The Flip Side Of The First Amendment

(Originally published in the New York Jewish Week)

The controversial exhibit at the Brooklyn Museum has given us an unwelcome lesson in the anti-religious tendencies that inform much of what is considered to be contemporary cultural life. In the great debate over the exhibit, the First Amendment rights of museums and artists have understandably been advanced, without sufficient attention being given to the corollary First Amendment strictures that mandate governmental neutrality in religious matters.

I am no fan of Mayor Giuliani, not by a long shot. True to form, he has been clumsy and bullying in his cancellation of a legal contract and in his threat to evict the museum from the architectural treasure that it has occupied and brought distinction to. He had an opportunity to articulate a principled position, to explain why government ought not to act in a hostile way toward religion. He could have taught by leadership, not by threatening, and he could have embraced an eloquence that places principle above narrow political gain. Instead of saying that the city would abide by a contract, despite the pain caused to a great number of New Yorkers, he took a path that guaranteed the seat in court.

I recognize that those who have suggested that some of the challenged art was not meant to be offensive to Catholics may be right. When we compare what is now in dispute with what has been displayed elsewhere, it may be that what has been called a “sensation” may primarily be an exploitative ploy aimed at attracting attention, attendance and financial support. Alas, the mayor could not resist taking the bait.

Giuliani has, however, raised a basic question that must not be obscured by any animus toward him or by one’s personal aesthetic. Why should the designation of something as art or literature or any form of expression result in its exemption from the constitutional ban on governmental action that advances or inhibits religion? It isn’t sufficient to argue that the First Amendment guarantees freedom of expression. Prayer is, after all, inherently a form of expression, yet I am certain that there is no First Amendment aficionado who contends that government can promote sectarian prayer.

There is selectivity in some quarters in how the high wall separating church and state is looked at. One set of rules — a strict set — applies when the issue is governmental support, even indirect, of religious activity, and there is a lax set of rules when the issue is whether public funds can be provided to those who bash religion. The inconsistency is explained by the anti-religious thought that has dominated Western culture and which is too often accepted as a legitimate part of the Western democratic heritage. In this skewed view of things, government is regarded as neutral in religious matters when it finances anti-religious expression.

This formula explains why a crèche that depicts the Virgin Mary is not to be placed on public property, while public funds can be used to defile the same symbol. In the first case, the government is supporting religion; in the second, it does no more than allow others the freedom of expression.

To my surprise and his credit, Rabbi Eric Yoffie, leader of Reform Jewry, issued a strong statement expressing concern for Catholic sensibilities, something I was unaware of until it was called to my attention by an editor at this newspaper. Still, if there was a dominant Jewish position, it was in support of the art and against the mayor who has received backing from the Orthodox. Overwhelmingly, the rank and file of New York Jews is clearly in the museum’s corner. There is scant concern for the evident anguish of Catholics, not even a slight murmur of empathy for Cardinal O’Connor, whose condemnation of the display might have evoked a sympathetic hearing among Jews.

It is too extreme to charge that an anti-Catholic bias persists in American Jewish life. Sensitivity is another matter and on that count the record is not one that we can be proud of. It is unfortunate that few American Jews can begin to sense the pain of Catholics, to see that they are hurt when their symbols and artifacts are defiled.

For all of American Jewry’s elevation of the First Amendment as the noblest enshrinement of liberty, I imagine that if the shoe were on the other foot we would not so readily proclaim the virtues of unlimited, publicly funded expressions of anti-religion. It is usually not attractive to make inter-ethnic or inter-religious comparisons, to suggest that one group is favored while another is mistreated. That is usually a sly way of giving vent to prejudice. But can there be any question as to where we would stand if a Torah scroll was utilized in an obscene or sacrilegious fashion in what was called a work of art? For that matter, what are the odds as to whether the Brooklyn Museum would ever exhibit such a work?