Still Strangers

Jews in Christian America: The Pursuit of Religious Equality
by naomi w. cohen
oxford university press, 300 pages, $39.95

In her meticulously researched new study, Professor Naomi W. Cohen of the Jewish Theological Seminary provides a comprehensive historical analysis of the Jewish quest for religious equality within Christian America, and of the many church-state issues of concern to American Jews from colonial times through the mid-1960s.

The evolving Jewish position on church-state issues in nineteenth-and early-twentieth-century America was shaped, in large part, by the widely held view that America was a “Christian nation” and that Christianity was part of the common law of the land. As early as 1811, Chancellor James Kent, Chief Justice of New York’s highest court, in validating a prohibition against blasphemy, stated unequivocally that “we are a Christian people, and the morality of this country is deeply engrafted upon Christianity, and not upon the doctrines or worship of [non-Christian] imposters.” The legal argument for this view was perhaps most memorably made by Kent’s contemporary, U.S. Supreme Court Justice Joseph Story, whose frequently quoted interpretation of the First Amendment, in his celebrated Commentaries on the Constitution , staunchly affirmed that Christianity was part of the common law. As Professor Cohen aptly notes, Story’s opinion, which was shared by other prominent American lawyers and jurists who similarly viewed Christianity as a recognized part of the common law, was often cited by nineteenth-century Protestant proponents of a Christian commonwealth, who successfully championed legislation to protect the Christian Sabbath and who (unsuccessfully) proposed “Christian Amendments” to write “the Lord Jesus Christ” and the Christian basis of public life into the text of the Constitution.

Nineteenth-century Jewish leaders viewed the laws requiring observance of the Christian Sabbath, in particular, which were sanctioned by the common law and which were so central to the Protestant vision of a Christian America, to be part of a religiously coercive effort to “establish” Christianity as the national religion, while forcing Jews to either desecrate the Jewish Sabbath or endure monetary losses because of their faith. Thus the widespread enactment of Sunday “blue” laws”which required that all businesses close down on the Christian Sabbath and imposed a harsh economic burden on religious Jews who observed their Sabbath on Saturday—became one of the church-state issues that most agitated Jews in the nineteenth century, and remained a central church-state issue well into the twentieth. Professor Cohen’s illuminating discussion of the evolving Jewish communal debate on how to most effectively oppose Sunday legislation offers new historical insight and analysis not found in previous studies of the subject.

The Protestant vision of a Christian America that found expression in Story’s interpretation of the First Amendment and in such evangelical efforts to enact Sunday laws and to “Christianize” the Constitution gained further legitimacy in 1892 when the Supreme Court, in Church of the Holy Trinity v. United States, declared that the United States really was a “Christian nation.” Testifying to the increasing respectability of the “Christian nation” idea, Justice David Brewer, who wrote the Court’s decision, “reaffirmed that faith”the reasons that made America a Christian nation and the reasons why it should remain one”—in a series of lectures published in 1905.

The publication of Justice Brewer’s book, under the title of The United States”A Christian Nation, generated vocal and widespread condemnation within the American Jewish community. Professor Cohen has provided the most thorough analysis yet available of the American Jewish response to the “Christian nation” movement, particularly in her discussion of the resurgent church-state debate within the Central Conference of American Rabbis (CCAR), the national organization of the American Reform Rabbinate. The fact that by the time of the Brewer lectures the vast majority of America’s common schools, many of whose teachers belonged to evangelical churches, encouraged Bible reading and the recitation of the Lord’s Prayer as part of their opening exercises gave rise to growing alarm among Reform Jewish leaders. Thus, in 1906, as Cohen points out, the newly created Committee on Church and State of the CCAR was to call for a national campaign of education to “reconquer” American public opinion in support of separationism. In this, the first major public relations campaign by American Jews, the Committee on Church and State produced a widely distributed pamphlet entitled “Why the Bible Should Not Be Read in the Public Schools,” and organized a series of protests in various cities. Unchallenged publicly by any other Jewish position on this issue, the CCAR’s stand was understood by Christian America to be the only Jewish point of view.

The schools campaign of the CCAR did in fact signal “a new phase in American Jewish responses to the Christian-state idea” and the beginning of an emerging Jewish consensus in opposition to religion in the public schools, or elsewhere in American public life. By the mid-1940s, the vast majority of American Jews, conceiving of religion and public life as being rigidly distinct, had come to embrace strict separationism as the only defense against what they perceived to be a Christian-dominated state. Beginning in 1948, with the landmark Supreme Court case of McCollum v. Board of Education , Leo Pfeffer, the staff attorney of the American Jewish Congress and American Jewry’s leading apostle of strict separationism, led a new mobilization against Sunday blue laws, prayer and religious instruction in the public schools, public display of religious symbols, state aid to parochial schools, and tax exemptions for churches and synagogues.

Throughout the second half of her book, Cohen devotes considerable (if, at times, uncritical) attention to the legal assumptions, strategy, and tactics of the American Jewish Congress’ Commission on Social Action, which in the years between 1945 and 1965 under Pfeffer’s direction did so much to shape and further the legal doctrine of strict separationism. For Pfeffer, who successfully argued more church-state cases than anyone else in American history, and the other strict separationist leaders of the American Jewish community, it was axiomatic that any religious influence in the public institutions of Christian America impinged upon the full citizenship of Jews. Pfeffer’s view that “complete separation of church and state is best for the church and best for the state, and secures freedom for both” seemed to most American Jews to be logically consistent and historically convincing. When the Supreme Court, in Engel v. Vitale (1962) and Abington Township School District v. Schempp (1960), outlawed prayers and Bible reading in the public schools, the overwhelming majority of spokesmen for American Jewry applauded the decisions.

And yet, as Professor Cohen observes, the separationist position did not go entirely unchallenged, even in its heyday. During the 1950s and 1960s, several prominent Jewish thinkers and communal leaders, such as Will Herberg and Milton Himmelfarb, began to develop a strong Jewish argument for the desirability of greater religious involvement in American public life. Indeed, one of the great virtues of Professor Cohen’s book is the manner in which she documents in much detail the existence of a “counter-tradition” to the prevailing liberal separationist orthodoxy within the American Jewish community. She is in fact the first historian to have provided us with so thoroughly documented an analysis of the emergence, in the 1950s and early 1960s, of this new party of dissenters from the separationist consensus.

Professor Cohen’s discussion of the debate over the Engel and Schempp Supreme Court rulings is particularly enlightening. It was Will Herberg, then an eminent Jewish theologian, religion editor of National Review , and outspoken proponent of government support for parochial schools, who emerged as the most vocal Jewish critic of these Court decisions banning Bible reading and prayer in the public schools. In this Herberg was joined by, among others, Immanuel Jakobovits, the Orthodox rabbi of the prestigious Fifth Avenue Synagogue in New York City and the future Chief Rabbi of England. Jakobovits publicly dissented from the pro- Engel position of the New York Board of Rabbis.

But, as Professor Cohen tells us, Jewish opposition to Schempp and Engel was also, and unanticipatedly, voiced by some more liberal sectors of the Jewish community as well. Seymour Siegel, for example, a Conservative Rabbi and thinker as well as a staunch supporter of the Regents prayer and of state aid to Jewish and Catholic religious schools, attacked the defenders of the “nonexistent wall of separation of church and state” who “brainwashed” the Jewish community, arguing that a secular state and “desacralized” society was alien to both Americanism and Judaism. So, too, for example, Reform Rabbi Herbert Weiner, denouncing “the control and intimidation of the Jewish community by the militant separationists,” charged that Jewish organizations were not at liberty “to demand in the name of Judaism that every Jew must rejoice when a non-offensive prayer is eliminated from the schools” or to call Jewish dissenters disloyal to both Americanism and Judaism.

Professor Cohen has uncovered several other prominent (but, until now, ignored or forgotten) voices of dissent from the prevailing liberal Jewish orthodoxy as well. As she points out, the prayer and Bible reading decisions of the early 1960s “marked the first time that many prominent Jews argued publicly against their own secular organizations and, equally, against separationist rabbis.” The first time, but not, of course, the last. The Jewish critique of strict separationism would increase and intensify in the decades that followed, significantly transforming the church-state debate within the American Jewish community. It is regrettable, therefore, that Professor Cohen concludes her narrative in 1965 and, except for an all-too-brief six-page “afterword,” does not continue her detailed discussion and analysis up to the present.

Thus, for example, while she does note that Jewish organizational consensus in support of separationism “broke down” further during the 1970s over the issue of public support for parochial schools, the growth of Jewish Day Schools and its implications for the debate over state aid to parochial schools are left almost completely unexamined. Prior to the 1960s, government support for private religious schools had been generally seen as a Catholic issue. Between 1965 and the early 1990s, however, the unprecedented expansion of Jewish day-school education in America prompted an increasing number of rabbis, Jewish intellectuals, and communal leaders to rethink their earlier opposition to state aid.

Significant, too, is the increasingly important post-1965 role of the Orthodox Commission on Law and Public Affairs (COLPA) in helping to shape church-state debate and litigation on behalf of Jewish interests. COLPA receives but two brief references from Professor Cohen, and no critical discussion or analysis. Organized during the late 1960s to serve as a counterweight to the American Jewish Congress and other separationist agencies, COLPA has appeared as amicus curia in numerous church-state cases on behalf of the “free exercise” claims of religiously observant Jews and other religious believers. When the post-1965 sequel to Professor Cohen’s study is written, one hopes it will contain a detailed discussion and analysis of the seminal contribution of COLPA to the development of a growing body of law relating to the accommodation of religious practices in America, as well as to a new and exciting chapter in the evolving Jewish debate on the relationship between American Jews, Judaism, and American public life.

In the meantime, however, this book remains the standard historical study of the Jewish quest for religious freedom and equality in Christian America.

David G. Dalin, a member of the Editorial Advisory Board of First Things , is Associate Professor of American Jewish History at the University of Hartford and editor of American Jews & the Separationist Faith (Ethics and Public Policy Center).