Friday, May 13, 2005

Reassessing Separation of Church and State II

If only because our advocacy of total church-state separation is increasingly viewed as hostility to religion by the growing number of Americans who believe that there is a place for religion in public life, it's time for our community to re-examine the absolutism that has been an identifying feature of American Jewish public policy. As I wrote last week, this is not likely to happen any time soon, but those who advocate change must continue their advocacy because the issue is important.

Is there a corollary need for the minority of American Jews - mainly, but not all, Orthodox - who support faith-based governmental programs and regard the interaction between religion and state as both inevitable and desirable to reassess their position? A related question is whether it is possible to establish common ground between what has long been antithetical Jewish attitudes toward church and state.

The minority view has essentially been defined by its opposition to strict separation. The Orthodox and their allies have not articulated any limits on what government may do in the religion arena. It seems at times that they will settle for nothing less than for the separation doctrine to be relegated to the trashcan of history. For historical and contemporary reasons, it is risky for Jews to entirely reject the Establishment Clause, yet there is little in the public record indicating that the Orthodox agree that there are boundaries beyond which government cannot trespass without violating the Constitution. It's as if they and fundamentalist Christians and Evangelicals are on the same page.

For all of the reasons why the extremism of the strict separationists is far too extreme, there must be limits on what government can do. There must be a constitutionally viable doctrine of church-state separation. Marc Stern of the AJCongress has urged that shifts in American opinion and judicial interpretation of the First Amendment are legitimate grounds for our organizations to soften their church-state absolutism. A similar consideration ought to result in Orthodox reassessment. Originally in insular pockets of Christian fundamentalism and now more blatantly throughout the country, there is a powerful movement for the elimination of all barriers between church and state. There are calls for the acknowledgement that this is a Christian country and that government through its policies and actions should not be exempt from this reality. This view has been strongly endorsed by Justice Antonin Scalia, a hero among the Orthodox who apparently pay no heed to what the distinguished gentleman has been saying about the place of Christianity - and not just religion in a general sense - in the public square. This is scary stuff.

The view that the Orthodox need to be restrained in their support of church-state interaction is not new. In 1968, as chairman of the now defunct National Jewish Commission on Law and Public Affairs or COLPA, I organized a conference of Orthodox lawyers and scholars on "Governmental Aid to Parochial Schools - How Far?" The title and the ensuing discussion suggest that there are boundaries and limitations. Unfortunately, the many years in the wilderness of opposition to the dominant Jewish viewpoint have left the Orthodox bereft of the capacity to contemplate what the First Amendment might proscribe.

Prayer is a good place to start and it also might be an issue where a measure of intra-Jewish unity can be achieved. There is growing acceptance of neutral or vague public religious symbols and expressions, such as the brief prayers that typically open congressional and other legislative meetings and the even briefer invocations at the start of court sessions. In a similar vein, it is expected that the Supreme Court will permit the recitation of the Pledge of Allegiance at public occasions and in public schools. The Ten Commandments are more problematic, but likely they too will pass constitutional muster.

Prayers with more explicit religious content or that depart from neutrality would be viewed differently under this formulation, especially if they are recited in a social context that might be regarded as coercive, such as in a public school classroom or at events sponsored by public institutions. It may seem paradoxical that prayers before governmental bodies are more acceptable than prayers at discrete locations. This approach strikes me as truer to the intent of the Bill of Rights, even as it departs from the literal language of the Constitution.

In a word, the Jewish majority would yield somewhat in its opposition to all forms of prayer and the Orthodox would yield somewhat in their seeming acceptance of all prayer. It would be nice to have this come to pass, but the likelihood is smaller than small.

If somehow this formulation were accepted, there would be the additional benefit of taking some of the edge off the perception that Jews are enemies of religion. There would remain zones of disagreement relating to certain symbols and prayers, as well as other church-state issues, including aid to parochial schools. Interestingly, the parochial school issue does not evoke the fervor that it once did, nor much passion from the passionate Fundamentalists, possibly because it was primarily an issue for the Catholic Church with its huge school systems. As Catholic enrollment has declined and there is recognition that this situation will not be altered by vouchers or other kinds of governmental assistance, aid to parochial schools has become a secondary issue on the church-state agenda.

Of course, aid to parochial schools remains a key issue for Orthodox Jews. There has been little progress on this front and if only because vouchers are invariably linked to a means test, yeshivas and day schools are not going to be helped much by voucher programs. The Orthodox should continue their advocacy of government aid but they need to develop a more sophisticated understanding of the range of issues arising from the interaction between government and religion. There are dangers and they must not be ignored.