Wednesday, September 14, 2022

Part I

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So, Who Gets to Decide if a Jewish University is Jewish? Hint: It’s Not Up to a New York State Judge or LGBT Activists

Religious liberty issues arise these days almost on a daily basis, and one of the things we have to watch is that some of these stories, upon reflection, turn out to be even bigger than they may have appeared to have been when the story first broke. An illustration of that comes to us from the city of New York and from a Jewish university, and not just any Jewish university, the flagship university of the movement within Judaism known as Modern Orthodoxy. We’re talking about Yeshiva University.

Now, actually, we’re going to use that word in multiple senses today, the word yeshiva. It traditionally goes back to the name of a particularly and characteristic Jewish school, a school historically for boys in order to ground them in Jewish tradition, to teach them Hebrew and to train them in the study of Jewish texts. A yeshiva is a boys school, but exploded into the size of a modern research university, Yeshiva University, founded in New York in 1886 as a result of the great Jewish migration to the United States during those crucial decades in the 19th century. It has been one of the most highly visible and symbolic institutions of modern Judaism.

Yeshiva University made the headlines repeatedly this year. The first headline of real consequence came in June, just as we went into the summer. The headline told us that a state court judge there in New York had ordered Yeshiva University, a Jewish university that teaches religious studies and is incredibly Jewish in terms of its identity, its culture, its association, the state court judge ordered that Yeshiva University, as even the leading institution of Modern Orthodoxy in Judaism, must recognize an LGBTQ student club. The order from the judge said that there was nothing in the identity of Yeshiva University that would exempt it in the State of New York from the City of New York’s human rights law.

The New York Times reported on the story. Liam Stack was the reporter. We are told that “administrators at Yeshiva, which is named after a type of traditional Jewish religious school that is found all over the world, vowed to appeal. They also said they would seek the courts to stay the decision.” Hanan Eisenman, a spokesman for Yeshiva University, said, “Any ruling that Yeshiva is not religious is obviously wrong.” He went on to make very clear just how religious Yeshiva University is. “As our name indicates, Yeshiva University was founded to instill Torah values in its students while providing a stellar education, allowing them to live with religious conviction as noble citizens and committed Jews.”

Thus, the spokesman for Yeshiva University back in June said that the decision by the state judge there in New York “violates the religious liberty upon which this country was founded.” Furthermore, the spokesman went on to say that this judge’s action “permits courts to interfere in the internal affairs of religious schools, hospitals, and other charitable organizations.”

Now, just a couple of issues here. First of all, what’s the bottom line? The bottom line is that this decision by a state court judge in New York does indeed, absolutely, unquestionably, violate religious liberty. It is a very dangerous precedent. In particular, the spokesman for Yeshiva University got right to the point. In this case, this judge dared to rule on the question as to just how religious the religious institution known as Yeshiva University is. In the mind of this judge, Yeshiva University was simply not religious enough to qualify for any religious exemption or to be allowed to operate on the basis of its religious teaching.

Now, here we are just looking at a massive issue. What’s the next thing we need to say? Well, in this case, the story of Yeshiva University could be the story of the Southern Baptist Theological Seminary, the story of a Catholic institution. If a judge can rule this way about a Jewish institution, and tell a Jewish institution it really can’t function in a Jewish way, then the same principle would allow it to tell a Baptist seminary or a Catholic university essentially the same thing. In this case, Yeshiva University turns out to be a test case for all of us.

Liam Stack, that reporter for The New York Times back in June, seemed to recognize the importance of the case. He wrote, “The dispute at Yeshiva is the latest front in a heated nationwide debate over the limits of religious freedom and whether houses of worship, religiously affiliated companies and organizations, or even pious individuals can be compelled to provide employment or other public accommodations to people with differing views.”

Now, that paragraph has been on my mind for a very long time. I was just waiting for the right time to discuss this paragraph, and today is the right time. In a minute, I’ll explain a little bit more about that timing.

I want us to consider that sentence, and even the first phrase about what kind of institutions or organizations might be at risk. We’re told that this is a nationwide debate “over the limits of religious freedom and whether houses of worship”–let me just fast forward–“can be compelled to provide employment or other public accommodations to people with differing views.”

This is one of the first times I have seen in the mainstream media an acknowledgement that even the freedom of Christian churches to be Christian, the freedom of Catholic churches to be Catholic, and of Jewish synagogues to be Jewish. When the word congregation is used here, well, then we understand we really are looking at a direct and ominous challenge to religious liberty, not because this case is about a congregation, but because this case, in which Yeshiva University is standing at the center, this case was the opportunity for The New York Times to say, “Oh yeah, all this is actually at stake.”

Then there is yet another sentence in this article. You need to hear this. “Religious exemptions to such laws”–those laws are so-called anti-discrimination laws, LGBTQ-affirming laws. “Religious exemptions to such laws are common, and they provide the legal basis by which entities like the Catholic Church, for example, can refuse to employ women as priests. But in recent years, they have increasingly been used to deny equal treatment to LGBTQ people.”

Now, just understand here, equal treatment means equal employment or equal access to being made a church leader, a synagogue leader. Now, this is where Christians and all those who love liberty had better recognize we’re really looking at a five-alarm fire. There are those who would try to say, “No, that’s an exaggeration.” Again, I just want to point out to you that in this article, in two different ways, we’re being told that it takes something of a special accommodation to allow a Christian church to operate on the basis of Christian conviction. There has to be some kind of explanation that wouldn’t require, say, the Catholic Church to have to ordain women as priests. Think about that, as a matter of fact, for your local evangelical congregation.

You’re also looking at the fact that we are told here that these laws are now increasingly used, and by the way, the implication is this is a bad thing, increasingly used “to deny equal treatment to LGBTQ people.” Now, let’s just start out with the fact that when you’re talking about something the Bible identifies as sin and is something the Christian Church cannot normalize, much less celebrate, you’re talking about something that is a part of the very essence of biblical Christianity. It is also, we need to point out, something that is of the very essence of Orthodox Judaism, including the modern movement known as Modern Orthodoxy, and including Yeshiva University.

I go back to the fact that if this kind of threat can be brought against Yeshiva University in New York, then it is only a matter of time until it can be brought against your local Christian evangelical preschool or the local Catholic college. You’ll notice explicitly mentioned in this article a Catholic hospital. By the way, we’re going to be talking in coming days about the efforts to try to marginalize Catholic hospitals because, after all, well, now we’re in on the secret. Catholic hospitals are, wait for it, Catholic.

Back in June, attorneys for Yeshiva, and in this case the attorneys were with the Becket Fund for Religious Liberty. It’s identified, by the way, by the Times as “a high-profile public interest legal and education firm based in Washington, D.C.” I’ll simply say that the Becket Fund is a very important group of lawyers defending religious liberty. In this case, that’s exactly what they’re doing.

Eric Baxter, vice president of the Becket Fund, he’s identified also as the lead attorney on the case, he said, “Courts don’t get to quibble over whether you said enough in your article of incorporation about your religious character. That is contrary to clearly established case law that says courts don’t get to second guess a religious institution’s religious activities when its religious characteristics are plain and obvious.” He then went on to say something else that should also be obvious. “There are few religious institutions of higher education that are more religious than Yeshiva.”

Now, how religious is Yeshiva? Now, in a very real sense, it’s extremely religious, and a lot of that religiosity is quite visible. Some of it might surprise many listeners to The Briefing. One of the requirements is that male undergraduate students have to spend between one and six hours a day studying the Torah. That is the first five books of the Bible, often referred to as the Pentateuch by Christians. The Torah can also mean a larger expression of Jewish law.

The point is you have male students… Remember, the yeshivas originally were for boys, and this is a movement that very clearly understands the reality of gender and a distinction in terms of gender, not to mention a biblical condemnation of all sexuality except for that between a man and a woman in marriage. You’re looking here at the fact that Yeshiva University could be just a stand-in for any faithful evangelical institution on these matters.

There are a couple of important wrinkles in this story. One of them is that Yeshiva University tries to be accepting and open, according to the news reports, in its admissions policy, but it draws the line when it comes to officially recognizing an LGBTQ group. Now, I’m going to say, as an evangelical, I think that’s a mistake. I think that your convictions have to be clear, not only in terms of the recognition of student groups, but also in your admissions policy. I’ll just make the argument that having openly gay, openly LGBTQ students really does, on your campus, set you up for the demand you need to recognize such a student group. I see that as a matter of inconsistency. But let me be clear, I am not the president of Yeshiva University, and that is not my responsibility.

It is crucial that we understand that this threat against Yeshiva University could just as well have been brought against any other religious institution. The greatest threat here is not just the LGBTQ policy at stake; it’s the fact that here you have a state court judge in New York who says, “I look at Yeshiva University. I don’t think it’s religious enough to be considered a religious institution.” Once again, if a state court judge gets to make that determination, then religious liberty is basically something that is undermined from the start in the United States. In that situation, a religious institution would only be able to operate as a religious institution if no judge decided that it’s not religious enough.

I told you timing is crucial, so why are we talking about this case? Why are we talking about Yeshiva University today? Well, it’s because just in the last several days, indeed last Friday, a justice of the United States Supreme Court, in this case Justice Sonya Sotomayor, ruled that, at least for now, Yeshiva University can disregard that state court ruling, that ruling by the state court judge, and continue to operate on its own religious principles with no requirement that the university give official recognition to this LGBTQ student group.

By the way, let me also just drop a footnote here. That kind of official recognition would be not only inconsistent with the theological convictions that frame Yeshiva University, it would create an adversarial relationship on campus that would inevitably bring about even further moral changes violating those religious convictions.

Now, why was this Justice Sotomayor? Why was it this particular justice? It’s because, of the nine justices, she is the one assigned to this district and to the federal courts in this area. That’s something many Americans don’t know. When it comes to making immediate rulings on many of these issues, there is a geographical responsibility. Justice Sotomayor is responsible for New York, and that’s why this decision fell to her.

This is a temporary decision if the Supreme Court decides to take up the issue. When a justice hands down a ruling like this, at least there is the possibility that the entire Supreme Court will decide to take this as a case upon appeal. We’ll see how those developments turn out. Nonetheless, predictably, many in the media and LGBTQ students, and you might say just the progressives across the country, they celebrated the state court judge’s decision and they are lamenting Justice Sotomayor’s ruling that was handed down on Friday.

Now, something we should note, as Christians looking at this, we should understand our constitutional system in the United States and the role of the courts, and in particular the Supreme Court. In this case, Justice Sotomayor is sending us no signal about how she personally feels on this issue, and for that, we should be grateful. That’s not her job. Her job in this case, as a justice of the Supreme Court, is to look at the facts of the case and make a ruling as to whether or not Yeshiva University in this case, that made the appeal, would be likely to prevail if the full Court were eventually to hear the case. If the Yeshiva University claims are likely to succeed, then she would do exactly what she did on Friday. She would hand down a hold on the decision contrary to the interest of Yeshiva University.

Here we are presented with a very interesting situation. It’s going to be very interesting to see whether the state court or the state government there in New York appeals to the entire Supreme Court of the United States to hear this case. I will tell you the good news on this is that I don’t see much of a way that the current Supreme Court would side in any way with the atrocious ruling of the state court judge in New York. There’s plenty of precedent handed down by this current Court to indicate that it would likely throw out the argument of that state court judge in whole and quickly.

On that score, let’s just remind ourselves that constant vigilance is what is necessary as we think about constitutional liberties, in this case, religious liberty. It’s really important that we see how religious liberty is basically being subverted in public conversation as if there is somehow a compromise or pact that is being made with religious schools to say, “All right, at least for now, you can be a little bit religious. We’ll decide just how religious you can be, and whether you even qualify for that religious treatment.”

What we’re really looking at here is the fact that when you see the courts, remember, the courts don’t happen by some kind of biological accident. They happen by political appointment. Thus, it matters greatly who serves as president of the United States when it comes to the appointment of federal judges and of justices to the Supreme Court. It matters who has the majority in the United States Senate. The conservative majority currently sitting on the Court, and in so many cases defending religious liberty, is not there by accident. We need to remember once again that elections have consequences.

Part II

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‘We’re All Jews Now’: The Story of Yeshiva University Could Be the Story of Any Religious Institution

We’re on related themes here today. We started out with Yeshiva University in New York. Now we’re going to talk about yeshivas in New York, just for a few moments anyway.

Sunday’s edition of The New York Times featured a front-page article above the fold, in other words, this is the big headline that greeted readers of The New York Times on Sunday, “Failing Schools, Public Funds,” the subhead, “Hasidic Students in New York State are Deprived of Basic Skills.” A team of reporters for The New York Times is looking into this because there have been authorities in New York looking into this, and even the United States Congress, or members of Congress, spoke to the issue within the last couple of days.

It turns out that there are a lot of yeshivas, actual yeshivas, Jewish schools, schools that exist for the training of boys from, say, younger ages through at least some teenage years in Jewish law and Jewish tradition. You’ll notice this is very much tied to the Hasidic Jewish community and Orthodox Jewish community, very well concentrated in the New York area in population. There are a lot of these schools. There are a lot of Jewish boys in these schools.

Here’s the rub. These schools are taking New York State public school funds in order to run these schools. Then the State of New York is turning around and saying, “Well, we don’t like the schools you’re running because we will determine at least a basic curriculum of what is to be taught.”

Now, once again, first of all, in Yeshiva University, and now in actual yeshivas, boys schools, Jewish boys schools, and dozens of them, with hundreds of boys involved, well, one of the things you’re looking at is the fact that religious schools had better be very careful. One of the arguments I will make is that one of the things religious schools should not do is take any federal funding or, for that matter, any state funding, any taxpayer money, because with government money comes, at least, attempted government control. At the very least, you take the government money, you do open up an avenue for the government at some level to come and tell you how you can and must run your school.

Still, religious liberty issues are very much present here. If the State of New York decided that it would recognize, or if the courts required the State of New York to recognize, these Jewish schools for boys, then the recognition was they were actually free to be Jewish schools. The threat I want to suggest is not just the tax money. That’s one that I would address in principle. But the other issue is that I believe only the Jewish community gets to say what is actually a Jewish education. I want to say that because I believe that’s true. I believe that, by extension, a Christian school should be autonomous to determine what a Christian education should be, at least in terms of the content, at least in terms of the curriculum. We are really looking at a subversion of the entire concept of religious liberty if religious schools are told, “Okay, you can be religious, but you’re still going to have to teach this.”

Now, I also want to say I think the State of New York is making, at least, some legitimate points about the teaching of language and reading and math and all the rest. I would want Christian children to be taught those things. But I don’t want the decision-making to be left to the state. Once Christians decide, “Oh yeah, we can have religious schools, we can have Christian schools, we can homeschool, but we’re going to let the state determine what the curriculum should be,” well, I’m pretty sure that listeners to The Briefing have already seen the problem very clearly.

Especially when it comes to the Yeshiva University story and the involvement of the federal courts in that case, I think William McGurn, in an opinion piece that ran just yesterday in The Wall Street Journal, gets it exactly right. The title of his opinion piece, We’re All Jews Now, indicating that all those who believe in religious liberty must understand that a threat to religious liberty at Yeshiva University is a threat to the religious liberty, the religious freedom of all. That’s the big story here.

Part III

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Media Don’t Like Florida Gov. Ron DeSantis Using Biblical Language: The Response Tells Us A Lot About Our Times

Finally, I want to look at controversy concerning Governor Ron DeSantis here in the state of Florida. He spoke at an event I am attending, and on Sunday night, welcomed us to what he called the free state of Florida. One of the reasons he said that is because of the impact of COVID shutdowns elsewhere when Florida was fighting back against those shutdowns. By the way, one of the things we’re going to be looking at this week is the fact that even many on the American left are beginning to understand that the shutdown of the public schools in the United States, and other schools as well, but most importantly the public schools, particularly from the fall of 2020 onward, has really been enormously costly for American schoolchildren.

Nonetheless, Governor DeSantis made the front page of the Miami Herald yesterday, and the headline was this. “What Message Does DeSantis Send with Religious Rhetoric?” The subheadline in the article says, “Governor Ron DeSantis uses biblical references in his campaign for reelection. The Christian nationalism may fire up his Republican base, but critics say it alienates others.”

Anna Ceballos is the reporter in this case, and she references the fact that Governor DeSantis spoke at what she describes as a private Christian college in southern Michigan. I think almost assuredly that is Hillsdale College in Michigan. There, he cited our political and cultural struggles in this country, the moral divide in this country, by citing Ephesians 6 and the full armor of God. The article starts there because evidently we’re supposed to think, “Well, that is an improper use of religious language. Doesn’t he know about the separation of church and state? Doesn’t he know about Thomas Jefferson’s wall of separation? What does he think he’s doing, as a public official, citing Scripture?”

Now, by the way, let me just stop right there and say that if there were somehow a moratorium, somehow our constitutional system is supposed to prevent public officials from using, say, Scripture, allusions to Scripture in public speeches, also in presidential communications, then you’d have to go back and correct the nation’s first president, George Washington. What did he think he was doing? Of course, you’d have to remove an awful lot of the words from the most famous speeches given by President Abraham Lincoln. You could fast-forward to President Franklin Delano Roosevelt and throw him in with President Ronald Reagan. You could just go down the list and recognize that, evidently, American presidents have not understood that that was supposedly the rule, at least maybe not until now.

The reporter tells us, “The Republican governor, a strategic politician who is up for reelection in November, is increasingly using biblical references in speeches that cater to those who see policy fights through a morality lens and flirting with those who embrace nationalist ideas that see the true identity of the nation as Christian.”

Now, again, that’s supposed to be very scary language, but you’ll notice the first part is “using biblical references in speeches that cater to those who see policy fights through a morality lens.” Let me just point out, I think it’s a pretty safe bet that that includes every single listener to The Briefing. We understand that these policy fights are, indeed, in many cases, moral issues. Otherwise, we wouldn’t be concerned about them. We wouldn’t be working in those areas of issues, and we wouldn’t be discussing them and analyzing them on The Briefing. It’s precisely because they are moral issues.

The second part was “those who embrace nationalist ideas that see the true identity of the nation as Christian.” Now, there could be a very false and dangerous form of nationalism that would idolize the nation, but frankly, it’s just an historical reality that the overwhelming culture that produced the United States of America was a culture formed by and framed by Christianity.

The other interesting thing here is that Governor DeSantis is being criticized for using not only biblical language, but biblical language about conflict. You simply have to wonder where this concern was, particularly the conflict part and the divisiveness part, when you had the recent speech given by President Joe Biden, with red lights and Marine guards, as he was warning Americans about the danger posed by, most importantly, other Americans who voted against him.

Now, there’s more to the case made by President Biden there, but there’s not less to it. We really are looking at the fact that when you have cultural divisiveness in the country as deep as it is now, you have people, such as those in the mainstream media, who see the right as using very belligerent language, but when the same kind of language or even more belligerence is expressed by the left, well, no, that’s just a logical argument.

There’s a huge issue in this article that will frame a future consideration on The Briefing. Indeed, we’ll probably have to come back to it time and again. We are told in this article that “the vast majority of Americans who were surveyed recently,” 63% to be precise, “said they think the federal government should advocate for moral values shared by people of many faiths. 13% said the government should advocate Christian values.”

Well, you simply have to wonder what other faiths are to be involved here and what particular moral values Americans supposedly think are shared in common by all of those people with all of those belief systems. The fact is that is actually not a tenable argument, but it does tell you something about the confusion of our times and about the fact that there are many people who would claim a religious identity who, frankly, operate more in a secularist mode.

Finally, on this issue, it is really interesting to wonder what many people would think is, well, say, the Goldilocks amount of religious reference when it comes from anyone speaking in public, much less a public official. Just where do Americans think there’s too much, it’s too hot or too little, it’s too cold, and then Americans say, “Oh, I hear that person, and it’s just right”?

Well, the fact is, of course, there is no such judgment. But when it comes to so many in the secular press, just about anything stated with any strong theological conviction, well, the response is going to be, “Wait just a minute. I don’t know what the right amount is, but that’s too hot.”