American Jews and the Current Challenges of Church-State Separation
The Pew Forum on Religion and Public Life
Tuesday, October 19, 2004
RABBI SAPERSTEIN: … 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.