Encore Archive

Welcome to Encore, the place where you will find the latest thoughts and reflections by CLAL faculty and associates on topics of the moment. Each week you will find something new and (hopefully) engaging here!

To access the CLAL Encore Archive, click here.

To join the conversation at CLAL Encore Talk, click here.

Church, State, and the Jewish Community

Leo Pfeffer (Sh'ma 81/60, October 13,1978)

There was a time - and it was not so many years ago - when no issue, or at least no domestic issue, aroused so much concern on the part of the American Jewish community and so much controversy within it as the relation of church and state, particularly in the arena of education. Today the subject is in large measure low on the list of priorities in respect not only to action but even of consideration.

To a substantial extent this change reflects a parallel change in the American community at large. The bitter controversies regarding an ambassador to the Vatican or a Catholic in the Presidency are now matters of remote memories. Who would have dreamed in those days that the Baptist churches, acting through the Baptist joint Committee on Public Affairs and representing some 27 million Americans with a long history of anti-Catholic feeling, would some day submit a friend-of-the-court brief to the Supreme Court urging it to hold unconstitutional a ruling by the National Labor Relations Board requiring Catholic bishops to engage in collective bargaining with teachers in the parochial schools? Yet this is what happened, and interestingly the brief itself was written and submitted to the Court by a Jewish lawyer often charged in the Catholic press with being an anti-Catholic bigot.

Church-State Conflict Is Low On The Agenda

Not that the church-state issue has entirely disappeared from the American scene. The recent struggle for inclusion of a provision granting tax credits for parochial school tuition payments is evidence that the subject is far from dead. So, too, is the bitter controversy regarding legally permissible abortion and especially its financing for the poor out of tax-raised funds through Medicare and Medicaid. Yet, the objective observer of the American scene cannot escape the conclusion that church-state conflict is low on the agenda of concern on the part of the American people as a whole and almost as low on the agenda of the Jewish community.

As far as the Jews are concerned, a major reason for the change has been the Arab-Israel conflict and the felt need of American Jewry to concentrate its efforts on the survival of the State of Israel. This is coupled with an implicit if not often expressed reluctance to alienate whatever support it may have in this endeavor, particularly among so potent a political force as the Catholic community and the Catholic Church. (I do not mean to imply that this concern has caused American Jewry to change or even to compromise its long-standing position on church-state relations. This has not been the case at all; but it has undoubtedly been a tangible factor in explaining the diminished activity in the struggle for un-compromised church-state separation.)

The Supreme Court Has Lessened the Conflict

Obviously, diminution of expressed concern on the part of non-Jews cannot be explained in terms of concentration upon the Arab-Israel problem. True enough, the Jewish community has been in the forefront among defenders of church-state separation in the courts and has achieved a leadership role in that area. Yet, organizations such as Americans United for Separation of Church and State and the American Civil Liberties Union still consider the issue to be high upon their agenda. (For Americans United it is the only item on their agenda). Nevertheless, there can be little doubt that we have reached a period when the subject is not considered by the general public -- Protestant, Catholic, Jewish and secular -- to be of paramount importance. Why?

No single fact can itself present a complete answer, but my guess is that the major cause of the general diminution of inter-community conflict in the area is to be found in the decisions of the Supreme Court. There are times when the Court's decisions can have the opposite effect, that is, they can aggravate rather than ameliorate community conflict. The Dred Scott decision is perhaps the most dramatic and tragic example. The recent Bakke decision has had somewhat the same effect, though of course at a much lower level of national tragedy. The Court's anti-New Deal decisions in the thirties is still another example. Since conflict is generally more newsworthy than its amelioration, it is not surprising that the Court's role in lessening inter-religious conflict has not evoked the public attention which it merits.

Religion in The Schools is Problematic

Yet this is exactly what the Supreme Court has done, and it has done it by means of a series of truly landmark decisions which by and large have defined the constitutionally permissible limits of governmental involvement in religious affairs. It has accomplished this in respect to both the Establishment and Free Exercise provisions of the First Amendment. ("Congress shall make no law respecting an establishment of religion or prohibiting its free exercise.")

The area in which the Establishment or church-state provision has been most troublesome to the Jewish community is the area of education. Here the controversy manifests itself in two ways: religion in the public schools, and public funds for religious schools. Since four out of five Jewish children at the elementary and secondary school levels attend public schools, that aspect of the problem is obviously of greater importance to the Jewish community than aid to parochial schools.

There Are No More Prayers in the Classroom

Up to about fifteen years ago Jewish children attending public schools were confronted in most parts of the country with daily intrusions of religion. Only a comparatively small percentage of public school children did not start their school day without Bible reading and prayer recitation. It need hardly be noted that the Bible which was read did not come from the Jewish Publication Society and was not limited to the Old Testament. Nor was the prayer recited likely to be found in the siddur; with the exception of some large cities in the North it was most often the so-called Lord's Prayer from the New Testament. In June of 1963, the Supreme Court ruled both practices unconstitutional and ordered them to be stopped.

A funny thing happened on the way to school in the fall of that year. Not withstanding the fact that Bible reading and prayer recitation had been a part of the public school regimen from the earliest days of the system more than a century and a half before 1963, the overwhelming majority of public schools opened their session without either. Since then all but a very few pupils have been attending public schools without experiencing Bible-reading or school prayer. (The "very few" represents children in small rural schools, mostly in the South, few of which are attended by Jewish children.) Because, as I have noted, non-happenings do not usually make the front page of newspapers, the placid opening of Bible-less and prayer-less school days went largely unnoticed.

Conflict Continues Over Parochial Aid

Reception of the Court's decisions in respect to governmental aid to parochial and religious day schools has been somewhat less placid. Partly the reason, I think, is that money is involved, but also partly that the decisions have not been as clear-cut as in the case of religion in the public schools. As the constitutional situation stands today, governmental aid to finance educational services is forbidden in respect to elementary and secondary schools except where used to provide transportation and secular textbooks for the pupils' use. At the level of higher education, states have more freedom to provide financial assistance. Indeed, the Supreme Court has yet to strike down in its entirety or even substantially a single statute providing aid at the college or university level, and this though it insists that it is applying the same basic constitutional principle as that which relates to lower schools. Because the Court has not as definitively and unambiguously closed the constitutional door upon aid to parochial schools as it has done in respect to religion in public schools, continuing conflict is to be expected. Within the Jewish community the fact that the great majority of children attending day schools are from Orthodox families, and, in addition, these are likely to be lower on the economic-ladder than the non-Orthodox and thus less able to finance day-school costs. This fact explains why Orthodoxy some fifteen years ago split from the rest of the Jewish community and since then has championed aid to parochial schools.

Orthodox Side With Church on Abortion

While church-state problems, in respect to the constitutionality of aid to religious schools are not yet as definitively determined as the issue of religion in the public school, it is probable that the boundaries of permissible governmental intervention have been substantially fixed for some time to come. Less promising of immediate solution is the question of abortion, and more particularly its governmental financing for the economically disadvantaged. Here, too, as in the case of aid to religious schools, we find the Orthodox aligned with the Catholic Church (though not with Catholics, the majority of whom do not agree with their church on this issue) in opposing use of tax-raised funds to finance abortions.

An extended trial is now taking place in a Federal court in New York challenging the constitutionality of a recently-enacted Hyde amendment to the Social Security Law forbidding use of Medicare or Medicaid funds to finance abortions except where the life of the woman is endangered by continued pregnancy. One of the grounds for the challenge - indeed it is the major ground - is based on the claim that the amendment constitutes an impermissible law respecting an establishment of religion or prohibiting its free exercise.

We Are Still Committed To Religious Freedom

Here, too, we find the rather strange alliance of Orthodox Judaism and Catholicism in defense of the Hyde Amendment. At the trial, a rabbi of a Conservative synagogue testified as an expert that halachah does not forbid abortions. Shortly thereafter the opponents called an Orthodox rabbi as their expert witness and he testified directly to the contrary. In addition, a group of organizations affiliated with the Religious Coalition for Abortion Rights have received permission from the court to file a friend-of-the-court brief arguing the unconstitutionality of the Hyde Amendment as a violation of church-state separation and religious freedom. Joining in the motion, which the court granted, for leave to file the brief were the Union of American Hebrew Congregations (Reform) and the United Synagogue (Conservative). As of the present, the Orthodox have not applied for leave to file a counter-brief, but it is by no means impossible that they may yet do this.

Predictions are hazardous, yet I will venture to suggest that before very long, governmentally financed abortions for the poor will be the law of the land. Whether this will be achieved by a Supreme Court decision, a repeal of the Hyde Amendment or otherwise, I will not guess. But to me, the pervasive reality is that the great majority of the American people are still committed to religious freedom and church-state separation, and so too is the Jewish community.