More Catholic than the Bishops

When I wrote Liberal Jews and Religious Liberty, my goal was to demonstrate how conservative proponents of expansive religious liberty exemptions would prevent liberal religious claimants from accessing those same protections. For example, I predicted that conservatives would challenge the authenticity of Jewish religious commitments insofar as they were liberal (and thus presumptively non-religious in a universe where true religion = conservative Christianity).

With that in mind, this is a great story about brewing contretemps between the Attorney General of Florida, James Uthmeier, and the Florida Conference of Catholic Bishops over the subject of vaccine mandates in schools. Florida law requires that private schools in the state's voucher program to allow parents to religiously exempt their children from school vaccine mandates. As an expression of their own religious commitments, however, Florida's Catholic schools do not want to permit such an exemption, as part of its pursuit of the "common good" and ensuring that its schools are safe havens for the elderly and children who cannot be vaccinated for medical reasons.

In a fit of extraordinary arrogance, Uthmeier (who is himself Catholic) simply asserted that the bishops had "no legitimate religious reason" for denying vaccine exemptions. When the bishops replied that it was not for a state official to tell the Catholic Church what its religious commitments are, Uthmeier whined that vaccine mandates would represent a "completely new teaching." There were a lot of theological/antisemitic reasons why I felt Jews would be especially vulnerable to this sort of authenticity-policing, but it is striking to see that even the Catholic Church can have the authenticity of its religious views questioned when it speaks in a more liberal voice.

Uthmeier also questioned "whether a private school that doesn’t follow state laws protecting parental rights and deeply held beliefs should still be permitted to participate in state programs and receive state funding." This is, indeed, the million-dollar question that will arise again and again now that the Supreme Court has detonated historical barriers between church and state in allowing (and in many cases compelling) state funding of religious schools (and this very controversy illuminates why government "entanglement" with religion was historically seen as such a threat to religious liberty). 

Of course, the question Uthmeier raises is not intrinsically partisan -- in other cases, the variant will be a religious school that wants to discriminate against LGBTQ kids in defiance of state laws requiring equal treatment. But this situation represents a particularly weak case for denying a religious exemption to the church, since the entire premise of the Florida law is about protecting rights of conscience. It can't hold that out as a paramount interest and then withdraw it for religious claimants who express the "wrong" view.

Nonetheless, resolving these cases will be inherently messy, which leaves a lot of room for bias, which leaves ample opportunity for religious and political favoritism. So my baseline prediction remains that conservative adjudicators will grant the exemptions when it favors conservative beliefs (you can discriminate against the gay kids), and will not when it doesn't (you can't have a vaccine mandate). Either the Supreme Court didn't intend for that sort of religious preferentialism to be the consequence of its new free exercise jurisprudence -- or it did.

On Hostility to Religious Views (for Non-Religious Reasons)

The other day, the Second Circuit in Mid Vermont Christian School v. Saunders ruled in favor of a Christian private school in Vermont which had been suspended from state extracurricular competitions after it refuses to allow its girls basketball team to play against a team with a transgender athlete. The school averred that playing such a game would force it to affirm that transgender girls are girls; the relevant Vermont agency decided this was discriminatory and expelled the school. The court, in turn, concluded that Vermont's actions evinced hostility to the school's religious views and thereby violated the First Amendment.

There are some complex factual issues in this case. But there are aspects of the court's opinion that I think have to be wrong, in terms of how it treats the question of "hostility toward the school’s religious beliefs." To put the matter bluntly: people (and the government) are allowed to have hostility towards a school's (or anybody's) "religious beliefs", and such hostility cannot itself be a First Amendment violation. What they cannot do is have hostility to these beliefs because they're religious, or hostility specifically tied to them being held by a particular religious group. But it cannot be the case that hostility to a given belief, where that hostility has nothing to do with religion and extends to any holder of the belief (religious or not), becomes unconstitutional religious hostility just because this particular holder of the belief believes it for religious reasons.

The court recognized that a "neutral" law or policy of "general applicability" does not become unconstitutional because it happens to impinge upon (even a sincere) religious belief. But it said, following Masterpiece Cakeshop, that a neutral law can still fail if it is not applied "in a manner neutral toward and tolerant of . . . religious beliefs." Fine, as far as it goes. But the way the court identifies what it means to be "intolerant" towards religious beliefs at times verges on suggesting that anytime one defends (as a general, neutral principle) a position that is (in the particular case at hand) antagonistic to a proffered religious belief, one is displaying unconstitutional "hostility" -- and if that's true, then it is functionally impossible for there to be a "neutral" law in the first place.

Let's take some examples. Suppose someone asks for a Kosher meal at a school event to substitute for the planned ham and cheese sandwich. The chef is derisive: "I can understand ethical objections to eating meat or other foods, but I'm not going to cook up a new meal just because your fantasy Sky God says so." That's hostility to religious belief -- the same (basic) belief is viewed disdainfully because it emanates from religion.

Compare a situation where someone explains "at our college, we prohibit interracial dating." You respond and say that is racist and discriminatory. They then say, "it's our religious belief." You respond "I don't care -- it's still racist and discriminatory." At one level, you are of course expressing "hostility toward the school's religious belief." At another level, your hostility has nothing to do with it being a religious belief; it's a hostility you are entirely entitled to hold. The First Amendment simply cannot mean that this sort of "hostility" is constitutionally problematic. If it were, then it would be impossible to defend a neutral and generally applicable rule against racial discrimination in any circumstance where someone wanted to racially discriminate for religious reasons, since the very act of explaining why the rule against racial discrimination is important would be reclassified as anti-religious antagonism.

So in the present case, the critical question ultimately should be whether the state's antagonism towards the anti-trans beliefs of Mid Vermont are due to those beliefs being religious, or whether the state is equally "intolerant" of those beliefs no matter who holds them, with the fact that Mid Vermont happened to be a religious believer being wholly incidental and irrelevant. As alluded to, there is some evidence in this case that points in the former direction (I think it's weak, but Masterpiece Cakeshop made a mountain out of a molehill of weak evidence of religious hostility that other minorities wish they could access). But my main problem with this opinion is that it strongly suggests that the First Amendment problem would be the same even if we were unambiguously in the latter camp.

Consider one of the critical excerpts, from how the Vermont agency explained why it did not find compelling Mid Vermont's complaint that playing with transgender athletes would "endorse" beliefs about gender it wished to reject:

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

The court analyzed that passage thusly:

That statement did not just question Mid Vermont’s religious sincerity. It also attacked the validity of Mid Vermont’s objection. But “[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.” That is because “courts should not inquire into the centrality of a litigant’s religious beliefs.” .... Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong."

This is, I'm sorry to say, deeply confused analysis. The sincerity/validity divide goes to whether or not Mid Vermont's claim is actually a religious one, and it's absolutely correct that the state has no business telling Mid Vermont that its claim is a "wrong" understanding of Christianity. But that's not what the state was doing. The state isn't saying that Mid Vermont's logic is wrong as a religious proposition, it's saying it's wrong as a general proposition. In that circumstance, of course the state is entitled to "impose discipline" because it thinks the objection was wrong. Vermont has a policy, Mid Vermont thinks that policy is wrong, Vermont thinks Mid Vermont's objection doesn't hold water and so continues to apply the policy. That's completely anodyne, and it doesn't change because Mid Vermont's objection stems from its sincere religious beliefs. Under the Court's logic, any time any actor raises any sincere religious objection to any policy, they must win automatically because the act of rejecting the objection would suggest the religious objection was "wrong". Again -- I can't stress this enough -- religious objections can be wrong, so long as the reasons the adjudicating body thinks they're wrong are not themselves based on religion or religious hostility.

One last note: there may be circumstances where a policy is genuinely neutral and generally applicable, and not motivated or applied with religious hostility, but should still contain exceptions for religious objectors. I won't comment on whether this case is one of them. I'll only say that such cases are not, for the most part, religious hostility cases, and the problem in those cases is not one of a lack of neutrality. The outcome of Mid Vermont can, I think, be debated, but the logic of it I think is severely misguided (and, it must be said, I think is primarily traceable to courts giving super-protected status to anti-LGBTQ ideologies in a manner they've very consciously rejected in the racial discrimination context).

The Religious Liberty Commission's Coming Attack on (Non-Orthodox) Jews

Donald Trump has named a set of appointees to his newly formed Religious Liberty Commission. This article does a good job covering much of the "Jewish" angle of the appointees, noting their general Orthodox slant and connections to various right-wing advocacy groups. None of that is surprising, particularly given the sharp split within the Jewish community where the Orthodox minority strongly supports Trump while the non-Orthodox supermajority despises him.

But there was one name that wasn't mentioned in the above story that I think deserves special attention from the American Jewish community: Josh Blackman, a professor at South Texas College of Law, who was appointed to the committee's legal advisory board. And the reason his appointment deserves special mention is simple: Blackman has argued that non-Orthodox Jews -- which is to say, the vast majority of American Jews -- should be categorically barred from making religious liberty claims. A "religious liberty" commission with him guiding the ship is a commission that presents a clear and present danger to the basic standing of American Jews like myself.

Blackman's argument against permitting non-Orthodox Jews access to religious liberty protections is breathtaking in its audacity and sweep. His view is that since only Orthodox Jews consider themselves bound by halacha, they are the only Jews who can ever sincerely claim to ever be "burdened" by impositions on their religious exercise. Non-Orthodox Jews are, in his view, relegated to little more than a cultural grouping or philosophical debate club; we are dismissed as incapable of having legally cognizable religious commitments at all. And when we dare purport otherwise, Blackman suggests, we should be seen essentially as liars -- opportunistically "gerrymandering" their claims to fit the Supreme Court's new free exercise jurisprudence.

Blackman's position represents an extreme version of burgeoning hostility on the political right towards non-Orthodox Jews perceived as politically liberal. It's no accident he was a central figure I highlighted in my "Liberal Jews and Religious Liberty" article as providing the "intellectual" architecture for de jure discrimination against non-Orthodox Jews, In particular, I argued in that article that a key component of the new conservative orientation regarding Jews was a decided belief that non-Orthodox Jews are not really Jews at all. In an ironic recreation of Karl Lueger's infamous "I decide who is a Jew!" declaration; conservatives are now declaring that the Jews they don't like don't count as Jews to begin with. 

Consider Trump's recent claim that Chuck Schumer was "not Jewish anymore" because of his opposition to Trump's MAGA agenda. It wasn't just random flailing. It was part of a pattern of denying that liberal Jews are properly viewed as Jews at all. This denial is critical to metabolizing the dissonance between conservative's imagined identity as warriors against antisemitism and the reality that they loathe the overwhelming majority of American Jews. Where they can successfully deny that most Jews even count as "Jews", this dissonance can be relieved, and their love for "Jews" can coexist with their hatred of actual Jews. 

Blackman is a leading figure seeking to promote a vicious and reactionary form of "religious liberty" where the bulk of the Jewish community are not only not protected, but are in fact among the primary enemies, all while draping itself in the mantle of "fighting antisemitism". It's despicable, and to anyone with a modicum of respect for the Jewish community as it is actually constituted it should be viewed as a form of antisemitism in its own right.

Blackman's appointment thus should be seen as a dramatic escalation of President Trump's war on the Jewish community. If adopted, Blackman's position would exclude the vast majority of American Jews out of the protections of the First Amendment and other religious liberty protections. At the very least, his appointment further underscores the degree to which the Trump administration's rhetorical claims about opposing "antisemitism" are coupled with disdain, even outright hostility, to most American Jews. But if his legal views are accepted, it would officially codify discrimination against non-Orthodox Jews into the body of American law.

This is not a drill. The Jewish community needs to know: if you are Reform, Conservative, Reconstructionist -- if you're a member of any or all but one preferred denomination of Jewish religious practice -- the Trump administration is laying the groundwork to strip you of your Jewishness and treat you as an enemy. Plan accordingly.

Roundup for Reading Days

We've just concluded our semester here at Lewis & Clark -- it's now "reading days" as students prepare for exams. I've already written my exam, so I'm going to use this time to clear some tabs off my browser. It's a roundup!

* * *

My latest article, "Liberal Jews and Religious Liberty," has been published in the N.Y.U. Law Review. It's good -- you should read it!

Standing Together is a joint Jewish-Arab Israeli group with a simple idea: under any future for Israel and Palestine, Jews and Arabs are going to have to live together. So no matter what your plan is for the future of Israel and Palestine, we have to start laying the foundations for mutual co-existence now. In that vein, organizational co-head Sally Abed, a Palestinian feminist socialist, had a message for the way international leftists are talking about current goings-on in Israel and Palestine: "If it's not helping, then shut the fuck up." I already posted a link to this on BlueSky and it basically went viral, but it's worth being memorialized here (and the entire piece is worth reading).

It's not surprising that Arab-Americans are reacting negatively to the Biden administration's policies regarding the Israel/Hamas war, but it may be surprising that more Arab-Americans now identify as Republicans than Democrats. That said, maybe not that surprising -- up through the 1990s, Arab-Americans were a swingy but lean-GOP voting bloc. And that makes sense when you think about it: it's a relatively socially conservative and comparatively affluent community; there's plenty of room for GOP appeal. 9/11 changed things dramatically, and one might think that continued rampant anti-Arab racism and Islamophobia would make the GOP brand toxic today. But between frustration with Democrats' continued pro-Israel stances and a backlash against socially liberal policies, there does seem to be an at least momentary shift back towards the Republican camp. We'll see if it holds through 2024.

I don't speak German so I can't backcheck the cited study, but this post claims that antisemitism is on the rise in Austria's Turkish- and Arabic-speaking communities ... but that rates are actually higher amongst persons who were born in Austria or lived there for some time compared to new immigrant arrivals. So far from validating the "imported antisemitism" narrative, the problem perhaps is that immigrants are assimilating a bit too well into traditional Austrian culture.

A sometimes-overlooked variable in the Israel/Hamas conflict is that most neighboring Arab states are not fans of Hamas either, viewing it as a destabilizing influence. Though Hamas' threat isn't as immediate to them as it is to Israel, it definitely still poses a threat. So there is quiet pressure emerging from Arab nations on Hamas to "disarm before it is destroyed."

Mark Harris is much, much more empathetic towards folks tearing down posters of Israeli hostages than I am, but in some ways that makes this essay -- documenting the sense of abandonment such an act generates amongst the Jews who see it -- even more powerful.

Tom Friedman has a great column from a few weeks ago on the "rescuers" in the Israeli Arab community who helped save their compatriots in the midst of Hamas' 10/7 attack.

I first heard about today's shooting attack in Jerusalem (which killed three civilians) via a social media post which used it to further emphasize the need for a "ceasefire". My first thought was "we're already in a ceasefire"; my second thought was "this demonstrates a problem with a 'ceasefire' -- even if Hamas agrees to it, other armed Palestinian factions won't feel bound." But apparently Hamas actually has claimed responsibility for this attack, so, take from that what you will vis-a-vis the vitality of the ceasefire.

I try not to be an alarmist about campus antisemitism, while simultaneously not being a denialist about its presence. Jews are not perpetually on the verge of mass expulsion, but nor is the entire concept of campus antisemitism a concocted astroturf campaign by bad faith right-wingers. All that said, this account in Rolling Stone (from a current student at Columbia) feels fairly reported and is harrowing.

In the Image of God

A recent study found that Jews are the demographic group most accepting of trans individuals in the United States.

When certain Christians assert a religious freedom right to discriminate against trans individuals -- particularly, a right to misgender them -- their argument typically proceeds something along these lines:

1. They believe every individual is created in the image of God.

2. Part of that image is the person's sex (and by extension, gender).

3. In particular, a person's sex/gender is inalterably assigned by God from conception.

4. They are forbidden from lying or falsifying God's choice.

Therefore, they say, they are religiously obligated to refer to people by their chromosomal sex, regardless of how they identify or publicly present. This religious duty, in turn, is used to press against rules and policies which require respectful treatment of trans individuals (including refraining from deliberately misgendering them, deadnaming them, and so on).

What's interesting about this framework is that a lot of it actually resonates with how I view the relationship of my Jewish faith and trans individuals -- with some crucial alterations. To wit:

1. I believe every individual is create in the image of God.

2.  Part of that image is the person's sex (and by extension, gender).

4. I am forbidden from lying or falsifying God's choice.

The major distinction, of course, comes in prong 3:

3. A person's sex/gender is not necessarily or inalterably assigned by God from conception, but rather can be part of a person's own process of discovering who they are. Where such self-discovery leads to a person to conclude they are trans, non-binary, or any other identity that departs from the sex they were assigned at birth, they are not deviating from God's plan. They are uncovering their authentic self as God has created them.

The result of this process is part of God's image. Those who refuse to accept it are not cleaving to God's image, they are rejecting it.

God's process of creation is not, in my understanding of Judaism, a set-and-forget sort of deal. It is not a matter of passively being puppeteered by a divine hand. It something we do together -- we are partners in creation. To deny the results of that partnership is, for me, a denial of God's plan and practice just as much as it is for adherents of other religious views who adhere to a more static and calcified notion of the role of the divine.

And so for me, and I suspect for many Jews, the religious freedom obligation pushes in the other direction. Many conservative states have, or are considering, laws which require (at least in certain contexts) non-recognition of trans identity. For Jews (and others) who share my religious precepts, these laws would force me to deny -- to bear false witness to -- a key attribute of how God created some of my peers. I do not believe -- and this is a deep, fundamental commitment -- that God's "image" of trans persons was for them to be locked in a body or sex or gender identity that clearly is not authentically theirs. When they find their full self, they are equally finding God's image of themselves.

Consistent with my lengthily expressed feelings on the subject, I suspect that what's good for the goose will not be good for the gander. Despite the clear parallel, liberal Jews who assert religious liberty rights to be exempted from laws seeking to enforce by state mandate a transphobic agenda will not meet with the same success enjoyed by their Christian peers.

Nonetheless, there is value in promoting this sort of framework, and in unashamedly asserting Jewish independence from hegemonic conservative Christian notions of true religiosity. It is not woven into "religion" that God's image requires rejection of trans individuals' full selves. That is a choice, an interpretation of some religions or of some who call themselves religious. Other religions, other religious persons, have a different interpretation of how to respect and dignify the facet of God that is in every one of us.

Lift Every Jewish Voice and Sing

Apropos my earlier post about the prospect of a Jewish florist asked to make an Easter flower arrangement, I found this article about Jewish singers who regularly sing in churches during the Christmas season to be quite interesting.

It seems quite clear that religious majorities and religious minorities have very different understandings about the degree to which they can be expected to encounter and interact with other faith traditions, including messages that contradict their own beliefs. Church singing was, above all, a good job in a profession where regular paydays aren't always easy to come by. The singers accordingly generally viewed church singing as just a job -- even though the hymns they sung would have (understandably) expressly Christian messages, even though they sometimes encountered direct antisemitism there. They draw a clear distinction between singing a rehearsed song versus praying in their own voice.

For what it's worth, I tend to view singers as towards the far end of a spectrum ranging from "jobs expected to serve anyone who comes in the door" to "jobs where the professional has absolute discretion to pick and choose clients." The further you proceed down that spectrum, the more justifiable it is for a professional to refuse to take a job for whatever reason they want -- so I don't feel it would be unreasonable for a Jewish tenor to turn down a church job, even as in practice they typically seem able to maintain the conceptual separation I argue the florist should have. But the nebulousness of the spectrum (where do florists fall? I think somewhere in the middle, but reasonable minds can disagree on that) is part of why the anti-discrimination/free speech issues here are so difficult.

In any event, though, I wanted to flag the piece less because it illustrates any major theoretical point, and more for it says about how many Jews think about these issues in practice. Simply put, we can't afford to be hypersensitive in the way that many Christians -- perhaps for the first time experiencing the barest hints of conflict between their religious precepts and the public arena -- demand the law provide protection for. To borrow from Kimmy Schmidt: "It's so funny what people who aren't minorities think is oppressive!"

Indonesian Parliament Unanimously Passes Texas GOP Platform

Ted Cruz must be so jealous:

Indonesia’s Parliament unanimously voted on Tuesday to ban sex outside of marriage and insulting the president and state institutions.

Once in force, the bans will affect foreign visitors as well as citizens. They’re part of an overhaul of the country’s criminal code that has been in the works for years. The new code also expands an existing blasphemy law and keeps a five-year prison term for deviations from the central tenets of Indonesia’s six recognized religions: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. The code still needs approval from the president, and the government says it will not be fully implemented for several years.

The amended code says sex outside marriage is punishable by a year in jail and cohabitation by six months, but adultery charges must be based on police reports lodged by a spouse, parents or children.

Citizens could also face a 10-year prison term for associating with organizations that follow Marxist-Leninist ideology and a four-year sentence for spreading communism.

Making it illegal to be Communist and Jewish? The Fifth Circuit might have to reconsider its stances on citing foreign law!

Am I Nuts for Thinking a Jewish Florist Should Have To Make an Easter Arrangement?

One thing I tried to impress upon my Con Law students this semester (and every semester) is that the interplay between anti-discrimination law and freedom of speech (and freedom of religion) is complicated and raises a host of thorny questions that defy easy resolution. These issues, of course, lie at the forefront of the 303 Creative case currently before the Supreme Court, which I'm sure will address them with the care, nuance, and sensitivity they deserve [/sarcasm].

But on that matter, I want to flag a hypothetical offered by prominent First Amendment specialist and former federal judge Michael McConnell, to get folks' intuitions on:

What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist.

McConnell frames this as his "personal favorite hypothetical", and clearly perceives it as a knockout argument for the pro-free speech/religious liberty side. But perhaps I'm not fully grasping the facts, because speaking as a Jew this prospect doesn't seem that frightening to me.

Suppose I'm a Jewish florist. A customer comes in and says "I've seen the lovely work you've done with white lilies, could you please make a similar display for me?" I agree, since I have loads of experience working with white lilies. The customer then says, "thanks -- we plan on putting this display up in our church on Easter morning!" This prospect ... doesn't upset me. I don't intuitively think I should be able to refuse the customer, notwithstanding the fact that I obviously don't believe in the divinity of Christ, and I don't view continuing to serve the customer as forcing me to avow any beliefs I don't hold.

At root, the reason why this prospect isn't bothersome is because I don't view my customer's use of my flowers as representing my speech. I just design the flowers; what they do with it is their business. If someone sees the arrangement at church and learns that David's Flowers created it, I do not expect them to think "wow, I had no idea David believed in Christ's divinity!" This isn't to say I have no free speech concerns regarding flower arrangements -- I would very much chafe at government regulations that, for example, regulate what shapes I can use in my designs. That part very much is my expression, would be attributed to me -- the churchgoer who compliments the pattern of the flowers would credit those decisions to David's Flowers (I wrote about this a few years ago as the problem of partially expressive conduct).

There are still plenty of tough cases at the margins. I show my customer a preliminary design; they twist their lip and say "I dunno ... it's just not capturing the majesty of Christ's resurrection, you know?" I'm at a loss ("So ... bigger?"). But I'm inclined to think that while such an example might demonstrate why I might be a bad choice to design the arrangement, it doesn't give me the right to discriminate against the customer if they are in fact thrilled with the work I do and have done for other customers.

For me, then, McConnell's hypothetical has the opposite effect than what he intended. And of course, for many Jews -- particularly Jews who live in predominantly non-Jewish areas -- the more salient threat is that local businesses will be given carte blanche authority to refuse to service any of our religious life cycle events lest it be seen as "approving" of them. To let vendors say "ordinarily, a cake is just a cake -- but a cake served at a Bar Mitzvah has religious significance that we, as Christians, cannot approve of" is not a door I want to open.

But perhaps some of my readers disagree. Curious to hear people's thoughts on this.

The Judeo-Christian's Junior Partner

It's hardly a revelation at this point to observe how the "anti-CRT" style bills have quickly become tools to censor Jewish and Holocaust education. A recent story out of Florida, where a school district cited Florida's "don't say gay" bill to block a parent from giving an educational (but non-theological) presentation to teach students what Channukah is, wouldn't even be especially noteworthy (the district did eventually reverse itself). But there were some details in the story that I thought were illustrative about the location Jews are perceived to occupy in religious pluralism discourse versus the position we actually occupy.

The first thing to note about this district is that it is not some sentinel of secularism. The schools reportedly are replete with "holiday" decorations that are very much tied to Christmas. Nonetheless, when the parent tried to schedule her yearly Channukah presentation, the district demurred on the grounds that if the school allowed such an event, "“they would have to teach Kwanza and Diwali."

To which the Jewish parent replied: "I think that would be awesome!"

What we see here is how "Judeo-Christian" renders Judaism the (very, very) junior partner. Christians won't actually give Jews equal standing with Christians in terms of holiday exposure; as the "junior" they're not entitled to such largesse. But Christians assume nonetheless that Jews remain partners in the desire to maintain "Judeo-Christian" hegemony against upstart interlopers like Hindus or African-Americans. The idea that Jews would not be horrified by, but would in fact welcome, greater inclusion for other minority faiths and creeds -- that Jews actually identify more with other minority faiths and creeds than they do with hegemonic Christianity -- is incomprehensible.

The reality is that this unequal partnership is a creature of the Christian, not Jewish, imagination. Even if "Judeo-Christian" ever actually were a relationship of equals -- and I can scarcely imagine it -- the fact is Jews do not see ourselves as part of this "Judeo-Christian" collective with a shared interest in standing against other minorities. That religious outsiders might be included is for us a feature, not a bug.

Yes, the Attack on Jews for Engaging in a Jewish Ritual at a Jewish Holy Site was Antisemitic

As you might have heard, a few days ago ultra-Orthodox extremists disrupted Bar and Bat Mitzvah ceremonies that were being held at the Western Wall. The rioters called the ceremony attendees "animals" and "Nazis", one desecrated a Siddur by tearing out a page and blowing his nose with it.

In response, Deborah Lipstadt, in her role as Special Envoy for Monitoring and Combatting Antisemitism, tweeted the following:

Deeply disturbed by the troubling actions of a group of extremists last week at the Kotel. Let us make no mistake, had such a hateful incident — such incitement — happened in any other country, there’d be little hesitation in labeling it antisemitism.

Deeply disturbed by the troubling actions of a group of extremists last week at the Kotel. Let us make no mistake, had such a hateful incident — such incitement — happened in any other country, there’d be little hesitation in labeling it antisemitism. https://t.co/t1eUs0Fm3b

— Special Envoy Deborah Lipstadt (@StateSEAS) July 5, 2022

Quite a few critics have pushed back on Lipstadt's tweet, contending that it was wrong to label the incident "antisemitic" (even if it was otherwise risible), presumably because it was a "Jew-on-Jew" incident. These include former Ambassador David Friedman, David Collier, and Ami Magazine. But there are also staunch progressives in the critical camp, such as Abe Silberstein and Joel Swanson. 

Some, in turn, have defended Lipstadt by suggesting that she did not actually call the incident "antisemitism", but rather said it was an incident of a sort that would be labeled antisemitism if it had "happened in any other country." (This somewhat more diplomatic framing, in turn, was seized on by a different set of critics -- including Mitchell Plitnick -- who thought Lipstadt was being too wishy-washy, thus proving once and for all that Lipstadt's position is absolutely unwinnable).

Whether or not Lipstadt's precise framing constitutes her calling this antisemitic, I will not say. But whether she said it or not, I will: yes, this incident was antisemitic, and we shouldn't have trouble saying so.

The argument against calling this attack antisemitic is, simply put, that it was an attack done by Jews. The problem is that, while it is fair to say we should be especially cautious in accusing Jewish actors of antisemitism, very few critics believe that it is impossible-in-concept for a Jew to act in an antisemitic fashion. Collier, for example, strongly believes that the Jews in organizations like "Jewish Voice for Labour" (a group dedicated to dismissing antisemitism allegations against Jeremy Corbyn as "smears") are antisemitic. Others believe similar things about, e.g., Tablet Magazine publishing a conspiratorial screed positing a shadowy cabal of Jewish financiers pushing a trans agenda. So then the question is whether this attack falls into the category -- limited but not null -- of Jews acting in an antisemitic fashion.

The answer, to me, seems a clear "yes". Indeed, I have trouble wrapping my head around the argument to the contrary. It is hard to imagine a cleaner case of antisemitism than violently attacking Jews for engaging in a Jewish religious ritual at a Jewish holy site. I will once again refer to the Nexus definition of antisemitism, because I think we get it right and we particularly get it right here:

Antisemitism consists of anti-Jewish attitudes, actions or systemic conditions. It includes negative beliefs and feelings about Jews, hostile behavior directed against Jews, and conditions that discriminate against Jews and impede their ability to participate as equals in political, religious, cultural, economic, or social life.

The attack on the Bar Mitzvah was a very clear and tangible attempt to "impede [Jews'] ability to participate as equals in ... religious life." It therefore is antisemitic. Full stop. A great virtue of our definition is that it is less concerned with mining people's psyches to determine whether they have the precise mental attitudes towards "Jews" in order to qualify as antisemitic, and instead looks to tangible effects on the equal standing of Jews in concrete spaces. Few can deny that the Jews who were seeking to engage in this sacred ritual were denied that equality by their attackers. And in our frame, it simply does not and should not matter what underlying ideology provided the attackers' particular apologia for their assault.

Lipstadt's critics' attempts to recast what happen as some sort of intra-communal theological debate miss the point. Orthodox, Conservative, and Reform Jews have all sorts of disagreements on matters of Jewish law and practice. Those disagreements, even if passionately stated, are not antisemitic and are not what drives labeling this incident antisemitic. What makes it antisemitic is the very direct and tangible obstruction of these Jews' ability to participate as equal in religious life -- an obstruction that targeted these Jews in their capacity as Jews and in the course of them living as Jews.

Some have sought to frame their problem via the risk of turnabout: what of certain liberal Jews who take a dim view of Haredi or other Orthodox compatriots? I don't find this objection compelling. If the claim is that it is conceptually impossible for a Jew to engage in discourse or practices directed at Orthodox Jews that are antisemitic, I don't believe it. If the claim is that Lipstadt's tweet will set a "precedent" whereby in a future DeSantis administration the bulk of American Jewry is deemed "antisemitic" because it dissents from Orthodox Jewish ideologies, I think it's irrelevant -- what Deborah Lipstadt does or doesn't tweet is utterly epiphenomenal to the inevitable abuse that will pour out of a DeSantis administration.

Better, then, to focus on the specifics of this case, and what happened to these Jews. They were vicious harassed and attacked for the sin of practicing their Judaism in a Jewish holy place. If it were any other country, or any other set of perpetrators, it'd be antisemitic without question. I fail to see compelling evidence that the extremists who attacked Jews at the Western Wall in Israel deserve some sort of special exemption from the general rule. Our concept of antisemitism is capacious enough to include them. And one that couldn't, I'd wager, is one too cramped to do much useful work at all.    

The Ministerial Exception and Neutral Rules after Carson v. Makin

States like to give money to things. They like to fund schools, or recycling campaigns, or building repairs, or sports programs. And sometimes, religious entities are among organizations who conduct the program the state is funding -- they run the school, or the recycling campaign, or the the building, or the sports program. In such scenario, there are constitutionally-speaking three possibilities:

1. The state is prohibited from giving the money to the religious entity. Funding the religious organization is an Establishment Clause violation.
2. The state is required to give the money to the religious entity. Refusing to fund the religious organization, when other comparable organizations are funded, is a Free Exercise violation.
3. The state can choose whether to give the money to the religious entity. There is "play in the joints" between the Free Exercise and Establishment Clause issues, and states can choose how they want to resolve that tension.

Today, in Carson v. Makin, the Supreme Court took a big step towards Door #2. The Court struck down a Maine program which (for certain rural areas lacking public schools) funded private schools, but only if those schools are non-sectarian. If Maine is offering parents funds to send their kids to private schools generally, it cannot withhold those funds if the parents elect to send their children to a religious academy. Religious schools must be eligible for generally-available funding on the same basis as any other "comparable" private school.

In making this ruling, the Court distinguished (and significantly narrowed) an older case, Locke v. Davey, where the Court upheld a program which excluded ministerial training from an otherwise generally available scholarship program. The Carson Court said Locke was limited only to circumstances where the school was specifically training ministers; not "religious education" more broadly.

This got me thinking, however, about what options are still available to a state like Maine which is perhaps leery about sending its tax dollars to directly support religious education. Carson does not directly say "states must fund religious education" after all. It merely says that states must allow religious schools to obtain funding when they would otherwise be eligible based on the general criteria the state uses for assigning funds.

So imagine the following rule: "No school shall be funded unless each of its employees is fully subject to anti-discrimination rules." The state, it is fair to say, has a strong interest in ensuring that the subjects of its funding abide by and are protected by anti-discrimination rules. Still, anti-discrimination law contains certain exemptions, one of which is known as the "ministerial exemption" -- ministers are not subject to anti-discrimination protections. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court expanded who counts as a minister beyond the proverbial priest or Rabbi to include many teachers at religious institutions -- these teachers now cannot sue if they are the victims of discriminatory conduct. Religious schools are relatively likely to have such "ministers" on the payroll, so they would run afoul of the neutral rule, and would not be eligible for state funding.

Whether this gambit will work depends a lot on how it is phrased and the degree to which courts are willing to accept it as a neutral rule (which, in turn, may relate to whether there are other schools whose eligibility for state funds would be limited by the rule for reasons having nothing to do with religion). But -- on about an hour's worth of thought -- it seems like a plausible argument.

Are All Exemptions "Individualized"?

One of the many fun events of the past few years has been the Supreme Court deciding it is going to blow apart and reconstruct First Amendment free exercise doctrine in the middle of a pandemic, often on the shadow docket, with little warning and less argument, invariably in the direction of hamstringing the public authorities' efforts to impose basic common-sense limitations to stop the spread of a highly-infectious, contagious disease. We should all take a moment to pour one out for the courageous American people, who have largely been steadfast and resilient in the face of the federal judiciary's determined efforts to kill us all.

The latest salvo on this front was the 6-3 vote by the Supreme Court to deny emergency relief to health care workers who wanted a religious exemption from Maine's vaccine requirement. Maine allows vaccine exemptions solely for medical reasons; it does not permit religious (or, I believe, any other) bases for exemption. This vote does not necessarily mean that the case will come out the same way if it ever reaches the Court via normal avenues; Justice Barrett, joined by Justice Kavanaugh, concurred but suggested that part of their issue was that the case was inappropriate for resolution on the shadow docket. Glad they finally got the memo!

Justice Gorsuch wrote for three dissenters to stake out what would have been until, well, last week, a truly staggering position: that Maine's choice to exempt from a vaccine mandate only those for whom a vaccine is physically dangerous fails rational basis review, which is such an extreme departure from existing constitutional law doctrine I'm almost in awe of its lèse-majesté. Others can pick at other aspects of the opinion, but one element I wanted to flag was Justice Gorsuch's claim that Maine has a system of "individualized exemptions" in place for its vaccine mandate which it is unreasonably failing to extend to religious objectors.

The "individualized exemption" rhetoric picks up from the Court's halting attempt to harmonize its new free exercise jurisprudence with what had been the prevailing standard in Employment Division of Oregon v. Smith, which held that neutral and generally applicable laws needn't offer religious exemptions even if they happen to impinge upon the religious precepts of certain individuals. Smith distinguished some older cases, notably Sherbert v. Verner, on the grounds that in the latter there was a system allowing for individualized review and assessment of each applicant's claim. In Sherbert, which involved claims for unemployment benefits, the state individually checked to see whether each applicant had demonstrated "good cause" for declining any work offered to them; the case there involved a circumstance where the administrative agency declined to accept that refusing to work on the Saturday Sabbath constituted "good cause". As Smith observed, most laws do not offer that sort of case-by-case, highly-tailored individualized review, and so the Sherbert rule is difficult to reasonably extend to other cases.

Fast forward thirty years, and we have a Court that seems far more inclined to grant religious exemptions as a matter of constitutional entitlement, but has not (as yet) been willing to overturn Smith. So it relies on the "individualized exemption" angle to say that it's not actually making a change. This gives us Fulton v. City of Philadelphia, ruling against a Philadelphia policy which declined to give a religious accommodation to a Catholic organization that wanted to discriminate against gay couples notwithstanding that its anti-discrimination policy allowed for exemptions at the sole discretion of the relevant administrator for any reason whatsoever. Though Philadelphia had never actually granted an exemption, the Court interpreted this provision as essentially having Philadelphia look at each application for an exemption and decide, based on individualized assessment of the particular case, whether to grant one or not. This was akin to Sherbert rather than Smith -- a system of individualized review -- and if one is going to offer that sort of review than religious exemptions have to be permitted as well. Perhaps for that reason, Fulton was a unanimous decision -- it really could fit within the pre-existing doctrine, albeit only because Philadelphia had a crafted a broad and purely discretionary exemption system allowing for individualized assessment of every applicant.

Which brings us back to the vaccine mandate case. Justice Gorsuch, in his dissent, says that the Maine rule is like the Philadelphia rule -- it allows for "individualized exemption." What he specifically says is that "The State’s vaccine mandate is not absolute; individualized exemptions are available but only if they invoke certain preferred (nonreligious) justifications" -- namely, the health-based justification.

Yet Justice Gorsuch seems to be making a conflation here with huge ramifications -- between "exemptions" and "individualized exemptions". Yes, Maine's law has an exemption from its vaccine mandate for persons for whom the vaccine would not be healthful; this is eminently sensible if Maine's ambition is to promote public health. But these exemptions are not individualized in the way that was present in Sherbert or Fulton -- Maine does not make a free-standing commitment to assess every applicant "as an individual" and determine, based on the totality of the circumstances, whether an exemption is appropriate or not. It has a specific exemption for a particular class of persons -- those for whom the vaccine would be physically dangerous. Admittedly, Maine presumably has to do some individualized review to determine whether a person applying for an exemption under this demarcated policy qualifies for the exemption. But that is still not "individualized" review in the Sherbert/Fulton sense, unless every "exemption" in a law necessarily is an "individualized exemption".

Which actually does seem to be Justice Gorsuch's position: all exemptions are "individualized exemptions" -- the word "individualized" is superfluous. His proof that the vaccine mandate has "individualized exemptions" is that it is "not absolute", suggesting that any exception ipso facto qualifies as an individualized exemption which must therefore allow for a religious exemption as well.

This is staggering. One would struggle, I imagine, to think of a law that doesn't have some "exemptions" in it -- pretty much any law of substance has some "provided that such-and-such does not qualify" proviso in it somewhere. Our laws prohibiting stabbings exempt surgeons; our laws prohibiting possession of drugs exempt police officers seizing drugs; our laws prohibiting homicide exempt executioners of the death penalty. Are these all now "individualized exemptions", compelling religious adherents to get a similar exemption as well? In our soon-to-be-post-Roe world, most states which ban abortion probably still will have some "life of the mother" exception; does offering this exemption mean that any person for whom abortion is religiously mandatory in other scenarios must be permitted to have one?* I can't wait for the first Jewish plaintiff to sue on that theory; I can wait for her to inevitably lose because there is no question that the rule being expressed here is not a check liberal religious observers will be entitled to cash as against conservative rules.

At some level, this is all an academic exercise -- the reason we're focusing on the existence or not of "individualized exemptions" is not because Justice Gorsuch has any particular attachment to that as the standard, it's because this is the rhetoric one can find in Smith and so this is the best way to achieve the outcomes Justice Gorsuch wants in a world where there are not yet enough votes to overturn Smith. Nonetheless, the implications of Justice Gorsuch's position really is that any law which has any exemption for any reason must have a religious exemption too -- a position which seems perilously close to covering "all laws". That's a recipe for religious anarchy. I won't say "and that's the point", because again, we all knew who is going to be allowed to ride that train and who won't be. The likely upshot is far more likely to be the typical authoritarian-conservative structure: a favored class for whom the laws protect but do not bind, and a disfavored class for whom the laws bind but do not protect.

* It is amusing to me just how well Justice Gorsuch's logic for why a health exemption to a vaccine  mandate necessarily compels a religious exemption maps onto why a health/life exemption to an abortion ban necessarily compels a religious exemption there too. Justice Gorsuch's position is that we are per se forbidden from ever declaring a "religious" need as lesser than any secular need, including health and safety (this has been referred to as promoting a wrongful hierarchy privileging "life-sustaining" over "spirit-sustaining" needs). The only basis we have for declining a religious exemption is if the religious action uniquely threatens the state's interest in promulgating the general law in a way that the secular exemption doesn't. 

In the vaccine case, Gorsuch's argument goes, unvaccinated persons may be dangerous in a health care setting, but they're equally dangerous regardless of the reason they're unvaccinated -- it's not as if a virus is less transmittable if it's carried by someone who's unvaccinated because of health reasons compared to religious reasons. But so too in the abortion case -- the state's interest in protecting fetal life is equally implicated regardless of whether the reason the fetus is killed is because its necessary to protect the mother's life or because it's necessary to protect the mother's soul. Either way, the fetus is equally dead, and so once the state allows the, ahem, "individualized exemption" permitting abortion in cases where it is necessary to save a mother's life, it must allow them in any cases where a patient sincerely believes them to be religiously mandatory. 

Why Do White Jews Analogize to the Black Experience (and Vice Versa)?

The latest drama on Jewish Twitter comes from a column from the AJC's Seffi Kogen, speaking on how Orthodox Jews cannot practically avoid antisemitism that targets them as visible Jews. Seeking to illustrate this point, Kogen wrote (in a section that was intentionally highlighted as the pull quote by the AJC):

Without betraying who they are, none of these Jews can hide the fact that they are Jewish any more than people of color could step out of their skin to avoid racism.

A great many Black Jews did not appreciate this comparison. Kogen, for his part, was not exactly defiant, but wasn't particularly contrite either. He did not apologize, nor did he withdraw the comparison. He's sticking by it, and demanding that everyone respect his good intentions.

The easiest move for Kogen would have been to just let the analogy go. His argument doesn't depend on the analogy, it would not collapse if it were removed. It seems to be a cost-free concession to a groundswell of hurt from fellow Jews -- in some cases (as in Black Orthodox Jews) the Jews best positioned to assess the validity of the comparison! -- who are telling him that phenomenologically the comparison does not carry.

Yet he didn't do that. He clearly wants to defend the legitimacy of the analogy, and putting aside his specific case these analogies keep on being made by Jews even in full knowledge of their reception. And I think a lot of us are kind of at a loss as to why.  What makes this analogy so important, that it must be stuck to no matter the reaction from the African-American community (including African-American Jews)? Why do Jews -- and Kogen is by no means alone here -- insist on couching their anti-antisemitism appeals via analogy to the Black experience? What makes that move so popular? What drives it?

I think I can answer these related questions. The reason this analogy is so popular comes at the confluence of two beliefs that are deeply-held in many portions of the Jewish community -- one which is reasonable and understandable, the other which is fictive and toxic.

The reasonable belief is the fear that articulating the rights of Jews-qua-Jews will not suffice to persuade non-Jewish listeners that those rights ought to be defended. That is, even if it were effectively communicated to the listener how important these religious symbols and practices are to observant Orthodox Jews, many would still be at best indifferent to the argument because they do not take protecting Jews to be a sufficiently important motivation in of itself. The fear is that, upon hearing "(Orthodox) Jews are marginalized in X way", the response will be a shrug (or worse): "So what? What do I care about what happens to Jews?"

In response to this vulnerability, the natural response is to look for a broader principle to appeal to by analogy. "You care about X in Y case, so you should care about it in the Jewish case too." And in selecting the "Y" analogous case, the more accepted it is the better. It does no good to pick a "Y" that would also be met with a shrug. The "Y" needs to stand as an impregnable, knockdown case that everyone would accept -- a sure-fire bet to prop up the otherwise precarious Jewish example.

And so we get to the fictive and toxic belief: the belief that anti-Black racism is that "Y". It is the case everyone agrees on, we are absolutely convinced that while people might shrug off hurting the Jews, they would never countenance anything that marginalizes African-Americans. I cannot count the instances where I've seen Jews make arguments premised on this logic: "We would never tolerate this were it said about Black people...." The analogy is made as a means of accessing this imagined power held in the hands of the Black community. Black people are assumed to possess a bounty Jews only wish we could have.

But again: it's a fiction, and it's fictiveness is part of the reason why it is received so poorly. For the reality is that people do countenance marginalizing African-Americans, and do so regularly, and so there is something quite insulting about seeking to conscript -- dare I say "appropriate" -- Black experience to bolster our own position on the premise that they have such an overabundance of social capital that who could object to the less fortunate seizing a piece? The premise is that racism is, in essence, a universally agreed-upon "bad", and so we are justified in diverting some of its surplus power to those cases where such agreement does not existence. That diversion is far less innocent when the premise isn't accepted.

One sees, incidentally, this same dynamic apply in the reverse, for I think similar reasons and I think yielding the same negative reaction from the appropriated party. One sometimes sees various social tragedies referred to as "holocausts" -- for example, the slave trade called the "African holocaust" or other genocides referred to as "holocausts" (a generic term). But why are they taking that term? Well, one reason is presumably the belief that describing the atrocity in its own, organic terms won't sufficiently motivate people to care about it (often a reasonable fear). And another reason is the sense that if it's acknowledged as a holocaust, if it's treated the way we treat a holocaust, why then nobody would think to question the full extent of its horrors. It is assumed that the Holocaust -- that is, antisemitic oppression -- represents the apex of what nobody today would ever countenance or question or shrug off. And at that point, it becomes viewed almost as a hoarded resource -- how dare the Jews keep such a bounty to ourselves? Why not share it with the less fortunate? Whereas we Jews know that "Holocaust" does not actually accord us this impregnability or universal deference, and so reasonably react poorly to efforts to divert it away from a Jewish case that is by no means a won argument.

One reason we know the premise is false is because of the ferocity with which the analogy is clung to. Were it the case that people immediately and unquestionably shrink away from anything that marginalizes the Black community, then the fact that the Black community so clearly disdains this analogy would cause us to immediately drop it. We don't because the fantastical image of a universally-rejected "anti-Blackness" is in fact far stronger than the actual reality of popular commitment to avoiding anti-Blackness.

And so I hope my efforts to explain this phenomenon are not taken to justify it. The analogy generates needless antagonism, and that should suffice to abandon it. And I think the case of Orthodox Jews can be argued fully effectively without it. I've regularly used the case of religion as an example of why "choice", taken literally, doesn't matter -- one can "choose" one's religion or religious practice but do we really want to say that therefore any amount of religious discrimination is justified (because one could always opt out)? The question isn't whether Orthodox Jews are literally, existentially capable of not wearing identifiable Jewish garb, the question is whether it is justifiable to ask them to make such a choice or to impose consequences upon them for choosing wrongly.

This is, indeed, a different question from that faced Black persons who have no way of peeling off their skin -- a true lack of choice. But so what? We should be able to make the argument on its own terms. We should have the confidence to defend Jewish rights in our own language, without the need to appropriate from others.

Quebec Set To Ban Public Employees from Wearing Religious Garb

The ban would apply to, among other apparel, hijabs and kippot.

The frenzy of concern regarding various head-coverings -- going way beyond objecting to making them mandatory (as they are in some Muslim-majority states), and instead casting them as inherently antithetical to the values of the liberal state -- leads precisely to this. And it should surprise nobody with a sense of history that this sort of illiberalism-disguised-as-liberalism is taking Jews and Muslims down together.

Not My President's Day Roundup

Our apartment's water heater is being replaced tomorrow. That means my one true joy in life -- long, languid, hot showers -- will also have to go for the day. It will be terrible.

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China's crackdown on religious liberty threatens the tiny but ancient Kaifeng Jewish community.

One of the few Black mathematicians in American academia recounts the microaggressions and subtle racism which alienated him from his own discipline.

I think the tone of this column is a little off, but the broad point -- that leftist anti-Zionists have no friend more highly placed in Israel than Netanyahu himself -- is on the mark, and it's important that someone like Eric Yoffie is saying it.

Alabama newspaper editor urges the return of the KKK in order lynch Democrats (and insufficiently conservative Republicans). Yes, really.

Apparently, Louisiana has a bad habit of not releasing prisoners after they've finished serving their sentences.

"As a Jew, I’m either furious or eating. Sometimes both."

For all the talk of "creeping Sharia", the fact is that the American Muslim community is actually experiencing something very different: creeping liberalism. For a community that, for much of recent electoral history, at least leaned Republican (especially on social issues), the rapid embrace of feminism, gay equality, and sexual liberation among the younger generation is coming as a bit of a shock to the more conservative old-guard.

The Cruelty is the Point: SCOTUS Edition

In my roundup the other day, I included the case of an Muslim death row inmate in Alabama who had received a stay of execution by the 11th Circuit because the state was refusing to let his Imam be with him during his execution (the state would have allowed a Christian chaplain, who was a prison employee, in the room). I noted that Alabama appealing the stay -- but I almost didn't bother, since in my head I figured there was no chance the Supreme Court would get involved. Why would they? The stay was at most a minor inconvenience, the Establishment Clause problem seemed obvious and extreme, and there was no pressing issue here that demanded high court intervention to stop the case from proceeding at its own pace.

Shows what I know. In a 5-4 decision (over a brutal Kagan dissent), the Supreme Court vacated the stay and allowed the execution to proceed. The inmate had filed his challenge too late -- not that it was actually barred, mind you, the Court just decided of its own discretion that the inmate was dilatory and that therefore it wouldn't allow the 11th Circuit to hear the case (never mind that, based on the record available, it seems that the inmate filed his case in a perfectly timely fashion).

I have to confess, this rattled me -- more than I would have anticipated -- and I'm clearly not the only one. There are times when courts issue rulings I disagree with, and there are times that courts -- even the Supreme Court, with near-infinite discretion over its own docket -- are effectively compelled to step in and issue a decision in fraught circumstances where some people are going to be displeased with the outcome.

But this wasn't one of those cases. There was no need for the Court to step in here; indeed, it was a shockingly aggressive intervention in a case where the balance of equities seemed to run decisively in favor of the inmate. In this context, the Court's decision -- and the meager faux-technical rationale behind (that doesn't even seem to stand on its own weight) -- feels worse than wrong. It feels petty. It feels mean-spirited, and it feels cruel. And while there are many times where I disagree with this Court on important issues, it is rare that I've felt that they were cruel.

But that's what this decision was. I don't have a philosophical objection to the death penalty (though I have a welter of objections to how it is administered in practice). But I've always felt very strongly that it is important to treat even condemned inmates with respect and dignity -- that capital punishment does not license dehumanization. We're already locking them in a cage and then killing them, visiting further indignities upon them seems gratuitous. So whenever I see rabble-rousers start targeting "last meals", or a prisoner's few hours of "recreation time" because they're prisoners, they're the worst of the worst, I blanch. Such minor nods towards the continued humanity of the condemned are deeply rooted in our nation's history and tradition; they are part of what separates a justice system from unchannelled and unconstrained vengeance.

It should be needless to say that allowing a man facing execution whatever comfort and support he might get from a pastor of his faith is also part of that tradition: it is cruel -- obviously and needlessly -- to deny him even that much. Indeed, the obviousness of this point is why Alabama has a (Christian)  chaplain on staff and available to begin with. So to deny that small comfort to an inmate because of his Muslim faith represents such a striking departure from tradition and practice that it is hard not to see it as motivated by religious animus -- that Muslims don't deserve whatever comfort and pastoral care they might receive from their false clerics. Particularly in the wake of the Muslim ban decision, one could forgive those who now seriously wonder if the basic human equality of the Muslim community is acknowledged at the highest court in our land.

This decision is not a "great" decision. It sets no sweeping precedent, it's (nominal) basis on the alleged "delay" in filing means it doesn't even constrain future cases brought under similar facts. But in a way, its insignificance makes it worse rather than better. This was not a great case. It was a petty case. And the Court's pettiness in interceding is, in its way, far more indicting of its character than many far more jurisprudentially consequential rulings.

Fraud Squad! Roundup

In a meeting, I got a phone call from my bank about potentially fraudulent transactions on my credit card. Had I recently ordered $50 worth of fast food pizza? No, I hadn't -- and so the account is frozen, and presumably the charges will be reversed.

An hour later, upon returning to my desk, I had the bizarre joy of seeing a confirmation from Domino's promising me that my "pizza is on the way [to Houston, Texas]!"

Anyway, long story short: I'm getting pizza for dinner tonight.

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Jenny Singer of the Forward interviews Young Gravy, a Black Jewish rapper (and GW student). It's a really interesting and worth your time (I'm saying that not just because I think I played a role in putting the interview together!).

I think I missed this when it came out, but a Texas court struck down the Indian Child Welfare Act's adoption rules this past fall, saying that act's preferences for Indian children to stay with Indian families was racially discriminatory against non-Indians. The Judge, incidentally, was Reed O'Connor -- the same guy who just struck down Obamacare. He's certainly setting himself up as the go-to-guy for tip-of-the-spear conservative judicial activism.

Alabama was all set to execute a Muslim inmate -- but refused to allow a Muslim chaplain to be present with him during the execution (they did offer a Christian chaplain, which unsurprisingly the inmate did not consider to be a satisfactory substitute). 11th Circuit stays the execution due to the "powerful Establishment Clause claim" (and plausible RLUIPA claim). Alabama is appealing to the Supreme Court.

A new poll finds that over half of Israeli Jews agree that the controversial "nation-state" law must be either abandoned outright or fixed to confirm the state's commitment to democratic equality for all citizens.

A Cameroonian official has apologized for threatening an ethnic minority group by comparing them to Jews in pre-WWII Germany, namely: "In Germany, there was a very rich community who wielded all economic power .... They (the Jews) were so arrogant that the German people were frustrated. Then one day, a certain Hitler came to power and put them in the gas chambers."

I have no takeaways from the Likud primaries except celebrating Oren Hazan's imminent departure from the Knesset. Goooood riddance.

Iraqi Jews commemorate family members who were "disappeared" by state secret police.

But Do They Have Paradox-Absorbing Crumple Zones?

Eugene Volokh flags an interesting case out of Wisconsin lying on that intersection of religious freedom and anti-discrimination. Basically, a male Muslim prison inmate objected to being strip-searched by what appears to be (the record doesn't say explicitly) a transgender male guard. The inmate claims that part of his religious beliefs are that (a) sex is assigned by God at birth (so if you're born a woman, you're a woman) and (b) he cannot be seen naked by any woman save his wife. He's demanding a religious exemption from being strip searched by that guard under RLUIPA (he doesn't object to strip searches generally).

Reading about this, all I could think about it is: how would Breitbart cover this? Which hatred would win out? Would they back the Muslim prison inmate, or the transgender man whose job description includes seeing people naked?

I really think it's a toss-up.

Shadow of War Roundup

The newest game taking up my time is Shadow of War. You could say I'm late, but given that the developer just removed microtransactions from the game, I'd say my timing is perfect.

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Ta-Nehisi Coates is leaving the Atlantic.

A really interesting profile on Aly Raisman and the work she's done re: #MeToo (in the gymnastics community generally and in the Larry Nassar case specifically). A remarkable woman.

Immigrant mother loses her effort to regain custody over her child (who was taken from her after she was picked up in a raid). The case was on remand from the Missouri Supreme Court, which described the initial proceedings which caused her to lose custody as a "travesty of justice"; it will almost certainly be appealed.

Gershom Gorenberg on Israel's new standing as part of the "illiberal international". As he notes, that the nation-state bill was passed at the same time as Bibi was welcoming Viktor Orban into the country could not be more appropriate.

There was never any doubt that Janus was part of a larger declaration of war against unions -- but Will Baude describes a particularly nasty implication of the precedent: the unions might be forced to disgorge payments collected as unlawfully obtained (even though they were perfectly lawful at the time they were collected).

Rabbi detained and taken for questioning by police for officiating a Jewish wedding ceremony. Iran? Saudi Arabia? Nope -- Israel.

Anshel Pfeffer: Orban is a smart antisemite, Corbyn is a stupid antisemite. I'll buy that.

John Strawson (formerly a professor at Birzeit University) and Martin Bright explain why the antisemitism issue means they can't be a part of Labour anymore. Meanwhile, Labour MP Margaret Hodge defends calling Corbyn a "racist and an antisemite" to his face on the floor of Parliament.

Having Your (Masterpiece) Cake and Eating It Too

The Supreme Court  has issued its long-anticipated decision in the Masterpiece Cake case (where a Christian baker refused to make a wedding cake for a same-sex couple). It ruled in favor of the baker by a 7-2 vote, but on exceedingly narrow grounds (I'll get to those in a moment) that provide virtually no guidance to resolving similar cases in the future. On the other hand, given the way oral argument went, I'd say we might have even dodged a bullet.

Basically, Justice Kennedy's majority opinion concluded that certain statements by the Colorado Civil Rights Commission (which concluded that the baker had discriminated against the couple in violation of Colorado law) indicated that they held anti-religious bias. This bias tainted the proceedings in an unconstitutional manner, and hence the ruling had to be set aside.

On that point, there are two comments worth making. First, in the abstract I wholly agree that religious hostility provides a sufficient basis for invalidating a government action even in cases where -- absent said hostility -- the substantive decision might well be constitutional. If a commissioner in a case like this said "I'll be damned if I'm going to rule in favor of some towel-wearing heathen," that to me is an obvious constitutional violation on its own. So to the extent Masterpiece Cake clarifies that point of law, I have no quarrel.

Second, as applied to the facts of this case I think the evidence of anti-religious animus on the part of the Commission is pretty thin. Certainly, it is microscopic compared to the evidence of anti-religious animus in the travel ban case -- though who knows if that will matter. But if the upshot of this case is that governmental decision-makers need to step more lightly around grandstanding declarations when dealing with sensitive areas of discrimination and religious freedom, that's not the worst thing in the world.

In any event, because the Court's decision was based on a finding of religious animus in the administrative proceedings, Justice Kennedy specifically stated that the Court was making no proclamation on how a case with even identical facts (but absent the biased state-level decisionmaker) should be decided. Hence why we get no real guidance on how to handle similar disputes going forward. But the majority opinion actually contains a lot of dictum emphasizing that there are perfectly legitimate anti-discrimination considerations the state has here and can legitimately impose (in a neutral, generally-applicable fashion) onto religious objectors. So to some extent, the tea-leaf reading off this case is considerably better than one might think.

But while much of the attention has focused on the religious freedom aspects of the case, it's the compelled speech issue that I think will be more nettlesome going forward. The Court declined to wade into that issue in this case, both because it was resting on the narrow religious animus ground and because the relevant parts of the record in this case were surprisingly opaque (Justice Thomas made a game effort to argue that the issue was ripe in this case, but I'm unconvinced).

When does selling a cake become a form of (compelled) expression by the baker? On the one hand, simply selling an "off-the-rack" cake should not be viewed as compelled expression by the seller that they approve of the buyer or what the buyer plans to do with the cake (a half-century old Supreme Court case quite quickly dispensed with a claim that a barbeque vendor could circumvent anti-racism laws compelling him to serve Black customers because doing so would communicate the message that he believes in racial equality, in violation of his religious beliefs). On the far other side, consider cake orders with specific messages to be engraved like "Homosexuality is a detestable sin" (the Colorado Commission received complaints when several bakers refused to bake cakes with that message, and dismissed them). There, the compelled speech claim seems stronger. Presumably, that would have to hold in cases where the text was something like "God loves gay people same as straight" -- it's expression, and if someone genuinely doesn't want to express that message, I don't think the government can compel him to do it.

There are any number of cases in the middle. I don't think a custom-cake order necessarily becomes a case of expression (e.g., a cake with no text but where the purchaser wants a specific design) -- but what if it is specifically requested to have rainbow coloration? Or consider more anodyne messages like "Congratulations Jim and Steve". Such cases are going to reflect some difficult judgments, and we still have only dim contours on what the right legal guidelines are.

As for the other opinions: Justice Gorsuch's was predictably terrible. It rests primarily on the somewhat odd belief that there is a distinct product called a "same-sex wedding cake" that is different in-kind from a "wedding cake" (is it something in the food coloring?). Consequently, Justice Gorsuch can deny that there is any discrimination occurring against same-sex couples because the baker presumably would decline to sell both straight and gay customers a "same-sex wedding cake". This is the same logic through which gay marriage bans were not forms of anti-gay discrimination because gay and straight individuals could not perform a gay marriage, and it is eviscerated both in Justice Kagan's concurrence and Justice Ginsburg's dissent. As Justice Kagan aptly put it: "A vendor can choose the products he sells, but not the customers he serves—no matter the reason." A wedding cake is a wedding cake -- it doesn't magically become a different product because of the sexual orientation of the purchaser.

Indeed, one thing that this case made clear for me is that the category "gay marriage" may have outlived its usefulness. In American law, there are no longer "gay marriages" as a qualitatively distinct entity. There are "marriages", which are sometimes entered into by straight couples and sometimes by gay couples. Of course, people in private life are free to maintain the distinction, and sometimes those private views can carry weight (the obvious case being the right of a religious officiant not to solemnize a gay wedding). But these should be seen as areas where we're departing from the general neutrality of the law and accordingly need justification; the default understanding should be weddings are weddings are weddings.