Hostname: page-component-76fb5796d-skm99 Total loading time: 0 Render date: 2024-04-25T12:03:25.537Z Has data issue: false hasContentIssue false
  • English
  • Français

How—and Why—American Jews Have Contended for Religious Freedom: The Requirements and Limits of Civility*

Published online by Cambridge University Press:  24 April 2015

Samuel Rabinove
Get access Rights & Permissions [Opens in a new window]

Extract

The issue is not only what we debate, but how. … Conflicts over the relationship between deeply held beliefs and public policy will remain a continuing feature of democratic life. They do not discredit the First Amendment, but confirm its wisdom and point to the need to distinguish the Religious Liberty clauses from the particular controversies they address. … In the public discussion, an open commitment to the constraints and standards of the clauses should precede and accompany debate over the controversies. … Civility obliges citizens in a pluralistic society to take great care in using words and casting issues.”

— The Williamsburg Charter

Throughout history — and throughout the world — religious minorities of all faiths generally have not fared very well at the hands of religious majorities. Sadly, that has been the norm rather than the exception. And the Jews were always a religious minority in every country in which they lived. The seventeenth century French philosopher, Blaise Pascal, spoke both from knowledge and personal experience when he wrote in his Pensees: “Men never do evil so completely and cheerfully as when they do it from religious conviction.” All peoples, of course, are products of their collective historical experience. The Jews are no exception.

Type
I. Commentary on The Williamsburg Charter
Information
Journal of Law and Religion , Volume 8 , Issue 1-2 , 1990 , pp. 131 - 152
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1990

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

This article is based on a paper read at a conference on “The First Amendment Religious Liberty Clauses and American Public Life,” at the University of Virginia, April 11-13, 1988.

References

1. Sachar, Abraham, A History of the Jews 194 (Knopf, 1965)Google Scholar.

2. Id at 188.

3. Id at 189.

4. Id at 201.

5. Id at 206.

6. Finkelstein, Louis, ed, 1 The Jews: Their History, Culture, and Religion 235–38 (Harper, 1949)Google Scholar.

7. Ault, Warren, Europe in Modern Times 94, 98–100 (Heath, 1946)Google Scholar.

8. Id at 144-48.

9. Wilson, John F. and Drakeman, Donald, eds, Church and State in American History 16 (Beacon, 1987)Google Scholar.

10. Lebeson, Anita Libman, Pilgrim People 65 (Harper, 1950)Google Scholar.

11. Pfeffer, Leo, Church, State and Freedom 83 (Beacon, 1967)Google Scholar.

12. Lebeson, at 59 (cited in note 10). See also Reichley, A. James, Religion in American Public Life 75–76 (The Brookings Institution, 1985)Google Scholar.

13. Lebeson, at 60-61 (cited in note 10).

14. Beach, Bert B., Let Us Raise a Standard to Which the Wise and Honest Can Repair, Liberty 14 (09-Oct 1987)Google Scholar.

15. Bowen, Catherine Drinker, Miracle at Philadelphia 216–17 (Little, Brown, 1966)Google Scholar.

16. Pfeffer, at 124 (cited in note 11).

17. Borden, Morton, Jews, Turks, and Infidels 21 (North Carolina, 1984)Google Scholar.

18. Id at 37-41.

19. Id at 43-44.

20. Id at 49-50.

21. Menendez, Albert J., No Religious Test: The Story of Our Constitution's Forgotten Article 15 (Americans United for Separation of Church and State, 1987)Google Scholar.

22. Sarna, Jonathan D., Jews, the Moral Majority, and American Tradition, 29 J of Reform Judaism 4 (Spring, 1982)Google Scholar.

23. Schappes, Morris U., ed, A Documentary History of the Jews In the United States 126 (Schocken Books, 1971)Google Scholar.

24. Grinstein, Hyman B., The Rise of the Jewish Community of New York, 1654-1860 235–36 (Philadelphia Jewish Publication Society of America, 1945)Google Scholar.

25. Morison, Samuel Eliot, The Oxford History of the American People 482 (Oxford, 1965)Google Scholar.

26. Borden, at 141, n 1 (cited in note 17).

27. City of Charleston v Benjamin, 1 LR, NS 7, 8, 10 (1848).

28. As cited in Way, H. Frank, The Death of the Christian Nation: The Judiciary and Church-State Relations, 29 J Church & State 516 (1987)CrossRefGoogle Scholar.

29. Borden, at 63-64 (cited in note 17).

30. Pfeffer, at 241 (cited in note 11).

31. Borden, at 67-68, 74 (cited in note 17).

32. 268 US 510 (1925).

33. The First Amendment's Free Exercise Clause had not yet been deemed applicable to the states. Cantwell v Connecticut, 310 US 296 (1940).

34. 319 US 624 (1943).

35. Id at 642.

36. 374 US 398 (1963).

37. Id at 406.

38. Id at 409.

39. 480 US 136 (1987).

40. 406 US 205 (1972).

41. 474 US 481 (1986).

42. This, of course, relates to the three-part test set forth in Lemon v Kurlzman, 403 US 602 (1971). For a measure to pass muster under the Establishment Clause, it must have a secular purpose, a primary effect that neither advances nor inhibits religion, and must not foster excessive entanglement between government and religion.

43. Goldman v Weinberger, 475 US 503 (1986).

44. Id at 523.

45. 10 USC § 774 (1987).

46. 370 US 421 (1962).

47. 374 US 203 (1963).

48. 465 US 668 (1984).

49. After this article had been written, the Court ruled in Allegheny County v ACLU Greater Pittsburgh Chapter, 109 S Ct 3086 (1989), that the display of a creche by a Roman Catholic group on the grand staircase of a county courthouse violated the Establishment Clause because of the unmistakably religious character of the message communicated by the creche. In a companion case, Chabad v ACLU, the Court ruled that the display of a menorah next to a large Christmas tree did not violate the Establishment Clause, on the view that the menorah's symbolic message is not exclusively religious, but secular as well. The AJC and the National Council of Churches filed an amicus curiae brief in this case urging that both symbols are religious in character and for that reason ought not to be displayed on government property.

50. Id at 674-77.

51. Id at 677.

52. Id at 700-01 (Brennan dissenting).

53. Id at 727 (Blackmun dissenting).

54. McCreary v Stone, 739 F 2d 716 (2d Cir 1984), judgment aff'd by equally divided court sub nom Board of Trustees of Village of Scarsdale v McCreary, 471 US 83 (1985).

55. Commonweal (Nov 29, 1985) 659-60.

56. Siegel, Seymour, Religion and Politics: Some Reflections, in McMunn, Richard, ed, Religion in Politics 95 (Catholic League for Religious and Civil Rights, 1985)Google Scholar.

57. White, Andrew D., 2 A History of the Warfare of Science with Theology in Christendom 260 (Braziller, 1955)Google Scholar.

58. Hand, Learned, Speech to Newly Naturalized Citizens (05 21, 1944)Google Scholar, in McNamara, M. Frances, ed, 2,000 Famous Legal Quotations 402 (Aqueduct Books, 1967)Google Scholar.

59. The Williamsburg Charter, 12 above.

60. Bellah, Robert N., Conclusion: Competing Visions of the Role of Religion in American Society, in Bellah, Robert N. and Greenspahn, Frederick E., eds, Uncivil Religion: Interreligious Hostility in America 228 (Crossroad 1987)Google Scholar.