Robust recognition of religious freedom is a fortification against antisemitism

Written by William C. Duncan

December 1, 2021

A high point in the early history of religious freedom was President George Washington’s statement of the ideal of religious toleration from a 1790 letter: “For happily the Government of the United States gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.”

The letter was addressed to the Jews of Newport, Rhode Island, responding to the very real concerns of persecution. A spokesman, Moses Seixas, had written the president:

Deprived as we heretofore have been of the invaluable rights of free Citizens, we now with a deep sense of gratitude to the Almighty disposer of all events behold a Government, erected by the Majesty of the People — a Government, which to bigotry gives no sanction, to persecution no assistance — but generously affording to all Liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language equal parts of the great governmental Machine.

The vision of Seixas and Washington would become officially codified in the First Amendment not long after their exchange took place, but this did not end the persecution of Jews and other in the United States.

Indeed, the tragic experience of antisemitism – an ugly feature of human history – persists today.

A recent publication from the Heritage Foundation, written by scholars and religious freedom advocates Josh Blackman, Howard Slugh, and Rabbi Mitchell Rocklin, persuasively argues that a more robust recognition of religious freedom could provide a powerful defense against antisemitism in the United States and that its absence leaves Jewish citizens vulnerable to mistreatment.

The backdrop for the analysis is the current Supreme Court interpretation of the religious freedom guarantee of the First Amendment. This interpretation, which allows governments to limit religious practice as long as it also limits similar secular conduct, appears ripe for reconsideration by the court but is still in place for now.

The Heritage report, “Fighting Antisemitism by Protecting Religious Liberty,” notes that a “robust understanding of religious freedom guaranteed by the First Amendment is an important bulwark against antisemitism.”

The authors give four examples of “laws that would undermine Judaism, yet still would likely be consistent with” the current approach to the First Amendment. The first three were highlighted by Justice Samuel Alito in the 2020 Fulton v. Philadelphia case. The last is from the experience of a couple of cities.

1. Laws that prohibit kosher slaughter of animals. “Jewish people follow strict dietary laws. Kosher animals must be slaughtered in a specific fashion. The butcher, known as the shochet, must slit the animal’s throat with a clean, sharp knife so the animal quickly loses consciousness.” European countries have banned this practice on animal rights grounds (as did Nazi Germany).

2. Laws banning circumcision. “The circumcision ritual performed on eight-day-old males, known as brit milah, results from a direct command and represents the covenant between G-d and the Jewish people, dating back to the days of Abraham.” European countries have considered bans, as has at least one California city.

3. Laws banning head coverings. “Many Jewish men wear a head covering, known as a yarmulke or kippah, during most of the day.” France has such a ban, and Las Vegas has a similar policy applied to police officers.

4. Laws prohibiting posting materials on utility poles. At least two U.S. cities have applied sign ordinances to limit eruvs (a symbolic boundary for use on the Jewish Sabbath), resulting in litigation. The authors explain the implications of such a law for Jewish practice:

On the Sabbath, Jews are generally prohibited from carrying any objects outside their home—even mundane items such as keys or baby supplies. Many Jews set up an eruv to encircle their neighborhoods. They believe that this ceremonial boundary creates a zone in which carrying objects is permissible. Eruvs are an essential element for many Orthodox Jewish communities. In the absence of an eruv, it is difficult to leave one’s home on the Sabbath. It is forbidden to push an infant in a stroller or even to use a wheelchair.


With an eruv, all members of a family—including parents with small children—can visit a synagogue for prayer services. Today, eruvs are often built by placing thin strips of hard material, known as lechis, vertically along utility poles and then stringing thin wires between those poles. There are more than 100 eruvs in the United States.

These types of laws would also apply to nonreligious conduct, which means they would be allowed under the current approach of the Supreme Court to interpreting the First Amendment. They would not only limit the religious practice of Judaism but also practices of Muslims, Sikhs and others.

Sensitive legislators could avoid many of these conflicts by seeking compromise designed to drive legislative consensus. A more robust approach to enforcing the First Amendment in the courts would be an additional, invaluable backstop against antisemitism and religious discrimination. Pursuing both will lead the U.S. significantly closer to fulfilling the aspiration of religious freedom and accommodation articulated by Washington in his 1790 letter.

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