Aside first blush there would not seem to be a strong connection between the seemingly abstract question of the nature of American democracy and the very practical issue of the ability of Jews to live as Jews inAmerica. And certainly not between those two and this year’s election. Yet in a bracing piece in Mosaic magazine history professor Richard Samuelson argues that the first two issues are closely related which I believe raises the stakes for the 2016 contest as well. He begins this way:

Not so long ago doubts about the ability of Jews to live and practice Judaism freely in theUnited Stateswould have been dismissed as positively paranoid…. And yet… the return of anti-Semitism… is making itself felt in historically unfamiliar ways in the land of the free.

But there is another danger equally grave though as yet less open and less remarked upon. It is connected with longer-term shifts in Americans’ fundamental understanding of themselves and of their liberty… in particular the laws enshriningAmerica’s commitment to religious liberty….

Coming to the fore… most saliently in relation to [same-gender and alternative-gender] rights it has resulted in a legal battle in which the radioactive charge of “discrimination” borrowed from the civil-rights movement of the 1960s is wielded as a weapon to isolate impugn and penalize dissenting views held by Americans of faith…. [T]he threat to… the practice of Judaism especially by Orthodox Jews is very real. Unlike in the past the threat comes not from private initiatives; it comes from government.

Already in 1790 in his famous letter to the Jews of Newport Rhode Island President George Washington had written that “the children of the stock of Abraham who dwell in this land” are not merely to be tolerated by other Americans but are indistinguishable from their fellow citizens because “all possess alike liberty of conscience and immunities of citizenship.”

But as the philosopher Leo Strauss put it in a 1962 lecture entitled “Why We Remain Jews” this equality “stands or falls by the distinction between the political (or the state) and society or by the distinction between the public and the private. In the liberal society there is necessarily a private sphere with which the state’s legislation must not interfere.” That public-private distinction is a double-edged sword. On the one hand it made possible private discrimination against Jews in employment housing college admissions and the like yet at the same time is what enabled Jews to practice their religion freely even if that excluded others.

As an aside it bears noting that while that second consequence freedom of religion is obviously positive even the first one private anti-Jewish discrimination is not from a traditional Jewish perspective entirely without salutary effect. We don’t wish the cruel rejection of religious bigots on anyone nor dare we say it too loudly but the fact remains that historically anti-Semitism has functioned to keep Jews Jewish to maintain the essential bright-line distinction bein Yisrael la’amim that washes away over time.

Returning to Leo Strauss he presciently warned that the “prohibition against every ‘discrimination’ would mean the abolition of the private sphere the denial of the difference between the state and society in a word the destruction of liberal society.” Professor Samuelson writes that “absent that private sphere [Strauss] concluded Jews would no longer be free to be Jews inAmerica.”

But over the last 50 years efforts to create “prohibitions against every ‘discrimination’ ” are precisely what have overtaken this country — thus raising the specter of “Jews no longer free to be Jews inAmerica.” “For most of American history” writes Professor Samuelson “the common view was that private institutions companies clubs and so forth had the right to choose with whom to associate and not to associate…. The liberty to associate with whom we choose was recognized as essential in a liberal nation that made a hard distinction between the realm of the state and the realm of civil society.”

All that changed dramatically as a result of the laudatory drive to end racial segregation. The Civil Rights Act of 1964 required the federal government not only to rein in local government but to intervene unprecedentedly in civil society’s private institutions. Almost all businesses for example were declared “public accommodations” so that the law could direct whom they must serve and hire.

But Professor Samuelson explains although “[i]n principle the act held that people were still generally free to decide with whom to associate being prohibited from discriminating against only a small list of people in what the act designated as ‘protected classes ’… the government would come to regulate more and more aspects of our lives creating a federal ‘police power’ of the kind delegated by the Constitution exclusively to states and localities…. Nowadays the Justice Department has been creating new ‘protected classes’ on its own recognizance without even a pretense of seeking congressional approval for so radical a change from the originating statute.”

Even more significant is what the legacy of the civil rights battles has done to change the American people’s fundamental understanding of liberty. “A large body of American opinion holds that it is the government’s job to prevent any and all discrimination. That belief is pushing government more and more deeply into our daily affairs. Along the way instead of easing social tensions it has exacerbated them by establishing a permanent legal relationship between growing classes of legally recognized victims and their designated protectors at every level of society.”

What does any of this have to do with the frum community? According to Samuelson a great deal:

Do any Americans still understand the prohibition of discrimination as an exception and a carefully hedged one to the general rule of liberty? There is reason for skepticism — and nowhere more so than in the area of religious liberty. With the progressive left’s success at passing laws or obtaining court rulings [regarding same-gender issues] the legal arena has shifted from race relations to [religious liberty]….

Traditional Judaism… depends entirely on discriminating in the original sense of distinguishing: between holy and profane Sabbath and weekday man and woman Jews and others. Such discriminations cannot be reworked without transforming classical Judaism into something unrecognizable to many Jews. Will Jewish institutions be able to withstand today’s freewheeling assault on religious liberty? Or will the enforcers of state-mandated “non-discrimination” not rest easy until they complete their Orwellian campaign of positive discrimination against every last dissenter from the progressive line?

This is already happening in courts and legislatures all over the country. Two recent examples: The California state senate is considering legislation to curtail the freedom of Christian colleges to follow their religious beliefs and in June the US Supreme Court let stand a Ninth Circuit ruling requiring a Seattle Washington pharmacy to cease declining on religious grounds to fill prescriptions for abortifacients.

But won’t the ACLU gallop to the religious American’s defense? It won’t even walk. When the Religious Freedom Restoration Act (RFRA) designed to protect the Constitutional guarantee of the free exercise of religion passed virtually unanimously in Congress the ACLU supported it. No longer. Today it says the greater danger is that “religion is being used [by religious believers] to discriminate against and harm others.” As for religious liberty that’s about the freedom to believe not to practice one’s beliefs.

Professor Samuelson concludes with the hope that George Washington’s vision leaving

Jews free to be Jews to associate with whom they chose and to live by the teachings and practices of their tradition... lies so deep in the American DNA that the national immune system will finally respond in time to repulse the latest attack on it. Doing so however will entail recovering… an idea of justice based upon treating Americans as individuals who “all possess alike liberty of conscience and immunities of citizenship” — that is upon the ideal of live and let live.

This brings us to this year’s election. Last week I noted the Republican nominee’s complete avoidance of the issue of religious liberty part of a broader intention to throw social issues “under the bus.” Last yearIndianapassed religious freedom legislation and the same-gender lobby attacked it viciously with major corporations threatening to pull out of the state. As the Weekly Standard’s Mark Hemingway wrote Governor now vice-presidential nominee Pence the ostensible conservative stalwart folded. “Indiana’s religious freedom law was gutted at Pence’s direction within a week of it being passed.”

But one might legitimately ask: Would a Democratic administration be any better in this area? The answer is: of course not.

The difference as Maggie Gallagher put it is that “Hillary cannot create a situation in which both parties tell the courts they accept Obama’s interpretation that the 1964 Civil Rights Act or Title IX bans discrimination on the basis of… orientation and gender identity. Only the [Republican nominee] can do that.”

In other words if a robust commitment to religious liberty requires an understanding that individual liberty is preeminent save for limited carved-out exceptions; if it is predicated on a belief in limited government with a “private sphere with which the state’s legislation must not interfere”; if it requires knowledge of and loyalty to the Constitution toleration of all citizens and an attitude of “live and let live ” then there must be at least one political party that stands for all those ideas. There must be at least one party that will oppose and obstruct an administration that will capitulate to the massive militant pro-same-gender lobby backed by the media and corporateAmerica.

But with the hostile takeover of the GOP by a big government liberal unconstrained by Constitutional niceties or notions of equality there is no such American party. Only a Republican defeat in November could perhaps restore one.