Gerard V. Bradley*
Was I scared floating around in a little yellow raft off the coast
of an enemy-held island, setting a world record for paddling? Of
course I was. What sustains you in times like that? Well, you go
back to fundamental values. I thought about Mother and Dad and the
strength I got from themand God and faith and the separation
of Church and State.
George Bush, on the 1988 Campaign Trail.
If there is a dogma in American public discourse it is that dogma
is not permitted in American public discourse. That is why candidate
Bush, realizing the "G" word had passed his lips, hastened
to reassure his listeners (disingenuously, one hopes) that his god,
at least, was apolitical.
Sing your hosannas to the grand oracle of American secularismThomas
Jeffersonfor bequeathing us the separationist mantra. He coined
(or gave renewed currency to) the phrase in a letter to a band of
Connecticut Baptists, opining that the Constitution enacted "a
wall of separation between church and state." Our third President
preached to the choir: Baptists have long adhered to the most extreme
interpretation of the separationist faith on the American scene.
Except, almost certainly, for American Jews. Public authority may
not encourage, foster, aidmaterially or symbolicallyreligion,
even if it would do so without discrimination among particular religious
beliefs or institutions. This is the separationist faith. It was
revealed by the Supreme Court in the 1947 Everson opinion. (That
is "revealed," not reiterated; pace Jefferson, Everson
falsely construes the First Amendment.) American Jews were present
at the creation (Felix Frankfurter was shadow craftsman of Everson),
and heatedly embraced it, at least through the 1950's and 1960's.
In fact, Jewish support may even have been essential to the judicial
separationist project. At least Leo Pfeffer, veteran Supreme Court
litigator on behalf of the American Jewish Congress, thought so.
Pfeffer said in 1966, "Our absolutist policy has now become
the supreme law of the land through a series of decisions to which
our test cases, briefs and other writings contributed substantially."
Some Jewish separationists no doubt were genuine apostates, giving
up Judaism for liberalism. Others assimilated, more or less consciously,
for less worthy motives. Of these sorts of folks Irving Kristol
writes, "One does get the impression that many American Jews
would rather see Judaism vanish through intermarriage than hear
the President say something nice about Jesus Christ." In any
event, it is easy to appreciate the appeal to Jews, especially in
1947, of a secularpractically speaking, de-Christianizedpolitics.
There was a time when virtually all American Jews, regardless of
denomination and degree of commitment to Judaism, spoke univocally
on matters of church and state. They were, virtually to a person,
David Dallin, an ordained rabbi and professor of American Jewish
history at University of Hartford, writes in his introduction to
this important book, "American Jewry (no longer) speaks with
one `official' voice on the issues of religion and public life."
Dallin has been for several years at the center of an increasingly
influential group of American Jews engaged in a "substantial
reexamination" of the separationist faith. Other members of
this group are contributors to this volume, including Hadley Arkes,
David Novak, Midge Decter, Marc Gellman, and Jerry Mueller. They
have rejected what Richard Neuhaus calls the "naked public
square." This "growing minority" (by Dallin's calculation)
of American Jews has moved in a pro-religion or accommodationist
To explore and give shape to this heterodox movement, Dallin asked
38 prominent Jews these questions: "What ought to be the role
of religion in American public life? How has your thinking on this
question changed (if indeed it has changed)?"
Their responses, ranging from about two to six pages, along with
Irving Kristol's Afterword, make up The Separationist Faith. All
of the contributors are most concerned about the de-Judaization
(exogenous marriage, lax ritual observance, moral decay) of American
Jews. This, it seems to me, is the discussion's center of gravity.
But it is not its pivot: Several contributors (Barry Cytron, Sam
Rabinov, Cynthia Ozich, Marc Stern, to name a few) hold tight to
the separationist faith of their fathers. If the problem is lack
of Jewish observance in the home therein lies the solution. As Stephen
Bayme puts it, "efforts to enhance Jewish life ought to be
aimed at enabling Jews to partake of the joys of Judaism in their
private lives, rather than at marginaland possibly hurtfulinitiatives
to weaken church-state separation."
The separationist paleos (Rabinov, et al.) deny that de-Judaization
of Jews is meaningfully abetted by the naked public square, at least
to an extent significant enough to risk . . . what? The answer uncovers
one pivot. The authors' positions depend, on both sides, on an (implicit)
estimate of American Christians: If the wall of separation were
breached, what are they likely to do?
Without gainsaying their opinion of Christians, one may still question
the paleos' dogmatism. Indeed, they seem to rely on contradictory
assumption: On the one hand, a pro-religion public square cannot
be expected to help Jew be Jewish, yet the naked public square works
to make Christians more tolerant of Jews. In my view, the naked
public square does change religion. I borrow an expression from
Bernard Loneirgan (who deployed it in an entirely different context):
The trick is to control the riverbed (the cognitive status of religious
claims) over which any stream (the substance of the various religions)
must flow. Donna Robinson Devine (no paleo) captures this notion
in one of the volume's best essays, (I especially recommend also
those by Alan Mittleman and Jerrold Auerbach):
American values have weakened rather than strengthened traditional
Jewish identity. As much as America's principles have secured life
and livelihoods, they have imposed a single perspective on religion
as if it were universal. The judicial system defines the religious
sphere, but in countless ways the school as much as the church or
synagogue imparts critical assumptions about what religion is and
means. Similarities are emphasized as diverse religious cultures
are placed within common categories. In that respect, Jews have
ceded the power to conceptualize their own religious tradition to
America's public arena.
The paleos' public/private divide evaporates in the face of the
trigger of reconsideration for several of the new breed (notably
Murray Friedman, Richard Rubenstein). That trigger is the Jewish
Day School movement. As David Novak puts it, "Schools are public
institutions, even if they do not receive public funds . . . they
do receive public accreditation and other types of official recognition."
According to Novak, this sort of education is a better source of
Jewish identity than that available after the state school has closed
for the day. In light of possibly prohibitive costs, prevailing
Establishment Clause strictures against aiding parochial school
are bound for reconsideration.
A decided majority of the respondents are accommodationists. Given
the premise of the volume, that makes for a lot of conversion stories.
The occasional contributor (Sandy Levinson of Texas Law School)
moved rightward, due to perceived incoherence in his separationism.
Levinson, in other words, has not fundamentally reordered his thinking
on religion in public life (which is, by the way, a mild form of
separationism). Most of the accommodationists have engaged in deeper
reassessments of a thoroughly secular politics.
There is still another aspect of the de-Judaization question that
divides the "paleos" from the emerging minority. That
is the privatization of the good that is part and parcel of the
naked public square. Dallin raises the question in his introduction.
The naked public square is bereft both of religion and moralityit
is "morally neutral." By this view, neutrality among religions
is not, therefore, the key characteristic of Establishment Clause
doctrine. It is rather neutrality between religion and "irreligious"
or "nonreligion," itself an aspect of a broader neutrality
on all questions of the good. This is the antiperfectionist liberalism
of Rawls, Ackerman, Dworkin (more or less) and, alas, the Supreme
Is this moral nakedness good for Jews? Is it a cause of de-Judaization?
David Novak thinks the latter, and I think he is right:
If the public realm is where the important moral issues are decided
(important being defined as receiving more effort and attention),
and if Judaism is something private, Judaism then seems to become
something of secondary moral import at best. However, Judaism does
not survive very well, let alone thrive, in an atmosphere where
it is not the primary moral authority in the lives of Jews.
Novak's is one part of a complete answer. The morally neutral public
square undermines the moral life of Jews. The other part is supplied,
in so many words, by several contributors. There may be cause for
concern among Jews (and other minority religions) in a "pro-religion"
regime dominated by Christians. But if Christians give us pause,
what of post-Christian nihilists? Are Jews really safer when the
Golden Rule has been discarded in favor of "do your own thing,"
or "just do it?"
From my reading of Separationist Faith, the paleos have no serious
counter-argument to Novak. Until they produce one, we should expect
(and hope) for more Jewish conversions to the new accommodationism
on religion and public life.
*Gerard Bradley is a professor at Notre Dame Law School.