American Jews and the Current Challenges of Church-State Separation
MR. BOB WEINBERG: Friends, we are about to begin the program while you continue to enjoy this delicious luncheon. And the speakers, I’m sure, will be up to the challenge of competing with the clacking of the knives and forks.
I’m Bob Weinberg, the president of the American Association of Jewish Lawyers and Jurists, and I want to welcome you all on behalf of the three groups that sponsor the monthly brown-bag luncheons: the American Jewish Congress, whose president Henry Smith is at that table; the Jewish Community Council; and the American Association of Jewish Lawyers and Jurists. We’ve had a change this month in our usual venue and menu. Our usual venue is our law firm conference room at Harvey Reiter’s office. Our usual menu is what you put in your brown bag.
And, as you can see, both our location and our menu are somewhat grander this month, and we’re grateful to the Pew Charitable Trusts and the Pew Forum on Religion & Public Life for making this possible. And we’re particularly grateful to them for the intellectual appetite that they are bringing to this meeting. The same program was put on in New York last week and is being repeated here.
I just want to take a moment for a series of announcements about the American Association of Jewish Lawyers and Jurists, and you hopefully have all gotten when you came in or will get when you come out a blue brochure which describes the AAJLJ. And for those of you who aren’t already members, there is a membership form on the back of the brochure and also one enclosed. If you join at this time of year, your annual dues run through the end of 2005. So it’s a great bargain and we really hope that any of you who are not already members will join this organization. It is the Bar Association for Jewish lawyers.
Next month, we revert to our usual second Tuesday schedule and our speaker – and there are announcements out on the table – our speaker will be Tom Goldstein, a leading Supreme Court practitioner. He will be speaking about the cases upcoming in this term of the Supreme Court concerning civil liberties and concerning church-state issues.
And finally, I want to announce our Pursuit of Justice Annual Award program at the United States Supreme Court, which will be held on Monday, December 6, 2004. And the Pursuit of Justice Award will be presented by Justice Breyer to Kenneth Feinberg, who did such a masterful job for justice by resolving as the Special 9/11 Master hundreds of cases without a law suit having to be filed and justice being rendered for the families of the victims – to the extent that economic compensation could provide any justice in that situation.
If you’re not a member who has already gotten an invitation or will shortly be getting one and you’d like to get one, please just leave your business card or your name in any form with me or with the chair of our D.C. chapter, Rhonda Lees, who is seated at the table there. We’ll be delighted to put you on the list and see that you get an invitation.
Now I want to turn the program over to Luis Lugo with, again, our thanks on behalf of the brown-bag luncheons on the second Tuesday for upgrading us on the third Tuesday to this wonderful forum and this wonderful program we’re about to hear.
Thanks so much to Luis and to all the speakers on the panel.
MR. LUIS LUGO: Thank you for those words, Bob. We’re delighted to be co-hosting this event with your organization. It’s a real pleasure and honor. And I’m going to add my welcome and thanks to all of you for being with us today. For those of you who are not acquainted with our work, the Pew Forum’s mission is to provide timely information on important issues at the intersection of religion and public affairs. The Forum is nonpartisan in nature and we do not take positions on policy debates, including this one – especially not this one.
I mentioned in passing to a very well-known columnist who is Jewish and who happens to serve on the advisory board of one of our projects that we were co-sponsoring this event with the American Association of Jewish Lawyers and Jurists, to which he replied, “Better known as the American Bar Association.” (Laughter.) He’s also a very funny guy.
Now I always try to connect with audiences by mentioning something we have in common. But I have to be honest with you, I was a bit stumped in thinking about that with this crowd. First of all, I’m not a lawyer; I’m actually a recovering academic. I’m not a legal expert; just a lowly political scientist. And I’m not even Jewish; I’m just a Cuban-American guy with a Catholic background.
Then it occurred to me in a flash of inspiration that, in fact, we do have something in common. Miami. Miami, of course. I mean, it’s our capital in exile in the north and it’s American Jewry’s southern capital. Now the great synthesis of those two cultures was captured in a very wonderful way in a placard during the last presidential election when a little old Cuban lady held aloft a sign during one of Joe Lieberman’s stops in the city of Miami which simply said, “Viva Chutzpah!” And I said, that captures it right there. Is this a great country or what?
Now as Bob mentioned, this is actually round two of this discussion. Round one was held last week at Jewish Theological Seminary in New York. Unlike the presidential debates, however, there is no round three. So, gentlemen, give us your best shot today because this is your last chance. We’re very pleased to have co-sponsored the event in New York with our friends at the Louis Finkelstein Institute at JTS, and I want to acknowledge the presence here with us today of the Institute’s new director, Alan Mittleman. Alan, if you would please stand.
I should also mention that Alan ran a major project on Jews in the American Public Square that was funded by the Pew Charitable Trusts when I was director of the Religion Program there in Philadelphia. In that connection, I came to know and to respect him for his impressive scholarship, his leadership abilities and his great sense of humor. So, Alan, it’s always great to continue this partnership with you.
The germ of the idea for this event was planted when I was doing a little bit of background reading on Marc Stern, one of our presenters, whom we had invited to participate in a Pew Forum event on the Locke v. Davey case in February of this year. At that time, I came across a piece he had recently published in Forward, which begins this way: “A revolution is underway in church-state relations, and the Jewish community has yet to grapple forthrightly with it.” That piece is provocatively titled, “Cracks Form in the Wall of Separation: As Rules Change About Church-State Divide, The Community Needs to Reevaluate.”
I asked myself the question, though, why should an internal discussion within the Jewish community on this matter be of interest to the rest of us? And the answer, of course, is very simple. Because while you may not be the American Bar Association, as a minority religious community, Jews have for decades played a crucial role in the fights over the Establishment Clause and will no doubt continue to play a key role in the fights to come.
And those fights just keep on coming – as the Supreme Court once again underscored for us last week with its decision to hear cases involving two important First Amendment issues: the public display of the Ten Commandments in government buildings and the right of prisoners to claim religion-based accommodations to general prison regulations under RLUIPA, the Religious Land Use and Institutionalized Persons Act. Who thinks of these names, by the way? Any of you responsible for that particular one? – (to Marc Stern) you are, okay – I figured there was a culprit in the room.
Now we couldn’t possibly have three better panelists than the line-up we have today to help us sort out the important issues involving the topic, “American Jews and the New Challenges of Church-State Relations.” Marc Stern, who will be up first, is the assistant executive director of the American Jewish Congress and the co-director of its Commission on Law and Social Action. He has been at AJ Congress since 1977, conducting litigation, preparing amicus briefs, drafting legislation and giving public testimony. He is one of the country’s foremost experts on the law of church and state. Marc is a graduate of Yeshiva University and Columbia University School of Law.
Nathan Diament, who will follow him, is the director of Public Policy for the Union of Orthodox Jewish Congregations of America. He has worked closely with members of both political parties on legislation addressing religious liberty issues. He is the co editor of Tikkun Olam: Social Responsibility in Jewish Thought and Law. He is also a graduate of Yeshiva, as well as a graduate of Harvard Law School. And he is an adjunct professor at American University, where he teaches courses in religion and public policy.
Rabbi David Saperstein is the director of the Religious Action Center of Reform Judaism. Over his 28-year tenure as the director of the Center, David has headed several religious coalitions and currently serves on the boards of numerous national organizations, including the NAACP and People for the American Way. In 1999, he was elected as the first chair of the U.S. Commission on International Religious Freedom. A Washington Post profile described David as, quote, “the quintessential religious lobbyist on Capitol Hill.” Like the other two speakers, David is an attorney, and he teaches church-state law at Georgetown University Law School.
Each of our speakers will take about 15 minutes to put forth their case, and then we will go directly to Q&A.
MR. MARC STERN: It’s a little bit difficult to do this in 15 minutes. If I leave out somebody’s pet cause, it’s because I am pressed. It’s pretty clear where the community has been. We have been as a community generally in support of a strict separation between church and state. Sometimes, people talk about that as if they know exactly what “the” meant and what “strict” meant. But we have been on that side of the battle pretty consistently for 55 or 60 years. Less strenuously for most of us, we have also supported religious liberty – that is, the legal rule that government cannot regulate religion the way it regulates other enterprises in American life.
That position has contributed, I think, much to the success of American Jewry, particularly when one looks back to where the country was 55 or 60 or more years ago, with a mild Protestant hegemony everywhere, certainly in the public schools, in much of government. The Catholic Church was not hospitable to the Jewish community (this is all before Vatican II). The notion of separation of church and state and protection for religious exercise was a natural one for the Jewish community, simply as a matter of self-interest. Of course it was in large part based not only on self-interest in the United States but based on historical experience with established churches, churches that, even if they weren’t formally established, worked hand in glove with governments. Given the libertarian tinge of American Jewry with regard to government regulation of morals, it was a natural place to fall.
Without debating today whether those positions remain philosophically sound, the fact is the world has changed about us. The Jewish community, however, has not changed or even, I think, amply reconsidered where it is. In the first place, the success of the enterprise that we undertook 55 years ago – I think, soundly – now may call for some reexamination of itself. Do we need to be exactly where we were when we had a much more hostile, less open, society?
Second, the fact is the law has changed. And although it’s a little bit nervy to say this three weeks before a very hotly contested election in which one of the things in the balance is the Supreme Court, it seems to me some of these changes are not likely to be undone. For example, the Supreme Court is now wed to a vision of the Establishment Clause that focuses on equal treatment of religion with non religion, not the older “strict” separation view championed by Justices Black, Douglas and Frankfurter.
This is over-broad, over-simplistic, but that’s basically where the Court is. I think they’re committed to the “equal” portion of that formulation – at least where statutes facially discriminate, they are not going to tolerate that. With regard to religious speech, the principle of equal treatment of religious speech with secular speech is so well ensconced that one is hard-pressed to think over the last 15 years of a single dissenter from it.
The notion that there are going to be religious clubs after hours in high school seems to me not likely to change no matter who wins the election. It’s an appealing principle. It’s easy to work with. It’s philosophically defensible. It’s popular. There doesn’t seem to be any systematic support for changing it, not in academia, not in the public sector generally. That’s a reality. But not one the Jewish community has accepted.
With regard to funding – the question of whether equal funding coupled with private choice ought to be the test or whether there ought to be a stricter rule against funding – things are much more up in the air. The election probably will make a difference. But for the moment, the rule of neutral statute/private choice is ensconced. It will be years before it is changed. And yet on both of those scores, one hears many in the Jewish community still speaking yearningly for the old rule – if it will come back, if we wish it to come back. It’s not – certainly with regard to the speech cases – it’s not happening. Alan and I were on a panel yesterday where some of our fellow panelists were still speaking as if that was an achievable goal. It is not.
So where ought we to be? The first thing that needs to be said is that there is no longer a “we” in the Jewish community. And I don’t mean in the superficial sense that the Orthodox community and the rest of the community have divided over the funding principle, particularly as it regards religious education. I mean that in a sociological sense we are now riven in two in a way more fundamental almost than the important differences in theology between the Reform and Orthodox or Reconstructionist-Conservative movements.
The polls show fairly consistently now for some while that American Jewry is in two parts. About half of American Jewry is affiliated with a synagogue, and half of American Jewry is not affiliated with a synagogue. We have two attitudes towards religion. There are significant parts of our community that now regard institutionalized religion with some hesitancy, and a fortiori if it interacts with government. There’s almost a fear of government intercession with religion. It comes from a deep-seated secularism. Those are people I’m paid to represent.
But there’s another half of the community that has a very different attitude towards religion – obviously there is substantial religious differences amongst us. They are active in synagogues. They are not disposed to see religion in every case and every intersection with the government as a hostile intruder that needs to be repulsed. I represent these people, too. I believe that that distinction is real, substantive and palpable within our community. It’s most readily discerned with regard to the Free Exercise Clause. There are substantial organizations in American Jewish life that, over the course of these religious liberty issues throughout the 55 years, have paid almost no attention to religious liberty. They are certainly not prepared to see religious liberty trump secular values of equality, choice and reproduction – and, in fact, are actively opposed to the extension of religious liberty principles to those cases. Others in Jewish life who have a different attitude, even though they may come out in different places and individual cases, are not prepared to dismiss religious liberties claims out of hand.
The difficulty of saying where the community should be depends very much on which half of the community you are talking about. In my experience, which goes back three decades now, the gap is now wider than it has ever been. I find it harder and harder to try and straddle it. It has become very difficult, almost impossible, to do.
There are still some fundamentals on which we agree. Nobody serious in the Jewish community believes the Jewish community ought to tolerate official preferences for one faith or the other. That remains a bedrock principle on which we remain united. We believe, I think, generally and across the board, that religious activities ought not to be coerced by government. Again, there seems to be broad agreement on that principle. Beyond that, pretty much everything breaks down.
Naturally enough, there are disagreements about what role religion ought to have in shaping public policy. All of the religious movements, Nathan’s and David’s, while they often will not agree on the substance of what public policy ought to be, believe they have some role to play in shaping that public policy. There are others in Jewish life who are concerned about injecting religion into public policy debates.
I have already spoken about religious liberty cases. That split is palpable with regard to religious liberty legislation, to legislation that Richard Foltin of the American Jewish Committee (who is sitting here) has drafted and is lobbying diligently for, to protect religious employees in the workplace. That again has split the Jewish community along the lines I have described.
We will be united more or less on the Ten Commandments case, I think, in particular because it’s demonstrable that the Ten Commandments chosen is a Christian version and not a Jewish version. I expect there won’t be a lot of dissent on that issue.
I am not certain about the other case the Supreme Court took last week, which involves religious liberty legislation, even through it doesn’t involve the areas of choice and civil rights. But the precedents at issue will prove interesting to see if we can pull together the entire Jewish community on a single brief. I have already had information that some will be looking for a brief that will cast religious liberty very narrowly and others will be looking for a somewhat broader compass and some probably still a broader compass yet.
Again, we’re before the election and which way the Jewish community proceeds depends very much on who makes the next three or four appointments to the Supreme Court and who those appointments are. If Chief Justice Rehnquist quits, it’s not going to make much difference if Bush is reelected. If Stevens quits and Bush is reelected or if Rehnquist quits and Kerry is elected, then obviously that makes a difference.
Nonetheless, the question that I think we need to ask ourselves – and ask ourselves urgently – is whether we have now reached a point in American life where the equality principle, at least as applied to the Establishment Clause side of the ledger, is a sufficient guarantee of Jewish well-being, or whether we still need more restrictive, older separation principles to protect American Jewry.
The answer to that is not plain. In the first place, it’s not plain because if you accept the equality principle with regard to non-establishment government assistance for religion, it’s hard to say that you don’t have to accept it on the other side of the ledger with regard to religious liberty. As for myself, I think the religious liberty loss is greater than the gain on the Establishment Clause side. That is a debatable proposition.
I think we do need to ask, focusing only on the Establishment Clause for the moment, whether equality will work for us. There are reasons to think it will not. Aside from all the philosophical arguments that could be mustered, let me give you an example. Professor Laycock – Douglas Laycock of the University of Texas, probably the nation’s foremost academic on the subject – has written a law review article in which he says that he thinks that the government ought to be able to distribute money to religious institutions through vouchers if it does so neutrally. But he says government also – I’m summarizing a very lengthy article – it also ought to be able to impose neutral regulations.
One regulation that he regards as neutral is a rule that says if you take a voucher, you have to admit anybody who comes with a voucher, regardless of religion. Well, that’s a perfectly neutral rule if your religious worldview requires you to evangelize, to spread the word to everybody. Well, then you’re not going to have any principled objection to taking anybody in to hear your message.
Our position in America is that we need to draw boundaries. I don’t know of any Jewish day school, no matter who runs it, that doesn’t have some sort of entry requirements. So that’s a neutral rule. You know, Doug Laycock hasn’t got a discriminatory bone in his body, so I’m not accusing Doug of anything. But what appears to be a neutral rule doesn’t work for us, while it works for Catholics and, perhaps, evangelicals.
On the other hand, and why I think this is such a difficult debate, I proposed yesterday that the Jewish community ought to give serious consideration, as other religious and social communities have done, to taking advantage of the Equal Access Act and organizing clubs for Jewish kids in public schools after hours on the same terms that evangelicals and others do. This suggestion was met with shocked horror. I’m shocked that people are shocked, because, as I said, the law is not changing. Here’s an opportunity to take advantage of; should we do it?
Those things cut in opposite directions, and just before Luis has to write me a two-minute warning, I’m going to sit down. For me, first of all, they’re difficult decisions because one has to see what’s coming. The best way to predict the outcome of a Supreme Court case is to see what way I’ve predicted it will come out, and bet on the other side. So I’m not very good at this. Then there’s the election.
But for me in particular, sitting at the American Jewish Congress – which is not a denominational group; although it’s purely secular, we purport to represent the American Jewry more broadly – the problem is we don’t have an American Jewry anymore – we’ve got at least two American Jewries pointing in very different directions. They’re both entitled to be represented. Their fears and yearnings and desires are entitled to be taken into account. And as far as I can see, they point in exactly opposite directions.
MR. LUGO: Thank you, Marc. Very, very interesting. And exactly 15 minutes; you were quite lawyerly in keeping to those time requirements.
MR. NATHAN DIAMENT: Thank you, Luis, and thanks to Alan and the AAJLJ.
I want to generally spend my time fleshing out the two Jewries that Marc just spoke about. Because I do think we have, as he sketched, a lot of common ground on the jurisprudential side, but probably the differences are highlighted more on the policy side.
So let me just say very briefly that from my organization and my community’s perspective, on the jurisprudential side, we think the move to neutrality and equal treatment has been somewhere between a half to three-quarters good and a quarter not good. And what I mean by that is in the Establishment Clause context it’s something we generally welcome and appreciate – that when government deals with non governmental entities, there should be equal treatment and non-discrimination as a general principle.
But on the Free Exercise Clause, there the neutrality is more of a mixed bag. On the one hand, what Marc talks about – the notion of equal access for after-school religious clubs to public schools on the same terms as the Boy Scouts, the Girl Scouts, Junior Republicans or Democrats or whatever else – is something we should welcome and appreciate. On the other hand, we should still realize that the Free Exercise Clause, like free speech, like many other constitutional rights, is a right granted to the individual and held by the individual to make a claim against government, and that there is a section of Free Exercise law that should allow personal individual liberty to be accommodated and sometimes demand that government make accommodations and exceptions that are not purely even-handed. And that’s a very difficult course to navigate.
On policy and politics, though, I would like to start with a story. A few people in this room might be familiar with it, and it relates to the current locus of debate in our community about government funding for religion, and that is regarding homeland security. After a long and protracted maze of events, just a couple of weeks ago Congress appropriated, and the president yesterday signed, the Homeland Security Appropriations Bill, which contains $25 million to make grants to non-profits that are deemed to be at risk of terrorist attack. And religious non-profits are not excluded from possibly being recipients of those grants. Plus there are other parts of Homeland Security money that can be used for these purposes as well, no surprise to anyone in this room who might not be familiar with it.
When this legislation was being developed, within the Jewish community there was considerable debate and discussion as to whether our religious institutions would be included or not included. You know, a synagogue in Istanbul was blown up by a car bomb, and there have been attacks on Jewish institutions elsewhere, and certainly religious institutions in our community, unfortunately, are as high profile and as at risk as any other Jewish communal institution.
So legislation was developed. And to make a very long story short, some safeguards and indirect mechanisms that were put into the legislation to try and assuage the fears of those who want greater separation between church and state did not succeed in assuaging everyone’s fears. And so we came to a point this past summer where the Senate Governmental Affairs Committee was considering this legislation. And lo and behold, a debate ensued as Senators Durbin, a Democrat of Illinois, and Lautenberg, a Democrat of New Jersey, offered an amendment to explicitly exclude religious institutions from receiving any grants under this program that would aid them in putting up bollards around their building or a fence or mylar coating on the windows, et cetera.
Senator Specter, a Republican of Pennsylvania and the lead sponsor of the legislation, also on the committee, engaged in a debate primarily with Senator Lautenberg over whether this was the right thing to do or not. And the debate, interestingly, devolved into a debate over, well, which side of this debate are more Jews on in America? With Senator Lautenberg touting a letter from David’s organization and denomination and pointing out that the Reform movement is the largest single denomination, and Senator Specter reading a list of Jewish organizations endorsing his legislation including ours, AJ Congress, AJ Committee, so on and so forth, and they went back and forth on where were the Jews on this issue. Never mind the fact that the U.S. Conference of Catholic Bishops and the Red Cross and the United Way and the American Associations of Museums and a host of other non-profits had endorsed this legislation as well. And ultimately it fell to Senator Lieberman of Connecticut, the ranking Democrat on the committee, to cut off this very interesting Jewish-centric debate, and say, “I’d like to speak for those non-Jews that will be protected by this program as well.”
Only in America, as he was wont to say. But it’s a tough issue, and referring to another co-sponsor of this session, JTS, Professor Jack Wertheimer, the provost of JTS, has an essay in this month’s Commentary magazine, in which he talks about this issue generally, whether Jewish defense organizations still have what he calls an other-worldly quality of, quote, “remaining committed to fighting yesterday’s wars, whatever the consequences.” And he specifically talks about this homeland security debate and asks, quote, “In what sense is the physical safety of real people, Jews in these institutions and other people in their proximity, less important to Jews than an intractable belief in the separationist faith?” close quote.
And this is really a cutting-edge issue for our community that we’re going to continue to have to grapple with. Now, the title of this program seemed to put the question of where the new challenges are coming from strictly on the side of these new topics like homeland security and new jurisprudence. And I’d like to take a small issue with that and say there are really two tracks here, two threads that are intertwined where new things are happening.
One is the policy questions and the jurisprudential questions which are new; the other is related to our community, as Marc says, not being monolithic and perhaps in some respects being in transition. And let me tease out what I mean by that. With great respect to our sponsors from Pew, I can illustrate this point by referencing a poll they recently put out trying to chart the American religious landscape here in 2004, and contrast it with some Jewish community polling of late.
The Pew poll went out of its way to subdivide Catholics and evangelicals and mainline Protestants into subgroups of traditionalists, centrists and modernists. They didn’t do this with the Jewish set of respondents they had, probably because their sample was too small. But we can learn some things by comparing just a handful of numbers.
Of the approximately 6 million Jews in the United States you have 35 percent identifying themselves as Reform, 26 percent Conservative, 10 percent Orthodox and 20 percent just Jewish – we are a stiff-necked people. But in the Pew survey, 24 percent of the Jewish respondents said they attended synagogue weekly. From more recent Jewish community polling, 58 percent of the Orthodox community responds and says they attend synagogue weekly or more.
In the Pew poll, 55 percent of Jews favored same-sex marriage. In a recent poll put out by the American Jewish Committee, looking behind the general numbers, 52 percent of the Orthodox opposed any legal recognition of same-sex partnerships and only 26 percent would support civil unions. In the Pew poll, 42 percent of Jews favored school vouchers. In the AJ Committee poll, 64 percent of the Orthodox favored vouchers.
So within the American Jewish population you have at least two Jewries, as Marc referenced them, where you have a younger, growing, less assimilating cohort, more involved in Jewish education, less inter-marriage, whose values and institutional interests are not consonant with the general perception of the community-at-large or the other camp and the strict separation philosophy.
And there’s every reason to believe that the divergent trends you see reflected in the Pew poll with regard to the Christian denominations – where the difference is not between Catholics and Protestants, let’s say, but between traditionalists and modernists or progressives – those trends are echoed in our community as well. Just to put the political spin on it, in the AJCommittee poll, when asked would they vote for Kerry or Bush, the total number of respondents were 69 percent for Kerry, 24 percent for Bush. The Orthodox breakout was 26 percent for Kerry, 60 percent for Bush.
Now, lest you think I’m suggesting that Orthodox Jews and other Jewish traditionalists are merely evangelicals who read their Bible from right to left – (laughter) – there are significant differences, both on policy and in attitude.
On policy, Judaism is a different religion. It’s got a different theology than Christianity, and even on policy questions, such as abortion, most Jews, including Orthodox and traditionalists, will oppose wholesale prohibitions on abortions. We support stem cell and cloning research because we have different theology about when life begins and things along those lines.
With regard to attitudinal issues, another story which actually I was surprised to see percolate up to the pages of The New York Times this Sunday, in the Weekend Review section, was an article about theories on how George Bush engages in secret coded double-speak messages to the religious Christian community – oblique references to Christian hymns and biblical versus, et cetera. But what percolated up into the Times was a report from the Republican Convention era, the time period when that was going on, where there was a debate over whether the wooden podium from which the speakers at the convention spoke, which was made of wood with various kind of inlaid wooden pieces, did it have a crucifix, a subtle, subliminal crucifix in its makeup?
I think generally when this charge was first made, it elicited chuckles from most people. But I would note that when at least the media, the Jewish media, asked for comment from various people, the Orthodox organizational leaders who were asked to respond to this question generally took the approach of, “Well, I don’t know if it’s there or if it’s not there. Nobody really could tell. But if there’s something like a crucifix there and if it’s intentional, that would be very troubling.” And so we still have a sense in the Orthodox community of being part of a minority faith group and needing to have the accommodation and the tolerance of the general society around us.
On the policy and politics front, I’ve already talked about homeland security funding. There are other issues, though, where the institutional interests of our community don’t hue to the policies that were put together in 1950, 1955, where strict separation served us very well. We were involved some months ago in the case of a community day school in Seattle which was damaged in an earthquake and applied to FEMA for federal disaster funds to rebuild – just like the office parks and private homes, et cetera – and were told, “You can’t receive FEMA aid because our policy is against granting such aid to your kind of institution.”
Thankfully, we were able to work with the current administration to get that policy reversed. And also I was gratified to see there was not much hue and cry, even from the strict separationist camp, with regard to that decision. Similarly, historic preservation grants administered by the federal government had not previously been given to preserve many religious, historic buildings in this country. And, again, you have to be careful: you don’t want federal money rebuilding the altar in a historic church, or the nave in the cathedral. But at the same time, the Touro Synagogue in Newport, Rhode Island, needed structural repairs to its roof. And there’s the Old North Church in Boston.
And just to show that – what some might say – “pork barrel” politics knows no bounds, Senators Boxer and Feinstein of California have even introduced legislation this past year trying to secure federal grants to help preserve and rehabilitate a series of mission buildings along the California coastline. And they spoke passionately for that this past year. And for those Republicans in the committee that didn’t want to allocate the resources – this is the way Washington works – they resorted to calling in Barry Lynn, from Americans United for Separation of Church and State, to testify against the two Democratic senators as to why this would be a terrible thing for the government to provide money to rehabilitate these historic missions.
In the political realm in 2000, when Joe Lieberman spoke often and openly about his faith, that caused the ADL and others in the strict separationist camp to criticize him. Yesterday, The Washington Post reported on Senator Kerry now talking more and more about his faith and his beliefs. He now takes to citing Bible versus regularly in his speeches. And in a previous speech recently excerpted on NPR that I happened to hear, here’s a quote from the way John Kerry’s talking: “Real spiritual renewal requires a faith that goes beyond accepting the truth of his message. It requires literally a movement toward the person of Jesus,” close quote.
So the Democratic presidential campaign and the camp where the separationists generally find their home, at least for the moment, are moving away from that ideology on a political level. And in fact, if you go to the John Kerry website, you can download what they call a “toolkit” among their constituency group toolkits, “People of faith for Kerry Edwards,” and it will tell you how to volunteer and run potluck dinners in your community and so on. Those who want faith kept in the private sphere – I would submit, at least – have lost the battle.
And I would say, towards summarizing and wrapping up here, that we should be happy about this in the Jewish community. As Marc noted, even though we might disagree on some policy issues, my organization and David’s organization agree that religious values and religious principles are important and should inform the public-policy debate. And David is masterful at speaking in the terms of translating Jewish principles into compelling arguments for moral policies in the public policy arena as well today.
And I don’t think we should think about this in terms of crass compromise – how can we get a few more dollars to protect our synagogues or what have you. But, in fact, it is an approach that is pragmatism, but grounded in principle. What should animate us is an insistence on religious freedom, diversity and tolerance, not imposed secularism. And when the government engages in government action, while still maintaining a strong and vigorous principle of individual religious liberty, that is the right and balanced approach.
Marc closed out by asking, “Is the equality principle regarding the Establishment Clause enough protection for us as a religious minority in this country?” And I think what that really comes down to, in sum, is whether you agree or disagree with a point that I’ve heard Leon Wieseltier and others make many times, which is, the question is, is the Jewish experience in the United States of America not merely quantitatively, but qualitatively and fundamentally, different from the experience of Jewish history over the long term?
Phillip Roth has a book out now – which some of you may be reading – in which he tries to sketch out an America which is, thank God, fictional, in which the Jewish experience is no different than what our grandparents and great-grandparents experienced in Europe. There’s a reason, though, why it’s fictional. And we should recognize that we’ve been blessed in this country to have an experience which is qualitatively different, in which Jews enjoy – and it is enshrined in our most basic principles – an unbelievable freedom and tolerance and acceptance, and relish that opportunity.
MR. LUGO: Thank you, Nathan.
I notice that the coffee is finally coming. I’ve just got to warn you, with David up, this may be a double jolt if you get the coffee and also hear the sermon that’s about to be preached – (laughter).
RABBI DAVID SAPERSTEIN: Thank you, Luis. And I thank Pew, Alan and Luis. Pew has transformed the substance, and raised the level, of the public discourse in America on the issue of the role of religion in American public and political life. And we are all deeply in their debt. I’m particularly pleased to be with Marc and with Nathan, who are two of the great public servants in the American Jewish community, both skilled, thoughtful and committed individuals who have an enormous influence on the thinking of the rest of the community. So it’s really an honor and a pleasure to be with them as well.
I’m just going to take 30 seconds to acknowledge one person in the room. Since one of the sponsoring organizations of today’s event is the American Association of Jewish Lawyers and Jurists, I want to acknowledge the presence of Professor Sherman Cohn, who almost single-handedly revived and rebuilt AAJLJ when it had virtually disappeared. And for all of us who are part of that wonderful organization, the structures and foundations he built have served our community significantly.
Welcome, Sherman. It’s good to see you.
So we meet not only at a point when the Supreme Court is taking on three major cases dealing with religion issues, but in an election that, as you heard, is filled with it. The Catholic Church debates giving communion to politicians and voters who support abortion rights; public activists organize within churches for specific candidates; candidates on the stump eagerly invoke their faith; Alan Keyes suggested Jesus is on his side, asserting that Jesus – he knew for certain, I’m sure – would not vote for Barack Obama. Religious views on stem-cell research, abortion, just war theory regarding Iraq and fundamentalism are hot political topics. Senator Kerry and President Bush increasingly compete to assert their faith commitments.
We are at a point where, as a nation, we are clearly reassessing the role of religion in public and political life, so I’m delighted to have this opportunity to do it. Perhaps in the discussion we can get to some of the appropriate and inappropriate uses of religion in the campaign.
But I want to turn to what I think is at the core of the discussion that you heard. It is the issue of neutrality and what it means for the government to treat “equally” religion, to treat “neutrally” religion. I submit to you that what the framers intended, and what has served religions in America most well, is a neutrality principle very different from the kind of neutrality that we’ve heard articulated here today. The current interpretation of neutrality that we hear on the Establishment Clause side is a neutrality in which the government does treat religion equally to all other groups. Whatever benefits are going to be given to other groups ought to be given to religion as well. If provision is made for public speech to take place at a certain locale, religious speech ought to be allowed as well. If financial benefits are given to a class of nonprofit institutions, they ought to benefit religious groups as well. It is what I call “facial neutrality” – that is, you treat religion under the rules of the law exactly the way you treat everything else.
The problem is that that is not the historic understanding of neutrality. The historic understanding of neutrality was that the government should remain neutral on religion. It should neither be hostile to religion, nor should it benefit or support or endorse religion. Now, let me play this out on both sides of the First Amendment clauses.
For the Free Exercise Clause, let’s assume, hypothetically, that the state of Connecticut passed a law saying state employees could not wear hats indoors. A “facially neutral” approach would say that you’ve got to treat everyone alike, so religious hats are treated just like all other hats. A “functionally neutral” approach, on the other hand, requires government to be neutral on religious issues, which says that in order for the government not to either prevent or require the wearing of religious hats, it has to give an exemption to the neutral rule [banning hat wearing] and let the individual decide.
Or on the Establishment Clause side, a “facially neutral” law says, as I described before: all these benefits, rights, privileges go to religion. A “functionally neutral” approach says: you know, only religion has an Establishment Clause. The government, the framers, clearly, beyond any debate, did not want to treat religion like everything else. That seems indisputable. Only religion has an Establishment Clause. And the government is not allowed to pass any law that even touches on the issue of establishing religion.
So the question of whether or not religion is to be treated differently is answered by the First Amendment itself. And what it required was that the government stay out of religion. What that meant is that we have all kinds of rights, protections, privileges, exemptions that non-religious entities don’t have. And it has served us well. But if you keep saying, “Treat religion equally to everything else,” eventually the nation is going to believe you. But that’s not really what the proponents want.
What the proponents want is to have all of the rights that everyone else has when rights are being given, but don’t want to have the responsibilities. That is, we want to keep all our exemptions from neutral regulations on the Free Exercise side. We want to keep all of our protections on the Establishment Clause side. So, yes, we want the government money, but we want to be able to discriminate with government money. Yes, we want the government money, but we still want to be free of requirements to register as lobbyists and to report on our lobbying activity. Yes, we want to have our speech up with other people’s speech, but we want to have the special protections in tort law that we often have, and so on down the line.
Well, you can’t have your cake and eat it too. You can’t, for the sake of a bowl of porridge, give up a birthright about one of the things that made America great for the Jew. For it is precisely the combination of the Free Exercise Clause and the Establishment Clause that made America different from any nation before, and few after. Because what it said was, for the first time in Jewish history, it didn’t matter whether all 290 million Americans believe that the way you worship is wrong; and it doesn’t matter if all 535 members of Congress, nine members of the Supreme Court, the president of the United States and, yes, even the vice president of the United States, believe that what you have to say is wrong. So long as your exercise of your rights does not infringe upon anyone else’s, you have the inalienable right to live, to worship the way you want, and to say what you want. And we celebrate those rights not in the abstract. Rather, we celebrate those rights precisely because without them you cannot have the free marketplace of ideas that is so indispensable to religion.
And precisely because of that combination, for the first time in Jewish history -although it took many, many decades, or generations, for us to really fulfill the promise of what the framers offered us – for the first time in American history, we had a vision of a nation that said, your rights and opportunities as a citizen will not depend upon your religious practices, your religious beliefs, your religious identity.
And it is precisely during the Warren and Burger Court era, which strengthened separation of church and state, which enhanced the rights of women and minorities – Jews, Catholics, dissenters, disabled, agnostics, and atheists – that the Jews moved from the peripheries of American society to the very center of American political, professional, academic and economic life.
That structure that Marc and Nathan have called the “traditional structure” served us well and the nation well. It is particularly needed in this, the most religiously diverse country in the history of the world, with two thousand religions, faith groups, sects, denominations (Marc said 1,900 of them are in Borough Park in Brooklyn; or if you prefer, of the non Jewish sects, 1,900 of them may be in California). It is still the most religiously diverse community in the history of the world. Keeping that separation has been vital to America’s pluralism and tolerance, without the kind of competition (for government sponsorship, government recognition, our symbols there, our prayers there) against each other. That’s the last thing that America needs, the kind of sectarian divisiveness that other nations have engaged in.
We saw for a long time the religious right assert a vision that would have imposed their views on others by changing the Constitution’s Establishment Clause, by enacting constitutional amendments on a handful of core issues or legislation, (from school prayer, to abortion, to scientific creationism, to censorship). They lost all of those battles. They lost them in the courts. They lost them in the Congress of the United States.
And so in the last five, seven years, they began to shift to issues they thought could win middle America, those issues that financially benefited middle America (vouchers, charitable choice) and those symbolic issues that could win their hearts. And the polls show they were right on these; that is, things like prayer before football games or graduation, or posting of the Ten Commandments – the symbolic issues. People say, what’s the big deal about those issues? That’s where the battleground is now. The problem is – and the same is true with a lot of these voucher cases as well as the funding cases on those “on the cusp” issues that were alluded to, i.e., those three issues: disaster relief, national landmarks, homeland security. Marc has given a very thoughtful analysis of how you could take pieces of those and legitimately justify them, constitutionally, without greatly changing the doctrine.
But a lot of folks who want to change the doctrine jump on those things on the margin and say: “Ah-ha, they prove the principle of equal treatment,” and therefore we have to apply it to everything else that they have argue for – e.g., school prayer – and that is a real danger to us, because by buying into those things, we risk everything.
Let me just close with a few remarks about the touchiest of these issues, the Homeland Security Bill. You know, can we really be against synagogues getting money from the government to retrofit and make them secure in an age of terrorism? And this is not a case of that view being wrong. This is a case where two valid policy and moral principles are simply in tension with each other.
Let me give you the argument on the other side. First, comparatively little will be gained for security, and a great deal will be lost for religious freedom if we buy into this, because it will be used to raise up the “equality principle” and to argue that it should apply to everything. This bill has substantially less than the $100 million sought by the community. And the final version was devoid of any of those protections negotiated over months between the Jewish community and the bipartisan sponsors of the bill. It was, in many regards, the worst of all possible worlds.
Second, there is a great deal we have done in training, in careful coordination with law enforcement officials and the Department of Homeland Security, to protect our synagogues – without that kind of funding.
Third, if the community were really committed to helping day schools and synagogues, since most grants pass through intermediaries (like federations and community relations councils), if directed to those institutions that can constitutionally accept it, it frees up community money that could go to the day schools and the synagogues. Right now, it’s going to be the federations that are going to have to pay for the JCCs. So if instead of the synagogue getting it, the JCC gets it, it frees up money. If there’s a community committed to really protecting the most high-risk institutions, we would have the resources to do it, and this money is fungible enough that it would free that up for the synagogues. It’s really a question of will.
Fourth, I would argue that numerous efforts were made to improve the bill. But in the version that passed over the version we began with [which had no improvements], you should know it was not just a handful of groups. The ADL, the American Jewish Committee, the American Jewish Congress, the Conservative movement, the Reform movement, Reconstructionist movement – all expressed serious reservations. It wasn’t that they were all opposed to it – many of them hadn’t made up their mind what they would do if faced with that choice, and some stayed neutral in the end when the vote finally came about in this form. But this was a very problematic bill in the form that it actually passed for our community.
Finally, I’d point out this money will help very few congregations. The United Jewish Community’s own consultant concluded that a full security retrofit for a decent-sized synagogue, day school or community center would run in the range of $750,000. Obviously, you can do a lot here for less money. But it costs hundreds of thousands of dollars to do it. So a $25 million appropriation – spread not across the Jewish community, but spread across houses of worship, hospitals, museums, schools – will have little impact on the Jewish community.
Indeed, one can argue that the decision to include houses of worship, which puts the high risk churches among the 300,000 churches in America directly in competition with our communal institutions, was not the smartest strategic or tactical approach for us to take if we’re trying to maximize money to the community. But whether the allocation is $25 million or $25 billion, the same damage is done to our priceless protections ensuring the separation of church and state.
In the end, it has been the concepts of separation of church and state that have lifted up American Jewry, giving it more protections, rights and opportunities than we’ve known anywhere else. It has been that wall keeping government out of religion that has allowed religion to flourish with a diversity and strength in America unmatched anywhere in the democratic world today. Yes, there may be places, as Marc and Nathan have suggested, where we can look at how to find compromises that can meet compelling needs. Maybe there ought to be, on the Establishment side, a “compelling interest test” akin to what we argued ought to exist on the Free Exercise side, so that in very limited, extreme instances, like terrorist threats or terrorism, we could address those issues.
But to abandon our fundamental principles, to use those issues as a way to pry open the door, to end the fundamental protections offered by that [wall of separation of church and state] would be disastrous for American Jewry, and, I argue to you, would be disastrous for our nation.
MR. LUGO: Bob promised you an intellectual feast and there you have it. Thank you very much. And thank you for adhering to the time constraints. I think we ought to just go right to Q&A. I’m sure there were things they would like to go back and forth on, but I don’t want to cheat you folks from the audience.
Yes, sir. If you could please identify yourself, there’s a mike coming around so you can speak.
DAVID EPSTEIN: David Epstein. None of the speakers spoke about the Islamic community in the United States. And at a minimum, I assume that they have an interest in furthering Islamic law for their community, and perhaps more. And I read a few months ago on the Internet that in Canada there’s been some legislation that’s been helpful to furthering Sharia in the Islamic community in Canada. Could any of you or all of you comment on that, please?
MR. LUGO: Very interesting question. Marc, why don’t you take it on.
MR. STERN: The Islamic community is, I think, just beginning to find its feet on these issues. They have clearly insisted on equality of treatment. There was, for example, a lawsuit brought a couple of years ago on some New York City public schools that used to have Christmas-Hanukkah displays. Doctor Mehdi insisted on some symbolic treatment for Islam, which is very difficult because Islam is fundamentally anti-iconic. They had to sort of dredge up a symbol for Islam. They did.
There has been a demand for equality. There’s been a demand for accommodation in the workplace with regard to women covering their hair. There have been a lot of lawsuits, some, in fact, in the Washington area. There’s an Islamic group that has worked on getting accurate descriptions of Islam into social studies textbooks and the like – they’ve worked with Charles Haynes.
What is surprising is that at least some of the traditionalist Islamic groups have ended up where the evangelical Christians have been, that there’s a need for a greater role for religion in American life. That is surprising, only because immigrant groups tend at first not to take that position – they sort of jumped in in the middle as if they weren’t immigrants.
The Canadian law, the stuff that you’ve read about Canada, it seems to me is over-hyped and misleading. It typically appears on anti-Islamic websites. All that Canada has agreed to do is to treat the decisions of Islamic courts as arbitration panels, which, if people want to enter into voluntarily, they can, and then get those arbitration awards recognized in Canadian courts. That has been the law in the United States since forever. It’s routinely done in the Orthodox communities and Conservative communities with rabbinic courts. It’s hard for me to see why an imam deciding a case is any worse than paying a commercial arbitrator. As far as I can tell, that’s all that Canada has done.
I’m not really sure what the fuss is, except in one respect. Canada is very much like Europe. Canada is, on religious issues, much more culturally akin to Europe than it is to the United States. And Europe – France, in particular, but much of Western Europe also – has a strong secular tradition. The reason why in Canada the decision made a splash is because Canada is very much like Europe, where religion is a purely private, individual affair. The notion that it might get official recognition is somewhat athwart the secularist assumptions of Canadian society.
But it’s not a big deal. It’s not like Canada threatens to become an Islamic state, a theocratic state, anytime soon.
RABBI SAPERSTEIN: Two quick points. First, I would argue that one way to look at it is Europe is more secular. But Europe – and this is exactly the danger that separationists warn against – Europe didn’t treat religion specially. It did treat religion like everything else, and continues to treat religion like everything else. And therefore, as to the rules, regulations, interference, monitoring, auditing – all of those things that other groups are subject to, religion has always been treated like everything else. Therefore when it asks for special exemptions (such as wearing religious head coverings), it’s often denied them. And that’s exactly the danger of making the argument that you ought to treat religion like everything else in order to get the money: they’re going to believe it and start doing it across the board.
As for Islam in America, it ought to have the same rights, not one iota more or less, than anyone else. Here, I think that they do so in terms of, let’s say, Islamist extremism – not Islamic – but the extremism in Islamist interpretations of the Koran; any effort to organize around that runs immediately afoul of the compelling interest test. I mean, I can’t imagine anyone that would reject that argument. And it can be limited just like any other violent activity would do about it. On the other hand, the expression of Islamic life here is entitled to the same protections that we would expect for the Jewish community, and that ought to be the standard to which we hold it.
MR. STERN: Can I just add one thing to that?
MR. LUGO: Very quickly.
MR. STERN: Just very quickly. Many of you may have read a couple of months ago that one of the Islamic groups was renting out Great Adventures. There was a whole storm in the press that it was turning into an Islamist Great Adventures and it was a clear and present danger. Without disclosing too many confidences, the defense agencies had spoken about this. We all took the position, quietly, that we didn’t see anything terribly wrong with that – that religious groups had the right to associate amongst themselves. They were renting the place out. It was, in effect, private, not a public, accommodation. We didn’t see anything that would cause us to depart from that position.
You’ll notice that none of the mainline Jewish organizations were critical of Great Adventures. My view is anybody who wants to go to Great Adventures deserves what they get – (laughter) – including the line to get in off the Garden State Parkway.
The anti Islamic groups, both in the Jewish community and more generally, were violently opposed to the arrangement, created an entire stir, and forced Great Adventures to retreat a little bit. I do not regard this as a great victory for religious liberty. But it shows how complicated these issues are, and sometimes it’s not just a church-state issue that plays in; there are other social forces at work complicating that.
MR. LUGO: Thank you. Anyone else? Yes, Bob?
MR. WEINBERG: Marc, you mentioned earlier how different Jewish groups were sort of negotiating about taking narrow or broad positions on a point. And I wonder if you could tell us just generally how, through formal or informal means, the various Jewish legal organizations and the councils of the various Jewish organizations work out what positions to take in cases before the Supreme Court and see if they can or cannot take accommodation.
RABBI SAPERSTEIN: A timely question.
MR. STERN: We’re adjourning here, David and I, to do just that. When I was on Law Review, there was a Jackson Pollock hanging in the office. Somebody had scratched out the title and written “First Draft.” That’s pretty much how we do it. It’s a big mess until we come out with something. There are informal networks. Richard Foltin and I know each other. Michael Lieberman’s colleagues in New York City, Steve Freeman, David, Nathan. We all know each other and we tend to do things, if we can, by phone calls, and now the awful invention called e-mail.
Of course, none of us are free agents. Part of the problem is that – “problem” is clearly the wrong word to say publicly – we are all servants of our clients and defer to the greater wisdom that our laypeople bring to bear on these thing. It’s much less of a problem than you would believe from reading the Anglo-Jewish press. It works because, I think, we all trust each other. It is like a Jackson Pollock, though, in terms of how it gets done.
In the end, most of us know what the boundaries are for one another. We know that the American Jewish Congress has a concern with this, and that the Religious Action Center has this problem, and the JCPA has a concern with that. Whoever gets stuck with writing the brief tries to write a brief that satisfies all those concerns. We sometimes can’t do it and so we’ll split and we’ll write two briefs.
Generally within the Jewish community I would say that it works. It’s very hard to describe how it works. Within the Jewish community I am hard pressed, aided by my failing memory, to think of a single case in which there has been backstabbing or major miscommunications. That does not happen. That, I think, speaks well of the organization. But it’s like a Jackson Pollock in the middle.
MR. LUGO: Nathan, would you like to comment on this?
MR. DIAMENT: No.
MR. STERN: Do you know that 5-year-old who’s now doing Jackson Pollocks? That’s probably a better example.
MR. LUGO Actually, Nathan, I would like for you to comment on this just to maybe clarify for me and the two or three folks here who are not legal experts. David said toward the end of his talk that you can’t have it both ways on neutrality with respect to Establishment and Free Exercise. Did I hear you correctly in saying that, yes, you can have it both ways?
MR. DIAMENT: Yes. I think David reads the First Amendment and says, “Only religion has an Establishment Clause.” I read the First Amendment and say, “Only religion got two clauses.” And I think part of the problem, aside from your actual jurisprudential position, part of the problem and the reason why Supreme Court jurisprudence in the religion arena has been such a mess is that there are two clauses. And for a while, the court tried to issue opinions in which they seem to realize there were two different clauses. But much more of late, they ignore that and lump it altogether.
And, as I tried to say, I think you can read it as, the Establishment Clause is a restriction on the government. We didn’t want an official state-sponsored religion or things along those lines, and Free Exercise is, as I say, like free speech and other constitutional rights, a personal individual right. It’s a right that can be held by an individual religious institution – in other words, a legal person, not just a human person.
And so, to pick up on another example David gave, I think that on that reading you can be a religious institution that says, when the government is giving out funds or other kinds of benefits, it can’t choose to say, “We’re funding groups in Washington, D.C., that work with homeless people and feed them 20 meals a week or what have you, but just because you’re a religious organization and you meet all those kinds of criteria, you automatically can’t get a grant.” And the government can demand of you religion neutral-regulations and requirements such as showing them the receipts that you actually took the government money and you went out and bought the food which you fed to the people and so on and so forth. But that institution will also have Free Exercise rights in terms of how it defines itself and its religious mission, who it has on its board and things along those lines.
So you can either, again, look at it as “only religion has an Establishment Clause” or you can look at it as “religion has got two clauses and they both have to mean something.”
MR. STERN: There is a debate in medieval Jewish philosophy, “If you can imagine something, it must exist.” And one can imagine a position that Nathan has described. It is possible to articulate that. The difficulty is that Supreme Court cases get decided in the larger matrix, and the larger matrix in America is egalitarianism. Once you introduce egalitarianism into a cause, it becomes difficult to say half the cause is egalitarian and the other half of the cause is anti-egalitarian. It’s particularly so because the cases that reach the Supreme Court – this is always ignored by academics – the cases that reach the Supreme Court are typically the very hardest cases the system can throw up.
In a case that I’m working on with others now, an appellant in the Supreme Court, the question is whether the religion clause requires preferential access for religious materials into a prison when equivalent secular materials are not allowed in. Under free speech doctrine, you can’t prefer one kind of speech over another. It’s an egalitarian doctrine. But you transfer that to the religion clause, and that becomes a hard case. The kosher food cases are no longer getting to the Supreme Court, or the Islamic kosher food cases, because those are regarded as simple.
What’s the context in which the Supreme Court applies constitutional principles? The very hardest case and very hardest questions.
Yes, Nathan is right; one can imagine his scenario. One can articulate it. For a while, it was actually the law of the land. But in the larger egalitarian matrix, it isn’t so easy to pull it off. It’s not easy to take the funding context. It’s not easy to say religious groups have equal access to funding for drug rehabilitation programs and yes, they also have a Free Exercise right not to hire state-trained social workers, but they get to hire people who are cheaper because they don’t have a master’s degree and can compete unfairly on price.
And then, of course, there are all of David’s objections to doing so in any event.
RABBI SAPERSTEIN: Let’s remember that this is not a hypothetical. We actually know what has happened, and everybody in this room knows it but no one actually said it, so let me just say this. With devastating consequences, the Supreme Court of the United States bought the equality argument on the Free Exercise Clause with Oregon v. Smith, and gutted any non-equal protection arguments except for a couple of very, very small exceptions, gutting the entire schema of constitutional protection of Free Exercise.
Here we know what happens when you buy into this argument. The enormity of the risk of buying into this, and assuming once you open up that Pandora’s box you can control it, is of almost unimaginable consequences. We can lose everything over this, every kind of meaning about it, all except the most extreme meanings. I mean really buy into, you know, the Justice Rehnquist kind of thing – you can’t establish a national religion, you can’t prefer any one religion over the other – exactly the things the Senate in its first day of debate rejected explicitly in terms of the Establishment Clause.
And that’s all you’re left with and everything else is allowed. And our children will have a very different America than we have had, and we are giving up a lot for the sake of the money. I understand the attraction. I’ve been a congregational rabbi. I created the first Reform Jewish day school in America. We ran a hot luncheon program for 400 people every single day. I understand the attraction of the money.
We will pay an enormous price for going down that path. And we saw it on one side of the First Amendment here and now the other – part of our community wants to give up half of the other clause on this issue and suggests that, oh, we don’t see any real risk that we’re going to lose – the final court of that remains. And I’m saying, you’ve got your heads in the sand.
We’re just seeing this so enormously differently. So it’s not that anything that Nathan says is wrong, and I hate to have the Reform movement, you know, be preaching to the Orthodox. Maybe it’s time to build a fence around the Torah here to recognize that what we’re protecting is so essential we have to err on the side of building wider protection and not let them come right up to the edge of what is the central principle that we are fighting to protect.
MR. DIAMENT: Of course it relates to what you think is the bigger risk and what you think is the essential principle, and I would take exception to the notion that this is all about money. There are plenty of other instances that have nothing to do with money where this could be discussed. And we agree 100 percent that the gutting of the Free Exercise Clause in the Smith case is terrible, wrong, and we need to find an opportunity to roll that back.
On the other hand, the notion that once again religion must be a matter of private, personal choice and that anything that touches – the logical extension of David’s argument is indeed when the synagogue or school gets hit by the earthquake or if the World Trade Center had fallen on Trinity Church, the federal government or New York state money that’s rebuilding the whole neighborhood can’t rebuild that building because it’s a religious building.
And if you want to pay that price, if you say that’s a necessary price for religious freedom, you can take that position. I don’t think it’s clear that it’s necessary, and I also don’t think it’s clear that it impacts upon the ambit of free exercise.
MR. STERN: I have just one last thing I’d like to say on this.
I don’t think, unfortunately, in a systematic way. I like to look at individual cases. I’m not happy with being forced to choose. I think there is a grave danger to injecting religion into public life. My general rule is whoever the rabbi endorses, I vote for the opponent. It works very well. (Laughter.)
I really cringe every time I hear clergy endorsing candidates. I don’t think it’s a good idea. The question of whether there’s a right to do it is a different question. I think people who want more religion in public life underestimate the dangers. What I find frustrating in David’s remarks is that while he always does a powerful presentation on why we should be somewhere else, as a practicing lawyer I recognize that it has been 14 years since the Free Exercise Clause disappeared. I don’t see a ground swell in either academia or in the lower courts for any change.
Large parts of our community are, to be blunt, very happy that the law is that way. They’ve never invested in the Free Exercise Clause. They are today obstacles to a vigorous and robust Free Exercise Clause. And even then it’s not coming back any time soon.
As I also said, much of the Establishment Clause as some Jews envision it is not coming back any time soon. While Nathan doesn’t talk about the dangers that I think are there, David doesn’t talk about the fact that somebody calls me up and I can’t give him David’s sermon about what the law ought to be; I have to tell him what the law is. The question then is, when a federation calls me up and says, “Should we start a Jewish religious club?” I can either give them David’s sermon or tell them, “These are the ways you can do it.” The debate I want to have is which advice I should give. I think that’s where we need to join the issue. I haven’t heard that issue joined today.
MR. LUGO: Nathan, first –
MR. DIAMENT: I’ll just take an opportunity to talk about dangers for a second, since Mark raised that. In the context of charitable choice, which is, policy-wise and legally, clearly the most complicated area of this whole question of how does government fund and act with religious institutions and so on. You know, FEMA, historic preservation – even David, if asked or if hired, could construct good legal arguments to allow for it to happen and still have safeguards in place and so on and so forth.
And it’s a one-shot deal, the roof is repaired or whatever it is, and then you move on. The complication of the charitable choice context was that you’re talking about drug rehabilitation programs and all kinds of other programs relating to people in need and them being administered with government dollars for these needy people. And how do you deal with protecting the constitutional and religious rights of the clients of the agency? How do you deal with separating out the religious functions of the agency from what’s being publicly funded? And so on and so forth.
Now, the interesting thing is – and I’m just telling this historically – where we are now, in some ways, is in a much more dangerous place than when we were actually having the debates in Congress, because at least in the congressional arena there was actually a debate and negotiations and discussions about, okay, here are the list of dangers. How do we write laws and regulations to try to address those dangers and build a fence around whatever it is we want to build a fence around?
And there are two ways to approach that. Much of the Jewish community, David and others, said, “There’s absolutely no way to do this. You can never ameliorate these dangers enough, and therefore we’re flat out opposed to all of this and we’re going to fight it hammer and tong and not let it go forward, period.” Then there’s the approach we took – and I can tell you, the Orthodox community is not interested in government-funded proselytization in drug rehab programs either, but we decided to engage with the process and see, okay, how do we get congressmen and senators to write rules and regulations that will deal with that issue?
Now, on the one hand David and his camp succeeded. The legislation didn’t go anywhere. On the other hand, as a result of that, the White House was freed to implement these programs on its own by executive order however it darn well wanted to. Now, you can hope that John Kerry wins. And given the speech and the policy paper he’s issued on faith-based initiatives, he’s going to make some adjustments in some degree or another. And although he’s made clear he’s not going to abolish it, he’ll make adjustments that might make David satisfied and happy. But in the meantime the box has been opened and this has all been loosed. If Bush gets reelected, it’s another four years without the kinds of restraints in place that might have served people and the communities and these principles better.
MR. LUGO: Thank you. We have two minutes left, and I have to give David, obviously, time to respond here, because you actually have two criticisms, both of which boil down to the idea that your principles have great historical resonance, but neither of these gentlemen are quite sure, David, that they are connecting with the present reality – if I understand their arguments.
RABBI SAPERSTEIN: I’m actually perplexed by Marc’s assertion here. In other words, conceptually, what he said, of course, is true. But the truth is, we work together all the time, Marc, Nathan and I. We’re together all the time, writing guidelines about what’s allowed, what’s not allowed in a lot of different settings, working within the rules, the way they are, et cetera.
The rules are where they are. The question is, do we want to go any further? And I hear Marc on my side of that issue. We don’t want to go much further. If we’re going to go much further we’re risking something that is at the center of what has made America special in general and special for the Jews. And so I think that’s where we are on that.
Nathan’s point about charitable choice is a bit astonishing. Let me see if I got this right: But for the fact that the significant majority of the Jewish community – other than the Orthodox Union – stood together against charitable choice and were able to get enough people in both parties to recognize the dangers of doing this so that they wouldn’t pass charitable choice, we would not have the administration implementing all these things unilaterally. And I’ve got to say, what are you talking about?
This administration came in saying it was going to do it. From the day it hit office, it began issuing executive orders and rules and regulations to begin to make these changes. When it gave up on getting the Congress to do the work for them, did they just go ahead and do it themselves, ignoring the will of Congress, ignoring the history of the court decisions in these areas where – I reiterate – the Supreme Court has never upheld direct cash disbursements from the government to houses of worship for any purposes.
Of course this was going to happen anyway. To blame me and the opponents of charitable choice, the senators and congresspersons who thought it is a bad idea – bad for religion, bad for poor people, bad for government – is to me a kind of strange reading of the ideological proclivities of this administration and the behavior of this administration.
The administration said, this president says, “I do what I say I will do.” It said it would do this and, you know, by hook or by crook it went ahead and did it. And I think we’re all the losers for that. I think that is really bad, because it’s going to result in a whole slew of new court battles over this stuff. And I think it’s a bad precedent in terms of the administration ignoring the will of Congress on these issues.
So I’m not very happy about what happened, and it certainly is the administration’s decision, choice, desire, and not the result of anything that supporters of the separation of church and state did.
MR. LUGO: Well, unfortunately we have to bring this conversation to an end. If there’s one thing that we Hispanics are going to contribute to American society, it’s that we’re going to start and end every meeting on time. So I’m just determined to do that.
It does give me the idea, Bob, that maybe we ought to have a third –
MR. STERN: You’ll be regarded as anti-Semitic.
MR. LUGO: I’ll be regarded as anti-Semitic, he says. It does raise the interesting possibility, Bob, of whether we should actually do a round three of this, maybe down in Miami? And I’ll bring, you know, an equal number of Cuban-American lawyers to the table. After all, there was a presidential debate down there. I’m sure that Manny Diaz, the mayor, who is also a lawyer, would be more than glad to have us for the third round of this debate.
Thank you so much for coming. Please join me in thanking our speakers.
(Applause and end of event.)