公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Jews and Compassionate Conservatism

Murray Friedman
and Alan Mittleman

Copyright (c) 2002 First Things 119 (January 2002): 17-20.

Since September 11, President Bush has placed much of his domestic policy agenda on hold. Yet we would be wrong to conclude from his recent emphasis on foreign affairs and homeland security that such crucial components of "compassionate conservatism" as public funding for tuition vouchers and "charitable choice" have been abandoned for good. Rather, we should treat the current (and temporary) pause in domestic policy making as an opportunity to assess the status of Bush’s signature initiatives prior to the terrorist attacks on New York and Washington.

In those months, Bush’s proposals had been greeted with intense criticism by various groups, but above all by Jews and Jewish organizations, many of whom worried that charitable choice would result in "excessive entanglement" of government and religion, and breach the "wall of separation" between church and state. In its program plan for 2000–2001, for example, the Jewish Council on Public Affairs (the coordinating body for local and national Jewish community relations) reaffirmed its "opposition to any legislation that omits meaningful and effective First Amendment safeguards such as those that prevent proselytizing, coercion, or indoctrination and that safeguards clients and service provider employees against religiously based discrimination." If President Bush wants his policies to succeed, he will have to answer these concerns. And if he wants to answer these concerns, he will have to understand the motivations of those who voice them. American Jews, for their part, may need to reconsider their views on church–state relations.

Jewish fears of religion in the public life of the nation have their roots in the middle decades of the twentieth century. In the immediate postwar years, Jews often felt like outsiders in American life. Such civic bodies as the American Jewish Committee, the American Jewish Congress, and the Anti–Defamation League began a concerted effort to eliminate barriers both to themselves and other groups that felt excluded from society. High up on the list of Jewish concerns were widespread, usually Christian, religious practices in the public schools and other areas of American life.

Spearheaded by the America Jewish Congress and its redoubtable general counsel Leo Pfeffer, along with such secular groups as the American Civil Liberties Union and such activists as the late Madalyn Murray O’Hair, these Jewish agencies and their allies were successful in convincing the Supreme Court by the mid–1960s that Bible reading and prayer in the schools, as well as most forms of government aid to parochial schools, were unconstitutional. So successful were Pfeffer and his allies in establishing a stringently separationist reading of the Establishment Clause that religion became relegated solely to private behavior, leaving what Richard John Neuhaus has famously called a "naked public square."

Though it is rarely acknowledged in the mainstream press, absolute separation is a relatively new posture for American Jews. As historians Jonathan Sarna, David Dalin, and Naomi Cohen have shown, for the first two–thirds of the nineteenth century American Jews promoted an image of the United States as a pan–religious society in which Jews would find their place as one religious community among others, indeed as one with a noble pedigree. Of course, Jews resisted the idea of an explicitly Christian state. But they also rejected the concept of a secular society. They argued for government funding for Jewish schools and Jewish military chaplains—for, in general, the equal treatment of Jews and Judaism, but not for the separation of religion from public life. Only toward the latter part of the nineteenth century—when a movement for a "Christian amendment" to the Constitution gained respectability—did Jews make common cause with "freethinkers" and progressives who wanted to purge the nation of publicly expressed religious sentiments.

But the social circumstances that led Jews to rejoice in the postwar victories achieved in church–state separation have changed considerably, and those changes now occasion a need to review earlier positions. American Jews have moved from outsiders to insiders in American life. They are, by and large, influential members of what was once called "the Establishment." Despite this, many continue to think of themselves as outsiders, nurturing an image of their own marginality. This sense of marginality, along with persistent fears of anti–Semitism, continues to invest the "wall of separation" with totemic power. Tampering with separation, appearing to efface the boundary between church and state in however minor or symbolic a way, is still taboo. Jewish groups continue to invoke the trope with incantatory repetition as if recalling an ancient and saving wisdom. Resembling believers in magic, they refuse to accept contrary evidence. Yet such evidence is pervasive. Jews, for example, are disproportionately represented in Congress, with Jewish members coming often from states that have few Jews. Survey research shows overwhelmingly a sharp decline in anti–Semitism; indeed, most Americans have friendly feelings for Jews.

Meanwhile, the Supreme Court, in a series of decisions dating back to at least 1990, has edged away from strict separation and toward an "equal treatment" approach to religion. Hence the judicial basis for Jewish public policy, no less than the social marginality that originally motivated the policy, has been eroded. The metaphoric "wall of separation between church and state" no longer suits the situation either of Jews or of the wider society.

In recent years, for example, a broad–based movement has begun to mobilize religion in partnership with government in order to combat a myriad of social problems. Numerous articles have highlighted the efforts of such ministers as Eugene Rivers in Boston, Floyd Flake in New York, and Herb Lusk in Philadelphia—all of whom have worked successfully with gang youth and in the development of drug treatment, housing rehabilitation, and employment training programs. Although the details of charitable choice and vouchers are politically and constitutionally controversial, the laudable motivation behind these policies reflects our nation’s long–held faith in the efficacy of religion. According to a recent survey by Public Agenda, 69 percent of Americans believe that religion is the key to strengthening family values and encouraging moral behavior. Eighty–seven percent believe that volunteer and charity work would increase if more Americans were to become deeply religious. Eighty–five percent believe that religion can help parents do a better job of raising their kids. And 79 percent think that it would contribute to a decrease in crime.

This "faith in faith" fully informs popular support for charitable choice. According to an April 200l survey commissioned by the Pew Forum on Religion and Public Life, 75 percent of Americans support government funding of faith–based organizations. Nearly three–quarters (72 percent) identify the care and compassion of religiously motivated workers as an important reason for their support. Three–quarters believe that houses of worship make a significant contribution to solving America’s social problems. Reflecting and amplifying these convictions, political scientist Robert Putnam writes in his acclaimed study Bowling Alone that "faith communities in which people worship together are arguably the single most important repository of social capital in America. . . . Nearly half of all associational memberships in America are church related, half of all personal philanthropy is religious in character, and half of all volunteering occurs in a religious context."

While American Christians may strongly support increasing the role of religion in public policy making, most American Jews firmly oppose it. They have taken their strict separationist legal strategy, developed to serve a legitimate desire for inclusion in an earlier period, and elevated it into a comprehensive worldview. Deeply suspicious of religion as a public force, they appear to favor a thoroughly secular society where religion keeps to itself. This view, as we have seen, is sharply at variance with that of most Americans. According to a survey commissioned by the Center for Jewish Community Studies, while some 42 percent of non–Jews agree that "democracy in the U.S. works better if Americans are religious," only 11 percent of Jews affirm the same statement. Similarly, although 76 percent of non–Jews feel that "religion should play an important role in shaping American values," only a bare majority (5l percent) of Jews agree. And while 65 percent of non–Jews wish to see the influence of religion increase in America, only 30 percent of Jews share those hopes.

There is a certain awkwardness in the Jewish posture here. Is the danger to Jews in challenging the feelings and sensibilities of so many of their neighbors in so sensitive an area not greater than that posed by the "slippery slope" of charitable choice or vouchers? Does not the absolutist posture of the Jewish establishment on separationism engender its own form of intolerance? For example, when Senator Joseph Lieberman called for religion to play a more pervasive role in the society shortly after receiving the Democratic Party’s vice presidential nomination, ADL head Abe Foxman warned him to stop making "overt expressions of religious belief while campaigning." Then, after the election, liberal columnist Leonard Fein, writing in the Forward, called on American Jews to repudiate Lieberman’s religious rhetoric. Does this intolerance of the historic interaction of religious and political rhetoric help the Jewish community or does it only isolate it? Regardless of whatever approach to constitutional doctrine community leaders wish to take, it need not give rise to an imperative of hyper–secularism.

While the mainstream of the Jewish community continues to cling to a strict separationist ideology as the gold standard of Establishment Clause juris prudence, the Supreme Court has been edging away from this position for some time. The Court has shown increased sympathy for the views of a number of constitutional theorists, including Philip Kurland, Michael McConnell, and Carl Esbeck, who have called for equal treatment for religion. Their arguments are summed up in what has come to be called the "Kurland Rule": if a policy furthers a legitimate secular purpose it is a matter of indifference whether or not that policy employs religious institutions.

Mainstream Jewish groups have opposed this development every step of the way. The Anti–Defamation League, for example, called the recent Good News v. Milford decision (which held that a Bible study club in upstate New York could not be banned from using a public school facility after hours) "a setback for religious freedom in this country and . . . contrary to the fundamental principle of church–state separation." Another Jewish body similarly expressed its "profound disappointment" in the ruling.

Still, there are small signs that the postwar Jewish consensus on strict separation is beginning to weaken. Acceptance of public funding for the secular aspects of religious schools—long popular among Orthodox Jews—has broadened. Speaking at a national conference on Jewish education convened by the American Jewish Committee, Jack Wertheimer, rector of the Jewish Theological Seminary and perhaps the leading non–Orthodox advocate of such aid, notes that it costs $420 million each year to educate today’s 200,000 Jewish day–school students. This figure exceeds half of the combined monies raised by all Jewish federations each year. Calling for a reexamination of the Jewish community’s traditional opposition to government assistance to parochial education, Wertheimer argues that government funding could be directed strictly to general education, not to the religion curriculum, thereby leaving the basic structure of church–state separation intact. Thus, a number of leaders of federations of Jewish agencies, the primary vehicle for social planning and fundraising in the Jewish community, have shifted their posture recently. For example, in response to Pennsylvania legislation that grants generous tax credits to corporations that make gifts to private and parochial schools, Philadelphia and Pittsburgh federations have recently prepared applications.

There are also indications that the intellectual underpinnings for absolute separation within the Jewish community are undergoing revision. "It has struck me," says Jonathan Sarna, the Joseph H. and Belle R. Braun Professor of American Jewish History at Brandeis University, "that the separationist ideal, essentially a theory of separate spheres, reflects an ideology that I and most of my friends have long since rejected. . . . Clearly the whole basis of strict separatism, with its assumption that religion and state should occupy completely differing spheres of life, [needs] to be rethought."

The terrain being mapped out today by proposals for government to directly fund churches, mosques, and synagogues for social welfare purposes is new and the results are uncertain. In this atmosphere of uncertainty, the critical response by mainstream Jewish bodies to vouchers and charitable choice is understandable. Also pertinent are painful memories of how Jews have been treated when church and state have been too closely intertwined. These fears cannot be ignored. Jewish leaders are acutely aware that there are some who would still like to make this a Christian nation in more than a demographic or sociological sense.

However, the "threats" posed to Jews by compassionate conservatism are quite minimal, if not nonexistent. If Jews allowed themselves some confidence in their own status as insiders, they would be more open to experimentation with these new church/government partnerships. If they worried less about a resurgence of religiously inspired bigotry and more about the desperate situation of hopeless people trapped in collapsed communities, they would show greater interest in compassionate conservatism—not to be sure, as a panacea, but at least as a promising possibility.

Almost a half–century ago, Will Herberg, whose Protestant, Catholic, Jew profoundly influenced the study of the sociology of religion in this country, mounted a lonely vigil against Pfefferian absolutism. Writing in Commentary, he declared that while it was possible to understand Jewish sympathies for a strict reading of the Establishment Clause, "such a stance would not, over the long run, prove beneficial." American Jews, he went on, "must rid themselves of the narrow and crippling minority group defensiveness that dominates much of their thought and behavior." Herberg’s advice has become newly pertinent as this country moves into a new century. And those who hope to contribute to realizing the potential of compassionate conservatism must begin to make this case to America’s Jews.

Murray Friedman is director of the Feinstein Center for American Jewish History at Temple University. Alan Mittleman is professor of religion at Muhlenberg College and director of Jews in the American Public Square, a project of the Center for Jewish Community Studies initiated by the Pew Charitable Trusts.