Friday, December 13, 2002

Law and Religion

Some public issues never go away. This is usually true of issues that are caught in ideological whirlwinds and certainly those that involve religion. Ordinary democratic political processes that are designed to resolve or mitigate conflict are not effective. It is one thing to compromise on budgets or even in policy disputes that generate much passion and something quite different to reach an accommodation when fundamental beliefs are at stake.

When electoral, legislative and administrative processes do not yield results in line with what some regard as central to their faith, there is a tendency to go to court, to ask judges to issue rulings based on the Constitution or laws or, as likely, on what they think the Constitution and laws ought to say. Since judicial rulings are authoritative, at least until they are reversed or revised, they can go further than elections and legislative actions in bringing about resolutions that have to be accepted, if not also respected. But courts cannot make an issue go away, especially when decisions are split or when other courts rule otherwise.

There are times when judicial intervention adds fuel to the fire or inflames emotions on issues that essentially were dormant. This is true of the incredibly stupid and gratuitously divisive ruling that the innocent words “under God” in the Pledge of Allegiance is an unconstitutional establishment of religion. As a consequence, we now have intense controversy where there was none and another unneeded example of how activist judges can poison civil society.

It is inevitable that we continue to have heated debate over the role of religion in American life. Public vouchers are now a perennial issue and this is not going to change anytime soon. But there are issues that can be resolved if neutral principles were applied by courts and what is less likely, accepted by litigants.

We are at the time of the year when courts around the country are busy with crèches and nativity scenes, menorahs and other religious symbols in public places. In addition to the Pledge of Allegiance controversy, in Alabama we have the spectacle of the state’s chief judge mandating that a huge Ten Commandments monument be installed in his courthouse and a federal district judge ordering its removal. It would not be more unseemly if these two black-robed “Your Honors” would resolve their disagreement in a Worldwide Wrestling Federation ring.

Anti-religion forces which include many Jews regard the protracted battles over religious symbols as proof that these symbols entangle church and state and therefore violate the First Amendment. Elected and appointed public officials must get into the act and decide what is permissible and what is not. In their hostility to symbols even in their most benign form - Ten Commandments displays, for example – they obscure the crucial fact that it is their endless trips to courts, appearances before local councils and other actions that generate the conflict that they rely on as proof of governmental entanglement in religion.

The battle over religious symbols has a life of its own that transcends the inherent significance of these symbols. There is much exaggeration on both sides of the issue. When Chabad representatives place so much stock in ever-larger and more public menorahs, they are indulging more in public relations and fundraising than in transmitting religious practice and belief. If proof of this is needed, it is provided by Chabad’s practice of picking affluent people who are willing to part with their money for the privilege and pleasure of going up in a cherry picker to light the menorah.

There is exaggeration by the other side when opponents of symbols claim that they project religion, when in fact they primarily give expression to our country’s tradition of tolerance and the collateral goal of making diverse groups feel that there is a place for them in a society that respects diversity.

The symbols themselves are essentially formulaic, devoid of the capacity to teach or indoctrinate outsiders. Group members themselves scarcely react to such symbols. Holiday displays in department store windows get far more attention and generate stronger reactions. In short, most religious symbols are establishments of comfort levels and not of religion. To recognize this is not to downplay the continued importance of the separation doctrine.

It is sad that judges who believe that their mission is to seek and destroy innocent practices give aid and comfort to those who are hostile to religion.

Instead of indulging in mischief, judges ought to allow persons of religious persuasion to feel that the rules are not stacked against them. Courts should approach their responsibilities in religious matters, as well as others, in a spirit of moderation and neutrality. They should recognize that there is a huge difference between that which is benign and that which seeks to indoctrinate. There is a world of difference between including “under God” in the Pledge of Allegiance and requiring or pressuring students to join in religious prayer.

The failure to understand this distinction has resulted in greater and sharper conflict over religion. There are open wounds resulting from silly or gratuitous judicial rulings. The alleged civil libertarians and judicial guardians who challenge practices that have no religious consequences accomplish little other than the promotion of civil discord. When judges give support to those whose agenda is primarily hostility to religions, they further discredit the judiciary.

It is disheartening that Jewish groups and far too many individual Jews are constantly enlisted in the anti-religion efforts. Will these people ever learn that hypocrisy is not a virtue? Will they ever learn that we do not promote tolerance through intolerance and that, at the least, those who claim to be promoting Jewish life ought not to be constantly at war with Jewish tradition?