Breaching the Wall Between Church and State

A case currently before the Supreme Court is one that Jewish citizens should take very seriously…despite the fact that it appears to have nothing to do with Jews at all.

The case has to do with Lutherans, and specifically with a church in Missouri, the Trinity Lutheran Church in the town of Columbia. At first blush, the whole issue seems wholly unremarkable. The church operates a daycare center and a preschool on its premises, and maintains a playground in which the children can play outdoors. But the playground has a surface that could be dangerous if a child falls, and so the church had the idea of replacing the hard surface with a rubber one. That sounded like a sensible plan forward and so, upon hearing that the State of Missouri was actually offering grants to playground operators to make that specific improvement using the rubber salvaged from recycled tires, the church applied for one…only to be turned down cold because the state’s constitution specifically prohibits the state from spending any public funds “directly or indirectly in the aid of any church.”

This understandably irritated the church leadership and prompted them to sue the State of Missouri on the grounds that the state’s prohibition was in violation both of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. To a non-lawyer like myself, neither argument feels too compelling. The First Amendment forbids Congress from “prohibiting the free exercise” of religion, but that feels like quite the stretch here: the State of Missouri is not forbidding the church from having a rubberized surface in its playground, just declining to pay for it. Nor is it obvious in what sense having one or another sort of playground could be described as the “exercise of religion” in the first place. Moving along, the Equal Protection Clause argument prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws,” which means that the law must always be enforced evenly and fairly, and specifically that the rights and freedoms enshrined in our laws cannot be imagined to apply to some citizens but not to others. But bringing the Fourteenth Amendment to bear in this context too feels a bit tenuous: to say that the State of Missouri is denying equal protection under the law to the members of the Trinity Lutheran Church by declining to buy them something sounds like weak argument to me! And then, just to muddy the waters a bit more, the Governor of Missouri, Eric Greitens, announced last week that Missouri will no longer discriminate against religious organizations in the evaluation of grant applications, including applications for improvements like the resurfacing of outdoor playgrounds. That sounds as though it obviates the need for a court decision, since the change in policy has in effect decided the matter in the church’s favor. But neither side apparently wishes for the Supreme Court not to reach a ruling, the one side fearing a change back to the earlier policy under some future administration, and the other side—in effect defending a state policy that no longer exists—feeling themselves nobly fighting to maintain the traditional separation between church and state. This, is, however, hardly a question just for Missourians to worry over.

To understand the larger picture here, it’s necessary to know something about the so-called Blaine Amendment. This goes back a long ways. In 1875, President Ulysses S. Grant called for a constitutional amendment that would formally prohibit the federal government from using public money to fund “sectarian schools,” by which expression he meant non-public schools run by religious organizations. Shortly after that, Congressman James G. Blaine, a Republican from Maine, proposed just such an amendment. It was, to say the least, contentious. Congress, in fact, was split: the bill passed in the House of Representatives by a whopping 173 votes, but failed to clear the two-thirds majority in the Senate necessary for a proposed amendment to be sent to the states for ratification.  There is, therefore, no specific constitutional amendment that prohibits the use of public money to fund religious schools.

But on the state level, things were and are different. In the wake of the failure of the Blaine Amendment on the federal level, all but ten of the states approved similar amendments to their own state constitutions. (For the record, the ten are Arkansas, Connecticut, Maine, Maryland, New Jersey, North Carolina, Rhode Island, Tennessee, Vermont, and West Virginia.) And most of those amendments remain in effect to this day. An effort to get rid of the "Blaine" amendment in Florida in 2012, for example, failed, as have similar efforts over the years in New York, Michigan, Oregon, Washington, Alaska, and Massachusetts. Only one state, Louisiana, had such an amendment once but doesn’t now, but that didn’t come about as the result of a successful effort to repeal the law but rather by the adoption in 1974 of an entirely new state constitution. As far as the Missouri playground goes, then, it is in a state that has a “Blaine” amendment in its constitution and that theoretically prohibits the state from approving the expenditure of public funds for improvements to religious institutions, including schools.

Judging the matter from where I personally sit and look out at the world is complicated.

On the one hand, the children who attend the preschool in the Trinity Lutheran Church are citizens of Missouri whose parents pay the taxes that fund the government’s initiatives on behalf of the state’s citizenry, including its children. So, you could argue, why shouldn’t they benefit from a program designed neither to foster religion in general nor to promote any specific kind of religious observance, but merely to make some of Missouri’s children a bit safer when they play outdoors? When put that way, it sounds more than reasonable for the church to get its grant! On the other hand, though, the arguments against using public money to redo the surface of that playground also sound cogent to me: by not extending grant money to churches even when they operate in a way that does not specifically promote religion, Missouri is—or, rather, was—guaranteeing that none of its citizens would end up indirectly breaching the traditional war between church and state by being forced to see their tax money funneled to religious institutions that are traditionally supposed in our country not to rely on public funds.  It’s also interesting to me that none of the authors of any of the essays and articles I’ve read in the last week about this topic appears to know much about preschools…or at least not enough to wonder out loud if it is conceivable that a preschool or a daycare run by a church does not teach religion to the children enrolled there. We have a preschool at Shelter Rock and we certainly do our best to teach the boys and girls about our festivals, our rituals, and the basic tenets of our faith as part of the educational program we offer. Are we supposed to imagine that the programming at the church’s preschool does not teach, thus promote, Christianity at all? Not a single Bible story? Not a tiny Christmas tree? I don’t think so!

Related to all of this—and not even in a particularly subtle way—is the whole question of parochial school vouchers.

For all the years Joan and I lived in British Columbia, we found it natural for the province—the Canadian equivalent of the state—to pay for the secular education of children in Jewish day schools and other parochial settings, thus leaving their parents’ tuition payments to cover the costs connected with the specifically religious instruction also offered by the school. This arrangement is not at all contentious: British Columbians are all used to the idea that it only makes sense that the children of all citizens who pay their taxes receive the benefit of a free secular education, not just those who send their kids to schools run by the province and not by religious societies. (Why this only applies in some provinces is one of the mysteries of Canadian life, one with roots in the original efforts of the nation’s founders to bring Quebec into the original confederation in 1867. Perhaps I’ll write about that some other time.) And it’s not a bad arrangement at all: all children are served, all taxpayers receive some bang for their buck, and the province plays no role in the religious education of the children in parochial schools.

Here, on the other hand, the wall between church and state is supposed to be impenetrable and fully opaque. The siren call of tuition vouchers—in effect, the imposition of the Canadian system on the American one—is more than seductive…surely, we would all like nothing more than for day school education to cost less, ideally dramatically less, and thus become accessible to larger numbers of children! Could it be possible for the government to underwrite the cost of children’s secular education without breaching the wall between church and state? That, and not whether there should be such a wall in the first place, is the right question for our Jewish community to be asking.

I know from first-hand experience that such an arrangement can and does work in B.C. But it is also true that, at least in my opinion, no good can ever come to the Jewish community from any effort to breach the wall meant by our Founders to keep the spiritual and religious lives of Americans completely away from government control. We have all made our peace with the petty chinks in that wall that characterize American life at its least inclusive: a calendar of federal holidays that specifically includes Christian festivals, the almost universal presence of Christian symbols in post offices and other governmental venues in the weeks leading up to Christmas, the apparently annual White House seder (I’ll write about my strongly negative feelings in that regard on some other occasion), federal postage stamps celebrating the religious holidays of some faiths (including our own) but not others, and the use of Bibles as part of the oath-taking ceremony in court and in public investiture ceremonies, including the presidential inauguration. (To be fair, not every president has taken the oath of office with his hand resting on a Bible. But only John Quincy Adams, Franklin Pierce, and Theodore Roosevelt chose not to do so.)  We can and do live with all of that. But diverting public funds to underwrite church-run schools, daycare centers, youth groups, senior centers, etc., is in a different category entirely and is not something to which we should quietly acquiesce.

The Canadian system may well be something we could and should consider. But, in the end, the question is whether that could be done without weakening the wall our founders erected between church and state, which consequence will never be in our best interests. We are a tiny people who constitute less than 2% of the population in these United States. There are ten times as many American Catholics, and almost twenty-five times as many American Protestants, as there are American Jews. It’s true that we occupy a much larger place in the American psyche than our numbers would appear to justify. But, in the end, we are a small minority that flourishes precisely because the government keeps out of religious affairs and leaves us to chart our own course forward as we see fit. It will always be in our best interests to maintain that specific aspect of the status quo. The Supreme Court should not work at cross-purposes with our founders’ clear vision of not only a division between church and state, but an ironclad wall between the two.

Yom Hashoah 2017

This coming Monday, April 24, is Yom Ha-shoah V’ha-g’vurah, Holocaust Remembrance Day. (That last part, the Hebrew word v’ha-g’vurah, adds a reference to those who bravely resisted and did what they could to impede the progress of the Nazis’ war against the Jews. Why it is so routinely left off the day’s name, particularly in the diaspora, is an interesting question in its own right, one I’d like to address on another occasion.) But, whatever its full or less full name, the day is almost upon us. Again. Where it came from is slightly obscure, but not that interesting a tale: the need was felt early on to create some sort of memorial day on which all those who left behind no one at all to mourn their passing could jointly be remembered by the Jewish people as a whole, and the date of the 27^th of Nisan was set into Israeli law in 1953 with an act jointly signed by Prime Minister David Ben Gurion and Israel’s second president, Yitzchak Ben Zvi, and quickly adopted in Jewish communities around the world. It and I are therefore exactly the same age. Readers who know me personally will find that more than reasonable.

Choosing the right date was a contentious business in the beginning. The original idea was to fix Yom Ha-shoah on the day in 1943 that the Warsaw Ghetto Uprising began. The problem there was one of practicality rather than anything else: the uprising began on Erev Pesach, and it simply didn’t make sense to establish a national memorial day on the day before Passover when the entire Jewish people would be otherwise occupied and majorly distracted. Other days were proposed, among them Tishah Be’av, the midsummer fast commemorating the destruction of Jerusalem both by the Babylonians in the sixth century BCE and the Romans in the first century CE, and the Tenth of Tevet, a minor wintertime fast day associated with the onset of the siege against Jerusalem in biblical times. Neither ended up being adopted in Israel, but other dates have gained currency outside the Jewish world. Of these, best known probably is International Holocaust Remembrance Day, recognized by the European Union since 1950 and by the United Nations since 2005, and scheduled annually on January 27, the day Auschwitz was liberated by the Red Army in 1945.  Other nations too have formally adopted the January 27 date, including Germany, the U.K., Sweden, the Czech Republic, Greece, and Italy. Poland, for obvious reasons, sticks with the date of the Warsaw Ghetto Uprising according to the secular calendar, April 19. Austria observes its Memorial Day against Violence and Racism in Memory of the Victims of National Socialism on May 5, the anniversary of the liberation of Matthausen by the American Army in 1945. A handful of other nations have adopted still different dates; some Canadian provinces have—in my own opinion rather touchingly—adopted the Jewish date, 27 Nisan, as an annual day to remember the k’doshim of the Shoah.

What surprises me still, even after all these years, is the ambivalence with which the Jewish world itself approaches the one day on the calendar that you would think all would adopt emotionally and wholly unambivalently. Yet there is no agreed-upon liturgy for the day. The Megillat Yom Ha-shoah (“Yom Ha-shoah Scroll”) published jointly by the Schechter Institute of Jewish Studies in Israel and the Rabbinical Assembly in 2003, is in use in some Jewish communities but remains unadopted, even unknown, in most venues. There is no agreed-upon addition to the prayer service akin to the paragraphs added for other fast days, including minor ones, or for Chanukah and Purim. It is not anyone’s custom to fast on Yom Ha-shoah, despite the fact that all the days formally connected to the siege of Jerusalem in ancient times—days like the Tenth of Tevet mentioned above—are observed in traditional communities precisely as fast days. Nor has anyone invented any sort of ritual for Yom Ha-shoah other than the custom within Conservative Jewish communities of lighting a yellow twenty-four-hour memorial candle to memorialize the dead and to recall the yellow stars so many were forced by their German overlords to wear before being sent to their deaths. There are thus many Jewish communities, including some otherwise characterized by intense devotion to punctilious observance, in which Yom Ha-shoah passes more or less wholly unnoticed.

One obvious answer, although not one I personally find all that compelling, is that the 27^th of Nisan is not the anniversary of any specific event and was chosen primarily because it falls a few days after Pesach and a week before Yom Ha-atzma∙ut, Israel Independence Day. That may sound a bit random, but the choice was neither accidental nor arbitrary. Indeed, the parallel between ancient and modern times was precisely the point: the week of Passover celebrates the redemption of the Israelites from bondage to Pharaoh in Egypt and their flight to freedom, and the week between Yom Hashoah and Yom Ha-atzma∙ut was similarly meant to memorialize the passage from the depths of catastrophe the Jews faced in Nazi-dominated Europe to the security offered by the independent State of Israel and its mighty army.  Even the specific Zionist orientation that animates the notion of the Jewish people moving from near annihilation in Europe to the exhilaration of independence in a free Jewish state in the Land of Israel has its ancient parallel in the Passover story: the Israelites, for all we Americans like to imagine them longing for freedom in the modern American sense, specifically did not long to become free citizens of some future Egyptian republic, but specifically wished to leave Egypt all together and settle in the land that God had promised to their ancestors, the Land of Israel, and there to establish themselves as a free people in its own land.

Is the ill-ease engendered by that kind of thinking about the perils of diaspora life the reason our American Jewish community has failed to find a way to make Yom Ha-shoah into the kind of annually cathartic day of remembrance it deserves to be? It might be!

We—and by “we” I mean particularly we American Jews—have, after all, managed more or less totally to suppress the “real” meaning of Passover and to replace it with the yearning for human rights and for personal freedom.  Nor do we ever stress the fact that Passover by its very nature promotes the view that the need for the Israelites to be redeemed from slavery in the first place was a function of their own ancestors’ tragic error of not returning to Canaan after the famine that brought the original seventy to Egypt in the first place ended a mere five years after their arrival.

When Jacob died a dozen years after the famine ended, the Bible reports that a huge entourage of Israelites—a maḥaneh kaveid me∙od—solemnly bore his body back to Canaan. That story, generally skipped over by most as filler between the extended story of Joseph in Egypt and the account of Israel’s enslavement and subsequent liberation from bondage, is worth considering carefully. First, we read of Jacob’s death at ripe old age, unimpressive only by biblical standards, of 147. Then, after a forty-day mummification procedure and a subsequent seventy-day period of formal mourning, Joseph approaches Pharaoh obliquely through some palace officials to ask permission to return his father’s body to Canaan for burial in Hebron in the sepulcher of his grandparents and great-grandparents, and where Jacob himself had buried his wife Leah. Why Joseph, the grand vizier of all Egypt and Pharaoh’s second-in-command, couldn’t just address Pharaoh directly with such a rational, easily justifiable request is not made clear. Nor is it explained why, after being approached obliquely, Pharaoh doesn’t respond similarly indirectly…but the text couldn’t be clearer: Joseph, strangely and uncharacteristically reticent, approaches Pharaoh through an intermediary, but Pharaoh, seeing no reason for go-betweens, responds directly to Joseph almost as a friend. “Go up to Canaan,” he says reasonably and generously, “and bury your father as you swore to him you would.”

Nor does the Torah omit to describe the entourage: Joseph went to Canaan accompanied not only by representatives of the pharaonic court plus “the elders of Pharaoh’s house” and “the elders of all Egypt,” but also by the entire House of Joseph, including his brothers and his father’s entire household. Indeed, the Torah makes a specific point of saying that every single adult Israelite traveled to Hebron to participate in Jacob’s burial, leaving behind only the livestock and the children.

By leaving their children behind, they were obviously signaling their intent to return. But was that the only course open to the House of Israel? Why couldn’t they have taken the children with them and just not returned? They weren’t slaves, after all, but still welcome guests at this point in the story. And even if Joseph himself would possibly have found it difficult simply to give notice and abruptly leave Pharaoh’s employ, surely a man of his unparalleled power could have arranged for his family to return to their homeland. The famine that brought them to seek refuge in Egypt, after all, was over! And that surely had been the plan in the first place!

But none of that happened. Joseph, his brothers, and their entire entourage simply turned around after the burial and went back to Egypt. A few lines later, the Book of Genesis ends. And then Exodus begins with the arrival on the scene many years later of a Pharaoh who felt no sense of allegiance to Joseph’s people and who, fearing their huge numbers and questionable loyalty to their host nation, set himself to thinning their numbers and enslaving them. The obvious question of why the Israelites chose to live on in Egypt instead of returning to their homeland in the course of the scores of years that passed between Jacob’s death and their enslavement is left unasked and unanswered. (Just to make that a bit clearer, Joseph was fifty-six years old when Jacob died. He himself died fifty-four years later…and the Pharaoh who enslaved the Israelites came to the throne after—perhaps even long after—that. So there was a very long period of time when the Israelites could have gone home. Yet none did.  Nor is the argument that they had to stay because God had predicted to Abraham that his descendants would be enslaved in a land not their own for four centuries all that compelling; they could surely have left if they had wished to and allowed the divine prediction to play itself out some other way!

As we pass from the last days of Passover to Yom Ha-shoah and then to Yom Ha-atzma∙ut, I am always reminded of the way the past inheres in the present…and how particularly this is true when I ponder the patterns that repeat over and over in Jewish history. The State of Israel does not exist because of the Shoah and would surely have eventually come into existence anyway. But the notion that the precise circumstances that led to independence were integrally related to the catastrophe that decimated European Jewry during the Second World War does not leave me alone either. In the end, I think that the 27^th of Nisan was just the right date: commemorating no single event, the date is suggestive of the Passover journey that precedes it and the week that leads forward to Yom Ha-atzma∙ut. Both could be rightly characterized by the Haggadah’s expression of a trajectory from g’nut to shevaḥ, from degradation to redemption. And both deserve to be considered thoughtfully and taken deeply to heart by all who would feel ennobled, not merely damned, by thinking of themselves as situated at the precise fulcrum between the past and the future, between history and destiny.