i The compelling state interest in the Military Chaplains' case, as the Supreme Court has decided, is
that soldiers, of whatever religious denomination,
need spiritual and religious guidance. For economic
reasons, our established religious groups are incapaI- ble or unwilling to provide civilian clerics, although
if,, some of our NATO allies do so.
I conclude by recalling the words of Thomas Jefferson: "The God who gave us life, gave us liberty at
the same time." And to safeguard liberty and religious tolerance, we have pledged, in the words of
our Declaration of Independence, "our lives, our
fortunes and our sacred honor.'' •
In teaching about, as distinguished from teaching of,
religion, the States recognize their educational re\ sponsibility. The role of religion in Western and
other civilizations simply cannot and should not be
ignored.
The constitution and the jewish problem
,
:
Further, as I said in Abington: "Untutored devotion
to the concept of neutrality can lead to invocation or
approval of results which partake not simply of that
non-interference and non-involvement with the religious which the Constitution commands, but of a
brooding and pervasive devotion to the secular and a
passive, or even active hostility to the religious,
Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it."
j
j
\
i
I, Numerous other examples could be mentioned, but
i the above examples are sufficiendy illustrative.
: On Not Being an Extremist
I The only other exception I would permit, is the ap| plication of the time-honored "deminimus rule."
: Deminimus non curat lex—of trifles, the law takes
;
no notice. The "deminimus rule" should be considered along with the deference to be accorded to the
"Free Exercise Clause."
1
A few examples of the deminimus exception would
lj be appeals to the Almighty in the messages of the
Chief Executive, the supplication with which the Suii preme Court opens each session: "God save the
1
United States and this Honorable Court," prayers
i opening each session of Congress and the tree (a pagan symbol, unlike a creche, which by its very na; ture, is a religious portrayal) decorated and lighted at
Christmas, usually by the President, on the Mall.
• Of course, as I said in Abington, the Bible reading
case, "It is of course true that great consequences
can grow from small beginnings.. .but the measure
of constitutional adjudication is the ability and willj ingness to distinguish between real threat and mere
I shadow."
Those who seek to maintain the wall of separation
between church and state, "high and impregnable,"
despite critics, advance rather than retard, religion
j and are the true custodians of our country's precious
{ heritage of tolerance and liberty for all, "one and inI divisible." This great and necessary task is today
L
more difficult than ever and consequendy more necj essary than ever.
,123
J. David Bleich
There is no question that, of all the lands of its exile,
America has been the most hospitable to the Jewish
people. The favorable climate Jews have enjoyed has
been fostered in large measure by the Constitution.
Equal protection under law and absence of governmental discrimination have made this country a land
of limitless opportunity for American Jews. But it
was the adoption of the First Amendment which assured that not only would Jews prosper but that Judaism would flourish as well.
In some sectors of our community, to engage in activity which, even remotely, can be regarded as encroachment upon separation of Church and State is
regarded as sacrilegious; to question the wisdom of
maintaining a hermetically sealed wall is nothing less
than heresy. Indeed, at times it would appear that the
covenant of Philadelphia has supplanted die covenant
of Sinai as the credo of the American Jewish establishment and that the first ten amendments command
a devotion far in excess of that paid to the Ten Commandments. Modern-day devotees of the Constitution would erect impregnable fences around this wall
just as the Sages of old erected fences around the
Law.
The Bicentennial represents a milestone not only in
American history but also in American Jewish history. It is certainly an appropriate occasion on which
to pause and question even die most fundamental of
assumptions. The question put simply is: "Is all of
this really good for the Jews?" Or perhaps: "If it
was indeed once good for the Jews, is it still good
for the Jews?" The answer is far from simple. Certainly, the answer is not unequivocal.
The Jewish Benefit of Gentile Piety
Wherein do Jewish interests really lie? No people
appreciates the importance of religious liberty more
J. DAVID BLEICH teaches Talmud in Yeshiva University's semikhah program and law at Cardozo
Law School. He is a Sh'ma contributing editor.
(An article by Judge Abner Mikva of the U. S. Court
of Appeals, continuing the discussion of the Constitution and our community, will appear in our next
issue.)
than a people persecuted for its faith over a period of
millenia. No people has derived more tangible benefit from freedom of religion than a people so often
called upon to accept martyrdom rather than forswear religious beliefs. However, the freedom of religion which we so enthusiastically applaud has
brought in its wake freedom from religion as well.
It is freedom from religion which gives rise to a certain ambivalence within the Jewish psyche. That
feeling is perhaps best captured in an old Yiddish
maxim: "When riding in a carriage, upon passing a
church, if the coachman does not cross himself, get
out of the carriage immediately!" Despite an unswerving devotion to monotheistic beliefs, the Jew
was well aware that he was safer and more secure in
every way if the non-Jew professed a religion—and
that to assuage those concerns any religion is better
than none. Never mind whether or not trinitarianism
infringes upon the theological or halakhic requirements that Judaism imposes upon Noachides: there
are pragmatic concerns that must be addressed on an
entirely different level.
There is no gainsaying the fact that Jefferson's wall
of separation has contributed to an erosion of religious awareness in public life in our country. This
was certainly not the intention of the framers of the
Constitution. "We are a religious people whose institutions presuppose the existence of a Supreme Being
The First Amendment.. .does not say that in
every and all respects there shall be a separation of
Church and State
We find no constitutional requirement which makes it necessary for government
to be hostile to religion and throw its weight against
efforts to widen the scope of religious influence" —
thus spake a Justice of the Supreme Court whose
credentials as a liberal are unimpeachable—Justice
William Douglas writing for the majority in Zorach
v. Clausen.
The Problems We Have Helped Create
It is sometimes forgotten that the First Amendment
was intended to be binding only upon the federal
government, not upon the individual states. The federal government was denied the right to establish a
national church. Matters of religion were to be dealt
with by the individual states as they saw fit and indeed, at the time of the ratification of the Constitution, established churches existed in nine of the
original states. It was not until a Supreme Court decision handed down in 1940 in Cantwell v. Connecticut that the Bill of Rights was held to be binding
upon state governments by virtue of the Due Process
Clause of the Fourteenth Amendment and not until
1947 in Emerson v. Board of Education that the
Court declared that the Establishment Clause applies
with equal force to state governments.
,124
Let us put questions of constitutional jurisprudence
|
aside for a moment. Do we want Johnny to pray? Da
we want teenagers to be exposed to the concept of a
personal God? Do we want the coachman to make *
the sign of the cross when passing a church? "Yes!*'i|
comes the response, "but not in school and not on ! |
public property." Fair enough, until one realizes
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that: (1) far too many parents are unconcerned with
even minimal exposure of their children to anything
even remotely religious; and (2) studied avoidance oil
all things religious in all public contexts may become tantamount to the public negation of all religion. In the words of Justice Douglas, such a result
"would be preferring those who believe in no religion over those who do believe," a state of affairs
quite antithetical to the goal the First Amendment
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was designed to achieve.
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Free Exercise, Yes; but Establishment?
n
Heaven forfend that these comments be in any way |
construed as advocating the State's right either to en-1
gage in religious indoctrination or to interfere in the
slightest with religious freedom. But we must recognize, as did former Chief Justice Burger in Walz v.
Tax Commission, that "No perfect or absolute separation is really possible; the very existence of the
Religion Clauses is an involvement of sorts—one
that seeks to mark boundaries to avoid excessive entanglement." The First Amendment provides that
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof."
The Free Exercise Clause prohibits any form of religious coercion; the Establishment Clause proscribes
government endorsement or overt assistance to religious endeavors even were there to be unanimous
consent on the part of the populace. Everyone agrees"
that free exercise is, and must remain, an absolute.
The alternative is the loss of religious liberty.
But it is not at all clear that religious liberty is in- \
compatible with even a formal establishment of reli- '
gion. The religious liberty of Jews, Moslems,
Hindus, Sikhs and members of cults various and
sundry is—at least today—in no way diminished in j |
Great Britain by virtue of the unique position of the>:
Church of England as the established church of the
realm. On the contrary, establishment serves to mitigate only the freedom of the established church and
its communicants which, by virtue of its establishment, is technically subject to the whims of Parliament.
In our country, establishment is unthinkable, not
simply because of the constitutional prohibition, buj
because establishment is regarded as carrying with ijt
an aura bordering at least on the mildly coercive. J
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jy But there is no need to throw out the baby with the
bath water. The Supreme Court has wisely drawn re\ peated distinctions between "establishment" and
.„• "accommodation." The former is anathema; the latter commendable. The problem is where to draw the
i line.
11 Searching for a Reasonable Reading
It is certainly difficult to draw a line that will permit
S the desired result but not yield logical inconsistencies
i that can ultimately obliterate the line entirely. Nor
. should it be forgotten that denial of services and ben| efits for fear of violating the Establishment Clause is
:.. itself a diminution of Free Exercise of religion. In
' Walz v. Tax Commission the Court sagaciously obi served that there is an inherent tension between the
i Establishment and the Free Exercise Clauses—"both
' of which are cast in absolute terms, and either of
i which, if expanded to a logical extreme, would tend
11 to clash with each other." We may wish Johnny to
ecj pray in school but recognize that such a goal is conic i stitutionally unattainable. But that should not autoig-j matically lead us to reject moments of silence as,
i constitutionally speaking, equally odious. The chal• 1 lenge is to recognize the goal and to fashion the
means. The goal for Jews—and for all Americans—
1
should be nondiscriminatory encouragement of refil - gious activity to the fullest extent possible within the
parameters of the First Amendment.
i Encouragement of religious awareness serves a very
U tangible secular purpose. Let us put aside our very
j; real interest in financial support of yeshiva educaJl don. Is it not in our interest to foster parochial
s I j school education for all of our fellow Americans
| who wish to avail themselves of such an oppor|i tunity? Juvenile delinquency and drug use are far,
gH far less prevalent among students of those schools
.. than among the general teenage population. That
I represents a tangible benefit to all Americans.
1
In Everson v. Board of Education the Supreme
c Court declared assistance to parochial schools in the
form of bus transportation to be constitutional on the
somewhat tenuous grounds that the program was designed to assure the safety of children rather than to
promote religious education. In Board of Education
! v. Allen the Court permitted the State to provide
textbooks of a secular nature for use in parochial
, | schools on the grounds that the benefit was to parj ents and children, not to schools. Why should we
not urge the view that such programs be expanded to
• relieve the financial burdens assumed by parents of
I parochial school children? As stated by Justice Pow! ell in Hunt v. McNair, "The Court has not accepted
it! the recurrent argument that all aid is forbidden beit cause aid to one aspect of an institution frees it to
J spend its other resources on religious ends."
• 125
Encouraging Religious Consciousness
I frankly confess that when the Lubavitch movement
began erecting menorahs on public property my reaction was, "Vos darf man dosT' (Why do we need
this?) Such menorahs serve no halakhic function, either obligatory or discretionary, and hence seemed to
be a purposeless distraction involving a constitutional transgression to the bargain. Now I applaud
those efforts. Two factors caused this volte face: (1) I
discovered that the sight of a menorah prominently
displayed in a public place has stirred feelings of
pride and has kindled a spark of Jewish consciousness in countless numbers of otherwise disaffected
Jews. I need not explain, or even understand, that
phenomenon. It is sufficient to say that it is real and
it is salutary. (2) The Supreme Court approved erection of a nativity scene on public grounds, at least
under certain circumstances. Whether or not I agree
with the premises underlying that decision is irrelevant. But, it is certainly arguable that the menorah is
no less a historical representation than is a nativity
scene.
The Supreme Court has indeed long struggled with
attempts to determine when it is that permissible accommodation rises to the level of proscribed establishment. Perhaps at least a partial resolution lies in
an understanding of the history of the development
of First Amendment protection of religion. It was
only with some degree of reluctance that the Supreme Court came to recognize that religious practices other than prayer and similar acts of divine
service are protected by the First Amendment. Religion for the Protestant, after all, is not centered upon
ritual observance and restrictions, but is fairly well
circumscribed by church attendance and Bible reading.
The Two Meanings of "Religion"
Perhaps we should recognize that such an understanding is not entirely incorrect and that the term
"religion" is, constitutionally speaking, a homonym
employed with diverse connotations in the Free Exercise and Establishment clauses. We must insist that
the Free Exercise Clause is designed to protect religious practice in the broadest sense of that term, but
the parallel clause prohibiting establishment of religion may well be regarded as limiting governmental
entanglement with religion in the narrow sense of the
term "religion," viz, worship and overt profession
of a creed. Perhaps this is what Professor Lawrence
Tribe had in mind when he argued that anything "arguably non-religious" should not be considered religious in applying the Establishment Clause.
Recognition that the ambit of "religion" proscribed
by the Establishment Clause is far less encompassing
than the ambit protected by the Free Exercise Clause
certainly comes closer to capturing the spirit of the
First Amendment than other attempts to resolve the
tension between the two clauses. In the words of former Chief Justice Burger: "For the men who wrote
the Religion Clause of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support and active involvement of the
sovereign in religious activity." It did not connote a
mandate for neutrality between religion and the absence thereof. Nor, as chief Justice Rehnquist has
stated, is there anything in the Establishment Clause
which requires government to be strictly neutral between religion and irreligion. On the contrary, as Justice Douglas remarked, "When the state encourages
religious instruction or cooperates with religious authorities. . .it follows the best of our traditions."
Whether the courts are, at present, prepared to accept a bifurcated reading of the First Amendment is
beside the point. What is relevant is that it is an entirely cogent reading of the Constitution, that it reflects Jewish interest, concerns and aspirations and
that it is salutary to the spiritual and moral well-being of all Americans. Our so-called service organizations which constantly, continuously and
vociferously advocate a doctrinaire separationist position do no service to either the Jewish community
or to America.
Strange as it may seem to many laymen, but as students of constitutional law would readily concede,
the development of First Amendment doctrine over
the past 200 years is rooted, not in transcendental
truth or in the application of esoteric hermeneutical
principles, but in what the Court perceives to be
good for our society—and, surely that is a matter
Or
tjnjno , I
femx;b
tbmjlVavlfar1
BETSY PLATKIN TEUTSCH, our artist, letters, illustrates and illuminates ketubahs in Philadelphia.
,126
over which reasonable men may differ. The policy •
which reflects a Jewish view of societal welfare and j j
which should commend itself to advocacy by the
j
Jewish community was perhaps best expressed by
Chief Justice Burger in Walz v Tax Commission: The*:
general principle deducible from the First Amendment and all that has been said by the Court is this:
that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship
and without interference. •
Jewish employment after boesky
Marian Henriquez Neudel
In a recent interview, a neighbor of Eugene Hasenfus (the American civilian pilot tried in Nicaragua
for flying arms to the contras) kept reverting to the
same theme over and over: "Hasenfus saw what he
was doing as just a job. He'd been out of work for
months. They were paying him three thousand dollars a month to fly those planes. That's not big
money, for a man with a family. It was just a job to
him." The clear implication was that that motivation
spared him from any possible blame. If he had been
making "big money," or, apparently, if he had really believed in the contra cause and acted solely out
of conviction, that would have been grounds for
condemnation. But no blame can attach to anything
a person does to make a living, with the possible exception (one must charitably suppose) of contract
murder.
Similarly, a few months ago, the Roman Catholic
bishop of San Antonio, Texas, made some public
pronouncements to the effect that working in the local nuclear weapons plant constituted complicity in
immorality, and that good Catholics ought to find
;
some other way to make a living. The response,
from most Catholics in the diocese, as well as the
owners and employees of the plant in question, was
that the bishop should stick to talking about "faith j
and morals."
The great American dogma is that what people do
for a living has no moral content. There may be
moral issues connected with how diligently they do
it, or whether they cheat the employer or the customer in the process. But deciding to work in a par-,
ticular job in the first place ranks with deciding to
breathe air. It is not only not a moral choice, it is
MARIAN HENRIQUEZ NEUDEL practices law in\
Chicago.
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