Religious Freedom and Establishment of Government

On September 7, 1787, Jonas Phillips wrote an appeal to George Washington and the members of the Constitutional Convention assembled in Philadelphia. Phillips, a Jew, asked Congress to consider the religious liberty of Jews living in Pennsylvania – citizens who had “been faithful and faithful…during the last battle with England” who had “bravely fought and bled for the freedom”.

The letter’s occasion dealt with a law in the Pennsylvania Constitution that required a religious test for office holders. The test Lily, “I believe in one God, the Creator and Ruler of the universe, the Rewarder of the good and the Punisher of the wicked – and I acknowledge that the Scriptures of the Old and New Testaments were given by divine inspiration. ” This last clause prompted Phillips to write to Congress, asking that the language be dropped. The Jews, after all, disagreed that the New Testament was divinely inspired. He held that “all men have a natural and inalienable right to worship Almighty God according to the precepts of their own conscience”.

Phillips criticized the notion of a religious establishment that thwarted principles of conscience to an intolerable degree, placing otherwise loyal and righteous citizens outside the scope of political participation. No authority, he said, should possess such power that could “in any way interfere with or control the right of conscience in the free exercise of religious worship.” This letter joined a host of many other religious dissenters throughout the 1780s and 90s, calling for the suppression of religion. Baptists, Quakers, Presbyterians, and Jews like Phillips all fought over the right to exercise their religious beliefs.

It is ironic that on the 235e anniversary of this letter, a Jewish university in 2022 implored government authorities for the same cause of religious freedom – a Jewish institution should fight for the right to be Jewish.

On Monday, September 5, Yeshiva University asked the United States Supreme Court to block an order requiring the institution to recognize an LGBTQ student organization. Last June, the New York Supreme Court argued that the Yeshiva must provide “full and equal accommodations” to this group of Pride Alliance students, despite the university’s policies and the religious views that guide its mission and vision.

Ari Berman, President of Yeshiva University, declared that “the Torah guides everything we do at Yeshiva – from how we educate students to how we run our dining halls to how we organize our campus… We only ask the government to allow us the freedom to apply the Torah in accordance with our values.”

On Wednesday, September 15, the United States Supreme Court in a 5-4 decision, refuse Yeshiva’s call, at least for now. The Court did not rule on the merits of Yeshiva’s case, instead stating that the university had two other avenues to make its case at the state level which it had not yet taken advantage of – if these measures failed, then Yeshiva could again take the matter to the Supreme Court. Judge Alito, author of the dissenting opinion, argued that at the bare minimum, the First Amendment protects religious schools from “the application by a state of its own preferred interpretation of the Holy Scriptures.” Indeed, Alito concluded, “A state’s imposition of its own binding interpretation of Scripture is a shocking development that calls for examination.

In answer at the Court’s decision, Yeshiva froze the activities and operations of all of its undergraduate clubs. Thus, not only was religious freedom lost, but most Yeshiva students suffered the consequences of a state-established theological claim on the issue of sexuality and gender. Shortly after this decision by Yeshiva, however, the university entered into an agreement with the student organization Pride Alliance. The LGBTQ student organization would maintain its claims to be officially recognized by the university as the case progressed through the courts, allowing other student organizations to resume operations.

Yeshiva is not alone in its struggle to function in accordance with its underlying religious worldview. Last year, thirty-two people deposit a lawsuit against the U.S. Department of Education for applying religious exemptions to institutions of higher learning that the petitioners claim “discriminate” against LGBTQ students. Institutions such as Union University, Brigham Young University, Lipscomb University, Fuller Theological Seminary and Cedarville University were all named in the lawsuit, and the implications of the case were clear: either these colleges, universities and seminaries were to engage in the sexual revolution or they must lose their status under Title IX.

In short, the Yeshiva and other religious colleges and universities must conform to the newly established sexual orthodoxy.

Religious freedom, however, requires that religious institutions be allowed to operate according to their guiding religious principles and precepts. If Jews cannot be Jews, then how will Protestants be Protestants, or Roman Catholics be Catholics? A state-imposed sex establishment parallels the kind of religious establishment that dissidents have long sought to dismantle, and for good reason. The Supreme Court declared in Zorach v. Clauson, “We are a religious people whose institutions presuppose a Supreme Being…When the State encourages religious instruction…it follows the best of our traditions. Because it respects the religious nature of our people. Attempting to eradicate genuine religious instruction therefore violated not only the American constitutional order, but also what it meant to be human. More recently in Carson v. MakinChief Justice John Roberts declared, “Educating young people in their faith, instilling in them its teachings and forming them to live their faith are responsibilities that are at the very heart of the mission of private religious schools. But that right is challenged every day, and the consequences come down to whether Christian institutions can continue to be Christian.
Jonas Phillips sought freedom for himself and other Jews to live freely in the United States. And on the 235e anniversary of his struggle, we are still witnessing the struggle and fragility of religious freedom – and not just for Jews, but for all of us.

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