On September 7, 1787, Jonas Phillips wrote a plea to George Washington and the members of the Constitutional Convention that gathered in Philadelphia. Phillips, a Jew, petitioned the Congress to consider the religious liberty of Jews living in Pennsylvania—citizens who had “been true and faithful… during the late contest with England” who had, “bravely fought and bled for liberty.” 

The occasion of the letter dealt with a law in Pennsylvania’s Constitution that required a religious test for officeholders. The test read, “I do believe in one God the Creator and governor of the universe, the Rewarder of the good and the punisher of the wicked—and I do acknowledge the scriptures of the Old and New Testament to be given by divine inspiration.” This latter clause prompted Phillips to write the Congress, asking that the language be dropped. Jews, after all, disagreed that the New Testament was divinely inspired. He argued that “all men have a natural and inalienable Right to worship almighty God according to the dictates of their own conscience.” 

Phillips critiqued the notion of a religious establishment that thwarted the principles of conscience to an intolerable degree, placing otherwise faithful and just citizens beyond the purview of political participation. No authority, he declared, ought to possess such power that could “interfere or in any manner control the right of conscience in the free exercise of religious worship.” This letter joined a throng of numerous other religious dissenters throughout the 1780s and 90s, calling for disestablishment of religion. Baptists, Quakers, Presbyterians, and Jews like Phillips all contended for the right to exercise their religious beliefs. 

It’s ironic that on the 235^th anniversary of this letter, a Jewish university in 2022 beseeched governing authorities for the same cause of religious liberty—a Jewish institution had to fight for the right to be Jewish. 

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

Ari Berman, president of Yeshiva University, stated that “the Torah guides everything that 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, denied Yeshiva’s appeal, at least for now. The Court did not rule on the merits of Yeshiva’s case, instead stating that the university had two other means to make its case at the state level that it had yet to avail itself of—if those measures failed, then Yeshiva could again petition the Supreme Court. Justice Alito, who authored the dissenting opinion, argued that at a bare minimum, the First Amendment protects religious schools against “a State from enforcing is own preferred interpretation of Holy Scripture.” Indeed, Alito concluded, “A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review.” 

In response to the Court’s ruling, Yeshiva froze activities and operations of all its undergraduate clubs. Thus, not only did religious liberty lose, but most of Yeshiva’s student body 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 Pride Alliance student organization. The LGBTQ student organization would hold on its claims to be officially recognized by the university as the case made its way through the courts, thereby allowing other student organizations to resume operation.  

Yeshiva does not stand alone in its struggle to operate in accordance with its undergirding religious worldview. Last year, thirty-two people filed a suit against the U.S. Department of Education because it applied religious exemptions to institutions of higher education that, according to the petitioners, “discriminated” against LGBTQ students. Institutions like 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 needed to get on board with the sexual revolution or they must forfeit their status under Title IX. 

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

Religious liberty, however, demands that religious institutions be allowed to operate under their guiding religious tenets and precepts. If Jews cannot be Jewish, then how will Protestants be Protestant, or Roman Catholics be Catholic? A state-enforced sexual establishment parallels the kind of religious establishment dissenters have long sought to dismantle, and for sound reasons. 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. For it respects the religious nature of our people.” Attempting to eradicate authentic religious instruction, therefore, violated not only the American Constitutional order, but what it meant to be human. Most recently in Carson v. Makin, Chief Justice John Roberts stated, “Educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of private religious schools.” But this right is being challenged every day, and the consequences come down to whether Christian institutions can continue to be Christian.  
Jonas Phillips sought the liberty for himself and other Jews to live freely in the United States. And on the 235^th anniversary of his struggle, we still witness the struggle and fragility of religious liberty—and not only for Jews, but for us all.