Maybe It's Time To Concede This Doesn't Work

Our constitutional jurisprudence surrounding legislative prayer is a two-step dance. In the first step, the judiciary tells legislatures that they can have prayers so long as the process for selecting them is not biased with respect to particular denominations or sects. In the second step, legislatures do everything they can to be biased with respect to particular denominations and sects.

The latest remix of this everlasting beat is a 4th Circuit decision in Lund v. Rowan County, where a county commission simply had its commissioners choose the prayer leaders it preferred -- unsurprisingly, leading to an overwhelmingly Christian bent. Ian Millhiser has commentary, but I'll be honest and say that I'm not convinced the decision is obviously wrong under either SCOTUS or 4th Circuit precedent. Indeed, its not even the worst 4th Circuit legislative prayer decision since the inception of this blog -- a distinction still unquestionably held by Simpson v. Chesterfield County Board of Supervisors.

The problem is that the demand for religious neutrality contained in step one founders upon the obvious fact that the upshot of step one is that legislatures might have to admit prayers by religion groups they dislike. Which means they do everything they can to channel who gets to say the prayers, which means that the "neutrality" principle immediately collapses.

It's not that there is a conceptual incoherence to the idea that legislative prayers are permissible so long as they do not discriminate in favor or against a particular sect. But it is clear that many if not most legislative bodies aren't really willing to pay that piper -- admit prayers from Jews and Muslims and Hindus and Wiccans and Satanists. And so perhaps its time to concede that the doctrinal rule we've set up just isn't going to work. There are plenty of opportunities to pray without relying on bureaucratic set asides, and some of us don't need government-sponsored training wheels before we feel secure in our faith.

California Court Upholds Yoga

A California appellate court unanimously upheld the teaching of Yoga courses in public schools, rejecting challenges that it was actually a form of Hinduism and thereby an Establishment Clause violation. I think this decision is exactly right and the opinion is well-reasoned and persuasive. While it is true that Yoga seems to have some religious roots, that is true of a great many elements of secular society. Religious concepts and ideals often percolate into surrounding society and become important for entirely non-sectarian reasons. This is why my public high school can teach the King James Bible in its English courses (as a piece of literature, not theology) -- the KJV is very important to our literary heritage in ways that extend beyond any religious or theological teaching. Other entities which have religious roots but no ongoing religious component include the days of the week (who do you think "Thursday" is named after?) and the sport of lacrosse. In this context, the court found that the Yoga courses in the school had no religious component, but were entirely secularized teachings focusing on mindfulness, flexibility, stress-relief, and other like concerns.

However, in my ongoing and futile crusade to police non-lawyers from too-eagerly making pronouncements about matters of law, I will cry foul on Jezebel's coverage of the decision -- particularly the following line:

The family plans to appeal the decision because simply opting out of ritualized prayers to the sun god yoga isn’t good enough.

No, no, no, no, no. The Yoga program is constitutional because its non-religious, not because it is non-compulsory. If it was religious, the existence of an opt-out provision would not and should not save it (as the court itself observes in a footnote). The reasons why should be immediately obvious if we substitute in a prayer event -- the Church/State harm wouldn't be resolved via an announcement that "all the people who don't love Christ, feel free to conspicuously refrain from participation". This is something the Supreme Court has be quite emphatic about, and rightly so. So while I appreciate the sense that the parents in this action are being hyper-sensitive (or perhaps more likely, concern-trolling), this is not actually a valid response to the claim (and again, the court here explicitly stated that the voluntary nature of the program was not a factor in its decision).

Critical Jewish Studies?

This is cross-posted from Concurring Opinions. I don't think the content will be particularly new for long-time readers of this blog, but I figured some might be interested.

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn't an accident -- I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a "Critical Jewish Theory". And I came up with ... virtually nothing. With one very notable exception -- Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming -- could it get any more cliched?) -- it was a virtual dead-end. Even Professor Feldman's work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

This absence struck me as very strange. In general, the CRT movement has been pretty good about extending itself to a variety of different identities. Though the original works focused primarily on African-Americans (and really, African-American men), we now have Critical Race Feminism, LatCrit, Asian-American themed CRT, Queer Studies, and a host of others. The lack of an analogous school of discourse applied to the Jewish experience is not a function of disciplinary narrowness.

So what gives? I have some thoughts, but I don't find any of them particularly satisfactory. The cheap answer is that CRT is a "left" movement and contemporary anti-Semitism is primarily a leftist project. I reject that for two reasons: first, because I don't think right-wing anti-Semitism is as dormant as conservatives like to claim, and second, because the various crit movements have never really shied away from "friendly fire". There have been some particular points of tension between CRT writers and the Jewish community -- Mari Matsuda's famous hate speech article in the Michigan Law Review strongly considered the possibility of labeling Zionism "hate speech", one of Daniel Farber & Suzanna Sherry's critiques of CRT was entitled Is the Radical Critique of Merit Anti-Semitic? (83 Calif. L. Rev. 853 (1995)) -- but nothing severe enough to force a permanent fissure.

Possibly the best answer I have relies on the particular form in which anti-Semitism is often instantiated in the modern world. Most other -isms are predicated on inferiorizing their targets. This can be done contemptuously (as often is the case in racism), or clothed as paternalism (as often is sexism). Modern anti-Semitism, by contrast, does not treat Jews as incompetent or inferior at all. Much the opposite -- it views them as hyper-powerful; a conspiratorial, parochial sect whose tentacles control the government, the media, and the banks, but whose loyalty lies only with themselves. There's often a grudging respect to it, but the respect one gives to a particularly dangerous villain. It's easy to see these tropes popping up again and again in "anti-Zionist" discourse worldwide, where accusations of dual loyalty are very much part of the discussion and standard Jewish interest-group lobbying is seen as uniquely nefarious and abusive. Still, the crits, focused on groups whose problem is that they don't have enough voice or sway, are ill-equipped to talk about a group whose "problem" is that they are seen in the popular eye as being too influential. Couple this with the fact that Jews, as a group, are relatively well-off (though this flattens distinctions within Jewish subgroups) and it can be hard to see them as suffering from an "oppression" worth analyzing.

But obviously, economic wherewithal is not the alpha and omega of CRT-style analysis (after all, a considerable portion of the movement's energy is dedicated to refuting the idea that "it's not race, it's class!"). And Jewish history in particular is replete with instances of Jews being placed in the role of the "buffer", given a fair amount of influence but designed to be the targets of popular resentment. Simply taking at face value that Jews have it all and that prejudice against them has been relegated to sporadic acts of rabid hate by Klansmen is precisely the sort of quiescence that Crits tend to rebel against.

Indeed, the fact that the mechanics of anti-Semitism in particular are not adequately captured by contemporary stories of oppression is all the more reason why it desperately needs analysis akin to what CRT has provided in the context of race. And I do believe a similar approach has a lot to offer in the Jewish context. The allegedly pervasive presence of the "race card" is the old nemesis of anti-racist workers everywhere, but of late the "anti-Semitism card" has been an increasingly prominent method of dismissing claims by Jews of unfair treatment. The myth of the "Judeo-Christian" tradition (which, as a political trope, is invariably 100% Christian) acts to sublimate an independent Jewish political voice -- while there are many Jews in politics, there are very few who speak "as Jews", particularly when doing so would seriously challenge dominant conceptions of the Jewish role or place. It is highly notable, in my view, that "Judeo-Christian morality" is seen as a deeply conservative normative commitment, despite Jews being among the most socially liberal denominations in America today. That Christians politicians have appropriated Jewish experience in ways foreign to the actual Jewish political and theological tradition is an example of the boundaries on the "love" they have for us; that Jews have been unable to effectively resist is an example of our marked political limitations. And while Israel certainly has its fair share of sins, the massively disproportionate vitriol and condemnation directed its way (indeed, directed to the very concept of it existing) by international legal actors clearly implicates anti-Semitic norms (and the fact that I, an early supporter of J Street and a strong critic of the Netanyahu administration, feel compelled to verify that "yes, I can tolerate criticisms of Israel without labeling them anti-Semitic" is itself symptomatic of a discourse gone badly awry).

It's not the case that nobody has done any writing on these topics. In addition to Feldman, Albert Memmi's The Liberation of the Jew would have to be considered a foundational text in any "CJT" movement, and David Hirsh has recently written a stellar paper entitled Anti-Zionism and Antisemitism: Cosmopolitan Reflections (Hirsh also writes often for the Engage blog, which is essential reading for anyone interested in this subject). But there's a lot more to be done, and I still find it odd that the disciplinary gap has persisted for this long.

More Jewish than the Jews, Take 43

The legal questions in this case (via), involving a restraining order preventing a Catholic father from exposing his daughter to non-Jewish religious influences (the mother is Jewish), are extremely complex, and raise a number of tough issues from both a moral and doctrinal point of view. That being said, I feel perfectly free in calling the father a dick for his snotty supersessionist view of the Christian-Jewish relationship.

"Catholicism falls right under the umbrella of Judaism."

A court is scheduled to rule today on whether or not Reyes violated the temporary restraining order barring him from "exposing his daughter to any other religion than the Jewish religion" for 30 days. While the restraining order is highly unusual, Reyes obviously knew he wasn't supposed to take her to church, even if he was, "taking her to hear the teachings of perhaps the most prominent Jewish rabbi in the history of this great planet of ours."

Seriously -- can Christians stop doing this? Catholicism is not "under the umbrella of Judaism" -- a particularly obnoxious claim given the centuries we have spent under the jackboot of Catholicism (and Protestantism, to be fair).

We're separate religions. There are some commonalities of tradition. But Judaism and Christianity are, at this point, quite distinct. And more importantly, given the degree to which Christian anti-Semitic oppression has historically flowed from supersessionist ideology, it's really important for Christians who purport to be interested in egalitarian interfaith dynamics to back off this appropriation, and let us have our independent space.

Jewish Schmucks Have Rights Too

I once read a story about Germany's remaining Jewish community in, I want to say, the late 1990s. Apparently, for whatever reason what few Jews remained in Germany were highly concentrated in certain ... less savory businesses (alcohol, nightclubs, strip clubs, etc.). A German citizen, while saying that anti-Semitism is always unjustified, asked why they had to go and make it hard on themselves by working in those professions. But of course, the answer is that no group is truly free unless some of its members are allowed to be schmucks.

Eugene Volokh points me to a recent decision handed down in New York, Incantalupo v. Lawrence Union Free School Dist. (E.D.N.Y. Aug. 24, 2009), rejecting an Establishment Clause challenge to actions taken by the local school board, a majority of which was Orthodox Jewish. Apparently, the school district experienced an influx of Orthodox Jews moving in, most of whom didn't send their kids to public schools (instead sending them to private Yeshivas). Not sending their kids to public schools, they did not want to pay the high taxes supporting Lawrence's previously excellent educational programs. So they mobilized to get taxes slashed, and eventually managed to win enough school board seats to cut programs further. The local community members who did have kids in public schools were, understandably, displeased. So they launched a suit alleging that board's action were an Establishment Clause violation because, they claimed, the board's tax cuts and spending slashes were motivated by a desire to transfer resources to the private, parochial Orthodox schools (by freeing up money that was being spent on taxes).

Like Volokh, I think the court was right to throw out the suit. And the judge's somewhat intemperate tone towards the plaintiffs was also warranted, as the lawsuit made a great many assumptions about the Orthodox Jewish community that were false, biased, prejudiced, or worse. As Judge Seybert said, it is not a valid legal argument to assert that Orthodox Jews are effectively "robots" under the control of their Rabbis. The complaint had a strongly conspiratorial tone that the Judge was right to take note of and reject, stridently.

That being said, I find the case interesting, for two reason. First, how it interacts with Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), which dealt with (I think) very similar issues and came to an opposite conclusion. And second, I find this case interesting because the Orthodox Jews who were engaging in these political moves were, to not put a fine point on it, acting like dicks.

Let's take them in turn. I've written about Kiryas Joel and what it says about the prospect of Jewish political power at reasonable length, and so this case immediately raised a flag as well. The Incantalupo opinion, in my somewhat quick readthrough, does not mention Kiryas Joel once, which to my mind is an inexcusable omission, either by the judge, her clerks, or (especially) the plaintiff's attorney, who should have thrown it at the judges head. The judge in this case basically called the complaint frivolous -- Kiryas Joel, to my mind, makes this case actually a very close call.

Kiryas Joel, as I read it, stands for the proposition that even the facially secular provision of secular benefits nonetheless can arouse Establishment Clause concerns where they seem too tied to the desires of a sectarian religion community. I think that's an extremely dangerous precedent, which is why I think it is wrong and this decision is right, but lower courts shouldn't get in the habit of calling suits which are clear extensions of Supreme Court decisions nonsense. In Kiryas Joel, the court struck down the establishment of a secular school district to track the borders of a religious community (the village of Kiryas Joel), because it might appear as if the Satmar Hasidic control of the school board would lead to pervasive sectarianism. There is an argument that the behavior at here is in fact worse than what occurred in Kiryas. For the most part, the allegations in Kiryas Joel were speculative -- about what decisions the board might take or the appearance they might have. Here, by contrast, the plaintiffs had very specific and concrete decisions made by the board which, while facially neutral, they alleged were in fact motivated by and had the effect of endorsing religious concerns.

The court's response to this, quite wise I think, was that applying this standard would effectively eviscerate Orthodox Jews' ability to participate in democratic politics. Everybody else can seek lower taxes in their communities because they'd rather spend their money elsewhere (on foreign charity donations, on yachts, on booze), and run for office on that pledge. Only Jews are disabled from this sort of democratic participation (if they want to spend the money on Yeshivas), because that would be an Establishment Clause violation. This would have the effect of constitutionalizing Jewish political impotence, which is pure discrimination. Jews, like everybody else, are allowed to pursue political goals, even if those goals are related to religious interests, so long as the government itself isn't establishing the religion. Lowering taxes doesn't breach that wall (nor, in my opinion, does running a secular school district).

The second point though, is that I think the Jews here were being assholes. I am a strong advocate of public schools. I think supporting the public school system is a social obligation we all share as members of a community, whether we have children in the system or not. I think states and localities have a political and moral obligation to provide children with free and superb public education, and that this obligation trumps the provincial desires of various private interests. Gutting a public school system -- for whatever reason -- is to my mind a grievous ethical sin, the sort that we should speak out against in general, and particularly when it is being orchestrated by a fellow member of my community. As a Jew and as a citizen, then, I find the behavior of the Orthodox Jewish community in Lawrence -- mobilizing to try and destroy the local schools to benefit their own private interests -- despicable.

But Orthodox Jews are hardly the only ones to make selfish choices. There are many school districts, nationwide, where a large and politically mobilized senior community effectively manages to block needed funding and bond issues because, hey, what do they care about schools? And that, to my mind, is democratically irresponsible and immoral behavior. California is effectively barred from raising taxes, period, putting who knows how many social programs in shambles, due to this private "I've got mine" mentality. And that's wrong too.

Jews have the same right to be jerks as seniors or Californian anti-tax zealots. There is no politics of respectability here -- I won't abandon the rights of the Jewish community simply because they're using them in anti-social ways. That's takes away the entire point of having a right.

But they're still jerks. And we should say so.

Good News, Everyone

Stated like the Professor.

This story about the effects of "Good News" clubs (via) in Public Elementary Schools really rang true to me. Not because it reflected personal experience -- my public educational experience was noteworthy for the degree of tolerance and ecumenicalism it evinced -- a quality which I associated with strong Church/State separation which in turn sparked my early zealotry on the subject. It was when I did research on the subject, and was exposed to locations where church and state could not be so easily disentangled, that I began to imagine what it would be like for me, as a Jew.* What view would I have had of school if I was told on the playground as a Kindergartener that I was doomed to Hell? If I was ostracized because my religion was wrong? If -- as far as I could tell -- the school itself was endorsing all of these views? I think it would be very hard to apply myself fully as a student. I think my education would have suffered immensely.

The article cites a Supreme Court case, Good News Club v. Milford Central School, 533 U.S. 98 (2001), as why many schools are so reticent to ban groups like this. The holding, as I understand it, was predicated off a blanket anti-religious group policy being a violation of the 1st Amendment. I wonder if a district instead made a more tailored finding that this group was sowing discord and having a negative impact on (certain?) students' ability to learn, whether it might be uphold even after Milford. It seems difficult to believe that schools would have to allow a "Bad News: Your Friends Are Inferior Hellbound Sinners Club" on campus. Yet, cheery name aside, that seems to be what the Good News Club does.

* One of the most illuminating pieces on this, for me anyway, was Frank Ravitch's "A Crack In The Wall: Pluralism, Prayer and Pain in the Public Schools," in Law and Religion: A Critical Anthology (Stephen Feldman ed., NYU Press 2000), pp. 296-314.

Y'all Shall Not Kill

I'm converting to Oklahomaism!

Via Steve Benen's TWIG.

Remembering Which Side I'm On

Back when I was in high school, Church/State separation was one of my pet issues. And believe you me, I was a staunch separationist. I wrote my college admission essay on why I believed "under God" in the pledge was unconstitutional. In fact, I wrote my first real blog post about it. It was one of my favorite topics to speak on in debate, and I did so regularly.

My current position of skepticism towards standard separationist doctrine was thus quite some time in coming. And reading this opinion just released by the 10th Circuit, written by Judge Michael McConnell (whose scholarship was instrumental in my shift) reminds me of how far I've departed from my old stance. For even though I (think I) agree with his ruling (at least on an ideal level -- I'm not 100% convinced it comports with the relevant Supreme Court precedents), I still felt a bunch of twinges when I read it where I had to remind myself, "David, this is your position too."

Basically, the case dealt with a Colorado statute which prohibited the assignment of scholarships to students attending "pervasively sectarian" colleges or universities. The state originally enacted the rule to comply with Supreme Court precedents which heavily restricted the usage of state funds for sectarian ends. Twinge #1 came when Judge McConnell was recounting how many of those rulings were overturned. I think that to some degree those precedents were too harsh, but I still instinctively recoil against their loosening.

I had presumed such laws were permissible under Locke v. Davey, 540 U.S. 712 (2004). Judge McConnell spends a lot of time distinguishing that case, and while I'm not 100% sure that he's successful, I thought Locke was wrong in the first place (so again, speaking to my ideal state of the law here, not what this panel in this case should have done given the existence of that precedent). Particularly, I do not find the panel's argument that distinguishing "sectarian" and "pervasively sectarian" institutions constitutes impermissible discrimination between religions, though I'm more sympathetic to the argument that the deep inquiry the statute demands into the university's content to see if it's too "indoctrinating" may run afoul of the Establishment Clause.

Twinge #2 came when the college which was suing, Colorado Christian University, was described. It sounds like the type of hard evangelical institution that I want to suck as much power from as possible. But though my paradigm does, broadly speaking, provide greater protection to minority faiths than majority belief systems like Christianity, this appears to be a case where a Christian organization would earn protection under my general accommodationist tendencies. Moreover, another school that will likely benefit from this decision is Naropa University, one of the few Buddhist-affiliated institutes of higher education in the country. And indeed, at first glance the denial of scholarships to otherwise qualified Naropa University students seems to be a dead-on case of the way strict separationist laws can unjustly harm minority practitioners (particularly since Naropa does not appear to be "pervasively sectarian" anyway).

In any event, regardless of how ultimately this case should have been decided (under either the prevailing or my own Church/State doctrine), I found it interesting my gut response opposing the ruling even though intellectually I knew it was closer to my current jurisprudence. I'm glad I could recognize the contradiction when I saw it, but it just goes to show that I haven't managed to extract myself from separationism quite yet.

No Mezuzot Means No Observant Jews

The 7th Circuit, in a 2-1 opinion written by (Chicago law prof!) Frank Easterbrook, has held that an apartment which -- in the course of prohibiting all outside objects on doorways -- bars observant Jews from posting Mezuzot on the door frames does not violate the Fair Housing Act. Judge Diane Wood (also a Chicago law prof!) wrote the dissent, in which she noted that the prohibition effectively served as a red-line against selling to observant Jews. She also noted the charming argument by the condominium association in its brief that the Jewish plaintiffs were attempting to extract a "pound of flesh" in the case. The reference, of course, is to Shylock in The Merchant of Venice -- one of the most prominent Jewish villains in Western literature. Indeed, Judge Wood's summary of the facts shows a distressing pattern of, at best, insensitivity, at worst, prejudice, against the Jewish tenants here.

Judge Easterbrook argued that since the law was "neutral" with respect to religion (barring sports pennants right along with Mezuzot), it was thus permissible. This is a perfect example of my argument as to why "neutrality" in Church/State jurisprudence ends up providing insufficient protection to religious minorities, such as Jews.

First, Judge Wood's dissent makes it clear that, at the least, there are serious questions about whether the "neutral" interpretation of the rule in question was a deliberate guise for religion-specific hostility. Second, even if the interpretation was adopted with nothing but "indifference" to the consequences to Jews, it is facile to suggest that even the most ardent Bears fan is harmed in being barred from putting up a team pennant on his door the way that an Orthodox Jew is when she is prevented from putting up a Mezuzah. The banner of neutral principles does not work when grappling with fundamentally dissimilar cases. And the final point this case helps illuminate is how religious protection gets hinged on similarity to majority faiths. Had this rule been enforced only against Jews but not Christians, it'd clearly be illegal. But of course, there is no analogous religious obligation requiring objects on door frames in mainstream Christianity, so that's a moot point. And even more obviously, if Christianity did have such a requirement, then the rule and/or interpretation would never have been passed, because it would violate the conscience of the majority.

The New York Sun has more coverage.

Schizophrenia

USA Today has an interesting article reporting on complaints that some schools are giving Muslim students "special treatment." The examples range from building prayer centers at colleges, to special recess periods for mid-day prayers in elementary schools. The FRC is going ballistic, though they can't seem to figure out why. Half the time, it's because of the perceived lack of parity--they argue that Christians don't get similar accommodations. The other half, it's outrage that we're helping Muslims (icckkkky!). They're not really consistent positions--nothing that the Muslim students are receiving is beyond what the FRC wants for Christian students. The FRC continues to want prayer for me but not for thee, which is to be expected, I suppose. But it does put a damper in their righteous fury.

And my take? Well, I obviously approach such questions from an anti-subordination perspective, which recognizes that Muslim students are not the "norm" in American society and thus might require accommodation in order to freely practice their religion. This accommodation must then be balanced against other, competing values--such as non-endorsement of religion. Some of the examples cited in the article strike me as completely unproblematic. Colleges (public or private) providing facilities for their students to pray is nothing new at all, and I am glad that they are providing equal accommodations to Muslim students as to anybody else. On the flip side, there are some clear cases where lines were crossed--the teacher's aide that led students in prayer at a California elementary school is obviously over the line (although, to reiterate, the FRC has expressed no problem with teachers leading their students in prayer--so long as it's to Jesus). The special recesses are a harder case: unlike Christianity, Islam requires its adherents to pray at specified times. Even still (barring information I don't know), I'd prefer that there not be a special recess session only for Muslim students. Rather, recess should be scheduled so that it overlaps with the time Muslims need to pray, and anybody should be able to pray privately and unobtrusively at that time.

These are difficult issues. We are not served by demonization of those whose faith is different from ours, nor by reflexively falling back into old paradigms of Church/State relations that do not adequately account for religious pluralism in America. Sensitivity, as usual, is the order of the day.

True Colors

I'm always stunned when the Family Research Council disappoints me. Not because I think they are a particularly admirable or principled organization. Much the opposite--my standards for them have dropped so far I simply refuse to believe they could be undercut. And yet, time and again I am proven wrong.

Today's atrocity is their reaction to Hindu chaplain Rajan Zed delivering a prayer before Congress. It is the first time a Hindu invocation has been given in Congress, and thus is somewhat of a milestone. And the FRC, which has fought tooth and nail to preserve prayer in the public square, fight against "hostility" towards religion, and generally pressed that official religious exercise does not result in favoritism or discrimination against people or creeds, has issued a response from its chief, Tony Perkins:

There is no question that under the first amendment Zed enjoys freedom in this country that Christians do not enjoy in his home country. But does that mean it is appropriate for him to open the nation's highest elected body in prayer? I think not. This prayer is more than ceremony, although many may treat it as such. It is a plea to God....

No one can legitimately challenge the fact that the God America refers to in the pledge, our national motto, and other places is the monotheistic God of the Jewish and Christian faith. There is no historic connection between America and the polytheistic creed of the Hindu faith. I seriously doubt that Americans want to change the motto, "In God we Trust, which Congress adopted in 1955, to, "In gods we Trust." That is essentially what the United States Senate did today.

Now, I am not surprised that the FRC is not thrilled at Zed's barrier-breaking. I have no doubt they deeply dislike Hinduism, view its practitioners as hell-bound infidels, and do not want to see it gain any credibility or presence on America's shore. However, I am stunned that they would say it out loud. This was an easy mark for the FRC. There is no risk that Hinduism will take over America (they don't even have the hyperbolic "Muslim hordes will turn us into a Sharia state!" fear to go on here). This is obviously not going to become the norm. The vast majority of American legislative prayer will still take place within the Christian religious tradition. This was a gimme. Talk about how this proves America is non-discriminatory. Show that it gives lie to liberal cries of Christian domination or theocracy. Brag about how ecumenical we are. It won't change reality, and it would score some points.

But no. The FRC simply can't stand Hinduism, and couldn't take the incredible gift it was being offered here. So they spouted off, and made themselves look like idiots in the process. Let us take note of some of the ways how.

1) "Zed enjoys freedom in this country that Christians do not enjoy in his home country." Zed is from Reno, Nevada. He was born in India, but that hardly matters. If he was originally from India, he now calls Reno (and thus, America) his home. This is his country, just as much as it is mine (well, obviously, since I'm Jewish and thus every bit as damned) or any of the FRC's Christian buddies.

2) The capitalization of "God" when it refers to the Christian deity, but the lower-case for Hindu ("gods"). This is just disrespectful.

3) "The monotheistic God of the Jewish and Christian faith." This one is so obscene, it can be divided into four independent specimens of idiocy. First, I've heard that many Hindus consider their religion to be monotheistic--one God in many forms, yes, but that can't be too distressing to anyone who believes in the Trinity. Second, if it is the God of the Jewish and Christian faith, then it has to be the God of the Muslim faith too--we're all stemming from the same Abrahamic tradition. Third, there is no more of a "tradition" from the Framer's era of viewing this God as a "Jewish" God than of a Hindu God. Rewriting history to pretend like most American Christians at the founding viewed Judaism as completely full and equal partners is intellectual dishonesty. Fourth, this faux-inclusiveness for Judaism is belied by the prayer Perkins cites as the exemplification of an "appropriate" prayer, referring to America "as the only nation on earth that came into being 'for the Glory of God and the advancement of the Christian faith.'" Well gosh, that puts me in a bind, now doesn't it? Given that generally, me and mine are the first targets (and I use them term deliberately) of Christian "advancement" efforts, that's a bit disconcerting. Don't play me, Tony. You're not really on my side here. The smile I'm getting is one of a predator. Jews are a marginalized non-Christian religious minority in America. And when you start supporting discrimination of any non-Christian minority, you threaten all of them. That's why, Abrahamic ties notwithstanding, I am far more tied to Zed than I'll be to you (It's also worth noting that Jews tend to be treated rather well in Hindu-dominated counties, especially compared to our history in Christian locales. There, "the advancement of the Christian faith" has been the moniker by which my people have faced continual persecution, oppression, bigotry, hate, and genocidal rage. What makes you think I'd trust you more than them?).

Other reactions:

Nathan Bradfield of Church and State pretty much has an orgasm over Perkins' fine words of wisdom. I doubt this will make a difference, but I'll pitch it anyway. I love it that y'all say you want to include Jews. But standards such as the ones you advocate are inherently anti-Semitic, threaten my equal religious standing, and are the reason Jews will never leave the Democratic Party no matter how often you pledge your allegiance to Israel. They are the words of an enemy, not a friend. As an observant Jew, there is very little I find more repellent than this false partnership. At least with Hamas you know where you stand. Here we have folks trying to enlist the good name of Judaism to hurt other religious minorities and bring about our own demise. Play the Christian partisan if you want, but don't pretend to be my friend while you prepare the dagger for my back.

If Mr. Bradfield wants a Jewish perspective from actual Jews (and mine isn't sufficient), here's another. I guarantee you--every major Jewish organization in America is coming down on Zed's side here.

A smattering of liberal blogs have commented on the disruption of Zed's prayer by Christian fundamentalists. Talk about hostility to religion in the public square. When is the last time radical liberals interrupted a Christian preacher--much less because he was the wrong religion, and not because our public squares should be neutral turf?

This has been a post written in anger, so let me end on a positive note. Zed's prayer is a great moment for America and our progress into a diverse, pluralistic, tolerant nation. I am sorry that it had to be marred by a few religious extremists. But I am confident that vast majority of people, from all faiths and from none, share in the ideals and principles that allow Zed his moment, and are as proud that our nation has taken this step as I am. God bless you.

***

I thought the plural (and adjective) form of "Hindu" was "Hindi." I thought "Hindus" sounded silly. It turns out I was wrong, and now I look silly. The correction has been made. Sorry, PG :-(.

I'm #9!

According to SSRN download statistics for the past two months (May 11th to July 10th), my article is ranked #9 in downloads among all articles in the Law & Society: Public Law section. It reached that lofty position with 58 downloads.

The article, in case you've forgotten, is entitled When Separation Doesn't Work: The Religion Clauses as Anti-Subordination Principles, and it is forthcoming soon in the Dartmouth Law Journal. Thanks to everybody who has read and commented on it.

Incest and Sinai

Did you know Rhode Island exempts Jews from its law barring Uncle-Niece incest and marriages? This is to allow Jews to fulfill certain commandments laid out in Leviticus. While Jews no longer condone Uncle-Niece incest (centuries-old Talmudic interpretation has essentially nullified the doctrine entirely), it does kind of give lie to cheap talk about "a code of conduct stretching back to Sinai" being against incest. There's a weird tendency among some authors to assume that "bad things" are exactly interchangable with "things the Bible condemns." It's not true, and often times it leads to really sloppy writing. Not to mention, an atrophy of critical thinking on our part as to why we think Uncle-Niece incest is wrong. As this case demonstrates, always deferring to our ancestry can lead to some dangerous and unforeseen commitments.

The Rhode Island law isn't exactly an anomaly, either, though its the only one to single out Jews. Several other states have exceptions to Uncle-Niece incest and marriage laws (Minnesota and Colorado permit it for "aboriginal cultures"), and Oregon doesn't bar Uncle-Niece incest at all (though it does not recognize marriages). I suspect most of these laws are relics of some form--I doubt any would pass today. It's just an interesting legal and historical note that I never knew.

It certainly would make for an interesting case example for my paper on Jews and American Church/State relations, though.

I Approve This Metaphor

The Wall of Separation blogs on the supposed death of the "Religious Right":

Like a vampire from a schlocky drive-in horror movie, the Religious Right is often staked but never truly finished off. There is always another sequel. Pundits said the Religious Right would die after Falwell shut down the Moral Majority in 1989. Others said the election of President Bill Clinton in 1992 was a mortal blow. Still others opined that the movement was finished when the Christian Coalition began to lose influence about five years ago.

Shades of Scalia, anyone? From his opinion in Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993):

As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District...Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Good rhetoric makes strange bedfellows, I suppose.