The First Amendment and the Religious Right

Rabbi David Saperstein is director and counsel of the Religious Action Center in Washington, DC.

Judge Alito’s elevation to the Supreme Court portends sweeping changes in the scope of fundamental rights set in place by the Warren and Burger Courts of the 1950s-80s. In no area might the changes wrought have such an impact on our children and grandchildren than in the arena of separation of church and state.

In frustration over the High Court’s rulings, thirty years ago the religious right set out to reshape America in their image. Their vision of America raises four issues central to our concerns.

First, what does Judaism have to say about America’s vexing question of what the proper role of religion is in American legal, political and public life? Some Jews will argue: because the Bible and halachah (Jewish law) do not envision separation of church and state for a Jewish society, they do not do so for America also. Not so. Jewish law does not envision that a non-Jewish or secular state like America should follow Jewish law, which is binding only on Jews. We have no intrinsic mandate to “Judaize” America (i.e., to use government power to impose or endorse Jewish law, practices or symbols) the way that Revs. Falwell and Robertson have heard a call to Christianize America.

On the other hand, Judaism promulgates universal values that are applicable to all societies for all time. To mention just a few: the fundamental dignity and equality of human beings based on the notion that we are created in the image of God; the mandate to pursue peace and justice; the rule of law to which even the highest human rulers are held accountable; and the mandate to care for the poor, the ill, and the weak. Our role is to test a nation’s political policies by whether they further or impede those universal ideals. Just as every page of the Talmud is filled with majority and minority views of the rabbis struggling to understand how God’s values should be applied to the realities of the world, so too we recognize that good moral Jews can differ on how to apply God’s values to the political issues of our day – including church-state relations. But like the prophets and the rabbis of old, we must speak out and act, both on the consensus views of the rabbis or the people (who overwhelmingly support the separation of Church and State as good for religion and good for the Jews), and as individual Jews in accordance with our conscience.

Second, the framers created a revolutionary new constitutional order where the convergence of: “no religious test for office,” “free exercise” and “no establishment of religion” created, for the first time, a nation in which the rights and opportunities of our citizens would never be determined by their religious identity or practices. Yes, it took nearly 200 years to fully achieve that vision. But it was precisely the now endangered Warren and Burger Court’s robust expansion of the rights of women and minorities, including Jews, and the strengthening of the wall separating church and state, which enabled Jews to move from the peripheries of American life to the very center of American political, professional, academic and economic life.

Third, strong separation of church and state has greatly benefitted religion. It is precisely the wall that keeps government out of religion that has allowed religion to flourish with a diversity and strength unmatched anywhere in the democratic world today. And with our nearly 2,000 religions, sects, and faith groups, the last thing America needs is sectarian competition between religious groups over which will receive government money, and which won’t; whose religious symbols or whose version of the Ten Commandments will be placed on government buildings, and whose won’t; whose prayers will be said at government functions or classrooms, and whose won’t.

Finally, it is tempting to make some compromises in a staunch separationist position because of the short-term benefits, particularly in areas that provide money to us and/or are close to the margins of the Establishment Clause. But accepting government money for any purpose (e.g., charitable work or services) or symbolic endorsement of religion gives legitimacy to the same arguments that the religious right are using to persuade the Court and the nation to abandon separation of church and state altogether.

Separation of church and state has given Jews more rights, more freedoms, more opportunities than we have known anywhere else in our history. We must insist that we never compromise those rights. And to the religious right who seek to Christianize America, we must say: we will never let anyone make us strangers in our own land again.

Religion is Good for America and Good for the Jews of America

Rabbi Clifford E Librach is the spiritual leader of the United Jewish Center in Danbury, Connecticut.

From George Washington to Abraham Lincoln to Franklin Roosevelt to John F. Kennedy to George W. Bush . . . and all points in between, the call for God in the American public square is consistent with the highest American tradition. There is no American morality-based regulation, from criminal laws prohibiting murder and theft to tort standards which protect safety, honor and reputation that is not clearly derivative of religion and its Judeo-Christian literary corpus, the Bible. There is no higher call to civic discourse and active citizenship than is the call of religious obligation. This is not Turkey or France, where religious garb is prohibited, or Saudi Arabia, where mere residency for religious minorities is restricted at best or refused, at worst. And this is not Iran, a veritable theocracy. I applaud the celebration of Christmas by my Christian neighbors, who constitute this country’s vast majority. I do not seek to minimize its religious character or to secularize its rich symbols. And I see the miracle of Hanukkah to be ours, to proclaim to the world. Let the public square be a mosaic of religious diversity.

The “separation of church and state”, never mentioned in the U.S. Constitution and used by the Supreme Court first in 1947, has no historical foundation in the First Amendment. The evidence shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state (so he said in his famous letter to the Baptists of Danbury), separation became part of American constitutional law only much later. Jefferson had no intention of allowing the government to limit, restrict, regulate, or interfere with public religious practices. Indeed, separation became a desired constitutional protection largely through fear and prejudice.

Jefferson supported separation out of his political hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American “religious liberty” was thus redefined and even transformed.

In the process, the First Amendment was often used as an instrument of intolerance and discrimination. And it has become, in our own time, a blunt and hostile instrument used to bludgeon religion itself, even when presented in its most benign and inclusive form.

How else, for example, to understand the Supreme Court’s strange antipathy to a Reform rabbi articulating a simple non-denominational blessing at a middle school commencement, found unconstitutional in Lee v. Weisman? How else can the odd opinion of Federal Judge John E. Jones of Pennsylvania be understood, who ruled unconstitutional a regulation regarding a statement to be read to students concerning Intelligent Design (saying it is an alternative to the theory of evolution about which more can be read in the school library) imposed by a local School Board? The judge found the regulation to represent “breathtaking inanity.” I agree with his scientific assessment, but note that the First Amendment does not permit or invite federal judges to wipe away the silly and breathtakingly inane regulations (of which there are many) of American local government. That is not the purpose or design of the federal system or the First Amendment.

The Constitution’s First Amendment prohibits the government from interfering with the free exercise of religion and also from the establishment of a state religion or church. Its application by the Supreme Court is now tangled in a muddled web of doctrines by which to determine whether this or that government behavior crossed the permissible line. The Court has used two tests of late, the “apparent endorsement test” and the three-pronged “Lemon test” (named after a Supreme Court opinion in 1971). Both of these will, I suspect, be abandoned and restated as soon as the Roberts Court revisits its First Amendment precedents and corrects its confusing jurisprudence.

We American Jews should not fancy ourselves besieged remnants, threatened by fundamentalist Christians determined to squelch our prosperity, success, integration and very existence. It is the robust exercise of religious freedom which has permitted Judaism to flourish, checked only by the limp and waning enthusiasm of its adherents.

Our security on these shores does not lie in sanitizing all symbols and references to God or religion from public life in the name of “separation.” Our security lies in the free exercise of our tradition and faith, not merely tolerated but supported by our neighbors, as we support the articulation of their alternative message and path to God.