Consider the stunning fact that on June 27, it was a Jewish Supreme Court justice who so dramatically pinpointed the nature of America’s steaming conflict about religion and public policy.
The court ruled in on two separate cases involving church and state. In one case, four Justices held it permissible for the Ten Commandments to be displayed in a couple of public places. In the other, four justices held that such a display was not permissible in either place. Justice Stephen Breyer was the swing, voting “yes” in one case, “no” in the other. In so doing, he showed us one way we can avoid a religious civil war — and, at the same time, provided a clue to the kind of replacement this country needs for the retiring Justice Sandra Day O’Connor.
Some observers complained that if he had voted either “yes” or “no” in both cases, at least a consistent precedent for the future would have emerged. But he was not confused; he showed us one way we can proceed in order to avoid a religious civil war.
Of course, Breyer did not wield his crucial votes out of an explicit “Jewish” position. But there was a special Jewish interest in the issue. After all, Moses and the Ten Commandments were at the center of both cases.
Also, the issues of church and state constitute the chief domestic concern on the American Jewish agenda. National surveys and random dinner-table discussions suggest that the majority of American Jews are worried about what they see as the encroachment of “fundamentalist” religion on public policy. And a number of Jewish agencies were disappointed that Breyer had not voted “no” in both of these cases. However, many of these Jews and Jewish agencies might gain a more realistic perspective on these issues if they would carefully read Breyer’s conclusions.
Interestingly enough, Breyer began his opinion by quoting from another Jewish justice, Arthur Goldberg. In a 1963 Supreme Court case on the religious clauses of the First Amendment, Goldberg said: “No simple and clear measure … by specific application can readily demark the permissible from the impermissible … One must refer instead to the basic purposes of these clauses [which] seek to assume the fullest possible scope of religious liberty and tolerance for all [and] seek to avoid that divisiveness based upon religion that promote social conflict, sapping the strength of government and religion alike.”
That kind of raging social conflict is the nightmare for Jews, who, throughout history, have so often found themselves the ultimate butt of such a division. America is so religiously varied that the ultimate negative result is much more likely to be a kind of civil war that would unravel America — rather than the taking over of the country by some particular religious sect. This dramatic religious variety also presents the nation with the kind of extremely difficult conflict resolution that the Supreme Court has been attempting to mediate.
Towards that end, Breyer quoted Goldberg’s remarks in his decision. Since there is “‘no single mechanical formula that can accurately draw the constitutional line in every case,’ we have to look at the context. We have to make a judgment in each case to determine whether the dominant purpose and/or effect is to proselytize, to favor one religion over another, to divide — or whether there is a broader context, primarily nondenominational, a historical message reflective of a cultural heritage.”
The latter judgment is the one Breyer specifically applied in finding the posting of the Ten Commandments “permissible” in one case and not the other. A judgment may be wrong in a given case, but the “context” approach is still essential — rather than allowing “government to purge from the public sphere all that in any way may partake of the religious. Such absolutism is not only inconsistent with our national tradition, but would also tend to promote the kind of social conflict that [the Constitutional clause on ‘no establishment’] seeks to avoid.”
Several decades ago, the San Francisco Jewish community made such a “context judgment” when, contrary to the judgment of almost every other community in the country, it approved the seasonal placement of a menorah in Union Square. Although Breyer grew up in San Francisco, we can be sure that he did not get his inspiration from this local episode (nor from his participation, as a high school student, in a TV series produced by the local Jewish Community Relations Council.) But the organized Jewish community would do well to study his comments carefully as it takes positions on the difficult and dangerous religious conflict again growing in this country.
And the nation will be spared a lot of grief if the president and Senate will find a replacement for Sandra Day O’Connor with the same understanding that Breyer followed in this case. As another famous Jewish judge, Learned Hand, said about the Bill of Rights, it is not a blueprint, but “an admonition of moderation.”
Earl Raab is executive director emeritus of the S.F.-based Jewish Community Relations Council.