Jews and the Culture Wars: Consensus and Dissensus in Jewish Religious Liberty Advocacy

Abstract

In the recent culture wars, traditionalists and progressives have clashed over dueling conceptions of family, sexuality and religion—manifested in debates over abortion, contraception, and same-sex marriage. Caught in this conflict has been a political and cultural reassessment of religious liberty; a doctrine originally seen as necessary to protect faith commitments from majoritarian persecution, the public salience of religious liberty has waned as it has clashed with the rights of women and LGBT people. And these evolving commitments to dueling rights have triggered religious, political and ideological realignments, generating new alliances across political and faith communities.

In this new environment, both popular and academic press have turned to the place of the American Jewish community within these culture wars over religious liberty. Given its status as one of America’s prototypical religious minorities—historically committed to both religious and minority rights—both sides of the culture wars have sought to claim the Jews as their own, and to paint those who disagree as distorting the true commitments of the American Jewish community on religious liberty. And yet, the history of Jewish advocacy around religious liberty presents a far more complicated picture. This Article aims to paint that picture by examining amicus curiae (“friend of the court”) briefs filed by Jewish institutions before the Supreme Court in religious liberty cases. In so doing, it tells a very different story: one of community consensus that has historically aligned with traditionalists on questions of religious liberty; but one that has now—with the onset of the culture wars—become far more divided over the core commitments of religious accommodation. In turn, this new dissensus over religious liberty has opened the possibility of a new Jewish approach to religious liberty—one that is far more uncertain and multifaceted.

Keywords: Religious liberty, culture wars, American Jews, free exercise, Establishment Clause, anti-discrimination law, public accommodations law, Religious Freedom Restoration Act, RFRA, amicus curiae, amicus briefs