Friday, October 24, 2008

Bullying the Pulpit

I am a three-a-day shul-goer who has never heard a rabbi endorse a political candidate from the pulpit or seen a partisan statement posted in the facility. A synagogue is a place to promote Judaism, not politics. Like most rules, this one has an exception, it being when a candidate is overtly anti-Semitic or hostile to Israel. In such a situation, the powerful likelihood is that I and other attendees would not have to be prompted.

This brings me to the emerging, yet so far feeble, effort of a small number of conservative Christian clergy to challenge Internal Revenue Service rules mandating the loss of tax-exempt status by religious bodies if the pulpit is used for political endorsements. For all of the fire and brimstone of these passionate religious leaders, few have stepped forward, I imagine because most are fearful of the consequences. As often happens, money trumps conscience.

Predictably, the clerical announcement has drawn the ire of the New York Times and other fierce but selective proponents of free speech. In an angry editorial that also castigated Senator Obama for being receptive to faith-based initiatives, the Times viewed the challenge to the IRS as a threat to church-state separation. Echoing what is certainly the dominant “Jewish” sentiment, the Forward was even more forward in bemoaning the dangers that will befall the Republic. Relax ye faithful defenders of faithlessness. Our Constitution is not under siege.

I say onward Christian soldiers. As for our flock, in an earlier front-page article the Forward inadvertently gave credence to the challenge to the IRS rules by reporting on a conference call arranged by Rabbi David Saperstein of the Religious Action Center of Reform Judaism between an IRS representative and about 150 Jewish leaders who are chomping at the bit to endorse Mr. Obama without endangering the precious tax-exempt status of their affiliations. To borrow from the rhetoric of those who criticize the Orthodox for excessive legalisms, the conference call was an inquiry into how many angels can dance on the head of a pin. The focus was on how Jewish and other clergy, as well as other non-profits, can enter the political thicket and be partisan without putting at risk their tax exemptions. An example is the following asked of the IRS man: “Can a rabbi endorse on his personal blog?”

One question that didn’t have to be asked concerned the familiar tactic of endorsements in publications being accompanied by the relevant affiliation, with an asterisk in small type pointing to the disclaimer in even tinier type at the bottom of the page, “For identification purposes only.” According to the IRS, this is kosher, as are a fascinating array of cues, winks, hints, nuances, suggestions, etc. that are described in the agency’s tax guide for “Churches and Religious Organizations.”

Any legal arrangement that is chock full of holes and loopholes as is the tax code on this issue should be suspect. Because enforcement is determined nearly always by subjective factors, there should be added reasons for concern. Liberal, as well as conservative, clergy have been knee-deep in partisan activity for eons and certainly this was true of Reverend Martin Luther King and his church, as well as scores of Black churches and religious officials. Our society benefitted enormously from their advocacy. If a redneck sheriff is up for re-election, I would hope that Black clergy would be in the forefront of the campaign against him. The primary obligation must be to eschew selective enforcement based on ideological preferences.

The claim is made that tax-exempt status is a trade-off, with nonprofit groups being given a significant benefit in return for their foregoing partisan activity. This is a seductive argument, based, however, on a flawed appreciation of the centrality of the First Amendment in our democratic scheme. There is no trade-off because free speech is not the consequence of a bargaining process in which our government can tell the nonprofits, “We will give you this, if you give up that.” Free speech is constitutional bedrock and while in emergency and very limited circumstances it can be curtailed, it can never be forfeited. The separation clause in the First Amendment is not at war with the free speech clause.

Indeed, church-state separation may insulate the clergy and religious groups against governmental action that seeks to restrict what might be said from the pulpit or in another religious setting because free speech is fundamental and not a gift from the IRS or Congress. Tax exempt status cannot be employed as a bully pulpit to coerce silence.

The Supreme Court has not ruled on this issue, but lower courts have upheld the IRS rules and tax experts generally believe that should the Christian clergy be punished by the IRS and then appeal to the courts, the result will be the same. This is the view of Marc Stern, the respected general counsel of the American Jewish Congress. My bet is in the other direction, given how the Supreme Court when it was less conservative than it now is invalidated legislation restricting campaign contributions. The present composition of the High Court may tip the judicial scales in favor of the clergy. Perhaps the American Civil Liberties Union and other customary champions of free speech will join in the challenge.

To repeat: I do not believe that politics and religion are a good mix. When they are entwined, religion is reduced from what should be its spiritual heights to an enterprise that too often is not accompanied by good motives or good deeds. As a matter of constitutional right, however, the clergy are invested with the same freedoms that the rest of us have and that includes speech that we do not like.

Friday, October 10, 2008

Judicial Mischief

The Judaism-is-racism canard has been resurrected in a far less virulent form by judges in Cook County, Illinois, in a case involving a contested estate which demonstrates once more that at times the two most dishonest words in the English language are “Your Honor” when spoken in a courtroom before a black-robed figure sitting on a high bench. The case also demonstrates how religious issues constantly crop up in the public square, as well as how those who are hostile to religion contrive new arguments seeking to portray religious commitment as antithetical to democratic and humane values. In the process, bitter divisions in American life are exacerbated.

The case involves trusts established by Max Feinberg who died in 1986 and his wife who died in 2003. According to the opinion of an appellate Cook County court, they left “considerable assets” in their estate, a circumstance that doubtlessly has contributed significantly to the complex and nasty litigation involving their descendants. I imagine that when the legal skirmishes run their course, what will remain will be considerably less than it was originally because the squads of lawyers will make sure to feast well off the carcass of the estate.

Max Feinberg included in his trust a “Jewish clause” which stipulated that “a descendant of mine other than a child of mine who marries outside of the Jewish faith (unless the spouse of such a descendant has converted or converts within one year of the marriage to the Jewish faith), his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”

The Feinbergs were survived by two children and five grandchildren. All but one of the latter had married a person who is not Jewish, a demographic distribution that I believe is far more common in American Jewish life than is generally recognized. For understandable reasons, certain of the grandchildren are contesting the Jewish clause. In fact, the case involves a host of other issues, including claims of misappropriation of millions of dollars and fraud. As a necessary preliminary question, the trial court ruled on the anti-intermarriage provision, the decision being that it is invalid. In an interlocutory appeal, the appellate court recently ruled 2-1 that “such a provision is not enforceable because it is contrary to public policy.”

The decision is startling because it runs squarely counter to the sensible notion that unless bequests or trusts clearly violate a societal norm, great latitude must be given to those whose money it was and who left instructions about how what they earned should be dispersed. The judicial landscape is unfortunately occupied by judges who are determined to make law and public policy fit their prejudiced notions of what is appropriate. The majority ruled that “the provision’s clear intent was to influence the marriage of Max’s grandchildren based on a religious criterion and thus to discourage marriage by the grandchildren other than to those of the Jewish faith.”

It is unclear why this is against public policy. What is clear is that the majority distorted the facts since the trust kicked in after Mrs. Feinberg’s death, by which time the grandchildren had all married and their future behavior was not affected by the Jewish clause. Furthermore, the decision is counter to what has been regarded as settled law since 1975 when the Ohio Supreme Court upheld a similar provision in a case referred to as Shapira.

Because the main opinion invalidated the clause on public policy grounds, it did not decide whether it was also invalid on constitutional grounds, they being the notion that a clause promoting religious in-marriage is akin to the notorious restrictive covenants and other by now invalidated legal arrangements that promote racism. This astonishing argument was made in a concurrent opinion that mocks the assertion by the dissenting judge that the Feinbergs strove “to preserve their 4,000-year-old heritage,” saying that this position “could just as well result in the courts being required to enforce the worst bigotry imaginable.”

We Jews have a great deal of close knowledge of “the worst bigotry imaginable.” It is bad enough that a judge cannot see the distinction between actions, legal or other, whose intent is overtly racist by being specifically directed against Blacks and actions whose sole intent is to promote Jewish continuity. To refer to this as the worst bigotry imaginable is an obscenity and it is made more obscene by its being asserted by a person who speaks in the name of the law.

Admittedly, similar assertions have been made by our enemies. The implications of this concurring opinion and even the majority opinion are enormous. We need only consider that within organized American Jewish life, which obviously encompasses in the main persons who are not Orthodox, there is a broad consensus that intermarriage should be discouraged. Is this bigotry? Indeed, what the Feinbergs attempted to do was rather benign when compared with pro in-marriage rhetoric and activities that abound in our communal life.

Because the Feinberg ruling is interlocutory, essentially meaning that it is an intermediate decision on a legal point that is vital to the continuing course of the litigation, I am not certain whether it can – or will – be appealed. It is likely that at least down the road the case will reach the Illinois Supreme Court. If the intermarriage issue is still relevant at that point, hopefully our organizations will bestir themselves and become involved. This isn’t likely, if only because the marital course taken by four of the five Feinberg grandchildren coincides with marital decisions being made in many American Jewish families.