Kol Nidre 5783 -- Religious Freedom

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Losing My Religion (REM) / lyrics by Michael Stipe

Oh, life is bigger it's bigger than you and you are not me
The lengths that I will go to 
The distance in your eyes
Oh no, I've said too much
I set it up

That's me in the corner, that's me in the spotlight
Losing my religion trying to keep up with you and I don't know if I can do it
Oh no, I've said too much I haven't said enough

[Chorus]

I thought that I heard you laughing
I thought that I heard you sing
I think I thought I saw you try

As many of you know, before I became a rabbi I was a film librarian/archivist working at a variety of institutions around the Washington DC area.  The last few years I lived in DC I worked as Head of Film Cataloging at the Library of Congress near my home on Capitol Hill.  Before that, I commuted out to College Park, Maryland where I worked with the film and video collections first at the University of Maryland Libraries and then at the National Archives. 

The commute out to College Park from Capitol Hill took twenty-five minutes. It was of course a reverse commute, that went against rush hour traffic coming in to the city. The route was mainly local roads and not exactly the most scenic commute I’ve ever had. 

However, on that commute, there was one interesting site that often caught my attention, in part because it was placed smack in the middle of a traffic circle at the crossroads of Route 450 and Route 1 in Bladensburg, Maryland. I drove around that traffic circle every day of my commute and frankly it was hard to miss the 40-foot tall concrete cross erected in the middle of that traffic circle and known as the Bladensburg Cross, or simply the Peace Cross.

Since 1925, this cross has stood as a tribute to 49 local soldiers who gave their lives in the 1st World War. 89 years after the dedication of the Cross, a lawsuit was filed, claiming that the memorial, which sits on public land—was offensive. The lawsuit asserted that the expenditure of public funds to maintain the memorial violated the Establishment Clause of the First Amendment-- a clause that prevents government endorsement of a religion.[1] In other words, placing this cross on public land, could easily give the impression that the government endorsed Christianity – since a cross is a known symbol of Christianity. The respondents of the lawsuit asked the Court to relocate or demolish the Cross or at least remove its arms so it wouldn’t look like a cross. The 4th Circuit of the U.S. Court of Appeals agreed with that assessment.

One of the Constitution’s most important declarations of freedom is stated in the 1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Other freedoms covered in the 1st Amendment include freedom of speech, the press, and peaceful assembly.[2]  

The 1st Amendment also includes two clauses. As I mentioned above, the Establishment Clause prevents government endorsement of a religion and the Free Exercise Clause gives citizens the freedom to practice their religion.  Although today these two clauses are widely embraced, they were radically new at the time of our nation’s founding.

The Puritans may have left England for the new world to escape the restrictions of the Church of England, but once they arrived here, they tended to persecute others as a way to advance their religion. When they threw Roger Williams out of Massachusetts because of his liberal ideas on religion, Williams headed to Rhode Island where he established a new community that did not require individuals to follow a particular religion and the government had no control over religious beliefs.  William Penn, George Mason, and James Madison also wrote basic concepts of religious liberty into Pennsylvania and Virginia laws. [3]

However, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, New Jersey, North Carolina, South Carolina, and Vermont mandated all public officials to be Protestant Christians. Several states went further and required a sworn adherence to Christianity.  Even in religiously liberal Rhode Island, Jews were not allowed to vote, but their status as merchants and economic contributors protected them from overt discrimination.[4]

In any case, the Establishment and Free Exercise clauses represented an implicit promise to Jews and other minority faiths, that the New World would give them the opportunity to exercise their faith freely. In a letter to the Hebrew Congregation in Newport, Rhode Island, President George Washington wrote: “For happily the Government of the United States gives to bigotry no sanction, to  persecution no assistance.”[5]

But, even with the adoption of the First Amendment, some leaders continued to insist the United States was a Christian nation. Daniel Webster argued before the Supreme Court that “the preservation of Christianity is one of the main ends of government” and called schools quote “for the propagation of Judaism” unquote, illegitimate.  In the 1892 case involving the application of a federal law forbidding the importation of foreign contract laborers, Justice David J. Brewer opined “We find everywhere a clear recognition of the same truth: This is a Christian nation.” [6]  
 
Religious tolerance was enshrined in the Constitution thanks in large part to the influence of British philosopher John Locke and our 4th president James Madison. Locke believed that government–imposed religious beliefs stifled the freedom of those in the minority. Back in America, it was James Madison who drafted the 1st Amendment.[7]  

With the implementation of both the Establishment and Free Exercise clauses, it would seem the First Amendment’s goal of protecting freedom of religion would not be controversial.  But, when we look more closely, for example at the Bladensburg Cross example, it becomes a bit clearer that freedom of religion remains one of the most contentious parts of the Constitution in both the political and judicial spheres of the United States government.[8]  

The Peace Cross law suit ended up in the Supreme Court where seven justices voted to reverse the 4th Circuit’s decision. Among those seven were liberal justices Elana Kagan and Steven Breyer.  Despite the fact that the cross has long been an important Christian symbol, the Supreme Court argued that the Bladensburg cross had become a prominent community landmark and there had been no evidence of discriminatory intent in the selection of the design. The two dissenting justices, Ruth Bader Ginsburg and Sonia Sotomayor insisted that the display of a cross as a war memorial cannot be re-rationalized as a secular, generic or universal symbol of sacrifice in wartime. The cross belongs to Christians as a symbol, and excludes others.

The belief behind the Establishment Clause is the notion of the separation of church and state. But, in truth, there is no clear dividing line between these two categories.  For instance, as in the case of the Peace Cross, the Supreme Court has held that some public prayers and some religious displays on public property are constitutional.[9]  

At the Constitutional Convention in Philadelphia James Madison opposed the explicit protection of religious freedom, arguing that if rights were enumerated in the Constitution it would reduce the vast protection of religious freedom he thought Americans were owed, because future governments might read those specifically defined protections narrowly rather than broadly.[10]  If you have been paying attention to some of the religious freedom cases that have gone before the Supreme Court recently, you might say that James Madison has proven to be an excellent predictor of the future.   

This past spring, the Supreme Court decided two major First Amendment cases dealing with religious liberty. One was on the topic of whether the state of Maine could refuse to fund religious schools, and the second was about whether a football coach could pray on the field after games. In both cases, the court decided in favor of the religious claim. While these decisions expand religious liberty and free speech protections, they weaken the establishment clause limitations which separate church and state.[11]  

In the case of the football coach, he genuinely felt the need to pray publicly on school time and on school property and apparently this was more urgently important than the interests of students and their parents seeking to be free from religious coercion by the government. The school was willing to let him pray anywhere he wanted in the school but the coach chose the 50-yard line. As Justice Sotomayor remarked: I don’t know any other religion that requires you to get at the 50-yard line, the place where post-game victory speeches are given. What religion requires you to do it at that spot?[12]

Back in 2020 Justice Neil Gorsuch led the way on what is without a doubt the single most important guarantee of employment protections for LGBTQ workers. Even so, there is a pretty good chance that down the road the religious and ministerial exemptions will be used when schools fire gay workers for religious reasons and then say that’s our ministerial exemption—meaning religious institutions have discretion over whom they employ as “ministers,” unconstrained by anti-discrimination laws.[13]  

Dahlia Lithwick, who writes about the Courts and the law for Slate Magazine, hosts the podcast Amicus, and has the great distinction of being referred to by the late Justice Ruth Bader Ginsburg as spicy, responded to this phenomenon with a take on a verse from the Book of Job -- The court giveth and the court taketh away.[14]

This is already happening in cases like the Colorado baker who refused to bake a cake to celebrate the marriage of a same sex couple because of a religious objection. As Lithwick notes, this is the hollowing out of the Obergefell case, which legalized same sex marriage.  The Court giveth and the Court taketh away.[15]

Katherine Franke, a professor of law at Columbia University has suggested that in any conflict the current Court would honor religious liberty over every other right or interest, whether it was public health, or LGBTQ interests, or reproductive freedom. Because religion is explicitly named in the Constitution and those other freedoms or values are not, religion will win every time. [16]

All religious minorities in this country rely on American religious liberty. For Jews, rulings like overturning Roe and the football coach praying on the 50-yard line that allows for public Christian prayer as part of school athletics, are raising real fears that religious liberty for any faith other than Conservative Christianity is slipping away.[17]  

Or to quote Barack Obama in a statement he made about reproductive rights: No, you can’t deny women their basic rights and pretend it’s about your ‘religious freedom’, If you don’t like birth control, don’t use it. Religious freedom doesn’t mean you can force others to live by your own beliefs.

That's me in the corner, that's me in the spotlight
Losing my relgion trying to keep up with you and I don't know if I can do it
Oh no I've said too much I haven't said enough


[1] Corey Brettschneider. Religious Freedom (New York : Penguin Books, c2021) 98.

[2] Ibid. xiv

[3] “Religious Liberty in the United States,” https://tourosynagogue.org/history/religious-liberty-in-the-usa/#limits-of-tolerance

[4] Ibid

[5] Ronald Kahn, “Judaism,”   https://www.mtsu.edu/first-amendment/article/1368/judaism
 
 

[6] Ibid.

[7] Corey Brettschneider. Religious Freedom (New York : Penguin Books, c2021) xvi.

[8] Ibid. xxv.

[9] Ibid.

[10] Ibid. xxvii.

[11] Andrew R. Lewis. “The New Supreme Court Doctrine Against Religious Discrimination,” July 7th, 2022, https://www.washingtonpost.com/politics/2022/07/07/scotus-carson-makin-maine-schools-bremerton-football-coach/
 

[12] Dahlia Lithwick, “The Holy Morality of the Supreme Court’s Most Sympathetic Plaintiffs,” Apr. 27th, 2022, https://slate.com/news-and-politics/2022/04/how-religious-adherents-became-scotus-most-sympathetic-plaintiffs.html
 

[13] “Closing Conversation : Dahlia Lithwick and Micah Schwartzman,” 9:26, https://vimeo.com/457983916
 
 

[14] Ibid.

[15] Ibid.

[16] Dahlia Lithwick, “The Holy Morality of the Supreme Court’s Most Sympathetic Plaintiffs,” Apr. 27th, 2022, https://slate.com/news-and-politics/2022/04/how-religious-adherents-became-scotus-most-sympathetic-plaintiffs.html

[17] Daniel Bogard. “The Jewish Case for Abortion : How Overturning Roe v. Wade Threatens Religious Liberty,” June 30th, 2022, https://www.grid.news/story/politics/2022/06/30/the-jewish-case-for-abortion-how-overturning-roe-v-wade-threatens-religious-liberty/
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