Talk About Chutzpah
Talk About Chutzpah: A Christian talks to Jews about the Ten Commandments - and more Recent Developments up on the Mountain
Remarks on Current Church-State Controversies, Solomon’s Legacy Jewish Legal Federation
June 9, 2005
I must confess a certain trepidation about speaking to you today. First, the program planners have framed a question nearly diabolical in its seeming simplicity–"should the wall of separation between church and state be lowered?" - ( the short answer to which is ….really long). Second, they have they pitted me against Professor Green– a more learned or worthy counterpart I could not imagine… And, third they ask a workaday Protestant lawyer like me to come speak to a group of erudite Hebrew legal scholars — on the Ten Commandments no less!
Kidding aside, I am quite honored to be asked to speak to such a distinguished audience. Any person of the Christian Faith who is not honored to speak to a group of Jews is simply not paying attention to the teachings of his own faith.
Now, speaking of our common yet divergent heritage, frankly I also worry that something I say today–I, an Episcopalian who has never known what it is to be a religious minority– I worry that something I say will suggest I do not realize that these issues may look very different from where you sit than from where I stand. But I do realize that. And, more, that my brothers and sisters in the Christian church in America have often been boorish, or worse, when it comes to respecting and honoring other religious traditions.
In fact, if you want to look at it theologically for a moment, we should have far more that unites us than divides us when it comes to the role of religious faith in–and against–this culture. It is not hard at all to find areas in which Christians and Jews are called to ethical common ground and similar religious vocations: that we worship and pray to the God who intervenes in human history– in the midst of a postmodern intellectual culture that increasingly ridicules this very idea; that we rail as biblical prophets against the contemporary idols of materialism and narcissism– to a society that is obsessed with both; that we speak against the false gods of militarism and nationalism–even to those who fool themselves into thinking that therein lies true security; and that we stand up for those who cannot stand up for themselves– the poor, the imprisoned, the elderly or the unborn– to a nation that too quickly forgets them.
To put it differently, and to bring it back to our discussion today, Rabbi Heschel once said this: "We worry a great deal about the problem of church and state. Now, what about the problem of church and God? Sometimes, there seems a greater separation between the church and God than the between the church and state…"
Well, with those words from the wisest of modern prophets in mind, let us turn, then, to our worries about church and state, and see if we can find areas of common ground here, too. I. Our National Bipolar Disorder.
You will not make sense of my thoughts today without understanding my foundational premise about the nature of First Amendment jurisprudence. So I start with this: I can think of no other area of constitutional law where the way a provision is applied today is further from both a straightforward reading of the text and from the plain intent of the people who wrote it than the Establishment Clause of the First Amendment. Nothing else–not free speech, not due process, not equal protection, not the provisions relating to the criminally accused–nothing else has such a bizarre and incomprehensible jurisprudence springing from such relatively straightforward language and history.
The words are not hard: "Congress shall make no law respecting an establishment of religion." It is pretty clear what this refers to as an objective matter–no nationally established church. Indeed, if the language of the First Amendment were a statute and the Oregon courts were applying PGE v BOLI to it–i.e., a straightforward methodology for determining and applying the intent of the drafters of the provision– the results of at least a half century of caselaw would be drastically different and we would not be here discussing the issues we are discussing. One of the things the Oregon appellate courts have made clear, both by their discussions and their holdings, is that if the law is going to be informed by the history of a text, we should at the very least get the history right.
I made a joke up front about the question: should the wall be lowered? Now, if you force me to accept the question, then I have but one answer– Of course I do not plan to continue to beat my mother. Of course the wall should not be lowered. I am certainly not talking about establishing the Episcopal Church as America’s national religion. Please: we can barely manage our own affairs. But the problem, of course, is that the metaphor is not in the Constitution, is not in the debates, and is not even off the pen of any framer. So how did this off the cuff Jeffersonian metaphor then become enshrined in constitutional law? Through bad history and bad jurisprudence, really starting about a half century ago. But a slogan or a metaphor is no substitute for historical or textual analysis.
And so for the record, I reject the metaphor as overly simplistic, unhistorical, and the genesis of an antagonism towards religious expression that is antithetical to the purposes of the Bill of Rights generally and the First Amendment specifically. It has led to what I call our national bipolar disorder when it comes to religion in public life. We are like nothing so much as an unbalanced mind: sometimes we are high and happy that people of all faiths and creeds fill our land, but then, suddenly, without warning, we slump and grump and see religious bogeymen around every corner just waiting to attack our Republic, and we paw at the air and howl at the moon.
To take just one area of the caselaw, public assistance to parochial schools. Now, follow the bouncing ball. A state may lend parochial school children geography textbooks that contain maps of the United States, but may not lend them maps of the United States to use in geography class. A state may lend parochial school children textbooks on American history, but may not a film about George Washington. A state may pay for developmental diagnostic services in a parochial school, but the resulting therapeutic services must be conducted somewhere else. Make sense? The cases are just as puzzling when it comes to campus religious speech–either at the public school or university level; or public expressions of religious sentiment at Christmas; or–as I bet we will find out soon–the cases on the Ten Commandments: I predict the rule will be no in schools but yes in courthouses.
What possible unifying principle of constitutional text or history underlies these decisions? None. The Court has quite literally made it up as they go. I suggest that there is no other area of constitutional law where commentators– and even the Court itself– agree that the cases are incomprehensible.
II. Some Observations on What’s Happening on the Mountain.
I cannot, though I suspect Steven probably can, give you a comprehensive reconciliation of these scenarios. It has been years since I had anything like a current and comprehensive view of church-state law. I claim no panacea, no systematic approach that will neatly resolve all controversies. I have no binding metaphor to propose as an alternate to the wall of separation. But here are some observations.
First: It is no constitutional violation for government to acknowledge our nation’s religious heritage and history. The Court should stop pretending, and stop forcing public institutions to pretend, that religious belief is not part of our history and heritage. It is, and the courts should let certain controversies resolve from that undeniable historical fact. This simple idea would resolve many artificial First Amendment disputes. I once read, for example, about an elementary school history workbook that said that the Pilgrims who came to America from England were "people who travelled a long way for personal reasons." Are you kidding? Why not teach religious history instead of sanitize it? Why not a course on "The History of Religion in America?" How about chapters on the history of Judaism in America, or Catholicism, or a chapter on "Changes in Attitudes toward Religion in the late 20th Century". And I submit that you cannot understand important parts of our history at all-the Founding, the Great Awakening, the Abolitionist Movement and the Civil War, Prohibition, the Civil Rights Movement, to name just a few-without understanding the role of our religious history. But, no, our schools treat religion as if it were pornography: conspicuous only by its absence, whispered about in dark corners. Almost as bad was listening to Michael Newdow wanting to remove "under God" from the pledge of allegiance. In a debate with him last year I asked him if he would still object if instead of "under God" we inserted language from the Declaration of Independence–"One nation, under the laws of nature and of nature’s God." It made no difference to him. No, what he wanted was a heckler’s veto over our history. But it is what it is, and we must stop trying to sanitize our political and popular heritage of its religious roots..So in light of this principle, I suggest that the display of the Ten Commandments might well be appropriate, so long as it is done in a way that makes clear it is part of our legal and cultural history, as I understand the display at issue in the McReary case is-being set alongside other historical ancient legal or moral codes. Of course, if it is presented as the only or preferred code, then there may be a problem. We can talk more about this in the Q and A.
Second: Expressions of current religious belief or practice in exclusive governmental forums-like public prayer or celebrations of holidays -is often inappropriate, even if constitutional, unless there is a reasonable chance to show that the expression is but one part of the rich and diverse tapestry of the religious, cultural or philosophical makeup of our communities. I start here with the belief that, in many situations, public expressions of religious sentiment do not pose a constitutional problem and should not pose a public policy problem. An example from my days in the Oregon Legislature shows what I mean. We used to begin each session of the House with a prayer. We had all kinds of prayers. Except sometimes we didn’t. There might be a traditional prayer by a rabbi, or by some Protestant or Catholic person of the cloth, or a Muslim cleric; but there might also be a Sufi poem, or a Hindu reading, or a Native American song; or, many times, I remember, thoughtful secular readings. The point is the thing was a rich tapestry of the best that is Oregon. A spiritual tapestry. Too often, though, as a practical matter because of the limited nature of the forum, there is no chance for such a full showing of the tapestry, and in such situations, it simply might be a bad idea. Graduation prayers might be an example, or Christmas displays on public property. It may well be that, even if you could find a way to do it constitutionally, it is still inappropriate in a diverse society. But not everything that is a bad idea is unconstitutional-even if it deals with religion! There’s the bogeyman again. With these thoughts I turn briefly to the question of the public schools teaching Intelligent Design as science. Now much of this dispute is simply silly: the stickers about evolution and all that. But it may be that the Intelligent Design controversy itself is a bit more interesting. If ID is science-and there is some stiff debate about whether it meets the criteria, a conclusion about which I am neither qualified nor have invested the energy to decide- but if it is, then I see no reason why it should not be offered as a counterpoint of discussion in physics or biology classes. Even to have the very unscientific and highly philosophical discussion of "what is science" makes sense to me. Most of us by know realize that "Science" cannot answer all questions- as we have learned, for example, from watching the development of the field of psychology or medicine- and so it makes sense that science might not be able to answer some questions of the origins of life. In fact, I think the best physicists have said this. But for crying out loud, how does this very engaging academic discussion end up in the courtroom with both sides arguing about the Establishment Clause?? Because Intelligent Design might be a preferred theory for some people of religious faith that somehow makes it an Establishment of Religion? Only if the sloppy metaphor of the wall of separation is applied very strictly, and then only if it means that the wall separates not only religion itself from public life, but anything that even has support from religious citizens as well. And here is where guys like me really draw the line and are prepared to fight. Which brings me to my third and most central theme.
Third: Ensuring religious citizens equal rights in open public forums is fully constitutional, and in fact, not doing so violates the religious freedoms guaranteed by the First Amendment. Sometime in the last half of the last century there was a sea change: the chattering classes, and the political establishment, including the courts, began to believe that our Republic would be better off if religion remained a private thing-not just personal but private-if we kept the public square sanitized from any infection by religious belief whatsoever. But that sentiment ignores both the nature of our constitutional history and, I would submit, the very nature of at least some religions, say those informed by Judeo-Christian theology, which teach that our religion has outward and even public consequences. It is not just what we believe; it is how we live our lives. Last year during the election and all the discussion about the impact the religious conservatives had, I heard even serious people argue that for Christian conservatives to organize politically, or push legislation, or in any other way bring their faith into the public square, would somehow violate the unspoken rule that religion must stay private. As if the Establishment Clause means that somehow religious citizens do not have the same inalienable right to apply their most deeply held beliefs to public questions in the public square as do, say, libertarians, or environmentalists, or secularists of any stripe. Or in our recent past we have seen school districts refuse to let Christian kids use open classrooms before or after school on the same terms as other students. So the Philosophy Club could meet in Room 101to discuss whether there is a god, but the Young Life Club could not meet in Room 102 around their conviction that there is. Or a more current controversy involving a 5th grader who wants to read his Bible on the playground during recess, and maybe even talk to his classmates about it. The district has said no, that is somehow unconstitutional as an establishment of religion-by the school! He could read his comic book but not his Bible. Or the candy cane case that has been mentioned: the speech of this child is curtailed because of its content, pure and simple: he can make his little business product and sell it in the school store if it said "I love you" but not "God loves you." This is unthinkable to me, and inexcusable. People of religious faith should not forfeit their right to participate fully in the open forums that are democracy. Now sometimes this rule means that we must allow people to opt out of certain otherwise routine public programs-the so-called accommodation of religious belief. So Catholic hospitals do not have to perform abortions just because they receive federal funding for some of their services, or Quakers can invoke their faith to qualify as conscientious objectors to combat roles in the military. Or prisons can be asked to make reasonable allowance for inmates’ religious practices. I told Mike Newdow last year that if California were requiring his daughter to say the Pledge I would have volunteered to help him. Same idea. So turning to another of our issues, if all parents in a certain school district are given educational vouchers, the government should not restrict what they do with those vouchers based on the religious content of the choice the parents make, as the Court recognized in Zelman. Or, if the US Government perceives that a certain segment of society is a target for terrorist attacks-say, for example, private religious nonprofits: but for that matter, private childcare centers or private art museums - there is no constitutional infirmity in the government providing funding for security upgrades. How much sense would it make for the government to be able to place extra police officers in front of Temple Beth Israel if there were a terrorist threat-as the government clearly could do– but the government could not provide grants for Temple Beth to place concrete barriers in front of its entrances? Conversely, how would not doing so be anything other than a content-based discrimination against the members of that nonprofit precisely based upon their religious beliefs? This is the schizophrenia I talked about earlier: it is an imaginary danger: a bogeyman that is not there.
III. Q and A.
IV. The Elephant in the Room.
I will close my comments in the same spirit in which I opened them. I am keenly aware that no discussion between Christians and Jews about religious liberty can occur in a vacuum, in ignorance of our shared and sometimes ugly common history, in this country and indeed in lands a long way from here. I can argue all I want about what we have in common, especially today in a society that is becoming increasingly hostile to true Biblical religion-I am not talking about the easy, Americanized, shopping center version of religion that you see on too many cable TV shows, but rather the other kind, the Biblical religion that produces in our time both a Rabbi Heschel and a Mark Hatfield, both Elie Weisel and Dietrich Bonhoeffer– the latter if you don’t know a deeply devout German Lutheran pastor who was martyred for his role in trying to stop Hitler. I can say all I want about our commonalities but it doesn’t erase history- and you already know what I think about trying to erase history. So let me try to address at least one remnant of this history. I really do get that, in the Jewish mind, the American Way has historically been co-equal to a strict separationist view of the First Amendment: it has kept you free from historically oppressive majoritarianism. Despite that fact that, in our own constitutional heritage leaders of mainline Christianity and Judaism have talked about shared Judeo–Christian values-and for good reason– despite this fact, you have taken your final guarantee of liberty from the First Amendment and the courts. I understand this, and I understand why.
But I believe now we are in a different era, and we will hang together, as Franklin said, or we will hang apart. I say this with some hesitancy, lest I be mistaken for Billy Graham or Pope John Paul II– that the greatest threat to Jews in the West generally-not just in the US- is not Christians. In fact I think we are both under fire: the greatest threat to both faiths is the radical secularism that is at the heart of our very culture. Just turn on the TV and watch what you see. Pick up a magazine and read it. Go to the mall and look at the kids. I am not being a prude here. I care less about the utter trashiness of it than the vanity and the narcissism of it: it is all about me and mine and acquiring and the look good and very little about honor or charity or character.
What does all this have to do with church and state law? Plenty. For when the public square is naked, to use Richard Niehaus’ metaphor, it does not stay empty-it gets filled with Leviathan. If if they can tell a Jewish kid that he cannot read his Scripture or as the French secularists have done that he cannot wear his Yarmulke on the playground, and if they can tell me I cannot introduce legislation that reflects my beliefs, and if they tell us all-as they will in the near future, I predict-that our houses of worship will from now on be taxed just like any business, and they begin to prove that old adage that the power to tax is the power to control-when all that happens, then we will all be in the same boat. I believe that, as friendly as the current political climate is to religion, the increasing hostility of the legal climate is the lasting one. And not only Jews, but Christians who know their own history, know what happens when our faith demands that we stand up to Caesar and say: "no, you are not Lord; we follow another way."
Times are a changing, my friends. And I believe that people of Biblical faith will someday be under common attack. And as my late father, a marine WW II veteran, said often to me: "when you are pinned down by enemy fire, you somehow no longer have time to check the other guy’s dogtags. All you know is that you are in it together. And you fight back together."
