Thursday, May 22, 2003

Back in Court

There are religious Jews who favor strict separation of state and church and there are secular Jews who support a more flexible approach to this constitutional principle. In the larger arena of American Jewish life however, except for the Orthodox, the First Amendment clause is worshipped and regarded as an absolute. As American Jews abandoned Judaism, they created a substitute religion, with church-state separation as one of its major theological underpinnings.

There is a sort of parallel between our people’s free fall away from traditional practices and beliefs and the nearly fanatical embrace of a doctrine whose interpretation is hostile to religion. The most fundamentalist among the Orthodox are no more cemented to their faith than our strict separationists are to theirs.

In the more than two generations of our fidelity to the idea of total separation, nearly every movement and ideology and nearly every public policy has been reexamined and this process has resulted in changing attitudes and approaches. This is understandable because the life of the law is experience and not logic. We have had sufficient experience with church-state doctrine to justify a reassessment by those who advocate either side of the issue. But American Jewry has been intellectually dead for a long while and ideas do not count.

It also does not matter that we have day schools that may benefit from greater flexibility in interpreting the First Amendment. We sanctify the profane even when we are the victims, for on church and state relations alone we can say, “We believe with perfect faith.” Nor does it matter that many years of experience with programs that allow for a measure of governmental aid to religious institutions have shown that our constitutional system and values have not been impaired by exceptions to the strict separation rule.

Higher education is probably the broadest area of legally-countenanced public funding of activity that is tinged by some form of religious involvement. Laws and court rulings have accepted aid formulas that do not exclude religiously-affiliated colleges and universities. Whatever the reasons for this, church-state flexibility has not resulted in unwelcome outcomes.

Whether this opening will be expanded may depend on what the U.S. Supreme Court does in a case that it has just agreed to review. The case concerns Washington State’s “Promise Scholarship” program for students attending an accredited college in the state who meet specified standards. A student, otherwise eligible, was denied a scholarship when he enrolled in Northwest College, which educates students from a “distinctly Christian” point of view, and indicated that he would be majoring in pastoral ministries. He went to federal court, lost at the trial level and then prevailed 2-1 in the U.S. Court of Appeals for the Ninth Circuit.

There is speculation that the Supreme Court took the case because conservative Justices want to expand the permissible zone of neutral governmental funding of activities conducted by religious institutions, perhaps even to invalidate state constitutional provisions that are even more restrictive than the First Amendment. We will have to wait a year to find out. Right now, I am not comfortable with what may be in the offing, for this is neither an urgent case nor one that has a good set of facts to make constitutional law. It would have been preferable to allow the lower court decision to stand.

I also would prefer that church-state conflict be de-intensified, that it not be a constant lightening rod for polarization. For all of the misguided extremism of its ardent proponents, separation of church and state is important. If some now want to throw out the baby with the bath water, that is an unacceptable reaction to the hostility that has been shown, including by Jews, toward religion.

We Jews speak a good game about tolerance, even as we are intolerant toward religion. On May 14, a few days before the Supreme Court took the Washington case, the U.S. Court of Appeals for the Seventh Circuit in Chicago affirmed the conviction of a Black man charged with selling marijuana and gun possession. During the trial, the presiding judge ordered spectators who were wearing hats to remove them. After an unnamed spectator said, “If Jews were to come in here,” the judge declared, “Jews will not wear yarmulkes. I am Catholic and the Pope would not wear a miter. Please leave, take if off and come back in, or do not come back in, the choice is yours.”

Judge Easterbrook who wrote the opinion of the Seventh Circuit commented, “the Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules and therefore does not entitle anyone to wear religious head gear in places where rules of general application require all heads to be bare or to be covered in uniform ways… Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement.”

He then wrote: Tolerance usually is the best course in a pluralistic nation Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority’s. The best way for the judiciary to receive the public’s respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating. It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.”