Book Review: D. Dallin's American Jews and the Separationist Faith

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 them—and 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 secularism—Thomas Jefferson—for 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, aid—materially or symbolically—religion, 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 secular—practically speaking, de-Christianized—politics. 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, separationists.

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 direction.

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 marginal—and possibly hurtful—initiatives 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 morality—it 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 Court.

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.


2002 The Federalist Society