Whither Ecclesiastical Abstention?

by Rabbi Philip Lefkowitz

“Indeed, it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.” United States Supreme Court in McClure, in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 725 (1976).

This decision was issued in a case involving the defrockment of a Bishop of the Serbian Orthodox Church of Illinois. The Illinois Supreme Court had ruled that the defrockment had to be set aside because it was done in violation of the Church’s own procedures. The Supreme Court reaffirmed the important role of separation of church and state, even when the actions of the church “are not rational or measurable by objective criteria.”

The Separation of Church and State embodied in the First Amendment to the Constitution has long been a bedrock value unique to the very establishment of the United States of America. Based upon the First Amendment, the concept of Ecclesiastical Abstention was put forward; the State has no role to play in any aspect of the function of a religious institution.

And now comes Obama Care – When Obama Care was first put forward, most Roman Catholic Bishops gave it their full support. There was an “understanding” that this legislation would be tweaked in some fashion so as to avoid any impingement upon the religious values of the Catholic Church.

The Catholic Church today maintains or has built 625 not-for-profit hospitals in the U.S. with about 1 in every 8 hospital visits made to Catholic Hospitals. This represents the largest share of the American health care industry. Additionally, the Catholic Church plays a major role in education and in caring for the needy and underprivileged. In all of these functions many if not most of the folks utilizing these services are not Roman Catholic. In Chicago, for example, a goodly number of Jews, Orthodox Jews, use the excellent facilities of St. Francis Hospital in Evanston, Illinois even, at times, receiving financial consideration.

President Obama has now confirmed that the government will force the Church’s institutions including hospitals, schools, charities to purchase insurance for their employees which includes birth control, sterilization, and drugs that act as abortifications, in opposition to Church doctrine. The Church feels that their providing, their paying for these insurance options, makes it complicit in these acts when one of their employees opts to utilize them. The Church sees this as a clear and obvious violation of separation of church and state. As I write almost 200 Bishops across the United States, with the support of other religious Faiths, have issued statements in opposition to this demand by the President.

Here in Chicago Francis Cardinal George, Archbishop of Chicago’s Archdiocese, the largest archdiocese in the United States, wrote in a letter read in all Catholic Churches:

… unless the rule is overturned, we Catholics must be prepared either to violate our consciences or to drop health coverage for our employees (and suffer the penalties for doing so). The Administration’s sole concession was to give our institutions one year to comply. We cannot – we will not – comply with this unjust law.

How should the Jewish community react to this major confrontation with a religious denomination that now accounts for nearly 50% of the American population?

Attacks on Jewish observance are not unknown in Jewish life. They have been couched in many forms. Several hundred years ago, in response to “swooning,” the idea that people can seem to be dead but in reality are not and given time will revive, become animated once again, resulted in laws being enacted to protect individuals from being buried prematurely, while they were yet alive. Some societies required that burial not take place for a week or more. The fear of being buried alive was so rampant that individuals were buried with a string attached to a bell above ground so that, when they revived from their “swoon,” they could ring the bell and be “resurrected.” With Jewish tradition requiring burial as quickly as possible, these laws created tremendous anguish for the Jewish population.

In my lifetime, there have been repeated attempts to outlaw Shchita, Jewish ritual slaughter even here in the United States mounted by those claiming to protect animals from torture. In societies such as the United Kingdom, ritual slaughter, Kosher and Hallal, are allowed through a special exemption in the law providing for religious ritual. Many countries in Western Europe have totally outlawed Shchita.

A movement to outlaw ritual circumcision is now receiving new support particularly on the West Coast. Like anti-shchita advocates it is premised upon the need to protect the innocent child from a primitive rite that inflicts pain and long-term trauma upon the innocent babe. Sadly there are as well those on the left in Reform Judaism who are in support of this movement.

The issue of separation of church and state is rife with pitfalls. It is at times extremely difficult to draw that line in the sand. With the increase in our American Muslim population, with their own rites and rituals that conflict with some Americans’ sensitivities, and with their own ecclesiastical authorities turned to for determinations that at times conflict with civil law, we can expect the issue of the First Amendment and its concomitant concept of Ecclesiastical Abstention to become an ever more volatile issue in American life.

The classical case generally referred to in separation of church and state is the famous peyote case. Native American religions utilize marijuana in their rituals. The peace pipe may not always bring peace but will always brings a state of euphoria. That case brought before the United States Supreme Court saw the Jewish community filing amicus briefs in support of  the Native American religious rite of marijuana use. For the American Jewish community their support of the rites of a nature region was based primarily upon the concern that, were the Supreme Court to reject the Native American appeal, such a decision would open the flood gates of attacks upon Jewish rites, i.e. shchita and circumcision.

There is no doubt that the Catholic Church’s contribution to education and social welfare in America is substantial. For example, in Chicago the Catholic School system provides a wonderful education for thousands upon thousands of children in the worst of neighborhoods. The only alternative to a failing public school system, the Catholic system graduates students who go on to be reputable and contributing members of society. For many in the African American community, non-Catholics, the Catholic School is their very lifeline, their only hope for an education that will set them in good stead for a successful future.

To be sure, this confrontation by the Obama administration with the Church is a watershed moment in American history that will affect a notable change in our American way of life if allowed to stand. For years many in the religious communities have warned of an ever increasing attack upon religion in the United States. Those who are attempting to minimize this confrontation state that it is not about religion, it is about individual rights, for example in the current conflict, citing statistics that a majority of Catholic women use birth control. A false argument,, the same approach could be used against shchita citing statistics that the majority of those professing Judaism as their religious affiliation eat non-kosher meat.

The Jewish community must not remain silent on this issue. We must see this confrontation not as a Catholic issue but as a matter reflecting upon the important principle of religious freedom in America; a principle that has been of singular importance to our own community. As a matter of practicality, similar to the peyote case, we know full well the many disguises those who wish to attack our religious practices have donned in the past. I cannot help but feel that there are those advocating this demand upon the Church as a response, as pay back, for the vociferous stand of the Catholic Church on the issues of abortion and gay rights.

As the Union of Orthodox Jewish Congregations of America, the O.U. and Agudath Israel, the entirety of American Jewry should support the stand of the Roman Catholic Church on the importance of the First Amendment.