As a graduate student nearly fifty years ago, I wrote a paper on the impact of amicus curiae or friend of the court briefs in civil liberties cases. In the course of the research which concluded that these briefs essentially served as effective interest group statements but added little to the arguments presented in the main briefs, I arranged to see Leo Pfeffer of the American Jewish Congress, the leading Jewish advocate of absolute church-state separation. When I entered his office, Pfeffer was visibly upset because on my head there was the tell-tale piece of cloth known as a yarmulka. He was not friendly. I later learned that family circumstances apparently contributed to this noted civil libertarian's reaction to an Orthodox Jew.
A handful of years later, I was teaching political science at Hunter College and representing the Orthodox Union at the National Jewish Communal Relations Advisory Council or NCRAC, an umbrella group for national and local agencies which each year issued policy statements purporting to express American Jewish opinion on public issues. Each year, NCRAC did battle against any breach in the wall of separation. Yet, the issue was debated and I believe that in 1966 or 1967 a session was devoted to whether our absolutism on separation should be reassessed. Leo Pfeffer and I presented papers reflecting our divergent views. While I did not prevail, I received a respectful hearing.
Forty years later, the pronouncements emitted by the Jewish Council on Public Affairs, NCRAC's successor organization, read as if they were xeroxed from old files. A community whose members have jettisoned religious laws, practices and beliefs that prevailed for centuries clings fanatically to a secular doctrine that despite the intentions of its framers, is in its interpretation hostile to religion. As I wrote in the 1960's, American Jews are far more faithful to the First Amendment than they are to the first of the Ten Commandments.
In a way, we have retrogressed because we no longer reassess our position. Not long ago, Marc Stern, the general counsel of AJCongress' Commission on Law and Social Policy, drafted an alternate resolution on church-state relations for consideration by the Jewish Council on Public Affairs. In view of AJCongress' history, it is remarkable that it argues that because of "major shifts in judicial treatment of the religion clauses of the First Amendment ...the Jewish community needs to assess how to respond to those changes, not merely bemoan them."
Perhaps AJCongress' position is not all that surprising. Two decades ago, Stern - an original and independent thinker - argued that when through its funding programs government serves in effect as the guardian or substitute parent for religious people, as in senior or child care facilities or a hospital, a measure of religious symbolism and practice is consistent with the separation doctrine. In the event, Stern's resolution did not make it out of committee. In the aggregate, organized American Jewry believes that there is nothing to reassess. We must be absolutely faithful to absolutism. These folks are people of perfect faith, our true fundamentalists.
But the questions raised in the draft resolution will not go away. As it noted, "the present state of affairs has the Jewish community pursuing a church-state separation legal agenda which has little or no chance of success. Like the fabled general, the Jewish community appears to be fighting the last war, not today's battles. The Jewish community persists in viewing the world through out-dated lenses. The result is the bringing of actions (or asserting claims in the political process) that have no chance of success." More specifically, our opposition to equal access for religious speech in public forums, "is often seen - somewhat correctly - as raw hostility toward religion."
This is strong language. In fact, AJCongress and Stern are not advocating the abandonment of the separation doctrine. As the Americorps case that I discussed several weeks ago shows, they believe strongly in church-state separation. What they do not believe in is fighting every minor church-state battle or failing to recognize that the First Amendment also protects the free exercise of religion and while, as is widely acknowledged, there is tension between the two religion clauses, free exercise also has strong constitutional claims.
This view, which is still a distance away from what many Orthodox Jews advocate, is consistent with what I believe a considerable number of American Jews would accept. A move away from absolutism would mitigate to an extent the spreading perception that anti-religion is a hallmark of contemporary American Jewry. Unfortunately, at the organizational level we remain wedded to a mindset that we refuse to re-examine. The Anti-Defamation League has emerged as the most determined defender of the false faith of absolutism, apparently failing to comprehend that its position is a direct catalyst for the defamation of Jews. This failure can perhaps be understood, but not forgiven, because the organization is too enveloped in the clatter of its hyperactive public relations and fundraising machinery to reflect on the consequences of its advocacy.
Local Jewish community councils, of which there are a hundred or more, are also enveloped in separation purity, a position that betrays more than what may be an acceptable dose of hypocrisy in view of the synergy between local Jewish councils and local Federations. While the Jewish councils bemoan faith-based governmental initiatives of the kind strongly endorsed by President Bush, the Federations bemoan the lack of sufficient government funding for their projects, all of which are inherently faith-based, at least in their sponsorship. I guess that at times there are advantages to one hand not knowing what the other hand is doing.
I hope that we will not have to wait another forty years in our intellectually-primitive wilderness before we are willing to examine our fanatic adherence to absolute separation.