The United States Constitution is the one of the world’s oldest frameworks for national governance that is still extant, and has successfully guided American democracy through wars, depressions, turmoil, upheavals, and multiple elections in which power changed hands willingly, if not gracefully. It is astonishing to consider that the drafting of the Constitution took almost a year to compose, almost two years to win ratification, and yet has been subjected to consistent and usually contentious amendment in the 220 years plus since its original appearance. The Constitutional Convention weighed different and competing interests, resolving some issues forever and leaving others to future generations to refine. In some cases (the framework for the three branches of government) it remains mostly unchanged, whereas in others, the simple intent of the Framers has become almost unrecognizable and far afield from a clear and logical reading of the text.
A case in point is the relationship between government and religion that is one subject of the First Amendment to the Constitution, approved by the States as part of the “Bill of Rights” in the early 1790’s. In pertinent part, it reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Both the words and the intent seem unequivocally clear: Congress shall have no right to declare an official state religion, in obvious contradistinction to Britain where the Anglican Church is the official state church and the monarch the titular head of that church. The United States was to have no official state religion, a practice that has been scrupulously followed in the more than two centuries since.
It never dawned on the Framers that prayer in public schools or the provision of tacit assistance to parochial schools could be “unconstitutional,” because neither involved the “establishment of religion” by Congress. Nor did the Framers ever intend that the federal government for constitutional reasons had to consistently demonstrate hostility or aversion to religion. Chaplains in Congress and the military, paid for by the federal government, and opening sessions with prayers, were the norms then and now.
Hence the puzzle of the Supreme Court’s First Amendment jurisprudence that has stretched the “free exercise” clause beyond all reasonable definition and greatly encumbered the practice of religion in America. For example, the Supremes last week heard argument in the case of Arizona Christian School Tuition Organization v. Winn. The facts are simple: in 1997, the state of Arizona passed a law that allows residents to contribute $500 ($1000 for a married couple) to a non-profit school tuition organization that they would otherwise pay in taxes. The choice of organization is solely and exclusively that of the parents, and can go to private or parochial school; government is uninvolved in the decision, except to the extent that the tax credit afforded the parents is money that otherwise would have gone to the government. It seems constitutionally innocuous, and a sensible, if modest, way to reimburse families who prefer a religious-based, private education for their children for their otherwise unrecompensed contributions to the public school education of their neighbors’ children. Orthodox Jews, for example, have long been victims of this double-taxation – paying for both the public education of others and the private education of our own children (who, in fact, would greatly encumber the public school system if educated there). In effect, the public school system gets a free ride on the backs of private or parochial school parents, and traditionally the private school parents have little recourse but to fume, skimp, grin and bear these additional costs. The Arizona law was a small attempt to redress this imbalance, which offended Winn, clearly some local busybody and troublemaker.
Yet, the super-liberal Ninth Circuit Court of Appeals, based in San Francisco, struck down this law as unconstitutional on the grounds that it violates the “establishment of religion” clause, leading to its current hearing before the Supreme Court. But how precisely does affording individual parents the right to divert some of their state tax dollars to their own children’s education amount to a violation of a mandate that “Congress shall make no law respecting an establishment of religion…” ? How is Congress involved, and how does this law establish a religion ? It allows people of all religions or no religion to effectively minimize the costs of their children’s private school education.
To its continuing shame, the Anti-Defamation League (and the American Jewish Committee, among other useless and superfluous organizations) filed “Friend of the Court” briefs in support of the respondent Winn, arguing against the Arizona law. This approach is in keeping with the grand traditions of those Jewish organizations in protecting the Jews from the Christian “menace” by waging war against Torah education in America, a war that has been remarkably successful in greasing the skids of assimilation and intermarriage in this country. To its credit, Agudath Israel and the Orthodox Union filed briefs in support of the Petitioners, and in support of the Arizona law, which they asserted follows prior Supreme Court precedent (Zelman v. Simmons-Harris, 2002). In a 5-4 vote, the Court there upheld a Cleveland school voucher program where the choice of schools was, again, parent-driven and not determined by the government. But why would even four Supremes vote then that the voucher program is unconstitutional ?
The first breach in diluting the simple meaning of the Constitution came in a letter written by President Thomas Jefferson in 1802 to the Danbury Baptists Association which feared state government encroachment on their religious practices. Jefferson argued there that the First Amendment built “a wall of separation between Church and State.” The phrase, of course, never appears in the Constitution, and it is clear that Jefferson meant that the State has no right to interfere, obstruct, impede or otherwise hinder the practice of religion. But Jefferson certainly never intended that the “wall of separation” prohibited government from extending benefits to all religions or required government to penalize the practice of religion. Yet, that is how anti-religion groups like “Americans United for Separation of Church and State,” joined by their fellow travelers in the ADL, et al, insist that the Constitution must be interpreted, and that is how the Supreme Court began interpreting it in the 1950s.
In the 19th century, the provisions of the First Amendment and much of the Bill of Rights was made applicable to the states, and when the secular-progressive agenda began to dominate American culture and the media elite in the late 1950s and early 1960s, the Supremes took due notice – questioning (though eventually permitting) the funding of the transportation of parochial school students; banning prayer in public schools – even being troubled by a moment of silence; declaring that the state cannot defray the salaries of secular teachers in parochial schools (bizarre, because the government would have had to pay to build schools, hire teachers, etc., to accommodate these students if there weren’t any parochial schools); permitting the provision of textbooks and milk (sometimes the Supreme Court’s logic is exceedingly arcane, if indecipherable – and sometimes, it just depends on who is sitting on the Court at any particular time); prohibiting religious prayers at graduations, and dancing through hoops wrestling with religious displays on public grounds during holiday seasons, alternatively permitting and prohibiting them depending on obscure factors and dubious reasoning. (The Menora is not a religious symbol? Huh?) Personally, I have always found Jewish objections to Christian religious displays around holiday season to be a function of small-mindedness coupled with intolerance; America is, after all, almost 85% Christian.
To further complicate matters, then-Senator Lyndon Johnson pushed through an amendment to a bill in 1954 that prohibited non-profits and religious organizations from endorsing or opposing political candidates, a gross violation of another clause in the First Amendment that prohibits Congress from making any law “abridging the freedom of speech.” Johnson justified this restriction on grounds of the “wall of separation,” again completely distorting Jefferson’s meaning of the phrase. (Johnson had been under terrific pressure from some Christian groups, so he just silenced them.)
But, most recently, the issue of school vouchers and tax credits for private and parochial school families has heralded the Court’s reversion to a more text-based and reasonable interpretation of the “establishment” and “free exercise” clauses. It is therefore astonishing that the secular Jewish groups are trapped in a reading of the Constitution that was popular with the Court from the 1950s-1980s, and is more guided by liberal dogma than original intent or, especially, recognitions of the general value of religion in public school and the specific Jewish interest in easing the financial burdens on doubly-taxed Jewish families. Shame on them. They seem to be petrified of the role of Christianity in American life and the threat allegedly posed therefore to the survival of Judaism. Evidently, they fear that Crusaders are lurking around every street corner (hence their perception that Christian evangelicals pose a great danger to Jewish life than radical Muslims), and do not recognize that the greatest hazard is not missionizing Christians but Jews who are ignorant of our heritage. In so many ways, and especially in this instance, these organizations are ossified, incarcerated in the past, and irrelevant to modern Jewish life.
The Supremes are always hard to read, and their decisions these days on controversial cases usually rest on one vote – that of swing Justice Anthony Kennedy. And these matters always trigger discussions of the correct mode of Constitutional interpretation – between those who favor “original intent” (ascertaining what the Framers meant, because otherwise the Constitution becomes ultimately meaningless and can be twisted by every generation or Justice) and those who see the Constitution as a “living document” that can be updated by every generation. According to the latter, capital punishment can be “unconstitutional” even though the Framers of the Constitution referred to it and accepted it, and new provisions – like the “right to privacy” – can be located within the penumbra of the document, or hovering in the thin air just above it. (It is fascinating that the Torah is loosely subject to the same dispute as to interpretation – between traditional Torah Jews who are bound to the original intent and try to ascertain the Torah’s meaning based on precedent and application, and the non-Orthodox Jews who shape the Torah as a ball of wax according to their current assessment of prevailing moral notions and the public good.)
In any event, we should hope that the Supreme Court reverses the Ninth Circuit (as they often do), upholds the Arizona law, and strengthens and protects the practice of religion in America so the United States returns to the traditional religious moorings that are the foundation of this Republic.
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