although, Orthodox Jews in New York City, who have become an important voting bloc, have been able to extract many concessions from the government:

On another front, Hasidic matzo bakeries, citing ancient Jewish law, have insisted on using water from groundwater wells rather than from reservoirs in preparing the dough used for matzos and have found themselves tangling with health officials worried about the water’s purity.

And on a public bus service that plies a route between the Hasidic neighborhoods of Williamsburg and Borough Park, Brooklyn, men sit up front and women in the back, hewing to the practice of avoiding casual mingling of the sexes, even after Mayor Michael R. Bloomberg condemned the arrangement.

While these episodes may not have reverberated beyond New York’s Hasidic enclaves, taken together they underscore a religious ascendancy confronting the city’s secular authorities in ways not seen in decades.

The remarkable rise in the population and the influence of Hasidim and other ultra-Orthodox Jews has provoked repeated conflicts over revered practices, forcing the city into a balancing act between not treading over constitutional lines by appearing to favor a particular religious group and providing an accommodation no more injurious than suspending parking rules for religious holidays.

A politically astute new generation of ultra-Orthodox leaders has become savvy at navigating the halls of government, while the grand rabbis of Hasidic sects wield electoral power like few religious leaders can, turning followers into cohesive voting blocs. “No one can deliver votes like a rebbe can,” said Samuel Heilman, a professor of sociology at the City University of New York, who has written extensively about ultra-Orthodox Jews.

So maybe the answer is political. In states that have strong support of religious liberty, these laws will not prevail. In other states, believers will be stuck between a rock and a hard place.