Given the supposed costs associated with pushing religious practitioners to “martyrdom”—as some scholars have described the lamentable result freedom of religion is designed to prevent—the state should adopt the position of “benign benevolence” and exempt the devout from conflicting secular duties. But religious norms do not always operate in the way many jurists and scholars assume they do. Jewish law is mostly non-binary and spectrum-based. That is, Jewish law is an elaborate system of forgiving standards and sliding-scale rules, which enables religious practitioners to live under secular rule. Jewish law provides a myriad of exemptions and operates under a tiered system of l’chatchila and b’dieved (loosely translated as a priori and a posteriori, or the ideal and the possible). By recognizing that in some religious-legal systems real tensions between religious obligation and state law arise only rarely, the talk will reexamine a common assumption underlying freedom of religion jurisprudence. It will suggest that in some instances, freedom of religion incentivizes religion to reshape itself as unyielding where previously it was flexible; that it is not always a means of protecting existing religious mandates, and in fact sometimes creates them.

Zalman Rothschild is an assistant professor of law at the Benjamin N. Cardozo School of Law and a nonresident fellow at the Centre for Comparative Constitutional Law and Religion at the University of Lucerne. His research focuses on law and religion. His scholarship has or will appear in Columbia Law Review, Georgetown Law Journal, Cornell Law Review, Yale Law Journal Forum, and other academic publications, and has been featured in The New York Times, The Washington Post, The New Yorker, and the New York Review of Books. His writing for popular audiences has appeared in The Atlantic, the Washington Post, the Los Angeles Times, and The Guardian. In 2023, the Law and Religion Section of the Association of American Law Schools awarded Zalman the Harold Berman Award for Excellence in Scholarship, and before that, he received the "On the Rise—Top 40 Young Lawyer" award from the American Bar Association.