One Nation Under God?

Scholar Noah Feldman offers a historically sound but risky formula for rethinking the separation of church and state

By Ami Eden

Published October 07, 2005, issue of October 07, 2005.
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As Senator Dianne Feinstein wrapped up her opening remarks during the hearings on the Supreme Court nomination of John Roberts, she offered an apparent plea for preserving a robust separation of church and state.

“During the Roman Empire, the Middle Ages, the Reformation, and even today,” the California Democrat said, “millions of innocent people have been killed or tortured because of their religion.” Next Feinstein invoked the Holocaust: “A week ago, I was walking up the Danube River in Budapest when I saw on the shore 60 pairs of shoes covered in copper,” she said. “During World War II, it turned out that Hungarian fascists and Nazi soldiers forced thousands of Jews, including men, women and children, to remove their shoes before shooting them and letting their bodies float down the Danube.”

With her time running down, she quickly concluded, “These shoes represent a powerful symbol of how religion has been used in catastrophic ways historically.”

Some conservative commentators dismissed Feinstein’s riff as an incoherent and illegitimate attempt to frighten Americans into opposing Roberts. Whatever her political motivations, Feinstein was certainly reflecting the sincere and deeply rooted anxieties of many American Jews regarding the place of religion in American society.

Polls consistently show that the Jewish community is significantly more liberal than other religious and ethnic groups, particularly when it comes to maintaining a strict separation of church and state. For many Jews, this is a position firmly rooted in the belief that the unprecedented political and cultural assimilation of Jews into American public life is inextricably linked to the Supreme Court’s embrace of secularism — and equally grounded in the corresponding fear that this success is severely threatened by any attempt to lower the church-state wall. In fact, it could be argued that the Jewish community has invested more energy in constructing and maintaining the church-state wall than any other religious group.

As a result, American Jews are unlikely to embrace proposals for altering the current legal landscape. Which brings us to Noah Feldman’s new book, “Divided by God: America’s Church-State Problem — and What We Should Do About It” (Farrar, Straus and Giroux).

In his new book, Feldman, who teaches law at New York University and served as a constitutional adviser to Iraq’s provisional government, argues that the religious-secular divide in America has reached a boiling point and a new church-state formula is needed to turn down the temperature. A new formulation, Feldman adds, would require significant ideological sacrifices from what he calls “legal secularists” and “values evangelicals.” What Feldman recommends is that we “offer greater latitude for public religious discourse and religious symbolism, and at the same time insist on a stricter ban on state funding of religious institutions and activities.”

Even if one rejects his solution, Feldman has produced a useful guide to understanding the historical development of the Supreme Court’s church-state doctrine and the wider debate surrounding the role of religion in America’s public square. His book is insightful, balanced, easy to read and — judging from the selective memory of both liberals and conservatives on this issue — much needed. As Feldman notes, religious conservatives stand on firm historical ground when arguing that the Constitution was never intended to ban the use of religious rhetoric and symbolism from public life; but, he notes, they violate our nation’s constitutional traditions when fighting for greater funding for religious schools and organizations.

At the same time, liberals speak as if their understanding of the separation of church and state were enshrined in the Constitution. But, as Feldman makes clear, the church-state truths that many liberals hold to be fundamental and immutable only emerged six decades ago and have been evolving ever since.

It seems both sides could use a good history lesson.

Contrary to what some might assume, the current chapter in church-state jurisprudence did not begin with a disgruntled Jewish parent complaining about prayer in school or a nativity scene in front of city hall. Instead, it started on the eve of World War II, with Jehovah’s Witnesses refusing to salute the flag in school. Until that point, Feldman writes, church-state debates had been “state-level affairs.” But then, in 1940, though they ruled against the Jehovah’s Witnesses in a nearly unanimous decision, the justices made clear that the court now held that the First Amendment’s clause protecting the free exercise of religion applied to the states. The Court ruled in favor of the Jehovah’s Witnesses two years later, introducing the notion that public education must be “faithful to the ideal of secular instruction and political neutrality.”

In 1947, the Supreme Court took another monumental step toward its current church-state doctrine when, in a case about free busing for parochial school students, the court officially declared that states were also bound by the First Amendment’s injunction against passing laws respecting an establishment of religion. What followed was a series of opinions over the next two decades that placed new restrictions on public schools when it came to religion, including bans on prayer and Bible readings.

The court’s secularist shift culminated with the establishment of the so-called “Lemon Test” in 1971, requiring government officials to refrain from implementing a religious agenda, as well as taking actions that advance a particular religion or religion in general.

Feldman points out that one factor in the court’s evolving church-state doctrine was a newfound view, advanced by Felix Frankfurter, the court’s only Jewish member when its thinking on the matter began to shift, that the Constitution was meant to protect religious minorities and their standing in society, not simply to prohibit the coercion of individual citizens. And, Feldman argues, one reason this approach gained support “was the implicit suggestion that the religious minorities most in need of protection were Jews” — at a time, in the decade after the Holocaust, when “anti-Semitic prejudice became socially taboo among the same elites who were deciding constitutional cases.”

During the past two decades, the justices have slowly chipped away at the Lemon test, without replacing it with any clear alternative, as Justice Sandra Day O’Connor flipped back and forth between the court’s liberal and conservative blocs. The result, conservative critics point out, is an increasingly chaotic jurisprudence that — depending on the circumstance — does or doesn’t permit public prayers, the display of religious symbols and government aid to schools. Just last summer, the court ruled that some Ten Commandments displays are permitted in courthouses and some aren’t. Similarly, Feldman notes, the court now allows the government to send textbooks, but not other materials, to parochial schools, leading one justice to quip that it is now constitutional for the government to supply schools with a geography textbook containing a map of the United States, but not a map of the United States for a geography class.

To the extent that there is a trend, Feldman writes, it is toward allowing more government assistance to religious groups and placing more restrictions on public expressions of religion. Feldman’s advice is to reverse the trend, a proposal that seems to have historical merit and would probably be far more palatable to the American public than the absolutes being pushed by secularists and religious conservatives.

Still, the idea is unlikely to fly with the bulk of American Jews and Jewish organizations.

On a practical level, Feldman’s proposal would deny the Jewish community the one tangible benefit of repositioning the church-state wall: more funding for day schools and other Jewish institutions. But the proposal poses a wider philosophical challenge as well: Despite the potential windfall of state aid, many Jewish organizations refuse to abandon their constitutional objections to school-voucher programs and other efforts to direct more government funding to religious groups — specifically because they dread any step that would expand the role of religion in public life. Most American Jews fundamentally object to Senator Joseph Lieberman’s argument that the Constitution guarantees freedom of religion, not freedom from religion. (Polls show that even amid the euphoria over Lieberman’s vice presidential nomination, American Jews strongly objected to his religious rhetoric.)

Outside of the Orthodox community — which has increasingly aligned itself on a host of issues with Christian conservatives — the collective American Jewish psyche hasn’t changed much since Frankfurter’s day, when the justice argued that government must avoid taking steps that highlight religious differences. To this day, what Jews often seem to fear most, and resist with great vigor, is any political, legal or cultural step that would make them feel like a marginalized minority — strangers in a Christian country.

Feldman, who was raised in an Orthodox home, acknowledges the historical roots of this anxiety, noting that “when Jews were almost the only non-Christians in the United States” there were many “cultural practices of old-fashioned nonsectarianism, from school prayer to crèches and beyond [which] could certainly be understood as underscoring the idea of a Christian nation.” As long as that was the case, Feldman acknowledges, legal secularists had reason to fear that “public manifestations of religion marginalize religious minorities and hence reduce the capacity of those minorities to participate in a common national public life.”

But now, Feldman argues, the increasing diversity of religious life in America assures that public manifestations of religion are “becoming increasingly pluralistic and inclusive.” As a result, he seems to say, the time has come for Jews and other religious minorities to get over their fear of public displays of religion. “The fact that others have asked for and gotten recognition implies nothing about the exclusion of any religious minority except for the brute fact that it is a religious minority,” Feldman writes, adding, “There is nothing shameful or inherently disadvantageous in being a religious minority, so long as that minority is not subject to coercion or discrimination.”

Perhaps Feldman is right about the pluralization of American religious life and the corresponding rise in religious tolerance. But, with Christian conservative leaders like Pat Robertson, Jerry Falwell and James Dobson holding sway over the country’s ruling party, few Jews are likely to notice.

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