Friday, May 9, 2014

Jubilees and Separation of Church and State

Jubilees and Separation of Church and State
May 9, 2014
Rabbi David Kaufman

This week’s Torah portion, Behar, is almost ideally suited to the Supreme Court’s decision this week concerning prayer at City Council meetings in Greece, New York. I do not say this simply because Leviticus Chapter 25 contains the words:

You shall observe My laws and faithfully keep My rules, that you may live upon the land in security.

These words, if applied to adherence to the US Constitution and Bill of Rights instead of religious doctrine, are the essential mission of the United States Supreme Court. No, instead I refer to the primary topic of this Torah portion, the Jubilee Year and what the Jubilee Year was all about. First, however, let me discuss the Supreme Court decision and its implications and then I will connect it to Jubilees.

Over the years, I have been and continue to become involved in advocacy for the separation of church and state. Reform Jews are particularly strong in their advocacy in that direction and many have expressed concerns about the recent US Supreme Court decision regarding prayers offered at city council meetings in Greece, New York. Such prayers have regularly involved the use of language specific to Christianity and often clearly appear to urge listeners to adhere to Christian beliefs. In fact, one would have to go out of his or her way to deny that Christianity is in fact the established religion of Greece, New York because all such prayers are given by Christians.

As I understand it, a solution was proposed in which it was argued that prayers could be offered as long as they did not advocate for a specific religion or that clergy of other faiths could be brought into Greece from other locales in order to provide diversity. The city challenged this argument which had been upheld by a lower court as a means to counter the de facto establishment of religion and the case went to the Supreme Court which decided in favor of Greece, NY, sending shock waves through the Separation of Church and State advocacy community.

In recent years, the discussion of Separation of Church and State has primarily focused on removing religious influence on state based functions. Essentially, such efforts have promoted the concept of a secular government, a government devoid of religious based action and bias. "Freedom from Religion" has been at the basis of this movement which argues that the basis of the anti-Establishment clause of the US Constitution mandates that view.

It would make sense based on this understanding to ban all official prayers in the context of governmental activities such as city council meetings or proceedings of state or federal legislatures for example. One must question whether or not prayer can ever be devoid of advocacy for a particular kind of faith if not for a particular faith. To argue that generic theistic prayers are acceptable but prayers that are specifically Christian are not would certainly raise concern about the violation of the free exercise clause at a minimum and potentially also the right of Free Speech.

The First Amendment reads:

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. 

Politically, Progressives tend to stress the importance of the anti-Establishment clause, whereas Conservatives tend to stress the importance of the Free Exercise clause. Our Supreme Court currently leans 5-4 Conservative and that almost by itself explains the decision handed down this week, though I will explain in more detail. There are many cases where the two clauses conflict and the case of Greece, New York is certainly one of them.

To over simplify the situation, what happens in Greece, New York regularly appears to violate the establishment clause with regular clearly Christian prayers being offered, while not violating the free exercise clause because every minister chooses his or her own wording for the prayer offered. Whereas the solution proposed by those opposing the City Council's practice would appear to adhere to the anti-establishment directive, preventing a situation in which only Christianity is represented or would violate the free exercise clause by mandating the absence of faith specific language.

In this specific case, the practice of offering a prayer at all was never questioned. The Greece, New York case did not address whether or not such prayers should ever take place, the question before the court was based on the proposed solution and seems to have been about how one may pray rather than being about whether or not one may pray in that context.

To put this general argument into the context of Separation of Church and State specifically, two concerns arise:

1.                 Should there be prayer at state functions? This action clearly violates "separation", but does not necessarily violate "anti-establishment," unless no diversity is present in which case it would appear to do so.
2.                 Should there be restrictions imposed on the religious content of prayers offered? Doing so would appear to violate the Free Exercise clause.

Here's a direct quote from Justice Kennedy's opinion in the Greece, NY case:

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and sensors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.

This is in accord with the Free Exercise clause, i.e. keeping state out of religion. Telling a minister that he cannot represent his tradition would in fact be state interference in religion and, I would add, which Kennedy does not, in the context of both mandating prayers and requiring basic God language, could functionally in so doing establish Deism as the state religion which would be a violation of the anti-Establishment clause as well.

As I see it, the question for advocates of Separation of Church and State is truly focused on whether or not such prayers should take place at all with the clear understanding that the context of such prayers being offered overwhelmingly or even exclusively by Christian clergy will necessarily promote the establishment of Christianity as the religion of the government.

The fact that it is not within the court's purview to require the council to bring residents of other cities to offer prayers so as to provide diversity and avoid de facto establishment of Christianity as the faith of the city and that the court rightly defends the free exercise of religion does not excuse the fact that without diversity, the existence of prayers of similar nature from a single faith establishes that faith as the government's religion. In other words, the court cannot demand diversity or determine the content of prayers, but neither can it allow the establishment of a government backed religion which is the case in Greece, New York.

This case was about how prayers were offered. It was a Free Exercise case, even though many observers put it in the context of Establishment. The next case will argue that without accommodation for diversity, the allowance for prayer in this type of context is de facto establishment. My belief as both an advocate for the Separation of Church and State and for the Free Exercise of religion, is that in order to follow the US Constitution's directive, a city council will have to either provide diversity, something that the courts cannot and honestly should not mandate that it do, or not hold such prayers at all as such prayers offered without religious diversity necessarily results in establishment, something that the court could in fact demand based upon the anti-Establishment clause.

So how does this all connect to the Jubliee Year? The Jubilee Year was in theory a time of restoration. Land that had been sold would be returned to its original owner, debts would be forgiven, slaves simply declared free. The text tells us, “The land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me,” and “For it is to Me that the Israelites are servants; they are My servants, whom I freed from the land of Egypt.”

The Jubilee Year is about the understanding that things change over the years, that what should be, often is not. It is unquestionably true that it has become traditional for the primary prohibition of the 1st Amendment to the Constitution to be given lip service while being egregiously violated. There is no doubt that it has been the custom in many places in America for Christian prayers, regularly with a limited range of types of Christianity represented, to be offered at events and meetings held by institutions which in theory should be subject to the both the liberties and their restrictions enunciated in the US Constitution and Bill of Rights.

The argument that custom and tradition makes law is certainly one found within the Jewish tradition. The rabbis of old treated established customs as if they were dictated by Moses at Sinai. But that is precisely where Jubilees comes into play.

The Jubilee Year is about warning us that what should be is not what is, that what has developed over the decades is not necessarily the way things should be, that customs that have developed over time, particularly in regard to the treatment of those with less power by those with more power, should not be allowed to violate the laws upon which they were based.

Sabbatical years, the seventh year, and the Jubilee year, the 50th year, may have been part of adjusting the calendar to bring the 364 day solar calendar into line with the reality of the cycling of days and seasons. There is no historical evidence that the Israelites ever put the rules of the Jubilee year into practice, e.g. that slaves went free or that land was returned. We have no evidence of that.

What we do know is that the idea that original intent matters in our tradition and that the Torah, unlike later rabbinical tradition, maintained the concept that customs that have developed over time should not be allowed to defeat or obfuscate the original intent of the laws upon which they were based. How much more directly could a Torah portion be in regard to this week’s Torah portion in which Justice Kennedy, offering the majority opinion, quoted an earlier case, Marsh vs. Chambers saying, “the Establishment Clause must be interpreted ‘by references to historical practices and understandings’.” This is, of course, similar to the fact that the concept of “people” in the Constitution not all that long ago did not necessarily include those who by many were deemed less than people, slaves.

No, it is not reasonable to argue that “historical practices and understandings” or customs and traditions have a veto.

All this said, if you wonder whether or not the framers of the US Constitution understood the meaning of the Jubilee year or that it had importance to them, this much is beyond dispute, the words of Leviticus 25:10, from this very Torah portion, are etched on the Liberty Bell:

Proclaim liberty throughout the land unto all the inhabitants thereof.

The words that immediately follow them, “It shall be a Jubilee for you.”

Shabbat Shalom.

1 comment:

Ira said...

The most troubling aspect about the ruling in Greece is exactly as you mentioned, that history and custom somehow trump the Establishment clause. So much for the strict constructionist argument that the Constitution is the first, last and only word.

The second most troubling aspect is that the court seems perfectly willing to subrogate the Constitution to the whims of majority rule: If the majority want a Christian (or Muslim, Jewish or Hindu) prayer, then let that prayer be said.

Both of these establish a dangerous precedent that is chilling in its possible consequences. -- Ira Lacher