Jews ought to back away from any alliance with Christians when it comes to the contraceptive mandate, argues Yishai Schwartz in Tablet. His main reason: Catholics and Evangelicals and legal advocates like the Becket Fund are undermining religious liberty, not promoting it. “Although the rhetoric of religious freedom is seductive, using the Religious Freedom Restoration Act to strike down the contraceptive mandate would not serve that cause, but discredit it.”
Crucial in his argument is the assumption that paying for something one regards as intrinsically evil, like, say, drugs that ensure the deaths of recently conceived human beings, isn’t “truly critical.” Therefore, Notre Dame, the Green family that owns Hobby Lobby, and others are angling for “special privileges” that ordinary Americans will come to resent, thus eroding support for religious liberty.
The argument relies on a sad historical fact. When unpopular groups deviate from the social consensus, they get slammed by the democratic majority, and the courts rarely give them relief. Although Schwartz doesn’t say so outright, he intimates that lots of powerful groups really want the contraceptive mandate. They’ll certainly resent robust religious exemptions. Human nature being what it is, they’ll be tempted to attack the very idea of religious freedom, as indeed some legal theorists now do.
In effect, Schwartz is advising Jews to avoid being implicated in messy Christian battles with secular elites. Jews are better off “letting sleeping dogs lie,” which means not doing anything that would offend the secular elites and their ideas of what is “truly critical” for religious freedom. I may be mistaken, but I believe this was roughly the line of reasoning among many enlightened German Jews with respect to their more “offensive” brethren in the East.
It’s also naive. The same people who brought us the contraceptive mandate are quite capable of outlawing kosher slaughtering on the ground that it’s cruel and inhumane. What will Schwartz say to me when I shrug. Is kosher meat “truly critical”? It’s certainly not an issue for Christians or secular people. In fact, most Jews themselves don’t buy it! Why should a small group of Orthodox Jews get “special privileges”?
The litigation against the contraceptive mandate isn’t sacrosanct. There are theological, moral, and legal reasons to dissent. But the counsel Schwartz gives, which amounts to a pragmatic claim that it’s better for Jews to kowtow to the secularists who now run the show when none of their particular interests are at stake, is ignoble.
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