Jonathan D. Sarna is professor of American Jewish history at ~ Hebrew Union College--Jewish Institute of Religion, Cincinnati, and director of the Center for the Study of the American Jewish and Church·! Experience. His most recent books are The American Jewish Experience (1986) and JPS: The Americanization of Jewish Culture (1989). The Search j rofessor of American Jewish history at American Jews Jewish Institute of Religion, Cincinnati, ~r for the Study of the American Jewish and Church-State Relations recent books are The American Jewish IPS: The Americanization of Jewish The Search for "Equal Footing"

Jonathan D. Sarna ACKNOWLEDGMENTS FOREWORD

I am grateful to Professors David Dalin, Benny Kraut, and Lance Recent AJC surveys demonst Sussman, as well as to the national staff of the American Jewish attachment to the principle of separati Committee, for valuable comments on an earlier draft of this The absence of an official religion in paper. I, of course, remain responsible for all facts, interpre­ government neutrality toward all form~ tations, and errors. have enabled a variety of religions t religions, Judaism has thrived in this fre J.D.S. have become, in the words of LeOl American pluralism." Separation of church and state i~ among Western democracies. The S separate synagogue and state. It il official religion, albeit with provisions ~ freedoms of non-Jews. Great Britail government support for organized institutions, along with those of othe from such assistance. Nevertheless,. maintain that the intrusion of governmt purposes -- leads to standards and I weaken the sectarian content of relig. undermining the principle of religious p fear, government support of religion favoring of one faith over others, thr religions. American Jews feel that, religion fares best when government keeps Have American Jewish leaders alw. their approach to church-state issues~ itself knew no such separatism. As­ governments, they increasingly articulah law of the state is the law," respecting Copyright © 1989 Jonathan D. Sarna the surrounding society if such norms h :

;ors David Dalin, Benny Kraut, and Lance Recent AJC surveys demonstrate continued Jewish the national staff of the American Jewish attachment to the principle of separation of church and state. e comments on an earlier draft of this The absence of an official religion in the United States and "emain responsible for all facts, interpre- government neutrality toward all forms of religious expression have enabled a variety' of religions to flourish. Like other religions, Judaism has thrived in this free environment, and Jews J. D.S. have become, in the words of Leonard Fein, "mentors of American pluralism." Separation of church and state is by no means universal among Western democracies. The State of Israel does not separate synagogue and state. It identifies Judaism as its official religion, albeit with provisions safeguarding the religious freedoms of non-Jews. Great Britain and Canada maintain government support for organized religion, and Jewish institutions, along with those of other faiths, have benefited from such assistance. Nevertheless, American Jewish leaders maintain that the intrusion of government -- even for beneficial purposes -- leads to standards and regulations that tend to weaken the sectarian content of religious institutions, thereby undermining the principle of religious pluralism. Moreover, they fear, government support of religion can easily lead to the favoring of one faith over others, threatening the equality of religions. American Jews feel that, in pluralistic America, religion fares best when government keeps its hands off. Have American Jewish leaders always been separationists in their approach to church-state issues? Historically, Judaism itself knew no such separatism. As Jews lived under gentile governments, they increasingly articulated the principle of "the law of the state is the law," respecting and obeying the law of an D.Sarna the surrounding society if such norms had legal authority behind

iii them. In turn, Jewish communities often received substantial originally commissioned in honor support and broad grants of power to regulate internal Jewish Bicentennial. It is our hope that Je life. will study it and discuss fully its in Emancipation significantly altered Jewish relationships with social action. the state. No longer could communal groups in the nation-state regulate their own affairs. In their relations with the state, citizens were individuals, not members of corporate groups. In Jewish Co the United States particularly, new models of church-state rela­ tionships developed. To explore changing Jewish attitudes to these developments, the AJC commissioned this paper by Jonathan Sarna, a distinguished historian of American Jewry. Sarna finds that Jews initially accepted the fact of a Christian America and tried to accommodate to it through an "equal footing" doctrine in which Judaism should receive the same recognition as other faiths. Thus, for instance, rather than fight Sunday "blue laws," Jews sought exemptions from them for Jewish Sabbath observers. By the end of the nineteenth century, however, Jewish leaders had shifted to a far more unequivocal stance supporting disengagement of government from organized religion. This stance, heavily indebted to Jefferson and Madison, required the refusal of government aid to religious institutions and the exclusion of religious instruction from the public schools. In recent decades the consensus within the Jewish community on church-state separation has generally held. A minority, however, has urged a return to the more accommodationist patterns of the nineteenth century. This debate is focused especially upon the issue of government aid to Jewish day schools. The AJC, like most other major Jewish organizations, opposes government aid as an unconstitutional and unwise intrusion of government into religious life. The same concern for religious liberty also informs AJC's advocacy of a broad interpretation of the First Amendment's guarantee of free exercise of religion. As Professor Sarna notes, the very first case in which AJC filed an amicus brief was Pierce v. Society of Sisters, which protected the right of parents to send their children to parochial schools. Our intention in publishing this paper is to provide historical background and to explain the range of positions which underlie the contemporary debate. This essay was

iv 1 communities often received substantial originally commissioned in honor of the Constitutional :Its of power to regulate internal Jewish Bicentennial. It is our hope that Jewish groups and leaders will study it and discuss fully its implications for communal ificantly altered Jewish relationships with social action. :>Uld communal groups in the nation-state 3irs. In their relations with the state, Steven Bayme, Director ;, not members of corporate groups. In Jewish Communal Affairs Department eularly, new models of church-state rela­ ro explore changing Jewish attitudes to he AlC commissioned this paper by linguished historian of American Jewry. jnitially accepted the fact of a Christian accommodate to it through an "equal .hich Judaism should receive the same aiths. Thus, for instance, rather than ." Jews sought exemptions from them for "ers. By the end of the nineteenth sh leaders had shifted to a far more orting disengagement of government from lis stance, heavily indebted to Jefferson the refusal of government aid to religious elusion of religious instruction from the es the consensus within the Jewish state separation has generally held. A las urged a return to the more =rns of the nineteenth century. This ially upon the issue of government aid to rhe AlC, like most other major Jewish government aid as an unconstitutional 3f government into religious life. The ious liberty also informs AJe's advocacy n of the First Amendment's guarantee of n. As Professor Sarna notes, the very IC filed an amicus brief was Pierce v. l protected the right of parents to send .I schools. publishing this paper is to provide and to explain the range of positions ontemporary debate. This essay was

v AMERICAN JEWS AND CHURCH-STATE RELATIONS: THE SEARCH FOR "EQUAL FOOTING"

THE CONSTITUTIONAL CONVENTION meeting in Philadelphia in 1787 received exactly one petition on the subject of religious liberty. The petitioner was Jonas Phillips, a German Jewish immi­ grant merchant, and what he requested -- a change in the Pennsylvania state constitution to eliminate a Christological test oath -- was outside of the convention's purview. But the senti­ ments expressed in the petition contain one of the earliest known American Jewish statements on religious liberty. "The Israeletes," it declares, "will think them self happy to live under a government where all Relegious societies are on an Eaquel footing."l Eighteen days before Phillips penned his September 7th petition, the Constitutional Convention, meeting behind closed doors, had accepted the provisions of Article VI: "No religious test shall ever be required as a qualification to any office or public trust under the United States." Two years later, under pressure from six different states,2 Congress passed a much more explicit guarantee of religious liberty as part of the First Amendment (ratified on December 15, 1791): "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For Jews, however, these constitutional provisions did not immediately translate into the kind of "Eaquel footing" that Jonas Phillips had sought. Indeed, the whole question of what equal footing means and how best to achieve it would continue to occupy American Jewish leaders for two centuries.

The Colonial Experience

In the colonial period, Jews never expected to achieve complete religious equality. Given the right to settle, travel, trade, buy

1 land, gain citizenship, and "exercise in all quietness their religion," became in 1777 the first to extend the b they put up with blasphemy laws, Sunday laws, Christian oaths, and enjoyment of religious profession , church taxes, and restrictions on their franchise and right to kind," whether Christian or not (althc hold public office. "They had not come to North America to anti-Catholic naturalization oath). Vir: acquire political rights," Jacob Marcus reminds us, and besides, Religious Freedom (originally proposec as late as the 1760s "there was not one American colony which 1779), went even further with a rin! offered political equality to all Christians."3 man shall be compelled to frequent or Actually, dissenting Christians gained increasing equality as ship, place or ministry whatsoever ... time went on. Recent scholarship has contended that, in colony free to profess and by argument to n after colony, traditional religious establishments, in the European matters of religion, and that the same sense of "a single church or religion enjoying formal, legal, official, enlarge or affect their civil capacities." monopolistic privilege through a union with the government of adopted by the Continental Congress il the state," eventually gave way to "multiple establishments." of worship and belief into the territoriel Dissenters, so long as they were Protestant, could arrange to Finally, under the Constitution and U· have their taxes remitted to the church of their choice. Jews establishment" and "free exercise" beca and other non-Christians, however, failed to benefit from these of federallaw.5 arrangements, and for the most part neither did Catholics. America's 2,000 or so Jews play Although many states enacted new liberal constitutions after the bringing these developments about. 1 Declaration of Independence, religious tests and other restrictive on the federal level along with everyb( measures remained in force. North Carolina's new (December the case in Europe, as part of a speci 16, 1776) constitution, for example, promised inhabitants the Religious liberty developed from de fae "natural and unalienaL,le right to worship Almighty God according a complex web of other social, ideologic to the dictates of their own consciences," yet also decreed that factors affecting the nation as a whol( "no person who shall deny the being of God or the truth of the were always able to couch their dema Protestant religion ... shall be capable of holding any office or in patriotic terms. In seeking rights fa place of trust or profit in the civil department within the state." level, they appealed to principles sha: Similar provisions found in other state constitutions make clear faiths.6 that most Americans in 1776 spoke the language of religious liberty but had not yet come to terms with its implications. While in theory they supported equality and freedom of conscience, as a Initial Jewish Efforts to Attain practical matter they still believed that Christianity was essential to civil order and peace, and that the state should be ruled only The first half-century following the ado by God-fearing Protestants.4 and First Amendment saw America's : engaged in a wide variety of local cal rights in the states. First Amendme The New Nation Supreme Court ruled otherwise in 19. legislation only; states remained free te The first decade and a half of American independence saw the crimination. There was no Jewish cc parameters of religious liberty in the new nation steadily widen. and much depended on the work of co New York, one of the most religiously pluralistic of the states, working in concert with sympathetic _

2 d "exercise in all quietness their religion," became in 1777 the first to extend the boundaries of "free exercise lemy laws, Sunday laws, Christian oaths, and enjoyment of religious profession and worship" to "all man­ ictions on their franchise and right to kind," whether Christian or not (although it retained a limited ey had not come to North America to anti-Catholic naturalization oath). Virginia, in its 1785 Act for Jacob Marcus reminds us, and besides, Religious Freedom (originally proposed by Thomas Jefferson in ere was not one American colony which 1779), went even further with a ringing declaration "that no ) all Christians."] man shall be compelled to frequent or support any religious wor­ Christians gained increasing equality as ship, place or ministry whatsoever . . . but that all men shall be ~holarship has contended that, in colony free to profess and by argument to maintain, their opinions in religious establishments, in the European matters of religion, and that the same shall in no wise diminish, or religion enjoying formal, legal, official, enlarge or affect their civil capacities." The Northwest Ordinance, trough a union with the government of adopted by the Continental Congress in 1787, extended freedom gave way to "multiple establishments." of worship and belief into the territories north of the Ohio River. they were Protestant, could arrange to Finally, under the Constitution and the First Amendment, "no i:l to the church of their choice. Jews establishment" and "free exercise" became fundamental principles S, however, failed to benefit from these of federal law.5 the most part neither did Catholics. America's 2,000 or so Jews played no significant role in nacted new liberal constitutions after the bringing these developments about. They received their rights ence, rei igious tests and other restrictive on the federal level along with everybody else, not, as so often ·orce. North Carolina's new (December the case in Europe, as part of a special privilege or "Jew bilL" for example, promised inhabitants the Religious liberty developed from de facto religious pluralism and right to worship Almighty God according a complex web of other social, ideological, political, and economic own consciences," yet also decreed that factors affecting the nation as a whole. For this reason, Jews :ny the being of God or the truth of the were always able to couch their demands for religious equality shall be capable of holding any office or in patriotic terms. In seeking rights for themselves on the state jn the civil department within the state." level, they appealed to principles shared by Americans of all in other state constitutions make clear faiths.6 _776 spoke the language of religious liberty to terms with its implications. While in quality and freedom of conscience, as a Initial Jewish Efforts to Attain Equal Rights II believed that Christianity was essential . and that the state should be ruled only The first half-century following the adoption of the Constitution s.4 and First Amendment saw America's small Jewish communities engaged in a wide variety of local campaigns to achieve equal rights in the states. First Amendment guarantees, until the The New Nation Supreme Court ruled otherwise in 1940, affected congressional legislation only; states remained free to engage in religious dis­ half of American independence saw the crimination. There was no Jewish communal defense agency, liberty in the new nation steadily widen. and much depended on the work of concerned individuals, often most religiously pluralistic of the states, working in concert with sympathetic gentiles. Typically, Jews

3 pointed up contradictions between their rights under the Consti­ principle upon which Jews based so m tution and their rights under state law, pleaded for religious out to mean different things to differenl equality on the basis of liberty and reason, and then legitimated especially in the wake of the Secor their claims by trumpeting their contributions to the war effort r~ligious revival that overtook the coun against Britain.? century, had come to understand religi( More often than not, Jews found that their boldness in terms, as if the Constitution aimed 01 defense of Jewish rights eventually paid off. In 1783, for example, denominations on an equal footing. a delegation of prominent Philadelphia Jews petitioned against a this argument, formed the basis of J Christological state religious test. They argued that it deprived implicitly endorsed by the Constitutio them "of the most eminent rights of freemen," and was particular­ explicitly.13 The legal case for thi ly unfair since they had "distinguishedly suffered" for their attach­ was made by Justice Joseph Story writil ment to the Revolution. Seven years later, when a new state ment in his famous Commentaries on the ( bill of rights was passed, the problem was remedied.8 In 1809, when several legislators sought to deny Jacob Henry his seat in The real object of the amen, the North Carolina House of Commons for refusing to subscribe countenance, much less to advan< to a Christian test oath, he too refused to concede. Instead, he Judaism, or infidelity, by prostra delivered a celebrated address defending his "natural and un­ to exclude all rivalry among Ch alienable right" to worship according to the dictates of his own prevent any national ecclesiastical conscience, and won his place. In this case, however, the offensive should give to an hierarchy the e 14 test oath remained on the books, apparently unenforced, until a the national government. new constitution was promulgated in 1868.9 The most widely publicized of all religious-liberty cases This understanding of America a took place in Maryland. According to that state's constitution, nation" carried wide appeal. Leading ju anyone assuming an "office of trust or profit" (including lawyers James Kent of New York and TheoI and jurors) was required to execute a "declaration of belief in Webster of Massachusetts, endorsed the Christian religion" before being certified. Solomon Etting, British precedent that recognized "the one of the first Jewish merchants in Baltimore, petitioned in constituting a part of the common la... 1797 and 1802 to have this law changed, "praying to be placed South Carolina governor James H. Harr: on the same footing as other good citizens," but to no avail. lO giving Day proclamation, to urge citiz· It took thirty years, a great deal of help from non-Jewish law­ up their devotions to God the Creator.. makers, particularly Thomas Kennedy, and a state political re­ the redeemer of the world." In the f alignment before the bill permitting Jews to subscribe to an refused to relent. "Whatever may be alternative oath won final passage in 1826 by a narrow margin.ll Constitution," he wrote, "I know that is derived from Christianity, that the i Christian America or Religions America? are instinct with the same spirit, and of the State as it does the manners our people."16 By 1840 Jews had won formal political equality in twenty-one of the twenty-six states. Tn the others, legal disabilities would American Jews naturally opposed shortly disappear, or would remain largely unenforced. 12 Yet interpretation of the First Amendment, c full equality still proved elusive, for church-state separation, the formed part of the common law. The:

4 principle upon which Jews based so many of their hopes, turned 1S between their rights under the Consti­ under state law. pleaded for religious out to mean different things to different people. Many Americans. , liberty and reason, and then legitimated especially in the wake of the Second Great Awakening, the ing their contributions to the war effort religious revival that overtook the country in the early nineteenth century. had come to understand religious liberty in pan-Christian not, Jews found that their boldness in terms. as if the Constitution aimed only to place all Protestant eventually paid off. In 1783, for example. denominations on an equal footing. Christianity. according to =nt Philadelphia Jews petitioned against a this argument. formed the basis of American society and was implicitly endorsed by the Constitution, even if not mentioned ~ious test. They argued that it deprived !ent rights of freemen." and was particular­ explicitly.l3 The legal case for this school of interpretation "distinguishedly suffered" for their attach­ was made by Justice Joseph Story writing about the First Amend­ ment in his famous Commentaries on the Constitution: 1. Seven years later. when a new state 8 j, the problem was remedied. In 1809. sought to deny Jacob Henry his seat in The real object of the amendment was. not to Jse of Commons for refusing to subscribe countenance. much less to advance Mahometanism. or , he too refused to concede. Instead, he Judaism, or infidelity. by prostrating Christianity; but address defending his "natural and un­ to exclude all rivalry among Christian sects, and to ;hip according to the dictates of his own prevent any national ecclesiastical establishment. which should give to an hierarchy the exclusive patronage of place. In this case. however, the offensive 14 the books, apparently unenforced, until a the national government. "'TIulgated in 1868.9 publicized of all religious-liberty cases This understanding of America as an essentially "Christian I. According to that state's constitution, nation" carried wide appeal. Leading judges and lawyers. including ffice of trust or profit" (including lawyers James Kent of New York and Theophilus Parsons and Daniel ~d to execute a "declaration of belief in Webster of Massachusetts. endorsed it. and it accorded with before being certified. Solomon Etting, British precedent that recognized "the Christian religion . . . as h merchants in Baltimore, petitioned in constituting a part of the common law."15 This same view led this law changed, "praying to be placed South Carolina governor James H. Hammond. in an 1844 Thanks­ ; other good citizens," but to no avail. lO giving Day proclamation, to urge citizens of his state "to offer great deal of help from non-Jewish law­ up their devotions to God the Creator. and his Son Jesus Christ, omas Kennedy, and a state political re­ the redeemer of the world." In the face of Jewish protests, he bill permitting Jews to subscribe to an refused to relent. "Whatever may be the language ... of [the] passage in 1826 by a narrow margin.11 Constitution," he wrote. "I know that the civilization of the age is derived from Christianity. that the institutions of this country are instinct with the same spirit. and that it pervades the laws merica or Religious America? of the State as it does the manners and I trust the hearts of our people."16 formal political equality in twenty-one of American Jews naturally opposed this "Christian America" Tn the others. legal disabilities would interpretation of the First Amendment. and denied that Christianity ..ould remain largely unenforced.12 Yet :I elusive, for church-state separation. the formed part of the common law. They called instead for "equal 5 footing" for all religions, Judaism included. Philadelphia Jews appropriation made to the New Yod thus petitioned for the "rights of freemen, solemnly ascertained "encourage[d] parents in habits of indi: to all men who are not professed Atheists." Jacob Henry argued religion." Siding with Presbyterians, F that "if a man fulfills the duties of that religion which his edu­ and Methodists against the school, they cation or his Conscience has pointed to him as the true one; no as "the greatest foundation of social ~ person . . . has the right to arraign him at the bar of any the basis of "the liberal spirit of OUi inquisition." Mordecai Noah, perhaps the leading American Jew should be made available to religiouslJ of his day, defined religious liberty as "a mere abolition of all as well.20 religious disabilities." "You are free," he explained, "to worship God in any manner you please; and this liberty of conscience can not be violated."l? Derenders or American Je' This sense of America as a broadly inclusive religious nation, while understandable as a response to "Christian America," was By the middle decades of the nineteer quite different from the theory of religion and state espoused by migrants from Germany and Poland, the} Thomas Jefferson and James Madison. Jefferson believed that had grown substantially, reaching 15,000 religion was a personal matter not subject to government juris­ twenty years later. Jews now formed a diction at all; we owe to him the famous interpretation of the minority community, complete with its 0' First Amendment as "a wall of separation between church and Jews also had their first regular pe state." Madison called in a similar vein for the "entire abstinence (1843-68), the Asmonean (1849-58), a. of the Government from any interference [With religion] in any American Israelite; 1854- ) -- to keep way whatever."18 The view that government should in a non­ them maintain ties with one another, discriminatory way support religion did, however, have firm roots in defense of Jewish rights. Where bel in American tradition. The Northwest Ordinance of 1787 grouped (except in unusual cases such as the I religion with morality and knowledge as things "necessary to been matters of local Jewish concern, r good government and the happiness of mankind." When the First papers they were trumpeted far and wide.2 Amendment was adopted, Samuel Huntington of Connecticut, Jews during this period looked to speaking in Congress, quite explicitly sought "to secure the rights a guarantor of Jewish rights and used i­ of conscience, and free exercise of the rights of religion, but to equality. "The laws of the country not to patronize those who professed no religion at aiL" Several editor of the Occident and the fore state constitutions and the writings of men like Benjamin Franklin religious leader of his day, "know notl all reinforced the same idea: that religion, defined in its broadest fession, and leave every man to pur sense, benefits society and government alike.19 pleases." He insisted that mdther Chr: The fact that early American Jews embraced this tradition "infidelity and atheism" was the law of explains why, as a community, they never linked their rights to is here freedom for all, and rights and prot those of nonbelievers. Nor did they protest when several states, Religious liberty, to Leeser and including Pennsylvania and Maryland, accorded Jews rights that meant "the right to worship God aftet nonbelievers were denied. Indeed, in one unusual petition in hearts." Nathaniel Levin, one of the 1R13, the trustees of New York's Congregation Shearith Israel. Charleston, went out of his way to Ut seeking a share of the state's school fund, attacked the he delivered a public toast to religious

6 s, Judaism included. Philadelphia Jews appropriation made to the New York Free School because it "rights of freemen, solemnly ascertained "encourage[d] parents in habits of indifference to their duties of professed Atheists." Jacob Henry argued religion." Siding with Presbyterians, Roman Catholics, Baptists, le duties of that religion which his edu­ and Methodists against the school, they praised religious education has pointed to him as the true one; no as "the greatest foundation of social happiness," and argued on ight to arraign him at the bar of any the basis of "the liberal spirit of our constitution" that funds '\Ioah, perhaps the leading American Jew should be made available to religiously operated charity schools ~ious liberty as "a mere abolition of all as wei 1.20 Y"ou are free," he explained, "to worship 1.1 please; and this liberty of conscience Defenders of American Jewish Rights -ica as a broadly inclusive religious nation, a response to "Christian America," was By the middle decades of the nineteenth century, thanks to im­ theory of religion and state espoused by migrants from Germany and Poland, the American Jewish population James Madison. Jefferson believed that had grown substantially, reaching 15,000 in 1840 and almost 150,000 matter not subject to government juris­ twenty years later. Jews now formed a sizable and self-conscious 10 him the famous interpretation of the minority community, complete with its own institutions and leaders. wall of separation between church and Jews also had their first regular periodicals -- the Occident n a similar vein for the "entire abstinence (1843-68), the Asmonean (1849-58), and the Israelite (later the n any interference [with religion] in any American Israelite; 1854- ) -- to keep them informed, to help view that government should in a non­ them maintain ties with one another, and to promote vigilance 1ft religion did, however, have firm roots in defense of Jewish rights. Where before church-state violations ~he Northwest Ordinance of 1787 grouped (except in unusual cases such as the Maryland bill) had usually :md knowledge as things "necessary to been matters of local Jewish concern, now thanks to these news­ 21 ~ happiness of mankind." When the First papers they were trumpeted far and wide. ::d, Samuel Huntington of Connecticut, Jews during this period looked to the First Amendment as lite explicitly sought "to secure the rights a guarantor of Jewish rights and used it to legitimate their claims exercise of the rights of religion, but to equality. "The laws of the country," explained Isaac Leeser, "ho professed no religion at aiL" Several editor of the Occident and the foremost traditionalist Jewish ~e writings of men like Benjamin Franklin religious leader of his day, "know nothing of any religious pro­ dea: that religion, defined in its broadest fession, and leave every man to pursue whatever religion he government alike.19 pleases." He insisted that n~ither Christianity, nor Judaism, nor - American Jews embraced this tradition "infidelity and atheism" was the law of the land, but that "there llunity, they never linked their rights to is here freedom for all, and rights and protection for all."22 '\lor did they protest when several states, Religious liberty, to Leeser and most of his fellow Jews, nd Maryland, accorded Jews rights that meant "the right to worship God after the dictates of our own

7 rabbi and editor of the American Israelite man from religion in any of the duties of life," he declared in defense of Jewish rights. He saw J. "and you degrade him to the level of the brute." Religious liberty: war to safeguard not only their ow as he defined it, meant "liberty of conscience" and "freedom of American liberty as well. "Not becam t~ought:' wit.hin a reli.gious context.23 Having defined religious we oppose the attempt to crush religi lIberty In thIS way, mld-nineteenth-century Jews saw no need to 1865, "we do it because we love libe pro~est that Congress and most state legislatures began their them in esteem infinitely higher thai sessIons with religious invocations. They simply insisted that explicitly linking the safeguarding of J Jews be invited to deliver such prayers as well -- and in at guarding of American liberties, he rc ~east three cases rabbis were invited to do so. Similarly, when church-state issues to the level of a J~w~ 10 1861 learned that only "regularly ordained minister[s] of what many Jews have considered it evel some Chnstlan denomination" could legally serve as regimental that Wise was so proud of the fact tho ~haplains in the Uni.on army, they did not object to the chaplaincy fought to the hilt. Looking back lat. Itself, although on Its face it violated principles of strict church­ according to his biographer, that he hal state separation. Instead, they campaigned to have the law broad­ on the issue of civil and religious rights, w}­ ened to include rabbis, which, thanks to support from President Beginning in 1859, individual rab\:: Lincoln, it eventually was.24 church-state battles on their own. n From a Jewish point of view, church-state violations were American Israelites, founded that year. no different from anti-Jewish defamations and Christian mission­ rights one of its central objects, and a­ izing. All alike, Jews thought, aimed to deprive them of their representative of the American Jewish c equal st.atus in American society.25 Thanksgiving Day it spoke for a broad constituency. It proclamatIons that excluded Jews by referring to Christianity, to efforts by the National Reform A references to ~mericans as a "Christian people," discriminatory preamble to the Constitution to indud law~ and practices, anti-Jewish slurs and stereotypes, conversionist God," "the Lord Jesus Christ," and "C sallies, efforts to write Christianity into the Constitution -- these likewise protested provisions of the ~nd. similar instances of thoughtlessness, maliciousness, and pre­ providing that southerners' mandatory oc JUdl~e s~emed to Jews not just wrong but distinctly un-American, istered upon the "Holy Evangelists," a VIOlatIOn of the Constitution as they understood it.26 They having the form of oath modified.29 TI usually responded forcefully, for as Isaac Leeser explained Jewish an address to "the friends of ReligiolJ rights had jealously to be guarded: ' North Carolina" attacking an article in constitution that would have barred frOi Though a captious fault-finding and a constant nervous­ who "deny ... the divine authority 0 ness .to take offense should never be manifested by Testaments." "Do not enact a Cons­ I~raelJtes, as unbecoming and unmanly, at the same equality of citizens whatever their religil tIme, no public insult either of omission or commission implored, reprising Jonas Phillips's "E should be passed over in silence; for we ought to take eighty years before. Significantly, the good care of our rights and never allow them to be against all religious tests, only those tacitly violated.27 "good citizens because they worship their conscientious convictions."30 Rabbi Isaac M. Wise of Cincinnati, America's leading Reform

8 any of the duties of life," he declared, rabbi and editor of the American Israelite, was even more vehement -0 the level of the brute." Religious liberty, in defense of Jewish rights. He saw Jews engaged in a political t "liberty of conscience" and "freedom of war to safeguard not only their own hard-won equality but ~ious context.23 Having defined religious American liberty as well. "Not because we profess Judaism do j-nineteenth-century Jews saw no need to we oppose the attempt to crush religious liberty," he wrote in and most state legislatures began their 1865, "we do it because we love liberty and justice, and hold invocations. They simply insisted that them in esteem infinitely higher than all earthly gifts." By :liver such prayers as well -- and in at explicitly linking the safeguarding of Jewish rights to the safe­ . were invited to do so. Similarly, when guarding of American liberties, he raised Jewish vigilance on hat only "regularly ordained minister[s] of church-state issues to the level of a patriotic duty -- which is nation" could legally serve as regimental what many Jews have considered it ever since. No wonder, then, army, they did not object to the chaplaincy that Wise was so proud of the fact that on these issues he had "ace it violated principles of strict church­ fought to the hilt. Looking back late in his life, he claimed, according to his biographer, that he had never shirked his "duty" :I, they campaigned to have the law broad- 28 which, thanks to support from President on the issue of civil and religious rights, whatever the cost. 24 Beginning in 1859, individual rabbis no longer had to fight )int of view, church-state violations were church-state battles on their own. The Board of Delegates of rewish defamations and Christian mission­ American Israelites, founded that year, made defense of Jewish thought, aimed to deprive them of their rights one of its central objects, and although it was never truly lerican society.25 Thanksgiving Day representative of the American Jewish community, on these issues :uded Jews by referring to Christianity, it spoke for a broad constituency. It thus repeatedly objected :s as a "Christian people," discriminatory to efforts by the National Reform Association to rewrite the Jewish slurs and stereotypes, conversionist preamble to the Constitution to include references to "Almighty Christianity into the Constitution -- these God," "the Lord Jesus Christ," and "Christian government." It : thoughtlessness, maliciousness, and pre­ likewise protested provisions of the 1866 Reconstruction Act lot just wrong but distinctly un-American, providing that southerners' mandatory oath of allegiance be admin­ stitution as they understood it.26 They istered upon the "Holy Evangelists," and was instrumental in 29 ully, for as Isaac Leeser explained, Jewish having the form of oath modified. That same year it published guarded: an address to "the friends of Religious Liberty in the State of North Carolina" attacking an article in the state's proposed new fault-finding and a constant nervous­ constitution that would have barred from government office those who "deny ... the divine authority of both the Old and New Ise should never be manifested by Testaments." "Do not enact a Constitution which denies the :oming and unmanly, at the same equality of citizens whatever their religious profession," the board lit either of omission or commission ver in silence; for we ought to take implored, reprising Jonas Phillips's "Equal footing" demand of rights and never allow them to be eighty years before. Significantly, the board did not speak out against all religious tests, only those that denied equality to "good citizens because they worship God in accordance with e of Cincinnati, America's leading Reform their conscientious convictions."30

9 Sunday Laws vealing spectrum. There were, first Jewish leaders who took it for granted The issue that most occupied nineteenth-century Jews, and that could exercise some power in shaping remained a central church-state issue well into the twentieth therefore found Sunday laws unobjeci century, involved the emotional question of Sunday ("blue") laws, for example, felt that the laws had " regulations that required all businesses to close down on the of conscience at all," but were a "mere Christian Sabbath, thereby making it economically difficult for Believing that Jews would enforce simi Jews to rest on their own Sabbath, observed on Saturday. Explicit if they "possessed a government of th discrimination was not the issue here; in theory, if not in effect, to keep quiet. "Respect to the laws I Sunday laws treated Jews and Christians alike. Indeed, proponents warned, "is the first duty of good citize proudly pointed out that limiting the work week to six days later, Rabbi Emil G. Hirsch of Chicago benefited all workers, made it possible for Christians to have a albeit for different reasons. As an day off to go to church, and ensured that rich and poor alike Hirsch believed that the state had tc would have an equal chance to keep Sunday holy without facing community's interest, to be the protei economic hardship. But what seemed to many Christians to be a community." Sunday laws, to his min legitimate means of assuring religious "free exercise" was in for working people. Without them h( Jewish eyes an effort to "establish" Christianity as the national hire seven days work will be exacted frc religion. Jews found laws requiring observance of the Christian he shifted the Sabbath day to Sunday ir Sabbath to be religiously coercive, blamed such laws for lax norms.34 observance by Jews of their own Sabbath (when most Jews had At the opposite extreme stood to work), and insisted that forcing observant Jews to -keep two Sunday laws to be illegal, a violation ( days of rest, their own and the state's, amounted to economic ation. Isaac Leeser, perhaps the bes discrimination, for it required Jews to suffer monetary losses on view, characterized Sunday legislation account of their faith. The question tested the meaning and and unconstitutional." He argued on limits of church-state separation, and raised anew the problem conscience" that Sabbath observance 31 of majority rule versus minority rights. "conviction of individuals," and consid To be sure, American Christians were by no means of one of all human beings to work whene' mind regarding the "Sunday question." Laws and practices varied they pleased without state interferen from state to state, immigrants from different lands brought that the Christian Sabbath would hav. divergent Sabbath traditions with them, and Protestant denomi­ affections" if it were observed voJunta­ nations differed among themselves not only over how the Sabbath was, rather than under coercion.35 should be observed but whether it should be observed on Sunday This argument, resting on basic at all. Seventh Day Baptists, for example, advocated a return to thoroughly egalitarian; it did not der the biblical Sabbath. Still, all the states in the nineteenth century who observed the Sabbath on another enacted Sunday laws in some form or other, and religious leaders Philipson made a similar case in 0PP mounted recurrent campaigns to revitalize Sabbath observance, and parallel ideas were expressed as lat­ both by enacting new laws and by promoting enforcement of by Rabbi Harold Silver. Yet the cia: those already on the books. Especially when strictly enforced, that the Sabbath is entirely a matter such laws caused Jews a great deal of hardship.32 science" and that "in a democracy like Jewish responses to Sunday laws covered a broad and re­ to work or rest seven days a week or n 10 Sunday Laws vealing spectrum. There were, first of all, a small number of Jewish leaders who took it for granted that the Christian majority ::cupied nineteenth-century Jews, and that could exercise some power in shaping the nation's character, and lurch-state issue well into the twentieth therefore found Sunday laws unobjectionable. Mordecai Noah, Ilotional question of Sunday ("blue") laws, for example, felt that the laws had "nothing to do with liberty ~d all businesses to close down on the of conscience at all," but were a "mere local or police regulation." :,eby making it economically difficult for Believing that Jews would enforce similar laws regarding Saturday i/n Sabbath, observed on Saturday. Explicit if they "possessed a government of their own," he advised Jews the issue here; in theory, if not in effect, to keep quiet. "Respect to the laws of the land we live in," he ·S and Christians alike. Indeed, proponents warned, "is the first duty of good citizens ....,,33 Half a century hat limiting the work week to six days later, Rabbi Emil G. Hirsch of Chicago offered Jews similar advice, :nade it possible for Christians to have a albeit for different reasons. As an exponent of social justice, :h, and ensured that rich and poor alike Hirsch believed that the state had to be "the guardian of the hance to keep Sunday holy without facing community's interest, to be the protector of the weaker in the t what seemed to many Christians to be a community." Sunday laws, to his mind, were a form of security lssuring religious "free exercise" was in for working people. Without them he feared "that for six days' to "establish" Christianity as the national hire seven days work will be exacted from all." In his own temple, .aws requiring observance of the Christian he shifted the Sabbath day to Sunday in conformity with American lsly coercive, blamed such laws for lax norms.34 their own Sabbath (when most Jews had At the opposite extreme stood Jews who considered all that forcing observant Jews to. keep two Sunday laws to be illegal, a violation of strict church-state separ­ 1 and the state's, amounted to economic ation. Isaac Leeser, perhaps the best known exponent of this ~quired Jews to suffer monetary losses on view, characterized Sunday legislation as a whole as "tyrannical The question tested the meaning and and unconstitutionaL" He argued on the basis of "freedom of separation, and raised anew the problem conscience" that Sabbath observance should be left up to the 31 inority rights. "conviction of individuals," and considered it the "natural right" :'ican Christians were by no means of one of all human beings to work whenever and for however long nday question." Laws and practices varied they pleased without state interference. Indeed, he believed immigrants from different lands brought that the Christian Sabbath would have a "stronger hold on the itions with them, and Protestant denomi­ affections" if it were observed voluntarily, as the Jewish Sabbath themselves not only over how the Sabbath was, rather than under coercion.35 whether it should be observed on Sunday This argument, resting on basic American principles, was :lptists, for example, advocated a return to thoroughly egalitarian; it did not demand exceptions for those till, all the states in the nineteenth century who observed the Sabbath on another day. In 1889, Rabbi David some form or other, and religious leaders Philipson made a similar case in opposing Ohio's Sabbath law, npaigns to revitalize Sabbath observance, and parallel ideas were expressed as late as 1958 in a bold address laws and by promoting enforcement of by Rabbi Harold Silver. Yet the claim, as expressed by Silver, books. Especially when strictly enforced. that the Sabbath is entirely a matter of "private religious con­ ~reat deal of hardship.32 science" and that "in a democracy like ours, a man has the right to Sunday laws covered a broad and re­ to work or rest seven days a week or none" never won widespread

11 support. It not only alienated many workers who thought other­ votions," so long as they could be a wise, it also logically required Jews to oppose other forms of "indoor occupations . . . in a quiet an labor legislation, including the minimum wage and the forty-hour attend "to their field labors if occasion week. Moreover, it ran afoul of the courts, which generally A half-century later, Rabbi Isaac M. W declared that states could legally enact blue laws on the basis modationist approach to Sunday laws as of their well-accepted right to regulate trade.36 in harmony with the idea of persona The strategy that succeeded better and enlisted more wide­ American Hebrew Congregations, four spread support was a live-and-Iet-live attitude toward Sunday resolutions did not oppose Sunday I. blue laws, a middle-ground position. It saw Jews acquiesce to "unjust and oppressive" ones. It sou the laws on the basis of their social and religious benefits, while right for them to keep their Sabbath insisting upon exemptions for those, like themselves, who observed six days like everybody else, nothing more. Louis Marshall, the foremost Am the Sabbath on the seventh day of the week. As early as 1817, a Jewish lawyer named Zalegman Phillips, the son of Jonas Phillips, early twentieth century, also backed argued in this vein, seeking to persuade a Philadelphia judge the New York State legislature to agree tJ that "those who profess the Jewish religion and others who keep the seventh day" should be exempted from blue laws on freedom­ No person who observes the seVI of-religion grounds. Without contesting the application of the as the Sabbath, and actually ! laws to others, he declared that the Decalogue, according to business and labor on that day, ~ Jewish tradition, not only commanded rest on the seventh day Friday to sundown on Saturday, but also labor on the previous six, and that Jews should therefore secution for carrying on secular b not be obliged to close their businesses on both Saturday and labor on Sunday, provided public' Sunday.3? Phillips lost his case, but his argument -- that Jews disturbed. and others who .)bserved Sabbath on Saturday should be exempt from Sunday legislation -- won considerable popular support. He claimed to have support for his bill Leading early-nineteenth-century proponents of Sunday legislation, Jews, as well as from the membershi) 40 faced with charges that blue laws violated freedom of conscience Committee. advocated exemptions for all who conscientiously observed th~ By supporting exemptions, rath. Sabbath on Saturday, and in time several states (twenty-four by laws entirely, Jews were able to project 1908) enacted them into law. Following the model of New York's attitude, even as they spoke of religio 1860 statute, however, most only permitted adherents of the advance their own goals. The very na century Jewish anti-blue-law organizati Saturday-Sabbath to labor in private where others would not be Sabbath" and the "Jewish Sabbath AI disturbed; stores and other businesses operating in public had to to the Christian "Lord's Day Alliance": remain closed.38 Similarly, in advocating exemptions Many Jews nevertheless applauded this approach to the first defended Sunday laws, and then Sunday law problem as a sensible compromise. In 1838, a group of Pennsylvania Jews (writing in a memorial that was composed to extend the same Sabbath benefits but apparently never sent) thus expressed a willingness "to yield abilities to the minority that rested c any outdoor occupations which might be offensive to the community week. "Every right-thinking man mus· at large on the First day of the week," as well as indoor labors seven," he agreed, "but no right-thir that might disturb Christians "in their public or domestic de­ another to observe two days in seven."41

12 ienated many workers who thought other­ votions," so long as they could be assured the right to follow 'equired Jews to oppose other forms of "indoor occupations ... in a quiet and orderly manner," and to ng the minimum wage and the forty-hour attend "to their field labors if occasion should require the same." an afoul of the courts, which generally A half-century later, Rabbi Isaac M. Wise lauded a similar accom­ '.lId legally enact blue laws on the basis modationist approach to Sunday laws as "sensible and constitutional 1t to regulate trade.36 in harmony with the idea of personal liberty." The Union of succeeded better and enlisted more wide- American Hebrew Congregations, founded in 1873, agreed. Its live-and-let-Iive attitude toward Sunday resolutions did not oppose Sunday laws as a whole, but only lund position. It saw Jews acquiesce to "unjust and oppressive" ones. It sought equality for Jews, the f their social and religious benefits, while right for them to keep their Sabbath and still be able to work six days like everybody else, nothing more.39 IS for those, like themselves, who observed enth day of the week. As early as 1817, Louis Marshall, the foremost American Jewish leader of the early twentieth century, also backed this approach. He urged ~alegman Phillips, the son of Jonas Phillips, the New York State legislature to agree that ~eking to persuade a Philadelphia judge the Jewish religion and others who keep be exempted from blue laws on freedom­ No person who observes the seventh day of the week /ithout contesting the application of the as the Sabbath, and actually refrains from secular :Iared that the Decalogue, according to business and labor on that day, or from sundown on nly commanded rest on the seventh day Friday to sundown on Saturday, shall be liable to pro­ "evious six, and that Jews should therefore secution for carrying on secular business or performing labor on Sunday, provided public worship is not thereby ~ their businesses on both Saturday and his case, but his argument -- that Jews disturbed. :d Sabbath on Saturday should bt< exempt 1 -- won considerable popular support. He claimed to have support for his bill from Orthodox and Liberal :-century proponents of Sunday legislation, Jews, as well as from the membership of the American Jewish 4o blue laws violated freedom of conscience, Committee. 'or all who conscientiously observed the By supporting exemptions, rather than opposing Sunday nd in time several states (twenty-four by laws entirely, Jews were able to project a proreligion. pro-Sabbath law. Following the model of New York's attitude, even as they spoke of religious freedom and sought to most only permitted adherents of the advance their own goals. The very names assumed by twentieth­ or in private where others would not be century Jewish anti-blue-law organizations -- "Upholders of the Sabbath" and the "Jewish Sabbath Alliance" (the Jewish answer her businesses operating in public had to to the Christian "Lord's Day Alliance") -- underscored this point. Similarly, in advocating exemptions for Jews, Louis Marshall :heless applauded this approach to the a sensible compromise. In 1838, a group first defended Sunday laws. and then explained that he sought 'riting in a memorial that was composed to extend the same Sabbath benefits without accompanying dis­ ot) thus expressed a willingness "to yield abilities to the minority that rested on a different day of the which might be offensive to the community week. "Every right-thinking man must favor one day of rest in !y of the week," as well as indoor labors seven," he agreed, "but no right-thinking man should compel istians "in their public or domestic de­ another to observe two days in seven."41

13 In the final analysis, of course, it was not the policy of temperance," to reintroduce Christian granting Jews exceptions that won the day so much as the advance and to write Christian morality into Ar of the five-day work week that made the whole problem increasing­ Christians may have been somewhat ly moot. Supported by Jews and Christians alike for social and Robert Handy indicates, their goal toc economic as well as religious reasons, the five-day week created, spiritualized and idealized restatemel in effect, two possible days of rest. This, plus changing consumer specifically Christian society in an age c habits, the decline of small-merchant ("mom and pop") businesses, The implication, spelled out in 1867 b~ and pressure from department stores seeking to remain open Presbyterian and Theological Review, seven days a week, led many states in the 1970s and '80s to could never win full acceptance as equals: modify their blue laws; some abandoned them altogether. Still, the lesson of the long battle over Sunday laws remains instructive. This is a Christian Republic, our On this issue, the bulk of the Jewish community pragmatically the Protestant type. People whl supported a proreligion, live-and-let-Iive stance that took Jews' and people called Christians, but w 42 own special needs into account. dwell among us, but they did I We have never shut our doors they come, they must take up with The Shift to SelJarationism as we have . . . If anyone, co: that this arrangement is uncom The last third of the nineteenth century witnessed a momentous will do well to try some other c. change in American Jewish attitudes toward issues of religion wide; there is more land to be I and state. Where before, as we have seen, the community generally and make a beginning for himse adhered to a proreligion stance, supporting impartial government for us; as for this land, we have; aid to all religions as long as Judaism was treated equally, now it in the name of the Lord Jel; an increasing number of Jews spoke out unequivocally for a govern­ will give us grace to do it, we ment free of any religious influence whatsoever, a secular state. him till he comes.44 To some extent this reflected the changing spirit of the times. In the post-Civil War decades, James Turner has recently shown, A proposed "Christian Amendment" d agnosticism emerged as a respectable alternative to traditional Jesus Christ" and the "Christian" basi religion: "Disbelief in God was, for the first time, plausible text of the Constitution attempted t enough to grow beyond a rare eccentricity and to stake out a would be speedily realized. Then, in 1 sizable permanent niche in American culture." Even more im­ Church of the Holy Trinity v. United portant, however, is the fact that Jews during this period found United States actually was a "Christ to their dismay that calls for religious equality fell more and who wrote this decision, David Brewel more on deaf ears. The spiritual crisis and internal divisions subsequently added insult to injury b). that plagued Protestant America during this era -- one that con­ published lecture, The United States -­ fronted all American religious groups with the staggering impli­ where he relegated Judaism to the level () cations of Darwinism and biblical criticism -- drove Evangelicals Jews, all too familiar with th and liberals alike to renew their particularistic calls for a Christian romantics in Europe, were "Christian America." Evangelical leaders championed antimodernist these developments. As in the Old \; legislation to protect the "Christian Sabbath," to institute "Christian thought, proponents of religion were ;

14 isis, of course, it was not the policy of temperance," to reintroduce Christianity into the schoolroom, • that won the day so much as the advance and to write Christian morality into American law codes. Liberal :k that made the whole problem increasing­ Christians may have been somewhat more circumspect, but as - Jews and Christians alike for social and Robert Handy indicates, their goal too was "in many respects a igious reasons, the five-day week created, spiritualized and idealized restatement of the search for a ays of rest. This, plus changing consumer specifically Christian society in an age of freedom and progress.,,43 lall-merchant ("mom and pop") businesses, The implication, spelled out in 1867 by a writer in the American Jartment stores seeking to remain open Presbyterian and Theological Review, was that non-Protestants j many states in the 1970s and '80s to could never win full acceptance as equals: some abandoned them altogether. Still• •attle over Sunday laws remains instructive. This is a Christian Republic, our Christianity being of 0( of the Jewish community pragmatically the Protestant type. People who are not Christians, _, live-and-let-Iive stance that took Jews' and people called Christians, but who are not Protestants count.42 dwell among us, but they did not build this house. We have never shut our doors against them, but if they come, they must take up with such accommodations Shift to Separationism as we have . . . If anyone, coming among us finds that this arrangement is uncomfortable, perhaps he ineteenth century witnessed a momentous will do well to try some other country. The world is :'::wish attitudes toward issues of religion wide; there is more land to be possessed; let him go ~, as we have seen, the community generally and make a beginning for himself as our fathers did n stance, supporting impartial government for us; as for this land, we have taken possession of _ong as Judaism was treated equally, now it in the name of the Lord Jesus Christ; and if he Jews spoke out unequivocally for a govern­ will give us grace to do it, we mean to hold it for ous influence whatsoever, a secular state. him till he comes.44 ::flected the changing spirit of the times. :ecades, James Turner has recently shown, A proposed "Christian Amendment" designed to write "the Lord ; a respectable alternative to traditional Jesus Christ" and the "Christian" basis of national life into the God was, for the first time, plausible text of the Constitution attempted to ensure that these aims j a rare eccentricity and to stake out a would be speedily realized. Then, in 1892, the Supreme Court in ~ in American culture." Even more im­ Church of the Holy Trinity v. United States declared that the ~ fact that Jews during this period found United States actually was a "Christian Nation." The justice ails for religious equality fell more and who wrote this decision, David Brewer, the son of a missionary, rhe spiritual crisis and internal divisions subsequently added insult to injury by defending his views in a America during this era -- one that con­ published lecture, The United States _. A Christian Nation (1905), ::Iigious groups with the staggering impli­ where he relegated Judaism to the level of a tolerated creed.45 nd biblical criticism -- drove Evangelicals Jews, all too familiar with the anti-Jewish rhetoric of renew their particularistic calls for a Christian romantics in Europe, were understandably alarmed by angelical leaders championed antimodernist these developments. As in the Old World so in the New, they "Christian Sabbath," to institute "Christian thought, proponents of religion were allying themselves with the

15 [

I, forces of reaction. "The Protestants come now and say defiantly Jews, liberal Christians, religious freeth that this is a Protestant country," Rabbi Max Lilienthal warned common bond, their religious and the in a celebrated public address in 1870. "When I left Europe I withstanding.',48 Thus in 1868, Rabbi came to this country because I believed it to be free," In search complete church-state separation to one of a safe haven, many Jews now settled down firmly in the free­ American Judaism: thinking liberal camp; it seemed far more hospitable to Jewish interests. They also turned increasingly toward a more vehement [W]e are going to lay our cornerste response to "Christian America" claims -- the doctrine of strict motto, "Eternal separation of state separation.46 this reason we shall never favor Strict church-state separation was, of course, an old idea for our various benevolent institt in America; its roots lay deeply embedded in colonial and European and if offered, we should not on~ thought. As we have seen, the idea had been embraced by Thomas it with scorn and indignation, for Jefferson and James Madison, who believed that the state should the first sophistical, well-premed be utterly secular, religion being purely a matter of personal future union of church and state. : preference. While certainly not hostile to religion, they believed must be supported by their sect that religious divisions were salutary and that religious truth public purse and treasury dares : would be most likely to flourish in a completely noncoercive and emptied for sectarian purposes.4<; atmosphere. "Whilst we assert for ourselves a freedom to embrace, to profess, and to observe the religion which we believe to be Lilienthal's Cincinnati colleague, Rabbi I of divine origin," Madison wrote in his Memorial and Remonstrance a year later that "the State has no reli~ (1785), "we cannot deny an equal freedom to those whose minds it cannot impose any religious instruct have not yet yielded to the evidence which has convinced us." or child."50 Chicago's Rabbi Bernhare Jefferson refused to proclaim so much as a Thanksgiving Day polemic written to prove that "ours is nc lest he "indirectly assume to the United States an authority over went even further: religious exercises."47 However, theirs was a decidedly minority view that fell into disfavor with the revival of national religious God be praised that church and sf fervor early in the nineteenth century. It was only now, in the our country! God be praised thaI post-Civil War era and as a response to "Christian America" the United States and of the singl agitation, that strict separation attracted a school of new ad­ freed from this danger-breeding idt herents. that they are "atheistical," as they Jews became particularly ardent supporters of the Jefferson­ of being by some over-zealous, Madison position. Alarmed by the tenor of public debate, they desire to overcome the nineteen began to participate in such groups as the Free Religion Asso­ restore again the fourteenth centUi ciation and the National Liberty League, both dedicated to complete that this has been accomplished in church-state separation. Notable Reform Jewish leaders, including our constitutions and state rabbis Isaac M. Wise, Bernhard Felsenthal, and Max Schlesinger, "atheistical" just as our manufacto: 51 as well as the Jewish lay leader Mortiz Ellinger, embraced the our commerce are. separationist agenda spelled out in The Index, edited by Francis Abbot. "The issue of church-state. relations," observes Professor This soon became the predominant Am Benny Kraut, "precipitated a natural, pragmatic alliance uniting church-state questions, seconded by ,

16 1e Protestants come now and say defiantly Jews, liberal Christians, religious freethinkers, and secularists in 1t country," Rabbi Max Lilienthal warned common bond, their religious and theological differences not­ address in 1870. "When I left Europe I withstanding.,,48 Thus in 1868, Rabbi Max Lilienthal elevated ~cause I believed it to be free." In search complete church-state separation to one of the central tenets of Jews now settled down firmly in the free­ American Judaism: it seemed far more hospitable to Jewish rned increasingly toward a more vehement [W]e are going to lay our cornerstone with the sublime America" claims -- the doctrine of strict motto, "Eternal separation of state and church!" For this reason we shall never favor or ask any support separation was, of course, an old idea for our various benevolent institutions by the state; deeply embedded in colonial and European and if offered, we should not only refuse, but reject en, the idea had been embraced by Thomas it with scorn and indignation, for those measures are adison, who believed that the state should the first sophistical, well-premeditated steps for a igion being purely a matter of personal future union of church and state. Sectarian institutions ainly not hostile to religion, they believed must be supported by their sectarian followers; the were salutary and that religious truth public purse and treasury dares not be filled, taxed to flourish in a completely noncoercive and emptied for sectarian purposes.49 ~ assert for ourselves a freedom to embrace, erve the religion which we believe to be Lilienthal's Cincinnati colleague, Rabbi Isaac M. Wise, proclaimed :m wrote in his Memorial and Remonstrance a year later that "the State has no religion. Having no religion, y an equal freedom to those whose minds it cannot impose any religious instruction on the citizen, adult o the evidence which has convinced us." or child."50 Chicago's Rabbi Bernhard Felsenthal, in an 1875 roclaim so much as a Thanksgiving Day polemic written to prove that "ours is not a Christian civilization," ne to the United States an authority over went even further: However, theirs was a decidedly minority avor with the revival of national religious God be praised that church and state are separated in ~teenth century. It was only now, in the our country! God be praised that the constitution of j as a response to "Christian America" the United States and of the single states are now all ~paration attracted a school of new ad­ freed from this danger-breeding idea! God be praised that they are "atheistical," as they have been accused cularly ardent supporters of the Jefferson­ of being by some over-zealous, dark warriors who rmed by the tenor of public debate, they desire to overcome the nineteenth century and to such groups as the Free Religion Asso­ restore again the fourteenth century. God be praised Liberty League, both dedicated to complete that this has been accomplished in our Union and may Notable Reform Jewish leaders, including our constitutions and state institutions remain 3ernhard Felsenthal, and Max Schlesinger, "atheistical" just as our manufactories, our banks, and lay leader Mortiz Ellinger, embraced the our commerce are.51 ~Iled out in The Index, edited by Francis church-state. relations," observes Professor This soon became the predominant American Jewish position on lted a natural, pragmatic alliance uniting church-state questions, seconded by one Jewish organization

17 after another. The Union of American Hebrew Congregations religion in the public schools. Open tc (not originally intended to be an organ of the Reform movement), alike, organized on a uniform and syst for example, in 1876 expressed its support for the "Congress of supported, and dedicated to moral educa Liberals" in its efforts "to secularize the State completely." The these schools emerged in America durin; Central Conference of American Rabbis, meeting in 1892, leveled to the Civil War.55 Whatever their de a similarly emphatic protest "against all religious legislation as schools then were culturally Protestant: "1 subversive of religious liberty.,,52 Christianity with republicanism, with To be sure, as Shlomith Yahalom has shown, Jewish advocates with virtue."56 Curriculum and textbt of church-state separation stopped short of supporting the blatantly rife with material that Catholics and Jc:: antireligious planks advocated by some separationist organizations. early as the 1840s, New York Jews are Calls by the Liberal League, the American Association for the the use of such textbooks in the public Advancement of Atheism, and others for taxation of church pro­ the board of education, controlled by perty, elimination of chaplains from the public payrolls, abolition declare stories about the "Son of God" ( of court and inaugural oaths, and removal of the phrase "In God Testament out of bounds. As a result, . We Trust" from the currency never won serious Jewish support, do so sent their children to Jewish 53 set even from those who seconded their larger objectives. Indeed, not only in New York but in every major cil the Central Conference of American Rabbis, in attacking religious But not for long. As public scho legislation in 1892, went out of its way to recognize at the same Catholics and others, became more r time "the value of religious sentiment." Similarly, Rabbi David flocked to them for they were free, conve Philipson, a champion of strict separation, (naively) records his superior, and usually far more commc "amazement" at finding that the American Secular Union, which counterparts. Furthermore, public scho he had been invited to address on church-state separation, "was become symbols of American democra practically an irreligious organization." One speaker, he writes, Julius Freiberg of Cincinnati once calle so outraged him "that ... I cast my manuscript aside" and spoke of the high and low, rich and poor, P instead "on religion and the Bible."54 Eager to foster voluntary Jews, mingle together, play together, am ad herence to religion, even as they sought to combat any form a free people, striving to elevate mank of state religion, American Jews sought to steer a middle course. another."58 As such, the schools came tt They embraced separationism in theory as the best and most advantage over "sectarian" schools; Jev.. legitimate defense against a Christian-dominated state, but as a entree to America itself and supported practical matter they were much more circumspect and pragmatic, By the mid 1870s, most Jewish day sch. generally keeping in mind other competing considerations and by Sabbath, Sunday, and afternoon supp speaking up only in those instances when they believed Jewish our settled opinion here," Rabbi Isaac interests to be genuinely at risk. U.S. Commissioner of Education in 187­ the young is the business of the Statt struction ... is the duty of religious b The Battle Over Religion in the Public Schools ., interfere with the other. The secular public schools, religion in the Sabbath schol The issue that stood at the heart of church-state debates in Wise's "settled opinion," Lloyd Gar late-nineteenth- and twentieth-century America and affected ideology." To attend public schools a American Jews significantly concerned the emotional question of sectarianism became not just a matter of

18 lion of American Hebrew Congregations religion in the public schools. Open to rich and poor children ~o be an organ of the Reform movement), alike, organized on a uniform and systematic basis, largely tax­ pressed its support for the "Congress of supported, and dedicated to moral education and good citizenship, to secularize the State completely." The these schools emerged in America during the three decades prior Lmerican Rabbis, meeting in 1892, leveled to the Civil War.ss Whatever their claims to the contrary, the otest "against all religious legislation as schools then were culturally Protestant: "They associated Protestant :rty."S2 Christianity with republicanism, with economic progress, and :nith Yahalom has shown, Jewish advocates with virtue."S6 Curriculum and textbooks were, consequently, 1 stopped short of supporting the blatantly rife with material that Catholics and Jews found offensive. As cated by some separationist organizations. early as the 1840s, New York Jews are known to have protested :ague, the American Association for the the use of such textbooks in the public schools, but to no avail; n, and others for taxation of church pro­ the board of education, controlled by Protestants, refused to Iplains from the public payrolls, abolition declare stories about the "Son of God" or readings from the New laths, and removal of the phrase "In God Testament out of bounds. As a result, Jews who could afford to rrency never won serious Jewish support, do so sent their children to Jewish schools -- which flourished conded their larger objectives,S3 Indeed, not only in New York but in every major city where Jews lived.57 :>f American Rabbis, in attacking religious But not for long. As public schools, under pressure from out of its way to recognize at the same Catholics and others, became more religiously sensitive, Jews ious sentiment." Similarly, Rabbi David flocked to them for they were free, convenient, often educationally )f strict separation, (naively) records his superior, and usually far more commodious than their Jewish that the American Secular Union, which counterparts. Furthermore, public schools had in a short time address on church-state separation, "was become symbols of American democracy: "temples of liberty," organization," One speaker, he writes, Julius Freiberg of Cincinnati once called them, where "children •. I cast my manuscript aside" and spoke of the high and low, rich and poor, Protestants, Catholics and the Bible.',S4 Eager to foster voluntary Jews, mingle together, play together, and are taught that we are ven as they sought to combat any form a free people, striving to elevate mankind, and to respect one an Jews sought to steer a middle course. another."S8 As such, the schools came to have an insurmountable onism in theory as the best and most advantage over "sectarian" schools; Jews perceived them as an 5t a Christian-dominated state, but as a entree to America itself and supported them as a patriotic duty, °e much more circumspect and pragmatic, By the mid 1870s, most Jewish day schools had closed, replaced ind other competing considerations and by Sabbath, Sunday, and afternoon supplementary schools. "It is )se instances when they believed Jewish our settled opinion here," Rabbi Isaac M. Wise reported to the t risk. U.S, Commissioner of Education in 1870, "that the education of the young is the business of the State, and that religious in­ struction , , . is the duty of religious bodies. Neither ought to r Religion in the Public Schools interfere with the other. The secular branches belong to the public schools, religion in the Sabbath schools, exclusively.',S9 .t the heart of church-state debates in Wise's "settled opinion," Lloyd Gartner points out, "became ventieth-century America and affected ideology." To attend public schools and to guard them from Itly concerned the emotional question of sectarianism became not just a matter of Jewish communal interest

19 r;i' II !, ci~ I but a patriotic obligation as well. In carrying out this "obligation," board, in an effort to placate the however, Jews frequently came into conflict with their Protestant dispense with the reading of the Bible and Catholic neighbors. Many schools, for example, began the was pleased. Indeed, he and Max Lili day with morning religious exercises "usually including, in whole who loudly supported the board's decisic or in part, reading of the King James version of the Bible, reciting in court by outraged Protestants. Dena of some form of prayer, and singing of hymns." In several states Protestant leaders as religious fanatics,

such devotions were even mandated by state law, on the theory to destroy the public schools in favor I that public schools should not be "godless," and that while f latter for seeking to make the schools "sectarianism" was constitutionally enjoined, religion (which usually a celebrated address, firmly aligned him: meant Protestantism) was not,60 A Texas court, in a 1908 opinion, I -- those who favored, as he did, religi01 II·, upheld this view, and defended it with an argument that many conscience.65 This strategy -- to assoc

:1" II at the time found convincing: by Jews with the patriotic position on I! iii widely emulated. "Opposition to sect Christianity is so interwoven with the web and woof Jewish pamphleteer in 1906, "is not an I,i'l '! of the state government that to sustain the contention Christianity but of devotion to American ic Ii that the Constitution prohibits reading of the Bible, Much as they opposed sectarianis offering prayers, or singing songs of a religious many Jews in this period sympathized character in any public building of the government schools devoid of religion might becom would produce a condition bordering upon moral anarchy They searched, therefore, for some way 61 in church-state separation with their e needed to be (in Max Lilienthal's word The problem faced by American Jews was how to dissent eminently and essentially Godful." Lilie: from this approach without embracing the very "godlessness" cators to stress the importance of "g that so many devout Christians sought to preclude. Since the Teach )[oung people "to cling to that s; public school symbolized American ideals, Jews wanted their love, mutual good will, and forbearance: children to be treated in accordance with what they believed you will make our schools Godful and tn those ideals demanded. They wanted the public schools to make sense of the word."67 Rabbi Bernhard F their children "Americans," not Christians. It was not enough, in Chicago, called for "instruction in u then, that most states, particularly in the twentieth century, letter to the Nation, he sketched out ; made provisions for students who wished to be excused from ethical instruction," carefully avoiding an: religious exercises, for coercion was not the major issue.62 ing all grades, and embracing such cone Instead, as so often before, the issue was one of religious equality. equanimity and passion. good and evil, Jews sought to have schools and other public institutions that and altruism, and so forth."68 This, would be "undisturbed," in the words of Rabbi Max Lilienthal, the more Orthodox editors of the Ami" "by sectarian strife and bigoted narrow-mindedness."63 "absurd to ask that the State should suI: How to achieve this goal proved a most difficult problem. I them with agnosticism," they called on Rabbi Isaac M. Wise sought to make religion a private affair: just bland ethics but "Parents, guardians and especially clergymen must make it their 1 business to teach religion," he wrote in 1869, "the public school ... the three great religious facts can not do it."64 Later that year, when the Cincinnati school which all religions are united, viz.:

20 as well. In carrying out this "obligation," board, in an effort to placate the city's Catholics, resolved to I came into conflict with their Protestant dispense with the reading of the Bible in the public schools, he Many schools, for example, began the was pleased. Indeed, he and Max Lilienthal were among those )us exercises "usually including, in whole who loudly supported the board's decision when it was challenged ~ King James version of the Bible, reciting in court by outraged Protestants. Denouncing both Catholic and and singing of hymns." In several states Protestant leaders as religious fanatics, the former for seeking :n mandated by state law, on the theory to destroy the public schools in favor of Catholic ones and the Juld not be "godless," and that while t latter for seeking to make the schools Protestant, Lilienthal, in tutionally enjoined, religion (which usually a celebrated address, firmly aligned himself with "the Americans" s not,60 A Texas court, in a 1908 opinion, I -- those who favored, as he did, religious liberty and freedom of lefended it with an argument that many conscience.65 This strategy •• to associate the position claimed ng: by Jews with the patriotic position on church and state •• was widely emulated. "Opposition to sectarianism," explained one nterwoven with the web and woof Jewish pamphleteer in 1906, "is not an indication of hostility to ment that to sustain the contention Christianity but of devotion to American ideals."66 on prohibits reading of the Bible, Much as they opposed sectarianism in the public schools. -or singing songs of a religious many Jews in this period sympathized with Christian fears that public building of the government schools devoid of religion might become secular and "godless." 1dition bordering upon moral anarchy They searched, therefore, for some way of reconciling their belief in church-state separation with their conviction that education needed to be (in Max Lilienthal's words) "thoroughly ... pre­ by American Jews was how to dissent eminently and essentially Godful." Lilienthal himself urged edu­ :hout embracing the very "godlessness" cators to stress the importance of "good deeds and actions." hristians sought to preclude. Since the Teach )[oung people "to cling to that sacred covenant of mutual d American ideals, Jews wanted their love, mutual good will, and forbearance ... ," he wrote, "and in accordance with what they believed you will make our schools Godful and truly religious in the noblest They wanted the public schools to make sense of the word."67 Rabbi Bernhard Felsenthal, a Reform rabbi !s," not Christians. It was not enough, in Chicago, called for "instruction in unsectarian ethics." In a particularly in the twentieth century, letter to the Nation, he sketched out a program of "systematic ldents who wished to be excused from ethical instruction," carefully avoiding any mention of God, cover­ coercion was not the major issue.62 ing all grades, and embracing such concepts as "virtue and vice, re, the issue was one of religious equality. equanimity and passion, good and evil, true and untrue, egoism 1100ls and other public institutions that and altruism, and so forth."68 This, however, did not satisfy in the words of Rabbi Max Lilienthal, the more Orthodox editors of the American Hebrew. Calling it :oted narrow·mindedness."63 "absurd to ask that the State should support schools and identify is goal proved a most difficult problem. I them with agnosticism," they called on government to teach not :mght to make religion a private affair: , just bland ethics but especially clergymen must make it their 1," he wrote in 1869, "the public school . . . the three great religious facts upon the verity of r that year, when the Cincinnati school which all religions are united, viz.:

21 1. The existence of God, during the school day for moral and rell 2. The responsibility of man to his Maker, of school property. Many rabbis were 0PI 3. The immortality of the soul. its nationwide popularity, fearing that church and state was breached "the relil These principles did not, to their mind, conflict with church­ receive general sanction." One rabbi we state separation for they were "nonsectarian" and represented a colleagues to line up with the Free Th religious consensus. Foreshadowing arguments that would be the Gary Plan tooth and nail. Rabbi S widely heard a century later, they warned that it would be "just York, on the other hand, supported the J as wrong to associate the schools with implied agnosticism as and urged his colleagues to become mOl with any sectarianism."69 proreligious in their policies. The CCA~ The twentieth century brought with it no resolution to the not content itself merely with the nega public-school problem. Fueled in part by mainstream Protestants upon the complete separation of churd who saw public schools as a vehicle for Americanizing the im­ wherever it can, constructively and h{ migrants and stemming their own movement's decline, pressure made for the improvement of ethical ar to strengthen the religious component of state-sponsored education the nation."n heightened. Jewish pupils suffered particularly acutely, for both As one of the leading American rat prayers and Bible readings tended to be cast in a Protestant actually sought to change the whole tenOl mold; in some cases, they even included New Testament passages within the American Jewish community. that doomed Jews to eternal damnation. Determined to protect Samson Benderly, director of New York'; Jewish children, the Reform movement's Central Conference of cation, he explained why: American Rabbis, in 1906, established a standing committee on church and state to collect information and work for Jewish In America, we have a unique e: rights.?o delicate problem. We, of course, we: Initially, the committee focused all its attention on battling Bible reading, hymn singing out of "sectarianism in the public schools." It marshaled evidence to At the same time we know that tl prove that "morning religious exercises" in most public schools efficient moral and religious educal involved "Protestant religious worship" and argued that, as such, .... Jews make a mistake in thir: the exercises were both offensive and un-American. Unity dis­ selves and assuming always a ne solved, however, when the question turned to what function the attitude. They must supplement th public schools should play in the realm of religion and ethics. with a constructive policy. OtheIVI In 1911, Rabbi Tobias Schanfarber opposed ethical instruction in be classed in the minds of the Christi the public schools, believing that ethics could not be divorced in this country with the free-think. from religion and that "the secular character of the public schools who have no interest in the religim should be maintained sacred and inviolable." Rabbi Martin youth. That, of course, is undesira Zielonka, appealing to "all who have the welfare of childhood at is contrary to our genius as Jews a_ heart," disagreed. "In our anxiety to keep religion out of the the real spirit of Americanism, wi schools," he warned, "let us not prove our excessive zeal by c1esiastical, and separates Church fro seeking to keep out moral instruction."n been religious.?3 The same kind of debate took place over the so-called Gary Plan, initiated in Gary, Indiana, in 1913, permitting released time Many of the leading figures in Re

22 -God, during the school day for moral and religious instruction outside y of man to his Maker, of school property. Many rabbis were opposed to the plan, despite Qf the soul. its nationwide popularity, fearing that once the wall between church and state was breached "the religion of the majority will Qt, to their mind, conflict with church­ receive general sanction." One rabbi went so far as to urge his y were "nonsectarian" and represented a colleagues to line up with the Free Thinking Society and fight =

23 rabbis Samuel Sale and Julian Morgenstern, came to agree with in Reform congregations, the issue sometl Schulman, and in 1926, in a highly significant and much disputed to released time on principle against con! policy departure, the Dismissal Plan, a modified version of the sought to make the plan work, if onl: Gary Plan that called on schools to "reduce their time schedule public relations."n by . . . one hour or more at the end of the school day," won The Supreme Court decision in Me CCAR approval, in the hope that parents would devote the time cation (1948), declaring unconstitutional gained to their children's religious education. Related plans used public-school classrooms for reli were endorsed by the Conservative movement's United Synagogue regular school hours, strengthened the of America and by the Commission of Jewish Education of the ~ 4 Jewish community who favored a high (Reform) Union of American Hebrew Congregations.7 Louis church and state. The Synagogue Co Marshall was prepared to go even further. He believed that senting Orthodox, Conservative, and Re released time during the school day was constitutional and "highly egational associations) as well as the commendable," and urged his fellow Jews to support the idea, with the National Community Relations Al fearing that "unless something of this sort is done, we shall founded in 1944 as the national coordin, have a Godless community.,,75 Jewish community relations (representil Fears of godlessness, however, were soon drowned out by Committee, the American Jewish Congr renewed fears of Christianization, as evidence mounted that re­ League of B'nai B'rith, the Jewish La leased-time programs were being abused. "Practices employed Jewish War Veterans), had all filed am by overenthusiastic religious groups in many communities," the court) briefs in the case supporting the American Jewish Year Book reported in 1947, "not only involve some eyebrows since the McColiums were the public schools as a co-partner in the enforcement of their organizations felt that Jews had a co own sectarian instruction, but employ public school facilities case, especially given the abuses that ...." Teachers in some communities pressured students to attend entailed. When the Supreme Court dec religious classes; in others, Jewish students were taunted for and government can best work to ad studying apart from everybody else. In one unhappy incident, each is left free from the other withi public-school children were asked to pledge allegiance to a the organizations felt vindicated.78 A r "Christian flag" as a mark of their "respect for the Christian the Synagogue Council of America and r religion."76 The dilemma that American Jews faced, especially Committee on Religion and the Public in the 1940s, was whether, given these abuses, released-time Advisory Committee on Religion and the ~ programs should be opposed everywhere, even at the risk of statement of principles embodying the n being seen as "godless," or whether in the interests of Jewish had unloosed. "The maintenance and fL education, as well as goodwill and interfaith harmony, only the the responsibility of the synagogue, the abuses themselves should be attacked, not the program as a whole. the statement declared. It proceeded to CI Rabbis themselves were divided on the issue: in one memorable education and sectarian observances in case, the Northern California Board of Rabbis opposed a released­ also all government aid (other than lunchc time bill, while the Southern California Board supported it! services) to denominational schools.79 Conservative and Orthodox rabbis tended to be more sympathetic Major Jewish organizations scare. to such plans than Reform rabbis, although the Conservative position in the ensuing decades; indeed, Rabbinical Assembly went on record in 1946 against any form of of a Jewish consensus for over a generat religion in the public schools, released time included. And even the Supreme Court became increasingly_

24 Julian Morgenstern, came to agree with in Reform congregations, the issue sometimes pitted rabbis opposed in a higWy significant and much disputed to released time on principle against congregants who pragmatically 'ismissal Plan, a modified version of the sought to make the plan work, if only for the sake "of good n schools to "reduce their time schedule public relations.',77 lOre at the end of the school day," won The Supreme Court decision in McCollum v. Board of Edu­ hope that parents would devote the time cation (1948), declaring unconstitutional released-time plans that :n's religious education. Related plans used public-school classrooms for religious instruction during onservative movement's United Synagogue regular school hours, strengthened the hands of those in the Commission of Jewish Education of the Jewish community who favored a high wall of separation between nerican Hebrew Congregations,74 Louis church and state. The Synagogue Council of America (repre­ to go even further. He believed that senting Orthodox, Conservative, and Reform rabbinic and congr­ school day was constitutional and "highly egational associations) as well as the organizations associated ;ed his fellow Jews to support the idea, with the National Community Relations Advisory Council (NCRAC), mething of this sort is done, we shall founded in 1944 as the national coordinating body in the field of ':.y.,,75 jewish community relations (representing the American Jewish ~ss, however, were soon drowned out by Committee, the American Jewish Congress, the Anti-Defamation tianization, as evidence mounted that re­ League of B'nai B'rith, the Jewish Labor Committee, and the ..ere being abused. "Practices employed Jewish War Veterans), had all filed amici curiae (friends of the ~ious groups in many communities," the court) briefs in the case supporting the McColJums. This raised 300k reported in 1947, "not only involve some eyebrows since the McCollums were atheists, but most Jewish :1 co-partner in the enforcement of their organizations felt that Jews had a compelling interest in the In, but employ public school facilities case, especially given the abuses that released-time programs : communities pressured students to attend entailed. When the Supreme Court declared that "both religion :hers, Jewish students were taunted for and government can best work to achieve their lofty aims if "erybody else. In one unhappy incident, each is left free from the other within its respective sphere," were asked to pledge allegiance to a the organizations felt vindicated,78 A month after the decision, nark of their "respect for the Christian the Synagogue Council of America and NCRAC, allied in a Joint _ma that American Jews faced, especially Committee on Religion and the Public Schools (later the Joint lether, given these abuses, released-time Advisory Committee on Religion and the State), issued an important pposed everywhere, even at the risk of statement of principles embodying the new spirit that McCollum ." or whether in the interests of Jewish had unloosed. "The maintenance and furtherance of religion are :oodwill and interfaith harmony, only the the responsibility of the synagogue, the church and the home," :J be attacked, not the program as a whole. the statement declared. It proceeded to condemn not only religious , divided on the issue: in one memorable education and sectarian observances in the public schools, but 'ornia Board of Rabbis opposed a released­ also all government aid (other than lunches and medical and dental ~outhern California Board supported it! services) to denominational schools,?9 dox rabbis tended to be more sympathetic Major Jewish organizations scarcely deviated from this .eform rabbis, although the Conservative position in the ensuing decades; indeed, it represented somewhat ~nt on record in 1946 against any form of of a Jewish consensus for over a generation. During these years, :hools, released time included. And even the Supreme Court became increasingly involved in church-state

25 problems •• a consequence of Cantwell v. Connecticut (1940), of church-state controversy now shifted which applied "the liberties guaranteed by the First Amendment" to public funding of religious schools. to the states under terms of the Fourteenth Amendment -- and found themselves seriously conflicted. Jewish organizational activities, as a result, shifted ever more toward the legal arena. The American Jewish Committee, the Anti-Defamation League of B'nai B'rith, and the American Jewish State Aid to Parochial S Congress became particularly active in this realm -- especially the latter, whose Commission on Law and Social Action, directed Unlike other church-state issues that for many years by attorney Leo Pfeffer, maintained "an absolutist state aid to parochial schools did not approach to the First Amendment." Pfeffer's view that "complete Jewish equality. Where Sunday closing separation of church and state is best for the church and best public schools clearly disadvantaged Jew! for the state, and secures freedom for both" seemed to most the basis of Jewish group interests as Jews to be both logically consistent and historically convincing.80 state aid to parochial schools was offerel The Supreme Court appeared increasingly to agree. In a schools alike. The issue, then, was not th critical decision, Engel v. Vitale (1962), it outlawed state-composed insisted upon since the days of Jonas prayers as constituting an impermissible establishment of religion. "wall of separation" axiom upon which The particular prayer involved was a nondenominational one com­ of their twentieth-century church-state I posed by the New York Board of Regents and actually approved which began in earnest in the 1960s, pitt by several rabbis, including Rabbi Menahem Schneerson, the who felt that any breach in the "wall of Lubavitcher Rebbe, who argued that "it is necessary to engrave America and its Jews adversely, against p upon the child's mind the idea that any wrongdoing is an offense who argued for an accommodationist against the divine authority and order."S1 But the overwhelming days schools, interfaith relations, and j. majority of American Jews, along with many liberal Christians, whole. applauded the decision, notwithstanding the firestorm of protest In early America, before the mod from Evangelicals, and hailed it "as an affirmation of the position existed, Jews readily supported state a they had long espoused." The same kind of reactions greeted and at least in New York City received the Court's complementary decision a year later, in Abington as Protestant and Catholics.84 With the Township School District v. Schempp (1963), outlawing all de­ public school and the developing view votional reading of the Bible in the public schools, including the Catholic) schools were separatist, if n practice of reciting the Lord's Prayer.82 most church schools lost state funding. With these two decisions, the long agonizing battle over most Jewish day schools closed down. the character of America's public schools -- a battle that, as we more than twelve Jewish parochial scha­ have seen, really reflected divergent views over the character of States.8S Consequently, the issue of state the nation as a whole -- was, from a legal point of view, ef­ scarcely arose in Jewish circles during t. fectively settled. Jewish organizations continued to keep a vigilant Pierce v. Society of the Sisters of the h watch lest religion reenter classrooms through the backdoor via Mary (1925), the Supreme Court ruled UI mandated teaching of "creationism" or other devices, and the Klan-sponsored anti-Catholic Oregon laV' Supreme Court on several occasions found it necessary to reiterate, all parents to send their children to pu­ as it did in Wallace v. Jajfrce (1985), that state encouragement case, Cochran v. Louisiana State Board of school prayer was unconstitutional.83 But the central focus Court permitted the State of Louisiana I

26 ence of Cantwell v. Connecticut (1940), of church-state controversy now shifted from the public schools ties guaranteed by the First Amendment" to public funding of religious schools. And on this issue Jews ns of the Fourteenth Amendment -- and found themselves seriously conflicted. ctivities, as a result, shifted ever more The American Jewish Committee, the of B'nai B'rith, and the American Jewish State Aid to Parochial Schools :ularly active in this realm -- especially ission on Law and Social Action, directed Unlike other church-state issues that aroused Jewish concern, ney Leo Pfeffer, maintained "an absolutist state aid to parochial schools did not involve the question of mendment." Pfeffer's view that "complete Jewish equality. Where Sunday closing laws and prayer in the ld state is best for the church and best public schools clearly disadvantaged Jews and could be fought on Ires freedom for both" seemed to most the basis of Jewish group interests as well as minority rights, :onsistent and historically convincing.80 state aid to parochial schools was offered to Christian and Jewish rt appeared increasingly to agree. In a schools alike. The issue, then, was not the "equal footing" demand Vitale (1962), it outlawed state-composed insisted upon since the days of Jonas Phillips, but rather the In impermissible establishment of religion. "wall of separation" axiom upon which Jews had built so much Jolved was a nondenominational one com­ of their twentieth-century church-state philosophy. The debate, : Board of Regents and actually approved which began in earnest in the 1960s. pitted advocates of principle, Jding Rabbi Menahem Schneerson, the who feIt that any breach in the "wall of separation" would affect ) argued that "it is necessary to engrave America and its Jews adversely, against proponents of pragmatism, he idea that any wrongdoing is an offense who argued for an accommodationist policy benefiting Jewish .rity and order."SI But the overwhelming days schools, interfaith relations, and American education as a rews, along with many liberal Christians, whole. notwithstanding the firestorm of protest In early America, before the modern public-school system lailed it "as an affirmation of the position existed, Jews readily supported state aid to parochial schools, and at least in New York City received funds on the same basis 1" The same kind of reactions greeted 84 stary decision a year later, in Abington as Protestant and Catholics. With the rise of the "nonsectarian" public school and the developing view that parochial (especially ~t v. Schempp (1963), outlawing all de- Bible in the public schools, including the Catholic) schools were separatist, if not indeed un-American, lCd's Prayer.82 most church schools lost state funding, and, as we have seen, lecisions, the long agonizing battle over most Jewish day schools closed down. In 1927 there were no :a's public schools -- a battle that. as we more than twelve Jewish parochial schools in the whole United 85 ed divergent views over the character of States. Consequently, the issue of state aid to parochial schools -- was, from a legal point of view, ef­ scarcely arose in Jewish circles during this period. In one case, organizations continued to keep a vigilant Pierce v. Society of the Sisters of the Holy Names of Jesus and Iter classrooms through the backdoor via Mary (1925), the Supreme Court ruled unconstitutional a Ku Klux "creationism" or other devices, and the Klan-sponsored anti-Catholic Oregon law that sought to require ;31 occasions found it necessary to reiterate, all parents to send their children to public schools. In another Jajfree (1985), that state encouragement case, Cochran v. Louisiana State Board of Education (1930), the snconstitutional.83 But the central focus Court permitted the State of Louisiana to lend secular textbooks 27 to schoolchildren who attended parochial schools. Neither case, fellow Jews. "Judging by their public however, affected the great majority of Jews directly. Yet Louis "they seem to share the basic secularist p Marshall, representing the American Jewish Committee in an is a 'private matter' -- in the minimizing amicus curiae brief opposing Oregon's public-school law, did -- and therefore peripheral to the vital enunciate a basic principle -- the right of parents to control culture." He urged Jews to "rid then the education of their children and to send them to private schools and crippling minority-group defensivenesl -- that made all subsequent debate possible. Attacking as "an harmony, and insisted that Jews had Iitt! invasion of liberty" any effort to make public schools "the only to extend limited federal aid to parod medium of education in this country," Marshall pointed out that later, Rabbi Arthur Gilbert reiterated SOlT private schools could in many cases accomplish what public schools in an address to his Reform colleagues, could not -- including "religious instruction, the importance of of the Central Conference of American which cannot be minimized."86 stuck in its groove," he warned, and The growth of parochial schools, Catholic and Jewish alike. Reform opposition to the use of publi during the 19405, coupled with heightened national concern over transportation of parochial-school childr the quality of primary education, led to renewed pressure on own experience at the Anti-Defamation behalf of state and federal measures to grant limited assistance he called for policy positions "that appl to parochial schools on the basis of the "child benefit theory," and respond in a more sophisticated fas the idea, supported by the Supreme Court, that state aid could needs of today's society."91 be extended to parochial-school children so long as "the school While still highly unusual in the 1~ children and the state alone are the beneficiaries."87 As early views were gaining a more respectful h as 1945, the Central Conference of American Rabbis had expressed advocates of Jewish day schools found tl concern over this development. In the wake of Everson v. Board sympathy with their Catholic counterparl of Education of Ewing Township (1947), an important case that plained that on account of their religious permitted states to fund the cost of transporting students to required to pay twice for education. Me 88 parochial schools, this concern turned into real alarm. "The itself was under widespread attack. So wall of separation between the church and state is surely being schools looking for higher quality educa1 breached," Rabbi Joseph Fink, chairman of the Committee on Russia's success in launching the Sput Church and State, exclaimed. He called on his colleagues to do enhanced federal aid to all schools in Arne all they could to uphold the status quo. For a time, leading alike. Thus, in 1962, the American Jewi. Jewish organizations and religious bodies, including the Orthodox, the events of the previous year, noticed united behind the 1948 Synagogue Council-NCRAC statement "unexpectedly strong support for the Ca broadly opposing all government aid to parochial schools. Begin­ state aid to parochial schools] appeared ning in the 1950s, however, demands for a reevaluation of this munity, especially among the Orthodox." 89 policy sounded from a variety of quarters. executive vice president of Agudath Israel. In 1952, Will Herberg, author of Judaism and Modem Man before Congress in support of federal aid and considered at the time "a fresh voice in the world of modern schools, arguing that Jewish day schools f religious thought," published in Commentary magazine a widely financial circumstances." He was soon j. read article urging Americans of all faiths to rethink their views of the National Council of Young Israel ar on the problem of church and state given the new pluralistic organization, Torah Umesorah. Even m realities of American life. Herberg was especially harsh on his parochial schools was simUltaneously ende

28 Ittended parochial schools. Neither case, fellow Jews. "Judging by their public expressions," he wrote, ~eat majority of Jews directly. Yet Louis "they seem to share the basic secularist presupposition that religion the American Jewish Committee in an is a 'private matter' -- in the minimizing sense of 'merely private' ,posing Oregon's public-school law, did -- and therefore peripheral to the vital areas of social life and :iple -- the right of parents to control culture." He urged Jews to "rid themselves of the[ir] narrow lildren and to send them to private schools and crippl ing minority-group defensiveness," called for interreligious luent debate possible. Attacking as "an harmony, and insisted that Jews had little to fear from proposals effort to make public schools "the only to extend limited federal aid to parochial schools.90 Six years l this country," Marshall pointed out that later, Rabbi Arthur Gilbert reiterated some of these same concerns many cases accomplish what public schools in an add ress to his Reform colleagues at the annual convention "religious instruction, the importance of of the Central Conference of American Rabbis. "Our record is ;:d."86 stuck in its groove," he warned, and he specifically attacked ::,ochial schools, Catholic and Jewish alike. Reform opposition to the use of public funds to pay for the cd with heightened national concern over transportation of parochial-school children. Drawing from his education. led to renewed pressure on own experience at the Anti-Defamation League of B'nai B'rith, leral measures to grant limited assistance he called for policy positions "that appear to be more realistic I the basis of the "child benefit theory," and respond in a more sophisticated fashion to the temper and the Supreme Court, that state aid could needs of today's society."91 ai-school children so long as "the school While still highly unusual in the 1950s, by the 1960s these alone are the beneficiaries."S? As early views were gaining a more respectful hearing. For one thing, ,ference of American Rabbis had expressed advocates of Jewish day schools found themselves increasingly in opment. In the wake of Everson v. Board sympathy with their Catholic counterparts; like them they com­ Township (1947), an important case that plained that on account of their religious beliefs they were unfairly I1d the cost of transporting students to required to pay twice for education. Moreover, public education concern turned into real alarm.ss "The itself was under widespread attack. Some turned to parochial ..een the church and state is surely being schools looking for higher quality education; others, shocked by Jh Fink, chairman of the Committee on Russia's success in launching the Sputnik satellite, advocated :limed. He called on his colleagues to do enhanced federal aid to all schools in America, public and parochial ,Id the status quo. For a time, leading alike. Thus, in 1962, the American JeWish Year Book, reviewing d religious bodies, including the Orthodox, the events of the previous year, noticed for the first time that 18 Synagogue Council-NCRAC statement "unexpectedly strong support for the Catholic position [favoring vernment aid to parochial schools. Begin­ state aid to parochial schools] appeared within the Jewish com­ I/ever, demands for a reevaluation of this munity, especially among the Orthodox." Rabbi Moshe Sherer, _riety of quarters.89 executive vice president of Agudath Israel of America, had testified -berg, author of Judaism and Modem Man before Congress in support of federal aid to private and parochial ime "a fresh voice in the world of modern schools, arguing that Jewish day schools faced "extremely difficult .lished in Commentary magazine a widely financial circumstances." He was soon joined by representatives ericans of all faiths to rethink their views of the National Council of Young Israel and the Jewish day-school lurch and state given the new pluralistic organization, Torah Umesorah. Even more surprisingly, aid to ife. Herberg was especially harsh on his parochial schools was simultaneously endorsed by a leading Con­

29 servative Jewish layman, Charles H. Silver, who was also at the separation between church and state," time president of the New York City board of education.92 work to the detriment of Jews and Americ In the years that followed, calls for change sounded in of Jewish organizations, meanwhile, staunc more and more circles. Professors Jakob J. Petuchowski of Hebrew on pragmatic and "free exercise" ground Union College and Seymour Siegel of the Jewish Theological that would result from federal aid to J Seminary spoke out on the issue, supporting not only state aid insist, would more than compensate for any to parochial schools but abandonment of the whole separationist agenda in favor of a more proreligious, "equal-footing" stance. Milton Himmelfarb, writing in Commentary, posed a pragmatic "Overhauling Our PriOl argument for change: The creation of COLPA and the attendant It is time we actually weighed the utility and cost of Jewish policy on church-state questions education against the utility and cost of separationism. went far beyond the issue of aid to paro~ All the evidence in America points to education, more minority came to agree with Rabbi Waltl than anything else, influencing adherence to democracy Modern Orthodox rabbi and one-time prl and egalitarianism. All the evidence points to Catholic Council, that the time had come for a " parochial education having the same influence . . . . Jewish priorities on all church-state iss Something that nurtures a humane, liberal democracy Wurzburger spoke of as "obsessive is rather more important to Jews than twenty-four­ Establishment Clause," they called for karat separationism.93 "free exercise" claims. They especially : atives that could make it easier for Jews At the same time, Orthodox leaders insisted that aid to traditions.96 parochial schools was "good for Torah," "good for the Jews," and Surprisingly, the religious traditiO! "good for America." It was, they argued, "both constitutional found its way into the courts concernel and equitable" for the government to share the cost of secular menorah (candelabrum), symbol of the programs, since the government required such programs, set holiday of Hanukkah usually celebrated i standards for what they should contain, and derived benefit from as popularly understood involved a basic the well-educated citizens they produced.94 In 1965, when Con­ ment property be devoid of any religiol gress debated the Elementary and Secondary Education Act that be open to all religious symbols? What included "child benefit" money earmarked for special educational was the widespread public celebration services to parochial and private schools, intra-Jewish divisions American legal holiday from which Jew~ came out into the open. Jewish spokesmen testified on both emotionally excluded. Jews had long I sides of the issue, and as a result of the debate the National brations of Christmas, especially in pub! jewish Commission on Law and Public Affairs (COLPA) was formed recent years they had also fought to to support aid to parochial schools and to promote the rights symbols as the cross and the creche from and interests of the "observant Jewish community.,,95 (as opponents of menorah displays also d Since then, the Jewish community has consistently spoken to an impermissible establishment of religi with two voices on programs to assist secular education in paro­ in the controversial case of Lynch v. l chial schools. Most Jewish organizations continue to condemn overruled this objection, declaring that them on "no establishment" grounds. Any breach in the "wall of the company of other "secular" ChristmiJ

30 Charles H. Silver, who was also at the separation between church and state," they fear, will ultimately - York City board of education.92 work to the detriment of Jews and America as a whole. A minority followed, calls for change sounded in of Jewish organizations, meanwhile, staunchly defend such programs ?rofessors Jakob J. Petuchowski of Hebrew on pragmatic and "free exercise" grounds. The tangible benefits ,mour Siegel of the Jewish Theological that would result from federal aid to parochial education, they the issue, supporting not only state aid insist, would more than compensate for any potential problems. abandonment of the whole separationist nore proreligious, "equal-footing" stance. Jing in Commentary, posed a pragmatic "Overhauling Our Priorities"

The creation of COLPA and the attendant calls for a new American .ally weighed the utility and cost of Jewish policy on church-state questions carried implications that he utility and cost of separationism. went far beyond the issue of aid to parochial schools. A growing ] America points to education, more minority came to agree with Rabbi Walter Wurzburger, a leading influencing adherence to democracy Modern Orthodox rabbi and one-time president of the Synagogue All the evidence points to Catholic Council, that the time had come for a "thorough overhauling" of , having the same influence . . . . Jewish priorities on all church-state issues. In place of what Irtures a humane, liberal democracy Wurzburger spoke of as "obsessive preoccupation with the ,portant to Jews than twenty-four­ Establishment Clause," they called for far greater attention to 1.93 "free exercise" claims. They especially sought support for initi­ atives that could make it easier for Jews to observe their religious 96 ~, Orthodox leaders insisted that aid to traditions. ;ood for Torah," "good for the Jews," and Surprisingly, the religious tradition that most frequently lt was, they argued, "both constitutional found its way into the courts concerned public displays of the government to share the cost of secular menorah (candelabrum), symbol of the relatively minor Jewish .overnment required such programs, set holiday of Hanukkah usually celebrated in December. The issue should contain, and derived benefit from as popularly understood involved a basic question: should govern­ ns they produced,94 In 1965, when Con­ ment property be devoid of any religious symbols, or should it entary and Secondary Education Act that be open to all religious symbols? What made the issue complex money earmarked for special educational was the widespread public celebration of Christmas, the only nd private schools, intra-Jewish divisions American legal holiday from which Jews, as non-Christians, felt ~n. Jewish spokesmen testified on both emotionally excluded. Jews had long protested sectarian cele­ _ as a result of the debate the National brations of Christmas, especially in public schools, and in more .aw and Public Affairs (COLPA) was formed recent years they had also fought to remove such Christmas )Chial schools and to promote the rights symbols as the cross and the creche from public property, arguing ~rvant Jewish community.,,95 (as opponents of menorah displays also did) that these amounted ewish community has consistently spoken to an impermissible establishment of religion. The Supreme Court grams to assist secular education in paro­ in the controversial case of Lynch v. Donnelly (1984) partially ewish organizations continue to condemn overruled this objection, declaring that the creche, at least in lent" grounds. Any breach in the "wall of the company of other "secular" Christmas symbols, was constitu­

31 tionally unobjectionable. The question, then, was whether the Conclusion menorah too was unobjectionable and whether, if so, Jews should ask for it to be placed on public property alongside the permissible In the 200 years since Jonas PhilL symbols of Christmas,9? Constitutional Convention for religious fro Most Jewish organizations, unhappy with the Lynch decision. Jews in America has improved dramatical continued to believe that religious symbols of any sort should be legal equality under federal law and in I kept off public property on First Amendment grounds. Some face few if any hardships from Christian Orthodox groups, however, and particularly the Chabad (Lubavitch) children, at least in most places, can organization, took an opposite stance. They insisted that menorahs public schools without fear of intimidatic should be placed on public property both as a Jewish response Most of these improvements derive, din: 98 to Christmas and as a symbol of religious pride. This claim the principles set forth in the ConstitJ raises complex legal questions to be decided by the Supreme the "no establishment" and "free exercis Court. The intra-Jewish debate, however, is extremely revealing. Amendment. What these clauses mean, t Supporters of- the publicly displayed menorah have argued that subject of continuing controversy. Does the public square should be filled with a multitude of religious imply that America is a Christian natior symbols. These, they believe, would foster respect for religion, claim), a religious nation, or a secular na stimulate Jewish observance, and help fight assimilation. Oppo­ a government guaranteeing equality to a. nents, meanwhile, have feared that displays of religious symbols by a high wall from any religion, or one on government property would foster fanaticism and intolerance. ground? And what happens when the They believe that confining such symbols to public display on "free exercise" clauses conflict with one private property is the best guarantee of church-state separation precedence? and the rights of religious minorities. American Jews have never been of 0 Similar debates have swirled around other Jewish attempts tions. While generally opposed to those to reorder church-state priorities. In one celebrated case, Goldman the country or discriminate on religious g v. Weinberger (1986), an Orthodox Jewish Air Force officer named far less certain about what their commur Simcha Goldman contested the military's uniform dress requirements religion in all aspects of American life that barred him from wearing a yarmulke while serving on duty. larism? governmental accommodation to The Supreme Court ultimately ruled against Goldman, but the from it? Historically, as we have seer: fact that his case was supported on "free exercise" grounds by supported a wide range of positions on COLPA, the American Jewish Committee, and other Jewish organi­ indeed, over the long span of American ~ zations points to a renewed emphasis on freedom for religious been far less communal consensus on the practices,99 Related "free exercise" cases, most of them confined assumed. Fearing the persecutory potent: to lower courts, have involved everything from issues of Sabbath on the one hand, and the possible antireli and holiday observance, to the religious rights of Jews incarcerated larist state, on the other, many Americc in prison, to divorce-law protection for women whose husbands middle ground, a quest that may prove el­ refuse to issue them a traditional Jewish divorce (get).l00 No been no community-wide consensus on Sl matter how different the circumstances in each case, however, proaches, there has, at least, been a cm the ultimate goal has generally been the same: "to remove the links Jonas Phillips with his modern-day • obstacles which face adherents of minority religions in the exercise search for "equal footing," the convictiOi of their religious rights."101 be a land where people of all faiths are treate. 32 The question, then, was whether the Conclusion ctionable and whether, if so, Jews should 1 public property alongside the permissible In the 200 years since Jonas Phillips pleaded with the Constitutional Convention for religious freedom, the condition of zations, unhappy with the Lynch decision, Jews in America has improved dramatically. They have won full t religious symbols of any sort should be legal equality under federal law and in each of the states; they on First Amendment grounds. Some face few if any hardships from Christian Sunday laws; and their r, and particularly the Chabad (Lubavitch) children, at least in most places, can attend state-sponsored 'osite stance. They insisted that menorahs public schools without fear of intimidation on religious grounds. blic property both as a Jewish response Most of these improvements derive, directly or indirectly, from symbol of religious pride.98 This claim the principles set forth in the Constitution itself, particularly estions to be decided by the Supreme the "no establishment" and "free exercise" clauses of the First _ debate, however, is extremely revealing. Amendment. What these clauses mean, however, has remained a :Iy displayed menorah have argued that subject of continuing controversy. Does the First Amendment j be filled with a multitude of religious imply that America is a Christian nation (as some Evangelicals elieve, would foster respect for religion, claim), a religious nation, or a secular nation? Does it envisage nee, and help fight assimilation. Oppo­ a government guaranteeing equality to all religions, one divided feared that displays of religious symbols by a high wall from any religion, or one occupying some middle would foster fanaticism and intolerance. ground? And what happens when the "no establishment" and 1ing such symbols to public display on "free exercise" clauses conflict with one another? Which takes Jest guarantee of church-state separation precedence? minorities. American Jews have never been of one mind on these ques­ Ie swirled around other Jewish attempts tions. While generally opposed to those who would Christianize riorities. In one celebrated case, Goldman the country or discriminate on religious grounds, they have been Orthodox Jewish Air Force officer named far less certain about what their communal priorities should be: =d the military's uniform dress requirements religion in all aspects of American life or governmental secu­ earing a yarmulke while serving on duty. larism? governmental accommodation to religion or separation imately ruled against Goldman, but the from it? Historically, as we have seen, American Jews have ;upported on "free exercise" grounds by supported a wide range of positions on church-state relations; ~wish Committee, and other Jewish organi­ indeed, over the long span of American Jewish history there has ~wed emphasis on freedom for religious been far less communal consensus on the subject than generally =e exercise" cases, most of them confined assumed. Fearing the persecutory potential of a Christian state, valved everything from issues of Sabbath on the one hand, and the possible antireligious animus of a secu­ :0 the religious rights of Jews incarcerated larist state, on the other, many American Jews have sought a r protection for women whose husbands middle ground, a quest that may prove elusive. But if there has traditional Jewish divorce (get).l00 No been no community-wide consensus on specific policies and ap­ .e circumstances in each case, however, proaches, there has, at least, been a common vision, one that ~nerally been the same: "to remove the links Jonas Phillips with his modern-day counterparts. It is the ::rents of minority religions in the exercise search for "equal footing," the conviction that America should 1 be a land where people of all faiths are treated alike.

33 Notes Religion (Berne, Ind., 1938). Many of tl printed in Sarna, Kraut, and Joseph, JeK AIH - American Jewish History the Republic, pp. 85-102. AJYB - American Jewish Year Book 6. Jonathan D. Sarna, "The Impact of th CCARYB - Central Conference ofAmerican Rabbis Yearbook on American Jews,': Modem Judaism 1 (Sept PAIHS - Publications of the American Jewish Historical 7. In addition to items cited in nn. 4·6 abo Society Jews, Turks and Infidels (Chapel Hill, N.C., Foundation Library in Philadelphia owns 1. Reprinted in Bernard Schwartz, The Roots of the Bill of Rights Constitutions of the Several Independe1 (New York, 1980), pp. 439-440; and with minor differences in (Philadelphia, 1781) with handwritten nol Morris U. Schappes, A Documentary History of the Jews in the and limitations of Jews under each state United States (New York, 1971), pp.68-69. notes were written, as alleged, by the S< 2. The states were Pennsylvania, New Hampshire, New York, Gershom M. Seixas has been questioned; t Virginia, North Carolina, and Maryland (minority position); see exists at all, however, is highly revealing. Schwartz, Roots ofthe Bill ofRights, p. 1167. and Maxwell Whiteman, The History of tJ 3. Jacob R. Marcus, The Colonial American Jew (Detroit, 1970), (Philadelphia, 1956, 1975), p. 147; Jacob R. pp. 226, 511-512; see also Abram Vossen Goodman, American Young Priest in the Black Gown: The Persl Overture: Jewish Rights in Colonial Times (Philadelphia, 1947). Seixas (Cincinnati, 1970), pp. 16-17. 4. The colonial situation has recently been reexamined in two 8. Schappes, Documentary History of tht related books: Thomas J. Curry, The First Freedoms: Church and States, pp. 61-63; Wolf and Whiteman, . State in America to the Passage of the First Amendment (New Philadelphia, pp. 146-151. York, 1986); and Leonard W. Levy, The Establishment Clause: 9. Joseph L. Blau and Salo W. Baron, ed., Religion and the First Amendment (New York, 1986). See also States, 1790-1840: A Documentary Histo,> Mark V. Tushnet, "Book Review: The Origins of the Establishment 1963), 1: 28-32. Clause," Georgetown Law Journal 75 (April 1987): 1509-1517. 10. Quoted in Isaac M. Fein, The Making Important older studies include William G. McLoughlin, "Isaac Community (Philadelphia, 1971), p. 26. Backus and the Separation of Church and State in America," 11. See E. Milton Altfeld, The Jews' Stn American Historical Review 73 (June 1968): esp. 1402-1403; and Civil Liberty in Maryland (Baltimore, 1924­ the classic study, Anson Phelps Stokes, Church and State in the "Maryland's Jew Bill," American Jewish United States, 3 vols. (New York, 1950). For the North Carolina (March 1971): 258-279. constitution, see Jonathan D. Sarna, Benny Kraut, and Samuel K. 12. Chyet, "Political Rights of the Jews Joseph, Jews and the Founding of the Republic (New York, 1985), p.80. p. 93; see the similar situation in Pennsylvania's constitution 13. Robert T. Handy, A Christian Ameri. reprinted in Schwartz, Roots of the Bill of Rights, pp. 264-266 Borden, Jews, Turks, and Infidels, pp. 53­ (arts. II, XVI). Rohrer, "Sunday Mails and the Church·Sta~ 5. Stanley F. Chyet, "The Political Rights of the Jews in the America," Journal ofthe Early Republic 7 (Spr United States: 1776-1840," American Jewish Archives 10 (1958): 14. Joseph Story, Commentaries on the Co 14-75; Oscar and Mary Handlin, "The Acquisition of Political and States (Boston, 1833) as reprinted in John Social Rights by the Jews in the United States," AJYB 56 (1955): L. Drakeman, Church and State in AmE 43-98; Conrad H. Moehlman, The American Constitutions and 1987), pp. 92-93. For a modern view, see ]

34 Religion (Berne, Ind., 1938). Many of these documents are re­ Notes printed in Sarna, Kraut, and Joseph, Jews and the Founding of the Republic, pp. 85-102. ~wish History 6. Jonathan D. Sarna, "The Impact of the American Revolution ~wish Year Book on American Jews," Modem Judaism 1 (September 1981): 149-160. ~ference ofAmerican Rabbis Yearbook 7. In addition to items cited in nn. 4-6 above, see Morton Borden, :S' of the American Jewish Historical Jews, Turks and Infidels (Chapel Hill, N.C., 1984). The Rosenbach Foundation Library in Philadelphia owns a volume entitled The Constitutions of the Several Independent States of America Schwartz, The Roots of the Bill of Rights (Philadelphia, 1781) with handwritten notes detailing the rights 439-440; and with minor differences in and limitations of Jews under each state's laws. Whether the Documentary History of the Jews in the notes were written, as alleged, by the Sephardi Jewish minister 1971), pp.68-69. Gershom M. Seixas has been questioned; the fact that the volume nnsylvania, New Hampshire, New York, exists at all, however, is highly revealing. See Edwin Wolf 2nd I, and Maryland (minority position); see and Maxwell Whiteman, The History of the Jews of Philadelphia ! ofRights, p. 1167. (Philadelphia, 1956, 1975), p. 147; Jacob R. Marcus, The Handsome -e Colonial American Jew (Detroit, 1970), Young Priest in the Black Gown: The Personal World of Gershom ,lIso Abram Vossen Goodman, American Seixas (Cincinnati, 1970), pp. 16-17. Colonial Times (Philadelphia, 1947). 8. Schappes, Documentary History of the Jews in the United n has recently been reexamined in two States, pp. 61-63; Wolf and Whiteman, History of the Jews of J. Curry, The First Freedoms: Church and Philadelphia, pp. 146-151. e Passage of the First Amendment (New 9. Joseph L. Blau and Salo W. Baron, ed., The Jews of the United lard W. Levy, The Establishment Clause: States, 1790-1840: A Documentary History, 3 vols. (New York, 4mendment (New York, 1986). See also 1963), 1: 28-32. ~ Review: The Origins of the Establishment .aw Journal 75 (April 1987): 1509-1517. 10. Quoted in Isaac M. Fein, The Making of an American Jewish ; include William G. McLoughlin, "Isaac Community (Philadelphia, 1971), p. 26. :ltion of Church and State in America," 11. See E. Milton Altfeld, The Jews' Struggle for Religious and "iew 73 (June 1968): esp. 1402-1403; and Civil Liberty in Maryland (Baltimore, 1924) and Edward Eitches, "Maryland's Jew Bill," American Jewish Historical Quarterly 60 n Phelps Stokes, Church and State in the :lew York, 1950). For the North Carolina (March 1971): 258-279. 12. Chyet, "Political Rights of the Jews in the United States," an D. Sarna, Benny Kraut, and Samuel K. p.80. Junding of the Republic (New York, 1985), 13. Robert T. Handy, A Christian America (New York, 1971); - situation in Pennsylvania's constitution Borden, Jews, Turks, and Infidels, pp. 53-74; see also James R. Roots of the Bill of Rights, pp. 264-266 Rohrer, "Sunday Mails and the Church-State Theme in Jacksonian America," Journal ofthe Early Republic 7 (Spring 1987): 60. The Political Rights of the Jews in the 14. Joseph Story, Commentaries on the Constitution of the United 10," American Jewish Archives 10 (1958): States (Boston, 1833) as reprinted in John F. Wilson and Donald Handlin, "The Acquisition of Political and L. Drakeman, Church and State in American History (Boston, ws in the United States," AJYB 56 (1955): 1987), pp. 92-93. For a modern view, see Leonard W. Levy, "The .ehlman, The American Constitutions and 35 Original Meaning of the Establishment Clause of the First Amend­ from-religion state." ment," in James E. Wood Jr., ed., Religion and the State: Essays 24. Bertram W. Korn, Eventful Years and" in Honor ofLeo Pfeffer (Waco, Tex., 1985), pp. 43-83. 1954), pp. 98-124; idem, American Jewry . 15. On Kent, see People v. Ruggles, 8 Johns Rep. (N.Y.) 294 York, 1970), pp. 56-97. (1811) and John Webb Pratt, Religion, Politics and Diversity: The 25. Cohen, "Pioneers of American Jewist: Church-State Theme in New York History (Ithaca, N.Y., 1967), late as 1913, the Committee on Church c pp. 138. On Parsons, see Nathan Dane, A General Abridgement Conference of American Rabbis was cc and Digest of American Law (Boston, 1823-29), 2: 337 as quoted infringements on church-state separation b. in Borden, Jews, Turks, and Infidels, p. 12. On Webster, see of the Jew on the stage . . . and any Vidal v. Girard's Executors, 2 How. 127 (1844), and Jonathan D. our public press." See Joseph L. Fink Sarna, "The Church-State Dilemma of American Jews," in Richard Opinion on Church and State as Embodie. John Neuhaus, ed., Jews in Unsecular America (Grand Rapids, at Conferences Through the Years (phiiadelpJ Mich., 1987), pp. 10-11. For British precedent, see Shover v. 26. See Borden, Jews, Turks, and Infidels, PI: The State, 5 Eng. 259 as quoted by Bernard J. Meislin, "Jewish 27. Occident 7 (1850): 525. Law in America," in Jewish Law in Legal History and the Modem 28. American Israelite, Mar. 3, 1865; Jarr World, ed. Bernard S. Jackson (Leiden, 1980), p. 159. Wise: His Life, Work and Thought (New Yod 16. Schappes, Documentary History of the Jews in the United 29. Allan Tarshish, "The Board of Delegat States, pp. 235-246. (1859-1878)," PAlHS 49 (1959): 23; Borden 17. Ibid., pp. 64, 122; Jonathan D. Sarna, Jacksonian Jew: The p. 63; PAlHS 29 (1925): 105. Two Worlds ofMordecai Noah (New York, 1981), pp. 132-135. 30. PAlHS 29 (1925): 81-82,105. 18. See Jefferson's letter to the Danbury Baptists (1802) and 31. For the general theme, see James R. Madison's letter to Rev. Jasper Adams (1832), reprinted in Wilson and the Church-State Theme in Jacksonic and Drakeman, Church and State in American History, pp. 78-81. the Early Republic 7 (Spring 1987): 53-"; For the background to Jefferson's letter, see Constance B. Schultz, State, and Freedom (Boston, 1967), pp. 2~ "'Of Bigotry in Politics and Religion': Jefferson's Religion, the tudes, see Shlomith Yahalom, "American J Federalist Press, and the Syllabus," Virginia Magazine of History of Separation Between Church and State," and Biography 91 (January 1983): pp. 73-91, esp. 85. in Hebrew, Hebrew University of Jemsa 19. Annals of the Congress of the United States, compo by Joseph and Borden, Jews Turks, and Infidels, pp. 103 S. Gales, Sr. (1834), as reprinted in Wilson and Drakeman, Church 32. See William A. Blakely, American ~ and State in American History, p. 76; Sarna, "Church-State Dilemma Sunday Legislation (New York and Washi of American Jews," p. 11. Friedenberg, "Jews and the American Sl 20. The petition is reprinted in PAlHS 27 (1920): 92-95. (1903): 101-115; idem, "Sunday Laws OJ 21. Naomi W. Cohen, "Pioneers of American Jewish Defense," Leading Judicial Decisions Having Special American Jewish Archives 19 (November 1977): 116-150. AJYB 10 (1908-09): 152-189; and Jacob Be: 22. Occident 7 (1850): 564-566. of Jews in American Sunday Laws," Jewis~ 23. Occident 16 (1859): 580. See Naomi W. Cohen, Encounter 11 (1934-1935): 223-228, 269-276. With Emancipation: The German Jews in the United States, 1830­ 33. Schappes, Documentary History of t. 1914 (Philadelphia, 1984), p. 77: "The Jewish pioneers for religious States, pp. 279-281; Sarna, Jacksonian Jew, p. equality generally asked for government neutrality on matters of 34. Emil G. Hirsch, Sunday Law, Liberty • religion . . . a neutral-to-all religions rather than a divorced­ Before the Sinai Congregation, Decem/)

36 Establishment Clause of the First Amend­ from-religion state." )od Jr., ed., Religion and the State: Essays 24. Bertram W. Korn, Eventful Years and Experiences (Cincinnati, Vaco, Tex., 1985), pp. 43-83. 1954), pp. 98-124; idem, American Jewry and the Civil War (New ~le v. Ruggles, 8 Johns Rep. (N.Y.) 294 York, 1970), pp. 56-97. Pratt, Religion, Politics and Diversity: The 25. Cohen, "Pioneers of American Jewish Defense," p. 120. As New York History (Ithaca, N.Y., 1967), late as 1913, the Committee on Church and State of the Central :see Nathan Dane, A General Abridgement Conference of American Rabbis was concerned not only with Law (Boston, 1823-29), 2: 337 as quoted infringements on church-state separation but also with "any ridicule • and Infidels, p. 12. On Webster, see of the Jew on the stage . . . and any prejudicial statement in vrs, 2 How. 127 (1844), and Jonathan D. our public press." See Joseph L. Fink, Summary of C.CA.R. :e Dilemma of American Jews," in Richard Opinion on Church and State as Embodied in Resolutions Adopted liS in Unsecular America (Grand Rapids, at Conferences Through the Years (Philadelphia, 1948), p. 6. l. For British precedent, see Shover v. 26. See Borden, Jews, Turks, and Infidels, pp. 97-129. 3S quoted by Bernard J. Meislin, "Jewish 27. Occident 7 (1850): 525. -vish Law in Legal History and the Modem 28. American Israelite, Mar. 3, 1865; James G. Heller, Isaac M. kson (Leiden, 1980), p. 159. Wise: His Life, Work and Thought (New York, 1965), p. 621. tary History of the Jews in the United 29. Allan Tarshish, "The Board of Delegates of American Israelites (1859-1878)," PAJHS 49 (1959): 23; Borden, Jews, Turks and Infidels, ronathan D. Sarna, Jacksonian Jew: The p. 63; PAJHS 29 (1925): 105. ofoah (New York, 1981), pp. 132-135. 30. PAJHS 29 (1925): 81-82, 105. er to the Danbury Baptists (1802) and 31. For the general theme, see James R. Rohrer, "Sunday Mails Jasper Adams (1832), reprinted in Wilson and the Church-State Theme in Jacksonian America," Joumal of and State in American History, pp. 78-81. the Early Republic 7 (Spring 1987): 53-74; Leo Pfeffer, Church, refferson's letter, see Constance B. Schultz, State, and Freedom (Boston, 1967), pp. 270-286. For Jewish atti­ ; and Religion': Jefferson's Religion, the tudes, see Shlomith Yahalom, "American Judaism and the Question le Syllabus," Virginia Magazine of History of Separation Between Church and State," unpublished Ph.D. diss., y 1983): pp. 73-91, esp. 85. in Hebrew, Hebrew University of Jerusalem, 1981, pp. 100-134; ~ss of the United States, compo by Joseph and Borden, Jews Turks, and Infidels, pp. 103-129. ~eprinted in Wilson and Drakeman, Church 32. See William A. Blakely, American State Papers Bearing on istory, p. 76; Sarna, "Church-State Dilemma Sunday Legislation (New York and Washington, 1891); Albert M. Friedenberg, "Jews and the American Sunday Laws," PAJHS 11 ted in PAJHS 27 (1920): 92-95. (1903): 101-115; idem, "Sunday Laws of the United States and "Pioneers of American Jewish Defense," Leading Judicial Decisions Having Special Reference to the Jews," 19 (November 1977): 116-150. AJYB 10 (1908-09): 152-189; and Jacob Ben Lightman "The Status 4-566. of Jews in American Sunday Laws," Jewish Social Service Quarterly 580. See Naomi W. Cohen, Encounter 11 (1934-1935): 223-228, 269-276. German Jews in the United States, 1830­33. Schappes, Documentary History of the Jews in the United ), p. 77: "The Jewish pioneers for religious States, pp. 279-281; Sarna, Jacksonian Jew, p. 134. for government neutrality on matters of 34. Emil G. Hirsch, Sunday Law, Liberty and License: A Discourse l-to-all religions rather than a divorced­ Before the Sinai Congregation, December 16, 1888 (Chicago,

37 [1888?]); see Kerry M. Olitzky, "Sundays at Chicago Sinai Congre­ 45. Borden, Jews, Turks, and Infidels, pp. 6 gation: Paradigm for a Movement," AJH 74 (June 1985): pp. 356-368. with Emancipation, pp. 98-100, 254-256. 35. Occident 4 (March 1847): 565; 16 (September 1858): 274; see 46. David Philipson, Max Lilienthal (Ney. p. 275 for evidence that Leeser was echoing arguments by pro­ the three paragraphs on pp. 16-17 in the ponents of Sunday mails. Sarna, "Church-State Dilemma of American ~ 36. David Philipson, Sabbath Legislation and Personal Liberty: A 47. In Wilson and Drakeman, Church I Lecture Delivered Before Congregation B'ne Israel (Cincinnati, History, pp. 69, 79; see Robert M. Healey. 1889); Harold Silver, What Is Wrong with the Sunday Blue Laws: and the Jews: 'Divided We Stand, Unitec Address Delivered . . . at Temple Emanuel of South Hills, (June 1984): 359-374, and, more broadly, .. Pittsburgh, Pa. (Pittsburgh, Pa., 1958). For Supreme Court de­ First Liberty: Religion and the American cisions on Sunday closing cases, see Robert T. Miller and Ronald 1986), pp. 5-150. B. Flowers, Toward Benevolent Neutrality: Church, State and the 48. Benny Kraut, "Frances E. Abbot: Pere­ Supreme Court (Waco, Tex., 1987), pp. 289-322. Century Religious Radical on Jews and JI.: 37. Blau and Baron, Jews in the United States, 1: 22-24. and AJ. Peck, Studies in the Amen. 38. Rohrer, "Sunday Mails," p. 68; AJYB 10 (1908-09): 169. (Cincinnati, 1981), pp. 99-101. 39. Isaac Leeser, The Claims of the Jews to an Equality of Rights 49. Reprinted in Philipson, Max Lilien (Philadelphia, 1841), p. 90; American Israelite, Feb. 28, 1887; pp. 109-125. Where We Stand: Social Action Resolutions Adopted by the Union 50. Quoted in Heller, Isaac M. Wise, p. 620. ofAmerican Hebrew Congregations (New York, 1960), p. 66. 51. Reprinted in Emma Felsenthal, Bemh 40. Charles Reznikoff, Louis Marshall, Champion of Liberty: Se­ in Israel (New York, 1924), pp. 267-268. lected Papers and Addresses (Philadelphia, 1957), 2: 923-928. 52. "Commending the 'Congress of Liberals' 41. Ibid., p. 929; cf. Benjamin Kline Hunnicutt, "The Jewish Sabbath in Where We Stand, pp. 14-15; CCARYB 3 (18 Movement in the Early Twentieth Century," AJH 69 (December 53. Yahalom, "American Judaism and the 1979): 196-225. Between Church and State," esp. pp. 25" 42. Bernard Drachman, The Unfailing Light: Memoirs of an and State in the United States, 3: 592·595. American Rabbi (New York, 1948), p. 233; Richard Cohen, Sunday 54. CCARYB 3 (1893), 45; David Philipson, in the Sixties, Public Affairs Pamphlet #327 (New York, 1962); Jew (Cincinnati, 1941), p. 76. Pfeffer, Church, State, and Freedom, p. 287. 55. Carl F. Kaestle, Pillars of the Repub 43. James Turner, Without God, Without Creed: The Origins of Lawrence A. Cremin, American Education: ­ Unbelief in America (Baltimore, 1985), p. 171; Robert Handy, A 1783-1876 (New York, 1980). Christian America (New York, 1971), p. 101; see also Ferenc M. 56. Carl F. Kaestle, Pillars of the Repr. Szasz, "Protestantism and the Search for Stability: Liberal and Gartner, "Temples of Liberty Unpollutel Conservative Quests for a Christian America, 1875-1925," in Jerry Public Schools, 1840-1875," in B.W. Ko: Israel, ed., Building the Organizational Society (New York, 1972), Festschrift for Jacob Rader Marcus (Wall pp. 88-102; Paul A. Carter, The Spiritual Crisis of the Gilded York, 1976), p. 161; see Robert Michael~ Age (DeKalb, Ill., 1971); and Jackson Lears, No Place of Grace: School (New York, 1970). Antimodemism and the Transfomzation of American Culture, 1880­ 57. Hyman B. Grinstein, The Rise of thE. 1920 (New York, 1981). New York, 1654-1860 (Philadelphia, 1945), 44. Samuel M. Campbell, "Christianity and Civil Liberty," American Brandon, "A Protest Against Sectarian TeJi Presbyterian and Theological Review 5 (July 1867): 390-391. in 1875," Westem States Jewish History 20

38 :Jlitzky, "Sundays at Chicago Sinai Congre­ 45. Borden, Jews, Turks, and Infidels, pp. 62-74; Cohen, Encounter ovement," AJH 74 (June 1985): pp. 356-368. with Emancipation, pp. 98-100, 254-256. 1847): 565; 16 (September 1858): 274; see 46. David Philipson, Max Lilienthal (New York, 1915), p. 121; :it Leeser was echoing arguments by pro­ the three paragraphs on pp. 16-17 in the text are adapted from Sarna, "Church-State Dilemma of American Jews," pp. 13-14. bbath Legislation and Personal Liberty: A 47. In Wilson and Drakeman, Church and State in American re Congregation B'ne Israel (Cincinnati, History, pp. 69, 79; see Robert M. Healey, "Jefferson on Judaism ~at Is Wrong with the Sunday Blue Laws: and the Jews: 'Divided We Stand, United, We Fall!'" AJH 73 . at Temple Emanuel of South Hills, (June 1984): 359-374, and, more broadly, William Lee Miller, The -gh, Pa., 1958). For Supreme Court de­ First Liberty: Religion and the American Republic (New York, 19 cases, see Robert T. Miller and Ronald 1986), pp. 5-150. nevolent Neutrality: Church, State and the 48. Benny Kraut, "Frances E. Abbot: Perceptions of a Nineteenth =x., 1987), pp. 289-322. Century Religious Radical on Jews and Judaism," in J.R. Marcus s in the United States, 1: 22-24. and AJ. Peck, Studies in the American Jewish Experience ils," p. 68;AJYB 10 (1908-09): 169. (Cincinnati, 1981), pp. 99-101. "laims of the Jews to an Equality of Rights 49. Reprinted in Philipson, Max Lilienthal, pp. 456-457; cf. · 90; American Israelite, Feb. 28, 1887; pp.109-125. · Action Resolutions Adopted by the Union 50. Quoted in Heller, Isaac M. Wise, p. 620. ~gations (New York, 1960), p. 66. 51. Reprinted in Emma Felsenthal, Bemhard Felsenthal: Teacher Louis Marshall, Champion of Liberty: Se­ in Israel (New York, 1924), pp. 267-268. es (philadelphia, 1957), 2: 923-928. 52. "Commending the 'Congress of Liberals' (July 1876)," reprinted amin Kline Hunnicutt, "The Jewish Sabbath in Where We Stand, pp. 14-15; CCARYB 3 (1893): 45. r Twentieth Century," AJH 69 (December 53. Yahalom, "American Judaism and the Question of Separation Between Church and State," esp. pp. 257-264; Stokes, Church • The Unfailing Light: Memoirs of an and State in the United States, 3: 592-595. •ork, 1948), p. 233; Richard Cohen, Sunday 54. CCARYB 3 (1893), 45; David Philipson, My Life as an American .ffairs Pamphlet #327 (New York, 1962); Jew (Cincinnati, 1941), p. 76. 'i Freedom, p. 287. 55. Carl F. Kaestle, Pillars of the Republic (New York, 1983); lOut God, Without Creed: The Origins of Lawrence A. Cremin, American Education: The National Experience, :tltimore, 1985), p. 171; Robert Handy, A 1783-1876 (New York, 1980). York, 1971), p. 101; see also Ferenc M. 56. Carl F. Kaestle, Pillars of the Republic, p. 93; Lloyd P. nd the Search for Stability: Liberal and Gartner, "Temples of Liberty Unpolluted: American Jews and a Christian America, 1875-1925," in Jerry Public Schools, 1840-1875," in B.W. Korn, ed., A Bicentennial Organizational Society (New York, 1972), Festschrift for Jacob Rader Marcus (Waltham, Mass., and New :arter, The Spiritual Crisis of the Gilded York, 1976), p. 161; see Robert Michaelson, Piety in the Public ); and Jackson Lears, No Place of Grace: School (New York, 1970). Transformation of American Culture, 1880­ 57. Hyman B. Grinstein, The Rise of the Jewish Community of New York, 1654-1860 (Philadelphia, 1945), pp. 235-236; Joseph R. I, "Christianity and Civil Liberty," American Brandon, "A Protest Against Sectarian Texts in California Schools cal Review 5 (July 1867): 390-391. in 1875," Westem States Jewish History 20 (April 1988): 233-235;

39 Alexander M. Dushkin, Jewish Education in New York City (New Conference Considers Relations Between I York, 1918), pp. 46-50. Catholics, of course, were vehement in in Bertram W. Korn, ed., Restrospect atu their opposition to the Protestant character of the public schools. 1965), pp. 114-128. On this issue, the New York Herald noted with amusement, Jews 71. CCARYB 16 (1906): 153; 21 (1911): 259, : and Catholics were united for the first time in 1840 years. See 72. Nathan Schachner, "Church, State anc Diane Ravitch, The Great School Wars: New York City, 1805­ (1947-48): 29; CCARYB 25 (1915): 426, 428; 1873 (New York, 1974), p. 53. 73. Samuel Schulman to Samson Benderly, 58. Quoted in Gartner, "Temples of Liberty Unpolluted," p. 180. Papers 1/5, American Jewish Archives, Cincin 59. Reprinted in Lloyd P. Gartner, Jewish Education in the United 74. CCARYB (1926): 84, 87;AJYB 29 (1927-~ States: A Documentary History (New York, 1969), p. 86. 75. Reznikoff, Louis Marshall, pp. 970-971. 60. Gartner, "Temples of Liberty Unpolluted," pp. 177, 182; William 76. AJYB 49 (1947-48): 32; CCARYB 53 (194. E. Griffiths, Religion, the Courts, and the Public Schools: A Centu­ 77. CCARYB (1941): 121; 53 (1943): 75;A.Tr ry ofLitigation (Cincinnati, 1966), p. 1; cf. pp. 1-92. 78. McCollum v. Board of Education, 333 1 61. Church v. Bullock 104 Texas 1, 109 SW 115 (1908), quoted in W. Cohen, Not Free to Desist: A History Griffiths, Religion, the Courts, and the Public Schools, p. 50. Committee, 1906-1966 (Philadelphia, 1972 62. Griffiths, Religion, the Courts, and the Public Schools, (1948): 104-106. pp. 72-92. See, however, Henry Berkowitz's memoir of religious 79. AJYB 50 (1948-49): 221-223. Accordin coercion in the Pittsburgh public schools quoted in Cohen, En­ of the Synagogue Council, this position c counter with Emancipation, p. 92. represent the majority opinion, almost t 63. Philipson, Max Lilienthal, p. 123. American Jewry." Quoted in Murray Frie 64. American Israelite, Jan. 8,1869. lemma (Washington D.C., 1985), p. 29. 65. Philipson, Max Lilienthal, pp. 121-122. The case, Minor v. 80. Cantwell v. Connecticut, 310 U.S. 2~ Board of Education of Cincinnati, is reprinted with additional "Is the First Amendment Dead," reprintec documents in The Bible in the Public Schools (1870; reprinted "Schools, Religion and Government -- RI New York, 1967). See also F. Michael Perko, "The Building Up Opinions," Michael 3 (1975): 373; Pfeff. of Zion: Religion and Education in Nineteenth Century Cincinnati," Freedom, p. 728; see Pfeffer's "An Autob Cincinnati Historical Society Bulletin 38 (Summer 1980): 97-114. James E. Wood, Jr., ed., Religion and the 66. Ephraim Frisch, Is the United States a Christian Nation? A of Leo Pfeffer (Waco, Tex., 1985), pp. 487­ Legal Study (Pine Bluff, Ark., 1906). Court's involvement in the question of r 67. American Israelite, Sept. 19, 1873. schools, with copies of relevant decisions, ~ 68. The Nation 34 (Jan. 12, 1882): 34. Toward Benevolent Neutrality, pp. 378-452. 69. American Hebrew, Mar. 2, 1888, pp. 50, 51, 59; Cohen, En­ 81. "Letter from the Lubavitcher Rabbi (19 counter With Emancipation, p. 95. "Schools, Religion, and Government," p. 364 70. The committee was established on the basis of a 1904 proposal and Diversity, p. 290. by Rabbi Joseph Krauskopf; see CCARYB 14 (1904): 32. Its first 82. AJYB 64 (1962-63): 110; Cohen, "School: publication was entitled, significantly, Why the Bible Should Not ment," p. 348. Be Read in the Public Schools (1906). Prof. Lance Sussman has 83. Pfeffer, Church, State, and Freedom, I= generously shared with me his forthcoming article, "Rhetoric and v. Jajfree, 105 S.Ct. 2479. Reality: The Central Conference of American Rabbis and the 84. Schappes, Documentary History of the Church-State Debate, 1890-1940." See also Eugene Lipman, "The States, pp. 126-127; Dushkin, Jewish E

40 Jewish Education in New York City (New Conference Considers Relations Between Religion and the State," Catholics, of course, were vehement in in Bertram W. Korn, ed., Restrospect and Prospect (New York, Protestant character of the public schools. 1965), pp. 114-128. York Herald noted with amusement, Jews 71. CCARYB 16 (1906): 153; 21 (1911): 259, 262. ~ed for the first time in 1840 years. See 72. Nathan Schachner, "Church, State and Education," AJYB 49 ~eat School Wars: New York City, 1805­(1947-48): 29; CCARYB 25 (1915): 426, 428; 35 (1925): 60. ).53. 73. Samuel Schulman to Samson Benderly, Dec. 9, 1915, Schulman Temples of Liberty Unpolluted," p. 180. Papers 1/5, American Jewish Archives, Cincinnati, Ohio. P. Gartner, Jewish Education in the United 74. CCARYB (1926): 84, 87;AJYB 29 (1927-28): 40. :Story (New York, 1969), p. 86. 75. Reznikoff, Louis Marshall, pp. 970-971. f Liberty Unpolluted," pp. 177, 182; William 76. AJYB 49 (1947-48): 32; CCARYB 53 (1943): 80. Ie Courts, and the Public Schools: A Centu­77. CCARYB (1941): 121; 53 (1943): 75;AJYB 48 (1946-47): 129. :i, 1966), p. 1; cf. pp. 1-92. 78. McCollum v. Board of Education, 333 U.S. 203 at 383; Naomi J4 Texas I, 109 SW 115 (1908), quoted in W. Cohen, Not Free to Desist: A History of the American Jewish JUts, and the Public Schools, p. 50. Committee, 1906-1966 (Philadelphia, 1972), p. 440; CCARYB 58 • the Courts, and the Public Schools, (1948): 104-106. ~r, Henry Berkowitz's memoir of religious 79. AJYB 50 (1948-49): 221-223. According to the official history rgh public schools quoted in Cohen, En­ of the Synagogue Council, this position could "be fairly said to n, p. 92. represent the majority opinion, almost the official opinion of thai, p. 123. American Jewry." Quoted in Murray Friedman, The Utopian Di­ n. 8,1869. lemma (Washington D.C., 1985), p. 29. ~nthal, pp. 121-122. The case, Minor v. 80. Cantwell v. Connecticut, 310 U.S. 296 at 303. Leo Pfeffer, :- Cincinnati, is reprinted with additional "Is the First Amendment Dead," reprinted in Naomi W. Cohen, fe in the Public Schools (1870; reprinted "Schools, Religion and Government -- Recent American Jewish also F. Michael Perko, "The Building Up Opinions," Michael 3 (1975): 373; Pfeffer, Church, State, and ducation in Nineteenth Century Cincinnati," Freedom, p. 728; see Pfeffer's "An Autobiographical Sketch," in .ety Bulletin 38 (Summer 1980): 97-114. James E. Wood, Jr., ed., Religion and the State: Essays in Honor the United States a Christian Nation? A of Leo Pfeffer (Waco, Tex., 1985), pp. 487-533. On the Supreme \rk.,1906). Court's involvement in the question of religion and the public ~pt. 19, 1873. schools, with copies of relevant decisions, see Miller and Flowers, 2, 1882): 34. Toward Benevolent Neutrality, pp. 378-452. ...far. 2, 1888, pp. 50, 51, 59; Cohen, En­ 81. "Letter from the Lubavitcher Rabbi (1964)," quoted in Cohen, :m,p.95. "Schools, Religion, and Government," p. 364; Pratt, Religion, Politics established on the basis of a 1904 proposal and Diversity, p. 290. !copf; see CCARYB 14 (1904): 32. Its first 82. AJYB 64 (1962-63): 110; Cohen, "Schools, Religion, and Govern­ ~, significantly, Why the Bible Should Not ment," p. 348. Schools (1906). Prof. Lance Sussman has 83. Pfeffer, Church, State, and Freedom, pp. 342, 350; Wallace me his forthcoming article, "Rhetoric and v. Jajfree, 105 S.Ct. 2479. :onference of American Rabbis and the 84. Schappes, Documentary History of the Jews in the United B90-1940." See also Eugene Lipman, "The States, pp. 126-127; Dushkin, Jewish Education in New York,

41 pp.42-45. 96. Walter Wurzburger, "Separation of Chi 85. Pfeffer, Church, State, and Freedom, p. 510. Face to Face 8 (Fall 1981): 8; see Noah ] 86. The brief is reprinted in Reznikoff, Louis Marshall, pp. 957­ Wall -- Jews, Religion and American Pu 967; for the context, see Morton Rosenstock, Louis Marshall, (Fall 1986): 28-42; see also Friedman, Utopii Defender ofJewish Rights (Detroit, 1965), pp. 211-213. 97. Jonathan D. Sarna, "Is Judaism Co 87. Cochran v. La. State Board ofEducation, 281 U.S. 370 at 375. Civil Religion? The Problem of Christmas 88. Justice Hugo Black, in his majority opinion, defined church­ (forthcoming). state separation in terms that have remained influential: "The 98. See, for example, American Israelite, 'establishment of religion' clause of the First Amendement means 1988; Yosef Friedman, ed., And There Was L at least this: Neither a state nor the Federal government can 99. Goldman v. Weinberger, 106 S.Ct. 1311 set up a church. Neither can pass laws which aid one religion, "Goldman v. Secretary of Defense: A r aid all religions, or prefer one religion over another . . . . No Exercise Claims in the Military," Nation" tax in any amount, large or small, can be levied to support any (1986): 13-40. religious activities or institutions, whatever they may be called, 100. For examples, see Bernard J. Meislin, or whatever form they may adopt to teach or practice religion. Tribunals (New York, 1976) with updates Neither a state nor the Federal government can, openly or secretly, and Louis Bernstein, Challenge and Mis. participate in the affairs of any religious organizations or groups the English Speaking Orthodox Rabbi, and vice-versa. In the words of Jefferson, the clause against pp. 184-210. J. David Bleich has surv establishment of religion by law was intended to erect a 'wall of American law in "Jewish Divorce: Judie separation between church and state'" (Everson v. Board of Edu­ Possible Means of Civil Enforcement," ( cation ofEwing Township, 330 U.S. 1 at 15). 16 (Winter 1984): 201·289; see also David 89. CCARYB 55 (1945): 92; 57 (1947): 122;AJYB 50 (1948-49): 222. Ellenson, "American Courts and the Enf. 90. Will Herberg, "The Sectarian Conflict Over Church and State," as a Private Contract: An Investigation Commentary 14 (November 1952): 450-462; David G. Dalin, "Will Decisions," Conservative Judaism 35:3 (Spri Herberg in Retrospect," Commentary 86 (July 1988): 38-43. 101. Wurzburger, "Separation of Chure 91. CCARYB 68 (1958): 55,57. p.8. 92. AJYB 63 (1962): 176·178. 93. Milton Himmelfarb, "Church and State: How High A Wall," Commentary 42 (July 1966), reprinted in his The Jews of Modernity (New York, 1973), p. 171; see also Seymour Siegel, "Church and State," Conservative Judaism 17 (1963): 1-12; idem, "Church and State: A Reassessment," Sh'ma 1 (Dec. 11, 1970), reprinted in Carolyn T. Oppenheim, Listening to American Jews (New York, 1986), pp. 130-134; and Jakob J. Petuchowski, "Logic and Reality," Jewish Spectator, September 1962, p. 20. 94. Quoted in Sheldon J. Harr, "Church, State, and the Schools: A Jewish Perspective," unpublished rabbinic thesis, HUC-HR, 1973, pp. 83-84. 95. Cohen, "Schools, Religion, and Government," pp. 378-379; AJYB 67 (1966): 128, 139·141.

42 96. Walter Wurzburger, "Separation of Church and State Revisited," Face to Face 8 (Fall 1981): 8; see Noah Pickus, "Before I Built a ~, and Freedom, p. 510. This World 5 ted in Reznikoff, Louis Marshall, pp. 957­ Wall -- Jews, Religion and American Public Life," see Morton Rosenstock, Louis Marshall, (Fall 1986): 28-42; see also Friedman, Utopian Dilemma, pp. 87-98. 97. Jonathan D. Sarna, "Is Judaism Compatible with American (Detroit, 1965), pp. 211-213. Board ofEducation, 281 U.S. 370 at 375. Civil Religion? The Problem of Christmas and the National Faith" :, in his majority opinion, defined church­ (forthcoming). ms that have remained influential: "The 98. See, for example, American Israelite, December 1987-January In' clause of the First Amendement means 1988; YosefFriedman, ed., And There Was Light (New York, 1988). a state nor the Federal government can 99. Goldman v. Weinberger, 106 S.Ct. 1310; see Daniel D. Chazin, lher can pass laws which aid one religion, "Goldman v. Secretary of Defense: A New Standard for Free "efer one religion over another . . . . No Exercise Claims in the Military," National Jewish Law Review 1 -ge or small, can be levied to support any (1986): 13-40. institutions, whatever they may be called, 100. For examples, see Bernard J. Meislin, Jewish Law in American Tribunals (New York, 1976) with updates in Jewish Law Annual, r may adopt to teach or practice religion. Federal government can, openly or secretly, and Louis Bernstein, Challenge and Mission: The Emergence of the English Speaking Orthodox Rabbinate (New York, 1982), IS of any religious organizations or groups ,e words of Jefferson, the clause against pp. 184-210. J. David Bleich has surveyed Jewish divorce in In by law was intended to erect a 'wall of American law in "Jewish Divorce: Judicial Misconceptions and Connecticut Law Journal Jrch and state'" (Everson v. Board of Edu­Possible Means of Civil Enforcement," 16 (Winter 1984): 201-289; see also David Ellenson and James S. p, 330 U.S. 1 at 15). Ketubah _92; 57 (1947): 122;AJYB 50 (1948-49): 222. Ellenson, "American Courts and the Enforceability of a Sectarian Conflict Over Church and State," as a Private Contract: An Investigation of Recent U.S. Court -nber 1952): 450-462; David G. Dalin, "Will Decisions," Conservative Judaism 35:3 (Spring 1982): 35-42. 101. Wurzburger, "Separation of Church and State Revisited," Commentary 86 (July 1988): 38-43. p.8. : 55,57. 06-178. t, "Church and State: How High A Wall," 966), reprinted in his The Jews of Modemity 171; see also Seymour Siegel, "Church and -.daism 17 (1963): 1-12; idem, "Church and t," Sh'ma 1 (Dec. 11, 1970), reprinted in n, Listening to American Jews (New York, j Jakob J. Petuchowski, "Logic and Reality," nber 1962, p. 20. 1 J. Harr, "Church, State, and the Schools: ," unpublished rabbinic thesis, HUC-HR,

Religion, and Government," pp. 378-379; ~9-141. 43