 |
| The six conservative Supreme Court justices (CNN) |
I think most Orthodox Jews would know what the Halachic obligation of that agency would be. It would have to refuse since that would be facilitating Shmad. That child would be raised as a Christian.
The problem in such a case is that the civil rights of the adoptive parents are being violated by that refusal.
This is an excellent example of religious rights clashing with civil rights. Whose rights are more protected by the constitution?
The scenario I just painted actually happened. But in exactly opposite way. From an article by Jonathan Tobin in JNS:
A Jewish couple (the Rutan-Rams) seeks to overturn a Tennessee law that says a Christian adoption agency shouldn’t be forced to work with non-Christians.
In this case the tables are turned. A Jewish couple living in Tennessee wants to adopt a Christian child and raise him (her) as a Jew. The agency in question, Holston United Methodist Home for Children refuses to accommodate those parents saying that their ‘core religious principles forbid them from placing children in non-Christian homes.’
The same question arises. The Jewish parents are being denied their civil rights at the expense of the agency’s religious rights. Whose rights are more protected by the constitution?
The Jewish couple is suing the Tennessee Department of Children’s Services whose rules allow government funded religious institutions to deny service based on their religious principles.
The Rutan-Rams’s lawyers, backed by the American Civil Liberties Union, contend that the law violates both the Tennessee Constitution and the U.S. Constitution, which guarantees freedom of religion.
As Tobin noted it’s easy to sympathize with the adoptive parents. In what world is a child being denied adoption by a decent, warm and loving couple a positive outcome? It is very possible that a child will end up being raised in a state facility or foster care - which does not have the greatest record raising children.
And yet in my view, the constitution is very clear. The free exercise clause of the First Amendment guarantees there can be no government interference in the religious practices of any institution. Any attempt at doing so – even for the most altruistic of reasons - would be a violation of the First amendment. So as much as I would like to see the Rutan-Rams adopt that child, it cannot be done at the expense of violating the constitution. Ruling against the state would mean that the religious rights of the Holston United Methodist Home for Children would be denied.
As Tobin also notes, it would also mean that in the reverse scenario I painted, that Orthodox Jewish social service agency would be forced to facilitate the adoption of a Jewish child by a Christian couple.
Orthodox Judaism does not allow facilitation of that outcome. Hopefully – if this case ever reaches the US Supreme Court – the majority conservative justices will allow us to uphold that value.
A word about religions that claim racist polices as part of their religion. How far does the First Amendment go?
That is a good question. In my view any religion that claims to be in service to God, cannot possibly claim racism as a value. I do not believe any of the 3 major faiths have racist ideals. Certainly not any that would be discriminatory. Those that claim such values are on the fringes of society, racist at the core, and have twisted their religion to fit their racism. This does not mean we don’t apply the First Amendment to religions outside of the 3 major faiths. Of course we do. But one has to certain whether those religions are legitimate or racism disguised as religion.
Some more things to ponder.
What if a religion believes that certain life saving medical procedures violate their religious principles? That too is protected by the constitution. Christian Scientists for example generally forgo medical treatment such as blood transfusions because they choose to rely solely on Christian Science. Even when it might result in death. As abhorrent as that is to me, it is still their right to refuse treatment for religious reasons.
What about anti-vaxxers that claim vaccinations violate their religion? They too have that right. What they do not have a right to do is endanger others by becoming infected and unaware - and thereby infect others – some of whom might have co-morbidities and die. To what extent must an unvaccinated person go to prevent that? I don’t know but at the very least they must make their unvaccinated status known to the public so that the rest of the public can protect themselves.
The just implementation of First Amendment is is a complicated issue. It’s hard to draw lines. And there has to be lines. In some cases it’s pretty easy. Any religion for example that practices human sacrifice is not protected by the First Amendment. But there is a lot of grey out there. Which makes it worthy of contemplation and discussion.