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Welcome back to Eilu V'EIlu! This week we're pleased to continue the discussion by presenting to you Rabbi Saperstein's answers to your question. They can be found directly beneath Rabbi Librach's answers. Some questions, you'll notice, were answered by both Rabbis, which makes for interesting reading. Again, thank you all for your wonderful comments and questions. Next week, we will present both scholars' closing arguments, and the following week, we will have a whole new topic to dive into! Thanks again, and keep letting us know what you think!
Rabbi Librach's answers to your questions regarding his essay "Religion is Good for America and Good for the Jews of America."
I believe the following little article I found in Knoxville, TN's weekly rag, The Metro Pulse (under the heading, "News of the Weird - Noteworthy absurdities from around the world"), should be of significant interest to anyone concerned about the separation of church and state.
"Evangelical Christian minister Rob Schenck and two colleagues entered a U.S. Senate hearing room the day before the January confirmation hearings for Supreme Court Justice Samuel Alito and daubed each seat with 'holy oil' to bless the proceedings, saying that things had gone well when they had done the same thing for Chief Justice Roberts' hearings. 'God... is interested in what goes on' there, Rev. Schenck told a Wall Street Journal reporter."
I must say that I find this simultaneously unbelievable and, unfortunately in this day and age, entirely believable.
You were right the first time. I have been a daily reader of the New York Times for forty years, and have learned to suspect its headlines and reportage. I suggest you do likewise with the Knoxville Metro Pulse weekly. In any event, this is a story about crazy people, not an ideology of any significance.
The situation is becoming increasingly frightening and reminiscent of another time and place that has not been forgotten--1930's Germany. Call me an alarmist, but I will respond by saying that I sound the alarm (and will/must continue to do so) because it needs to be sounded.
Sorry. The Nazi Party was not Christian (though it was supported by many professed Christians) but quite demonstrably pagan. I see no parallels – none – between Germany in the 1930s and the current American scene. What American political party has a military wing (as the Nazis did and as Hamas does today, for example) to enforce its ideology? Democracy in Germany ended in 1933. I accept your thoughtful invitation: you are an alarmist.
What about the growing influence of Islam in the United States? Islam is becoming the religion of the poor and dispossessed in our country as well as the rest of the world. As the members of this third monotheistic religion become more radicalized, isn't it logical to assume that they will turn to politics to express their needs in the public square, and lobby for their interests just as the Christian Right and Jews have done? Given this possibility, it seems in our interest to promote a higher wall between Church and State.
I would welcome an Islamic turn to politics rather than to violence and intimidation, in America and in Europe. The growth in Islam is not among the poor and dispossessed, but among the middle class and educated. I am not opposed to an Imam offering a prayer at the opening of a Congressional or legislative day, or politicians breaking the Ramadan fast with Islamic constituents. There is plenty of room in America for a thriving Islamic community. A “higher wall” will not forestall or prevent this possibility.
Can the respondents comment upon the recent media frenzy concerning the idea that the Christian majority needs to protect its rights from an assault by the non-Christian, or in some places, the liberal secularist, minority?
I am unaware of “the media frenzy.” Many Christians feel that modern secular culture finds Christianity to be “fair game.” I have long been convinced that anti-Catholicism is a much more virulent and constant strain of bigotry in America than anti-Semitism ever was. Some Christians may resent having to “privatize” their simple piety (saying “Merry Christmas”, for example) because someone else may be offended. We do not have the right not to be offended.
Do you not believe that our neighbors would love to see all of us as Christians? From the Mormons to the Seventh Day Adventists to the Baptists all believe that to be saved " we must be Christains" Isn't this also the aim of the Christain Right? It seems to me that the lowering of the wall between State and Church leads us down the path of strengthening those forces that would turn America to a "Christain America" rather than a respect for each separate view.
It is precisely against this phobia that I am arguing. I see no designs on the Jews or Judaism is America. But most importanly, we are hemorrhaging because of our own alienation and waning intensity of faith, not because we are being recruited into some other religion.
While I agree with Rabbi Librach that U.S. "tradition" certainly suggests a strong link between religion and American public life, I was troubled by his disregard for the necessity of a separation between church and state.
The Constitution prohibits the establishment of a state-sponsored church or religion. It also protects the free exercise of religion by American citizens, free from government interference. I find the First Amendment brilliant and never commended our disregard of it.
My reaction stems from a gap in the rabbi's argument: he does not define "the American public square." How does Rabbi Librach propose that we (especially we American Jews) ensure the opportunity for the "free exercise" of our Judaism?
What is standing in your/our way? In what way is your free exercise of Judaism qualified? What can’t you do? We have never, ever had it so good. Who is trying to shut us or our institutions down?
Should Orthodox Jews be allowed to break military dress code and wear kippot with their uniforms (something the Supreme Court has ruled against)? What does "free exercise" really mean?
I applauded the RAC and David Saperstein for taking such a strong stand in favor of our Jewish soldiers. Yes, in my judgment (and his), Jewish soldiers should be permitted to wear kippot.
Many scholars argue that meaningful free exercise requires or presupposes disestablishment and at least some level of separation between church and state. The conflicts arise, I think, not necessarily when people disregard that separation, but when "public" becomes conflated with "state" (as it too often does). For example, is a courthouse a State building or a public building? Both.
Are schools State institutions or public institutions? Again, both.
These are not idle questions--for Jews or for anyone who wants religious pluralism to flourish.
Well, “idle” is also not the word I would use. In the United States, all “state” institutions are public, but not all public institutions (i.e., museums, parks, stadiums, air waves, stock exchanges, malls) are owned by the state.
Rabbi Librach assures us that since such upstanding men as Jefferson and Washington seemed to him to call for "God in the public square" (a point that is debatable) we should want to endorse their stances. Remembering that they also wanted only the landowners to vote, approved of slavery enough to maintain it during their lifetimes and refused to allow women a voice in government, they may be questionable role models.
I also included John F. Kennedy in that litany, and might have added Jimmy Carter and Bill Clinton (who quoted Gates of Repentance in apologizing to the nation). All role models have flaws. Who are yours?
A main thrust of Rabbi Librach’s argument seems to be, "It can't happen here." Does he really feel that it can't? (Historically dangerous ground, that!)
That depends on what the meaning of “it” is, my friend. What can’t happen here? Or what do you think can or is about to happen here? In what I wrote, I do not note any such reference. Are you afraid of a Christian “take-over” of America, with Jews given a choice of conversion or deportation to Israel? Or worse? Death camps, slavery, crematoria? As I stated above, our numbers are shrinking on these shores, but not because there are neo-Nazis hiding behind every mailbox. We are free to do as we please, and we are using our freedom, in large part, to voluntarily walk away from Jewish religious intensity.
Assuming prejudice will not give way to persecution, is that sufficient reason to establish state-approved religions?
To do so would violate the First Amendment to the United States Constitution.
Can we Jews not act in holy ways with out governmental interaction with our beliefs? How is government in any way going to lead us to live as "a nation of priests?"
Excellent point! In my considered opinion, neither government nor politics will lead us to live as a mamlechet kohanim – a “nation of priests.” We need to strengthen religious life, living and learning. Shabbat, Yom Tov and adult Jewish learning would be, it seems to me, the advised formula.
How do you see Israel's religious rights as a Jewish state?
States (as is Israel) do not have rights. Israel’s status on these issues is quite complicated. There is no Israeli constitution. Israel’s national calendar is Jewish and its Law of Return is for Jews and no one else. Christians and Moslems and others have protected religious rights there (more than in any other state in the Middle East). But America is not the Israeli model.
The Orthodox Jewish establishment generally favors government financial aid for their schools and social programs. Do you not fear intrusion in order to get that aid just as it has happened in the public schools?
The Orthodox are making a considered judgment that they have more to gain than to lose by seeking financial aid.
In your essay you criticize the court decision that struck down intelligent design in Dover, Delaware. In that decision, Judge Jones cited how members of the school board had repeatedly expressed during board meetings their Christian purpose in introducing intelligent design , and then lying about it before the court. Does the expressed purpose of an act affect in your mind whether it violates separation of church and state?
The “expressed purpose” of an act is important in understanding its legislative history, to be sure. The Dover voters had already removed the members of the Board that pursued that “expressed purpose” and replaced them with others. The policy had already been changed. The court’s opinion was gratuitous and unnecessary. It will not be appealed because the “losers” are no longer in office.
Not fighting to keep prayer out of our public schools will create problems for our children. Is it Rabbi Librach's position that every morning at the beginning of the school day our Jewish children should be forced to pray, particularly when the prayer ends or begins with the words "In the name of Jesus Christ we pray"?
No. It is my position that we are not a more refined or more tolerant or a more pluralistic culture without that simple prayer which was offered in the classrooms of New York State for decades. I am not in favor of coerced Christian prayer in public schools.
Does a secular state like America have an obligation to abide by universal values promulgated by Judaism?
No. America is obligated to maintain its institutions in accordance with the word and spirit of its Constitution and Declaration of Independence, its statutes and decisions of its Supreme Court.
Isn’t this observance of universal values already an injection of religion into government?
As I have said, I know of no legal standard, from criminal laws to the civil protection from the tortious conduct of others, which does not derive from the sacred foundations of Jews and Christians.
Can one with no belief in deity and no relationship with deity understand being created in the image of G-d?
I do not think so.
Can a democracy thrive or survive in an immoral society?
Adolph Hitler was elected. So was Hamas. I suppose there would have been times and places where Stalin, Mao, Castro, Ho Chi Minh, Pol Pot and other butchers and thugs of the 20th century would have won this or that election. Nevertheless human freedom is a fragile but resilient flower that will return and return, however devastating the tyrannical bulldozer.
Does unbridled pursuit of liberty devolve into licentiousness which grows into anarchy, as Mills and others have suggested?
Passover teaches us that the value of freedom is enshrined in law. Anarchy is tyranny.
Are the values that allow humans to survive in groups a product of the special ‘created’ qualities incorporated into our being? These qualities are codified in the Torah text but don’t they actually exist supra-Torah in our innate relationship with G-d?
Our “innate relationship with God” is not above the Torah, but before the Torah. It is not abrogated by the Torah, but enhanced and celebrated by the Torah.
Rabbi Saperstein's answers to your questions regarding his essay, "The First Amendment and the Religious Right."
1. I believe the following little article I found in Knoxville, TN's weekly rag, The Metro Pulse (under the heading, "News of the Weird - Noteworthy absurdities from around the world"), should be of significant interest to anyone concerned about the separation of church and state.
"Evangelical Christian minister Rob Schenck and two colleagues entered a U.S. Senate hearing room the day before the January confirmation hearings for Supreme Court Justice Samuel Alito and daubed each seat with 'holy oil' to bless the proceedings, saying that things had gone well when they had done the same thing for Chief Justice Roberts' hearings. 'God... is interested in what goes on' there, Rev. Schenck told a Wall Street Journal reporter."
I must say that I find this simultaneously unbelievable and, unfortunately in this day and age, entirely believable. My comments are mostly in the form of specific questions:
1. Who had the final word in allowing these three people to do this?
2. Why isn't the person or persons responsible being arrested or at least questioned and reprimanded for allowing such actions to occur not only once, but twice ?
And more general questions (which we mostly/grimly know the answers to):
1. Why isn't the media at large reporting this?
2. How the hell could this be allowed to happen?
3. Do people fully understand the implications/ramifications of such occurrences?
There are, obviously, more questions that need to be answered, but the main question that keeps running through my mind is this: Are we going to let these building blocks of Fascism (yes, I will call like I see it) be built into the impenetrable wall intended to eventually keep us out of the realm where decisions and policies are made that affect everyone?
The situation is becoming increasingly frightening and reminiscent of another time and place that has not been forgotten (a.k.a. 1930's Germany). Call me an alarmist, but I will respond by saying that I sound the alarm (and will/must continue to do so) because it needs to be sounded.
I agree that it’s troubling, though certainly not facism. I’m not sure what the ramifications are…I’d be more concerned if I though that anointing the hearing room made a sintillia of difference.
If there were a liberal democrat in the White House, I doubt that Rabbi
The record of the Reform Jewish Movement is clear: for 60 years, in Democratic and Republican administrations, we have been equally robust defenders of the free exercise and the establishment clause.
On a deeper level, the writer misunderstands the concept of the establishment clause’s separation of church and state. Functionally, the wall is a one way wall, constraining government -- from endorsing, furthering, or interfering with religion. It does little to restrain religion. Religious organizations and religious leaders have the same first amendment rights of speech, publication, association and the right to petition the government for redress of grievances as does anyone else. Indeed, by keeping government out of religion and preserving religious autonomy, the wall separating church and state helps protect our right to exercise our prophetic witness, i.e. our efforts to be a moral goad to the conscience of our nation.
The religious right, left and center have equal rights to speak out as advocates on the great moral issues of the day. But just because you have a right to speak out does not make what you say or do right. In America, you have a right to be wrong. And in their effort to impose their religious beliefs on the nation, telling us when we should pray in our public schools and what that prayer should be, what Biblical truths can be taught in our science classes, what books we can read in our libraries, they are deeply and profoundly wrong. I defend the right both of the Religious Right to speak – and ours to criticize the content of their message.
Could Rabbi Saperstein please cite concrete judgments (with links to the primary sources) and concrete positions of the individual justices whom he criticizes (with links to primary sources) concerning their position on church-state issues which he finds troubling? Specifically if he can cite anything on two specific examples he cited as being conceivable under the court: the placement of crucifixes in public courtrooms and city halls, and public school teachers leading Christian prayer. I'm curious specifically about primary sources, for I have seen none cited in his opinion piece, nor do I find cited in much of the discourse against many of the judges nominated by Republicans. Without primary sources, I fear the discussion turns into a form of "modern midrash".
First, I must confess that I’m enthusiastically in favor of “modern midrash.”
Second, there are resources attached to Eilu V’Eilu, including one of my articles published in the Harvard Law Review in 1993, which lays out in detail the legal underpinnings of many of the issues discussed in this dialogue.
However, so as not to dodge the question just with a reference, let me, third, give a concise overview of the Supreme Court on this issue. As to the High Court, as indicated in my earlier pieces the problem is not only what it has already done but what, with its recent change in personnel, it may well do in the near future.
Some conservatives seem committed to gutting the separation doctrine, calling it, as Rabbi Librach suggested, a fiction. In the Wallace v. Jaffree silent prayer case,(in which the Court struck down state-led silent prayer), Justice Rehnquist argued that the only two things the establishment clause banned were a national religion and government preference of any religion over any other. Putting aside that the Senate in its original debate on the first amendment explicitly rejected such wording, it would allow unlimited government funding of, and endorsement of, religion. Justice Scalia, in his dissent in the Lee v. Weisman case in which the Supreme Court held unconstitutional an invocation and benediction by our colleague Rabbi Les Gutterman (btw: a truly beautiful invocation/benediction that should be a model of public prayer in constitutionally permissible circumstances), argued that the only thing banned by the establishment clause was the government’s coercion of people (e.g. by threat of imprisonment or fine) in the realm of religion. Under his test, unlimited government financial support for religion, endorsement of prayer, posting of religious symbols on government buildings, even declaration of formal state religions would not be banned because no one is being coerced.
It was precisely because Justice O’Connor was, more often than not, on the pro-separation side that has created alarm about how the current Court will rule. If it sides with the views of Justice Rehnquist or Scalia, our children will know a very different America than that in which we grew up. This was one consideration in leading the URJ to oppose Judge Alito's nomination to the High Court.
What about the growing influence of Islam in the United States? Islam is becoming the religion of the poor and dispossessed in our country as well as the rest of the world. As the members of this third monotheistic religion become more radicalized, isn't it logical to assume that they will turn to politics to express their needs in the public square, and lobby for their interests just as the Christian Right and Jews have done? Given this possibility, it seems in our interest to promote a higher wall between Church and State.
This excellent question raises a number of complicated issues. First, again, the establishment clause does not prohibit religious groups from lobbying. As with our efforts to defeat the Religious Right, troubling ideas need to be defeated in the free marketplace of ideas, not by laws banning them. Second, in America, Islam is not mainly the religion of the poor and disposed. There is a wide range of Muslims from every ethnic, racial, and economic strata of the nation. Third, while radicalization happens here as well as abroad, most experts believe it is less the norm in America than elsewhere, with moderate Muslims more empowered to stand up to extremists. But that, of course, will be the real test for moderate Islam. If it cannot prevail here in this nation, it would be a disaster for America and a disaster for Islam.
Just a few comments on the church-state issue. I should let you know first that I’m a constitutional historian and a law professor at the University of Montana.
First, Rabbi Saperstein is incorrect about the founders divorcing God from our official acts and documents. The Constitution’s various oaths are a case in point. At the time of the Founding, only theists could take binding oaths, and as supporters of the Constitution emphasized during the Ratification, this would help ensure that only theists served in the new government.
Second, the Supreme Court’s decision in the Everson case is widely recognized as ahistorical. For example, it mischaracterized the views of Madison and Jefferson – both of whom in fact appealed to God in the operative documents (not just the official documents) they wrote, and also because it greatly exaggerated the role of Jefferson in the First Amendment. In fact, Jefferson had very little role in that Amendment, being in France when it was drafted and approved.
Third and finally – as someone who in the past has been very active in politics – I think it unfortunate that many liberal Jews have been rejecting the hand of good will and friendship that Evangelical Christians have been extended to us in recent years. In fact, the evangelical population today (unlike in ages past) is probably the most pro-Jewish and pro-Israel part of American demography. I believe that this unfortunate rejection of an offer of friendship is due to two causes: historic distrust, which is perhaps forgivable in the short term, and political ideology among those who mistakenly value left-of-center politics above religious reconciliation.
What may surprise the writer, and perhaps even Rabbi Librach, is that on those issues where we agree, the URJ and the Religious Action Center have a long tradition of working with religious right groups and bringing a common message to the government and the nation. I commend to readers interested in this, to read Allen Hertzke’s 2005 book Freeing God's Children, which talks at length about some of these successful strange-bedfellow coalitions we have forged with the religious right, on Sudan, international religious persecution, the global scourge of sex trafficking, and Israel.
But I would hope the writer would agree that we should not buy the support of the religious right by our silence or acquiescence on the vast array of issues on which we find their views anathema and dangerous. Indeed, I would argue that in legitimizing the right by working with them, those of us who cooperate with such groups on specific issues have even a greater obligation to engage in efforts to defeat their efforts to Christianize America.
Does a secular state like America have an obligation to abide by universal values promulgated by Judaism? Isn’t this observance of universal values already an injection of religion into government?
In the fourth paragraph of your essay, you discuss certain universal values that are "applicable to all societies for all time." I do not disagree that Judaism outlines and advocates such values, but you describe them later in the paragraph as "mandates," and it is here that I raise a question: are these values really mandates for all societies or just for the Jews?
These two questions raise similar issues. As I described in the opening exchange, Jewish law is binding only upon Jews. But the tradition embodies a range of rules and values that it mandates to be binding on all societies and peoples for all time: The Noahide laws laying out minimal ethical standards for all societies; universal values including the infinite dignity and equality of all people, the rule of law, the pursuit of justice and peace, the believe in freedom of choice – all of which inure in the human condition.
So, the mandate is a Jewish religious mandate. It becomes an American one only if and when we prevail in America in having laws reflecting these values, i.e. only when we prevail in the free marketplace of ideas. And that means being able to present these ideas to the American people without requiring them to accept religious practices or doctrine (including our own concept of what God has mandated) , but by presenting them in terms of natural laws and concepts of justice accessible to all people, no matter what their religious beliefs.
First of all, I want to thank you and commend you for the new addition to our education. If this first one is any indication of what is to come, I am looking forward to some exciting reading. It is terrific! Now to some comments and questions:
How do you see Israel's religious rights as a Jewish state?
The Orthodox Jewish establishment generally favors government financial aid for their schools and social programs. Do you not fear intrusion in order to get that
aid just as it has happened in the public schools?
The Chabad's use of a gigantic hanukiah in public parks seems nothing more than competition with large Christmas trees. Maybe they could also prepare big seders
so we can have an afikomen hunt to rival their Easter egg hunt.
These were excerpts from a long, intriguing and thoughtful question, raising far too many issues to which to respond. Let me take two.
First, Israel. Separation of church and state is not the only structure that can protect religious freedom and equality. It is simply the system that has worked and will work best for our diverse nation. In Israel, Judaism is the established religion, but in accordance with its declaration of Independence and international human rights treaties to which it is a signatory and which bar discrimination on religious grounds, Muslims, and Christians and others have robust religious freedom. It is only Reform and Conservative Judaism that are discriminated against and this has led to a range of abuses. It must stop. The Orthodox can do as they please in relation to their religious beliefs about Judaism but the Government of the Jewish state of Israel must immediately stop all state sanctioned discrimination against Reform and Conservative Jews and their rabbis.
The second point to address has to do with the benefits that Orthodox Jews seek in terms of parochiaid to day schools and the permission to erect menorot in public settings. The same arguments used to justify these practices are those the Religious Right argues for to end altogether the “separation of church and state” understanding of the establishment clause. They are based on the premise of treating religion just like everything else. If non-religious schools get government funds and if non-religious symbols can be set up in government settings, then finance religious education and allow religious symbols to stand in government settings.
The problem of course is that the Constitution treats religion differently. Only religion has free exercise protection and an establishment clause. These have provided religion with all kinds of exemptions, protections, and privileges. You can’t have it both ways. If you argue: treat us like everyone else for the purposes of giving us benefits, eventually the nation will listen and take away all those special privileges. It is the special treatment of religion that has allowed religion to grow so robustly in this nation. To endanger them for short term benefits is truly selling our American birthright for a bowl of porridge. | 
