A Dangerous Alliance

IN MID-AUGUST, a federal judge ruled that “supporting the Jewish state of Israel” qualifies as a “sincerely held religious belief” protected by the First Amendment for Jewish students at the University of California, Los Angeles. Because the Palestine solidarity encampment erected on campus in April required students who wanted to enter to criticize Israel and Zionism, Judge Mark C. Scarsi ordered that UCLA had failed to protect the constitutional rights of its Jewish students and was obligated to intervene and disband any such protest encampment in the future. The decision represents the latest blow to the pro-Palestine movement at UCLA, where the encampment was attacked a few days after its launch by counter-protestors who threw firecrackers and furniture at students, and then was ultimately forcibly dispersed by the Los Angeles Police Department early in the morning of May 2nd, with officers firing rubber bullets and arresting more than 200 protesters. The case indicates a concerning evolution in the legal tactics of Israel’s defenders, who are joining a longtime right-wing project to advance socially and politically regressive aims under the banner of religious liberty.

In their suit, litigated by top legal crusaders of the Christian right, the plaintiffs—Jewish UCLA students Yitzchok Frankel, Joshua Ghayoum, and Eden Shemuelian—argued that the protests “enforced what was effectively a ‘Jew Exclusion Zone,’” impeding access to buildings such as the campus library by only allowing passage through certain areas to those “pledging their allegiance to the activists’ views.” They claimed that because of the “centrality of Jerusalem to the Jewish faith” and because of Jewish texts prohibiting “speaking ill of or defaming the land of Israel,” supporting Israel was their constitutionally protected religious belief. Judge Scarsi, a Donald Trump appointee and member of the right-wing Federalist Society, agreed, calling the encampment’s litmus test around Zionism “unimaginable” and “abhorrent to our constitutional guarantee of religious freedom.” The ruling, which UCLA has decided not to appeal, sets a dangerous precedent that public institutions must legally accommodate Zionism as they must other sincerely held religious beliefs.

The students’ suit seeks to exploit religious-liberty protections by capitalizing on an established conservative legal strategy, developed as a reactionary response to ‘60s- and ‘70s-era social movements and their success in affirming new civil rights protections at the Supreme Court. Catholics and evangelicals were particularly offended not only by the Court’s decision in Roe v. Wade that abortion was a protected constitutional right, but also by rulings that racial discrimination laws applied equally to religious institutions. They were especially upset by a 1983 case in which the court ruled that the IRS was allowed to revoke Bob Jones University’s tax-exempt status because the fundamentalist Christian school prohibited interracial dating. In the late ‘70s and early ‘80s, conservatives began creating new organizations to fight back, such as the televangelist Jerry Falwell’s Moral Majority, founded in 1979, and the Federalist Society, founded in 1982 by conservative law students with generous sponsorship from business interests. The Federalist Society piloted a judicial strategy to chip away at progressive reforms, cultivating a generation of right-wing lawyers, who argued that the mid-century liberal courts had deviated from the Constitution’s original intent.

Today, conservative lawyers wield “religious liberty” to defend not just familiar, flashpoint issues like prayer in schools or display of the Ten Commandments in courthouses, but a broader reactionary policy agenda. As the writer Jay Michaelson has documented, the right-wing legal establishment has invoked religious liberty to defend businesses’ right to discriminate against gay, lesbian, and transgender people and to undermine contraception protections in the Affordable Care Act. The argument has also been mobilized to undermine labor: The Becket Fund, a Washington-based legal nonprofit founded in 1994, filed an amicus brief in the notorious 2018 Janus decision that gutted public-sector unions, claiming that requiring public-sector workers to pay union dues threatened religious liberties, since the unions might take positions that violated individual workers’ religious beliefs. Throughout, conservatives have placed this legal strategy within a broader narrative of persecution, in which traditionalist Christians are the new oppressed minority in America, in need of legal protection.

While some Jews and Jewish institutions, including Orthodox rabbi Meir Soloveitchik and conservative think tank the Tikvah Fund, have been influential in the right-wing project to redefine religious liberty over the past decades, a new alliance has recently formed between this movement and more mainstream pro-Israel groups. In 2019, Alyza Lewin, president of the Brandeis Center for Human Rights Under Law, argued in a Heritage Foundation symposium on religious liberty that anti-Zionist activism on campus is antisemitic: For a club to require students to “abandon their support for Israel” to join, she said, constitutes “religious discrimination.” Her paper anticipated the legal arguments used in the recent UCLA case, citing traditional Jewish texts and practices to argue that support for Israel is an “expression of [students’] religious, spiritual, and ethnic Jewish identity.” While in other contexts the Brandeis Center has focused on asserting Judaism’s status not just as a religion but as a nationality—particularly in order to lobby for pro-Israel students to receive protections under Title VI of the Civil Rights Act—the organization sees these categories not as contradictory but as complementary. In her essay, Lewin switches easily between describing support for Israel as an expression of Jewish “religion” and “nationality”; in both cases, the goal is to transform Zionism from the object of political argument into a protected identity characteristic for the sake of creating anti-discrimination protections.

In Frankel v. UCLA, the ties between pro-Israel advocacy and right-wing legal work are evident in the students’ choice of counsel: They are represented by the aforementioned conservative stalwart Becket, along with Clement & Murphy, both firms that litigated the 2014 Hobby Lobby decision, which won family businesses the right to claim religious exemptions from mandatory contraception coverage for their employees. The Becket Fund was founded by Kevin Hasson, who worked in the Reagan administration under Samuel Alito; its other Supreme Court victories include a 2020 ruling that religious organizations are exempt from non-discrimination laws in hiring even non-ministerial leaders. Clement & Murphy, also a Washington-based firm, was established by lawyers who left the massive Kirkland & Ellis when it ended its pro-gun-rights work. The newly-founded firm won a 2022 Supreme Court case on behalf of a public-school football coach who led his team in Christian prayer; they have also secured conservative victories defending Republican gerrymandering in North Carolina, the rights of police officers accused of using excessive force, and the right to carry a pistol in public. The UCLA lawsuit therefore aligns Jewish students with a large, well-organized right-wing world, even as this network of think tanks and law firms has a comprehensive policy agenda that most liberal Jews would find repugnant. The ADL, which generally advocates for a liberal conception of separation of church and state, routinely finds itself fighting groups like the Becket Fund, as in litigation about the ACA’s contraception mandate or on issues like school prayer, yet the group cheered Scarsi’s decision, lauding it for “setting key precedent for protecting Jewish students against harassment and discrimination moving forward.”

The plaintiffs in Frankel v. UCLA relied heavily on recent conservative precedents in their legal strategy. They cite Supreme Court decisions from the last decade that Colorado could not apply anti-discrimination laws protecting gay and lesbian people to an evangelical website designer who did not want to design websites for gay couples; California could not restrict in-home gatherings at the start of the Covid-19 pandemic because it would violate worshippers’ First Amendment rights; and the Missouri constitution could not bar government grants from going to religious organizations of any kind. Now, Scarsi’s decision adds to the string of conservative religious liberty victories and could set its own problematic precedent. Rulings on constitutional law are, by nature, applied outside their original contexts. This time, “religious liberty” may protect Zionism, but other judges could apply the logic of Scarsi’s ruling to require state universities to shut down all sorts of radical or even liberal protests based on the “sincerely held religious beliefs” of conservative students. A conservative Jew or Christian might, for instance, argue that their religion requires them to oppose abortion rights (as the Coalition for Jewish Values, a right-wing Orthodox advocacy group, argued in an amicus brief to the Supreme Court); would a pro-abortion encampment violate their rights? If a feminist club excluded them from membership, would that be, as Lewin argues about anti-Zionism, “religious discrimination”? Because of the nature of First Amendment law, judges may not rule on whether the beliefs in question are really those of the religion, or whether they are good or bad—only whether they are sincerely held. (Liberal groups have also tried to use this legal strategy—including Reform Jewish groups who have filed suits arguing that abortion is a religious right—and have had some success, but face an uphill battle in the right-leaning courts.)

Religion tends to function in American life as what the philosopher Richard Rorty called a “conversation-stopper”—the point at which discussion ends. It is seen as a sacred archive of beliefs that may not be interrogated, the ark of the sovereign individual’s interiority, at whose opening public critique must give way to a reverent hush, and the state must piously doff its hat. Israel’s defenders want to enshrine Zionism in this legal context, to afford it the protection of being insulated from free and raucous debate, contest, and disagreement. It’s a sobering development for those who insist that support for a merciless American-armed assault on Gaza should not be so swaddled—and that support for Israel is a matter for political contestation, not for anti-discrimination law.