First Things RSS Feed - Michael A. Helfand

Kept From Keeping the Sabbath

Thu, 15 Jul 2021 06:00:00 -0400

Late last month, several Orthodox Jewish residents of a New Jersey apartment building—all elderly, some handicapped—filed a federal lawsuit because their co-op board would not let doormen press the elevator button for them on the Jewish Sabbath.

Continue Reading »

Implied Consent

Tue, 25 Mar 2014 00:02:00 -0400

Today, the Supreme Court will hear arguments on whether the Affordable Care Act’s “contraception mandate”—the requirement that employers provide employees health insurance that covers contraception and abortifacients—impermissibly infringes on the religious liberty of religiously motivated corporations. The case represents the latest volley in a culture war of sorts as courts and academics—not to mention employers and employees—try to reconcile the law’s fundamental commitment to two principles increasingly emerging at loggerheads: religious liberty and women’s health.

Continue Reading »

Religion’s Wise Embrace of Commerce

Thu, 07 Feb 2013 04:22:00 -0500

The religion wars in the United States have officially “gone commercial.” In contrast to past religious controversies that have centered on questions like prayer in public schools and religious symbols on government property, recent conflicts between law and religion have quite a different feel because of their unmistakable commercial component.

Consider the controversy over the Department of Health and Human Services (HHS) promulgation of the so-called “contraception mandate””the regulation issued pursuant to the Affordable Care Act requiring employers to include contraception in employees’ insurance policies. While religiously motivated for-profit corporations”from book sellers to construction companies”have argued that providing such insurance coverage would violate their conscience, HHS has refused to provide any exemptions for for-profit corporations. According to the government, for-profit entities cannot “exercise religion.” For their part, the federal courts of appeals have split on whether the question”that is, on whether religion can “go commercial.”

The same opposition of commercial conduct and religious objectives stood at the heart of the debate last year over the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission , where the court held that religious institutions could not be sued for employment discrimination when it came to the hiring and firing of “ministers.”

The court, however, avoided providing any defininition as to which employees count as ministers. Is a chaplain in a for-profit rehabilitation center serving as a minister? What about a rabbi providing kosher supervision to a for-profit caterer? The more religion has gone commercial, the more difficult it has become for courts to figure out how to treat conduct that that is simultaneously religious and commercial.

Of course, these constitutional skirmishes are part of a far larger infrastructure of religious commerce. Notable examples include Sharia-compliant financial instruments and Jewish heter iska agreements, both of which are mechanisms for restructuring loans so as to avoid Islamic and Jewish law’s respective anti-usury rules. Religious communities have embraced contracts that use commercial forms to govern and structure a variety of religious relationships, such as employment contracts, arbitration provisions, and prenuptial agreements.

To some, this merging of religion and commerce has been a source of great worry. In fact, the purported rationale behind the recent wave of anti-Sharia initiatives around the United States”state laws that prohibit courts from “considering” or “referencing” Islamic law”is to prevent the supposedly dire risk of religious doctrine spilling into the American judiciary. By some accounts, judicial enforcement of religious commercial instruments is a modern-day Trojan horse, smuggling nefarious religious worldviews into a judicial space under the surreptitious guise of secular commercialism.

Such disdain was on display this past August when a Kansas state court refused to enforce an Islamic mahr contract”an agreement used as part of the Islamic marriage process. The agreement secured a debt on behalf of a wife against her husband in the event of divorce, which would protect the wife if she could no longer rely on her husband’s income. The court, however, refused to enforce the contract, contending that such contracts perpetuate discrimination because Islamic law grants the husband unilateral authority to effect the divorce. Of course, the court never quite explained how enforcing this agreement would be discriminatory given that it provided the wife with financial leverage in the event of divorce. The court relied, in part, on a recently enacted anti-sharia law in Kansas, further demonstrating how such laws can be deployed to prevent religion from “going commercial.”

Not all courts have been so skeptical. In a decision only a few weeks ago, a Connecticut Superior Court issued what is sure to become a landmark decision, enforcing a formal prenuptial agreement drafted by one of the most prominent rabbinical courts in the United States, the Beth Din of America. The agreement provides the wife with leverage in the case of a Jewish divorce, counterbalancing the fact that Jewish law grants the husband unilateral authority to initiate a divorce. Accordingly, the agreement requires the husband (and wife) to submit to the authority of a rabbinical tribunal if either spouse seeks a divorce, and to pay the wife $150 in daily support until the divorce is granted, preventing the husband from using divorce as a bargaining chip in negotiations related to the dissolution of the marriage.

Not surprisingly, the husband appearing before the Connecticut court argued that enforcing the prenuptial agreement violated the First Amendment, serving as an impermissible admixture of religious practice and governmental authority. But the court unequivocally rejected such claims, endorsing the enforcement of religious contracts that are clearly drafted in plain language and thereby avoid drawing courts into debates over internal religious doctrine. In this way, the court endorsed the trend of religion going commercial, encouraging religious communities to use the law’s framework to translate religious obligations into commercial instruments in order to protect the most vulnerable within their ranks.

Indeed, the court’s decision recognized that the best way to prevent the potential negative impact of religious law is to encourage ingenuity and creativity precisely at the nexus of religion and commerce. So long as courts continue to ensure that parties enter such agreements out of their own volition, the sophisticated drafting of agreements and structuring of relationships can provide solutions to the most worrisome religious customs and practices. Those supporting initiatives that hope to disaggregate religion and commerce miss the core insight that commercializing religion isn’t the problem: It’s the solution.

Michael A. Helfand is an associate professor of law at Pepperdine University School of Law and associate director of Pepperdine University’s Diane and Guilford Glazer Institute for Jewish Studies.

Become a fan of First Things on Facebook , subscribe to First Things via RSS , and follow First Things on Twitter .

Continue Reading »

No, Bloomberg Isn’t Banning Circumcision

Mon, 15 Oct 2012 00:01:00 -0400

Few freedoms are more cherished in the United States”and more vigorously surveilled”than the right to religious liberty. For government to discriminate against religious conduct”and make it the subject of heightened government regulation”would run afoul of the constitutional principles at the heart of America’s founding and undermine liberalism’s unequivocal commitment to religious autonomy.

Of course, instances where rogue legislators impermissibly target religious conduct represent the easy cases. The tough cases”the ones that engender heated and often hostile debate”are where government is thrust on the horns of a dilemma between protecting its citizens from harm and limiting its citizens’ religious autonomy. Such is the case with the New York City Board of Health’s controversial decision last month to require mohalim (religious circumcisers) to obtain informed parental consent before performing ritual oral suction on the circumcision wound after completing the procedure.

This religious ritual”referred to traditionally as metzitzah b’peh ”is practiced primarily within the confines of small Ultra-Orthodox Jewish communities and traces back to the Talmud where it was understood to protect the circumcised baby from harm. However, the Board of Health contends that in a handful of cases this practice caused babies to contract herpes, leading to hospitalization and, in some rare instances, brain damage and death.

This is not the first time that this post-circumcision practice has landed on the battlefield of the ever-expanding circumcision wars. Advocates of the failed San Francisco circumcision ban”so-called intactivists”wasted no time in weaving this practice into their anti-circumcision narrative. The president of MGMBill.org, an organization agitating for anti-circumcision bills in the U.S., incorporated it into his controversial comic book “Foreskin Man.” Using imagery that the Anti-Defamation League has appropriately referred to as “grotesque” and “anti-Semitic,” the comic featured a disturbingly bloodthirsty and violent villain named “Monster Mohel.” “Nothing excites Monster Mohel more,” says the comicbook, “than cutting into the penile flesh of an eight-day-old infant boy. And after the glorified brit milah is complete, the delicious metzitzah b’peh provides the icing on the cake.”

Intactivists draw a very different conclusion from the ongoing practice of oral suction than has New York City’s Board of Health. Ardent opponents of circumcision deploy the practice as part of their campaign to ban circumcision altogether. And one of the key lessons from the fight over the attempted San Francisco circumcision ban is that such bans are far more legally viable than many anticipated. Indeed, even the religious liberty guaranteed by the First Amendment combined with the parental rights guaranteed by the Fourteenth Amendment may not provide enough protection against a circumcision ban that does not specifically target religious conduct.

Thankfully”and wisely”the Board of Health has not even hinted at such draconian measures. In fact, they have not even sought to ban the more limited practice of post-circumcision oral suction. Instead, it has marshaled the forces of religious autonomy, deferring to the decisions of parents so long as they have been advised of the potential risks. Faced with a choice between religious autonomy and government regulation, the Board of Health has steered its decision towards the former, remaining true to our core constitutional commitments of individual conscience and religious freedom.

None of this has shielded the Board of Health from an extraordinary helping of undue criticism. For example, Assemblyman Dov Hikind (D-Brooklyn) and New York State Senate candidate Simcha Felder have declared the measure “an attack on Judaism as practiced for 3300 years” and a “deliberate insult to the intelligence and dignity of Orthodox Jews.” Nothing could be more wrongheaded. Notwithstanding its own view that the practice entails medical risk, the Board of Health has not condemned circumcision or even post-circumcision oral suction. They simply have endorsed informed consent in order to ensure that parents selecting a specific form of ritual circumcision make that choice with access to full and free information. To endorse religious and parental autonomy in the face of such potential risk is to make an unambiguous and powerful statement in support of not only religious liberty generally, but in support of the Jewish communities that continue to practice this traditional form of ritual circumcision.

On this count, it is shocking that some critics of the Board of Health (to their credit, not Hikind and Felder) have had the audacity to compare this new measure to the attempts to impose a complete ban on circumcision abroad in countries such as Germany and Denmark. Indeed, for critics to post signs outside the Board of Health hearings describing this new measure as a “blood libel””and then to suggest that Mayor Bloomberg should serve as the chancellor of Germany”exaggerates the concerns at stake to the point that it completely undermines their credibility. The criminalization of ritual circumcision banishes religious autonomy to the constitutional ether; it imposes a top-down view of how to practice religion and raise children, which denigrates both religious tradition and parental decision-making. Informed consent represents the very opposite of these nefarious regulations; to compare the two, as some Jewish leaders have, is thoroughly irresponsible and the very pinnacle of absurdity.

It may be true, as Hikind and Felder suggest, that this new measure will “dissuade some Jews altogether from performing ritual circumcisions.” When you promote the autonomy of others sometimes they make choices you dislike. By proposing a measure that capitalizes on the religious autonomy of parents, allowing them to select the best way to raise their child, the Board of Health aims to ensure that parents selecting this religious ritual have done so out of religious conviction and not medical ignorance. And that may mean”at least so Hikind and Felder insist”that some families will walk away from the ritual. But that is a reason to endorse the proposal; it means that parents are currently making critical decisions about the welfare of their children because they lack access to information”decisions that would be different if they only knew more.

There is good reason to be skeptical of any religious spokesperson or political representative who resists attempts to disseminate information”especially when that information has the power to change minds. While Hikind and Felder accuse the Board of Health of “thrust[ing] the city deeper into a nanny-ocracy,” one can only wonder whether it is the forces resisting this new measure that seek to impose their own worldview on a less-than informed constituency. When push comes to shove, is this debate really about the symbolic denigration of a religious practice, or is the worry that once some parents find out about the risks, they’ll reject received dogma and discard the practice?

Michael A. Helfand is associate professor and associate director of the Diane and Guilford Glazer Institute for Jewish Studies at Pepperdine University School of Law.

Become a fan of First Things on Facebook , subscribe to First Things via RSS , and follow First Things on Twitter .

Continue Reading »