Since Rabbi Daniel Landes is founder and director of a group dedicated, as it describes itself, to civil discourse, integrity and tolerance, it’s fair to assume that his recent comments in Haaretz about last month’s U.S. Supreme Court decision which lifted recent COVID-19 restrictions imposed on houses of worship (SCOTUS ‘Religious Freedom’ Ruling: Supremely Irresponsible, Immoral and Profoundly unJewish) were not meant to willfully mislead readers, but were just the product of ignorance.
The case had nothing whatsoever to do with "defying science" or "shirking social solidarity" – and certainly not with "sanctifying death. Even the most superficial non-lawyer’s read of the decision and its dissents should make that readily clear.
The High Court, moreover, did not "eliminate governmental restrictions on the number of people who can attend prayer services," as Rabbi Landes wrongly asserts. And in no way, either, did it enable "shtiebels and shuls to squeeze their heimische attendants into their infectious closed spaces." (It’s hard, I’m pained to add, not to note a hint of something other than "integrity and tolerance" in those words.)
And the decision most certainly hasn’t "hijacked the precious idea of freedom of religion." It has preserved it.
The actual facts: The case concerned restrictions put in place by New York State on certain neighborhoods’ houses of worship that were more stringent than the reasonable and health-conscious rules for comparable secular facilities in the same areas. Even the largest shuls, built to hold hundreds of worshippers, were limited to ten occupants.
What Agudath Israel (joined by two shuls and two individuals) and the Roman Catholic Diocese of Brooklyn contended was that the unfair levying of those restrictions was an illegal infringement of Americans’ religious rights as codified in the U.S. Constitution’s First Amendment.
The main majority opinion readily acknowledged that the Justices "are not public health experts" – they don’t have to be, to judge whether health restrictions good enough for secular establishments aren’t good enough for religious ones – and focused only on the disparate treatment of houses of worship.
The Court’s opinion acknowledged that New York’s order indeed treated houses of worship more harshly than "essential" businesses, a category that includes liquor stores, bike shops and acupuncturists.
As Justice Neil Gorsuch pithily put it in his concurring opinion: "According to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians [terms used by acupuncturists]. Who knew public health would so perfectly align with secular convenience?"
To countless religious Americans, religious services are no less essential – indeed considerably more important – than liquor stores or alternative medicine providers.
Even the dissenting opinions, for the most part, didn’t deny the Constitutional problem. One, from Justice John Roberts, explicitly noted that "it may well be that such restrictions violate the Free Exercise Clause," and contended only that, since the governor had since eased the restrictions being challenged, there was no need for a ruling. But, of course, had the Court not issued one, the harsher restrictions could have been reimposed at any time.
Dismissing Justice Gorsuch’s position, as Rabbi Landes does, as giving houses of worship "a special right to be open" is, to put it generously, simply untrue.
And his description of Orthodox groups’ professed willingness to enforce reasonable health guidelines as a "scam" cannot be attributed, even generously, to mere ignorance. It is, to be blunt, insulting.
Are there scofflaws among the hundreds of thousands of American Orthodox Jews? Certainly. As there are in other subsets of American society, like club-goers, Hamptons partiers and civil rights protesters. Would Rabbi Landes judge, say, entire minority communities based on the behavior of inner-city gangs? Or mainstream Muslims based on the acts of terrorists? Why are wild generalizations, false accusations and rank bigotry suddenly acceptable when the targets are Orthodox? I’ve often said that the Orthodox seem to have become "the Jews’ Jews."
Orthodox groups, of course, don’t have the ability to "enforce" anything. What they do have is an ability, and a responsibility, to encourage those who respect them to do what is right. And, to take one example with which I am personally familiar, Agudath Israel of America – again, one of the plaintiffs in the case, and the organization for which I work – has repeatedly, since last spring, enjoined its followers to follow all reasonable health precautions. It wasn’t a "scam."
In fact, less than a week ago, at the Keynote Session of Agudath Israel of America’s (virtual) national convention, which was viewed by many tens of thousands, the organization’s executive vice president, Rabbi Chaim Dovid Zwiebel, offered a heartfelt, impassioned reiteration of that imperative, and declared that any religious Jew who disregards precautions like masking and distancing not only potentially harms the health of others but brings about the opposite of the fundamental Jewish imperative to make "Hashem’s name beloved to others."
Rabbi Landes’ accusation that Orthodox leaders "have chosen to prioritize the public and group celebration of prayer, study, and life cycle events over individual lives" can only be described as a libel. Such "well-poisoning" calumnies are not uncommon among anti-Semites, but it’s deeply depressing to hear one coming from a fellow Jew.
The world is afflicted with COVID-19. And the Jewish world, with unwarranted ill will. May we soon merit to experience relief from both.
Rabbi Avi Shafran is a blogger, commentator and author, and serves as Agudath Israel of America’s director of public affairs.