Following the recent retirement of Justice Anthony Kennedy, the Supreme Court’s “swing vote,” President Donald Trump nominated Judge Brett Kavanaugh as a replacement. This nomination will have significant implications for the future of religious liberty in America. Unfortunately, in recent years, this right has come under considerable criticism from many who used to be most supportive of it. Judge Kavanaugh interprets the Constitution as an originalist and has good record on religious liberty. His appointment seems likely to maintain or even improve the Court’s favorable treatment of religious liberty. For this reason alone, the Jewish community, and Orthodox Jews in particular, ought to be optimistic about the future of this vital issue in the American legal system.
America was established as a bastion of civil liberties, and the free exercise of religion has long been ensconced in the First Amendment and in American national priorities. Throughout the past decade, however, the United States has experienced a rising tide in popular opposition to religious freedoms. For example, this hostility has manifested itself in the City of Boca Raton’s opposition to a Chabad community’s right to build a house of worship. Equally severe opposition was faced here in New Jersey, on, of all places, Rev. Martin Luther King Jr. Boulevard. Jersey City claimed that the street was overrun with religious centers. This allegation is a chilling reminder of our not-too-distant Jewish past. In yet another shocking development, if media reports are to be believed, a small but growing Hasidic community in Jersey City has been forced to engage in trickery to worship, by calling their house of worship a “community center” rather than “synagogue.” That way, the rabbis can avoid the attention of the city’s inquisitors. This direct violation of the First Amendment’s protection of the right to freely practice religion highlights the need for a judiciary that protects the free exercise of religion.
Shortly before his resignation from the Supreme Court, Justice Kennedy recognized the precarious state of religious liberties in America, a situation that Judge Kavanaugh is well-equipped to tackle. It is now vital that American Jews understand the tenuous state of our situation at home and abroad. The insidious spread of flagrant anti-Semitism provides an ominous message for the stability of American Jews’ religious liberties. Look no further than the rising wave of open anti-Semitism in the Labour Party in Britain, along with the continental European threats to shechita practices in Belgium, Holland and Poland. These potent threats demand the need for a legal system with justices who understand the importance of the free exercise of religion. Judge Kavanaugh is such a jurist. While most high-profile religious liberty cases in the media have heretofore involved Christian clients, there have been many Jewish ones, and it is only a matter of time before threats to our neighbors become threats to ourselves.
Jews who care deeply about their religious liberties would do well not to be complacent amongst American Jewry, which has become far too apathetic about the need to defend its religious rights. This is evident within the Supreme Court itself, whose three Jewish justices (Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan) have been far more reluctant to support religious liberty causes than most of their Catholic counterparts.
Judge Kavanaugh has demonstrated his commitment to religious freedom in a variety of ways that should instill us with confidence that he will help lead the Supreme Court’s religious liberty rulings in a positive direction. His dissent in Priests for Life v. HHS (2015) provides us with evidence that he will likely be a friend for the Jewish community. This case prevented religious organizations from opting out of mandatory contraceptive coverage for their employees. Judge Kavanaugh would have granted these groups an exemption. He insisted that “when the government forces someone to take an action contrary to his or her sincere religious belief (here, submitting the form) or else suffer a financial penalty (which was enormous in this case), the government has substantially burdened the individual’s exercise of religion.” This overt support for religious liberty should be a source of comfort for the Jewish community.
Judge Kavanaugh has also demonstrated a commitment to another vital issue for Orthodox Jews: school choice. Judge Kavanaugh served as the co-chairman of the Federalist Society’s “School Choice Practice Group.” In that role he litigated on behalf of school choice advocates in Florida for a reduced fee. Additionally, during a television appearance in 2000, he expressed confidence that the Supreme Court would eventually issue rulings that were more favorable toward the use of school vouchers for religious schools.
In recent years, Jewish school fees in America have risen to an exorbitant level. Critically, such costs are not borne by public school parents or Jewish families in most other Western nations. These costs have placed substantial pressure on families to balance financial stability and a desire to enroll their children in a religious Jewish school. Judge Kavanaugh’s sympathetic stance on school choice should be reassuring to Jewish communities. His nomination will hopefully shift the Supreme Court toward a stronger position on vouchers and other school-choice measures. Relieving these burdens is already a top communal priority, as demonstrated by the advocacy work of the Orthodox Union and Agudath Israel. This choice of the Supreme Court’s next member may ultimately determine whether this advocacy can succeed.
This nomination is also relevant as a local issue for American Jewish voters in New Jersey, Florida and perhaps other states as well. While Jews, and Orthodox Jews in particular, account for a tiny percentage of the American electorate, they may play an important role in the coming confirmation process, both in terms of advocacy and in terms of holding senators accountable for their final votes. Jews of all stripes have long supported the Democratic party. However, a growing partisan divide and monumental demographic changes in the Jewish community might change this situation. According to the 2013 Pew Research Center Survey of U.S. Jews, intermarriage rates within American Jewry have reached 58 percent, while, simultaneously, the Orthodox community has grown rapidly. Consequently, America has witnessed a polarization in the “Jewish vote.” In fact, we might easily argue that there is no longer a monolithic “Jewish vote,” but a divided one, with Jews voting in radically different manners depending on their religious views and ethnic backgrounds. Orthodox Jews, for instance, have heavily favored Republican presidential candidates since 2004. Jews are not necessarily a lock for the Democratic Party, and the votes of key senators on Judge Kavanaugh’s confirmation may influence their re-election prospects. In New Jersey, where one recent poll found only a four-point divide between incumbent Senator Bob Menendez and Republican challenger Bob Hugin, a large Jewish population may prove important in deciding the result of a close race. Senator Menendez’s vote on confirming Judge Kavanaugh may very well be a major factor in whether New Jersey’s Jewish voters give him their support.
By Rachel Hochhauser and Rabbi Mitchell Rocklin
Rachel Hochhauser is a student at University College London and an intern at the Tikvah Fund. Rabbi Mitchell Rocklin is a Teaneck resident and resident research fellow for the Tikvah Fund.