The leaders may be more extreme or coherent in their formulations, but they express the same basic conviction, namely, that Jewish security is best ensured by a secular polity, indeed by a secular society. To take two examples, asked to respond to the assertion that "Democracy in the US works better if Americans are religious," 42% of Gentiles agreed with the statement, while only 11% of Jews agreed. Similarly, 71% of gentiles believe that "It's good for Congress to start sessions with a public prayer." Only 28% of Jews agreed with this claim. When coupled with other findings that show that Jews are far more tolerant of gay rights, including same sex marriage, abortion, and pornography, and far less tolerant of morally tinged laws that restrict individual choices, it is clear that Jews are comfortable with a secular public square in a way that is still abhorrent to many gentiles.

The general American Jewish conviction that increasing secularity correlates with increased Jewish security is based on the underlying fear that manifestations of public religion are inevitably those of the religion of the majority, Christianity, and that Christianity, despite its recent rapprochement with Judaism, still implies marginality for Jews. In the second half of the 20th century, American Jews prayed, so to speak, for the arrival of a secular utopia. But, as Henry Kissinger reminds us, "not for nothing is history associated with the figure of Nemesis, which defeats man by fulfilling his wishes in a different form or by answering his prayers too completely." As we all know, we have to be careful about what we pray for because our prayers may just be answered.

Slouching toward Jerusalem, the secular utopia may have almost arrived. Witness these tracks in the sand in a document entitled "A Teacher's Guide to Religion in the Public Schools." This 1999 document was prepared by the First Amendment Center of the Freedom Forum. It is linked to the Department of Education's website and is one of the resources that Education Secretary Riley references in his 1999 letter to public school principals on religion and the public schools. Para. 11 of the document instructs teachers that:

As employees of the government, public school teachers are subject to the Establishment Clause of the First Amendment and thus required to be neutral concerning religion while carrying out their duties as teachers. That means, for example, that teachers do not have the right to pray with or in the presence of students during the school day… Teachers, of course, bring their faith with them through the schoolhouse door each morning. Because of the First Amendment, however, teachers who wish to pray or engage in religious activities—unless they are silent—should do so outside the presence of students.

I find this an extraordinary infringement on the religious liberty of teachers. I do not doubt that prudence would dictate stepping away from the front of the class if one had a sudden wish to pray, but there is something deeply troubling about the government requiring this. Whence this deafness to both the natural and the civil call of liberty? Have we become a society in which the need not to offend trumps the most fundamental rights to liberty? The therapeutic culture, with its utopian aspiration of comfort for all, has replaced the rough and tumble of democracy. Well-meaning goals such as inclusion and respect now occasion a perverse self-discipline of silence and censorship lest by speaking too openly one causes offense. How have we gotten to this pass?

Of course, this is a very complex story, too complex to be told with any adequacy in a brief time. We can point to the major Supreme Court decisions that limn the modern construction of the Establishment clause. We can point to the partial secularization of American society as a concomitant of its complete modernization. We can point to the 20th century development of a much more heterogenous society with a more or less official ethos of pluralism. On a deeper level, we can point to what we might call an underlying ambivalence toward the potency of religion in the founders of modern constitutionalism as such. In brief, the founders of the modern political project, Hobbes, Spinoza, and Locke each sought to co-opt religion because they could not entirely eliminate it. Religion was necessary for the morality of civil society but also thought to be potentially subversive of civil peace and of the sovereign's claim to authority. Even Montesque, who had a quite affirmative attitude toward religion, believed that some religions are bad for republics and for their civic culture. The founders of modern constitutionalism agree that religion must be defanged and recast within the limits of reason alone as a support for morals rather than as an autonomous source of truth and therefore of potential subversion. These political thinkers, endorsing both liberty and limits, made a prudential peace with religion. Their diverse heirs, both democrat and totalitarian, have often cast aside that prudence for the rigorous, sometimes ruthless imposition of principle.

I would argue that modern Jews, as children of the Enlightenment, heard these overtones of dialectical ambivalence and replicated them in their own thought and practice. On the one hand, they very much wanted the state to give a wide berth to religious liberty because their own freedom of practice could then be secure. On the other hand, they feared the implications of too much liberty and wanted a certain degree of protection from the unpleasant consequences of too robust a realization of religious freedom. To give an early example of this ambivalence, in 1820 the anonymous author of the pamphlet "Israel Vindicated" inveighed against the chartering of a missionary society in New York State. The society, called the "American Society for Evangelizing the Jews" was eventually legally recognized. But the Jewish pamphleteer argued that not to outlaw this organization constituted an infringement of Jews' rights under the New York State constitution. The core of his argument is as follows:

No one will deny that the Jews have as just a claim to protection as the Christians. But if laws are passed, authorizing the latter to treat the former as a degraded race; if a union of men, honorable from their high standing, and whose very formation as a society, gives countenance to the prevailing calumnies; if such a combination continues to disseminate its pernicious principles, it is impossible that this persecuted people can ever obtain their rights. While pointed at by the finger of scorn; while treated by their fellow-citizens as beings of an inferior cast, they can never employ their talents to advantage for the public good. (Sarna 93)

What is interesting about this argument is that it is not couched in the language of comfort or non-offense or the overt clash of rights as a modern argument might be. Rather it is expressed in the republican language of the common good or the public good, as it was often called. That argues in its favor, in my view. Nonetheless, its cramped vision of religious liberty is disconcerting. It would deny the evangelical Christian's liberty to proselytize. It does not merely find that activity a nuisance or an offense. It argues that it ought to be illegal. Perhaps that seemed the most principled thing to do back in 1820 when the Jewish community was tiny and fragile, but it certainly seems wrongheaded to me today. Yet I cannot help but wonder whether its basic tendency does not somehow endure in American Jewish thinking about religious liberty. I recall, for example, when I began to work for a major Jewish agency in the 1980's and was invited to participate in some "cult busting" seminars co-sponsored with another prominent New York Jewish taskforce. I was rather shocked by the whole operation since I was always inclined to see the anti-cult activities as worse than the cultic ones. Not to say that these unpopular religious groups were not sometimes guilty of criminal or immoral actions, but in general, I thought, they had the principle of religious liberty behind them.

If it is the case that American Jews are most at home in the secular public square of an ideally secular society then one of the challenges for American Jews in the 21st century quickly comes into view. A secular square in a secular America is a place where, for all intents and purposes, Jews will cease to exist as Jews. American Jews are presently coping with an inexorable process of assimilation and acculturation. They are experiencing an intermarriage rate of 52%, a negative birthrate, membership loss in Jewish organizations, shrinkage of fundraising dollars, and the lowest rate of attendance at worship services of any major American religious group. The past decade has seen a dramatic refocusing of Jewish priorities on this continuity crisis. Yet, as the Jewish community has turned somewhat more inward investing its resources in better Jewish education and giving new emphasis to religious life as the only guarantee of diaspora continuity, it continues to maintain the same rigid separationist-secularist stance vis a vis the public sphere. There is an emerging contradiction here. If Jews can only survive as Jews in America through the cultivation of a deepening religiosity, then they will have to somehow become more affirmative of the deepening religiosity of others. They will have to acknowledge that religious convictions and practices are not always part time affairs and that they spill over the whole of life in ways both messy and glorious. Surely the Jewish tradition, with its basic modality of realizing holiness in every corner of the mundane, if taken seriously would support precisely this acceptance of the inevitable presence of religion in the public square.

Since the days of Moses Mendelssohn, Jews have hoped for the emergence of a society in which religion would not matter and neutrality would prevail. But neutrality, like objectivity, is a regulative idea, not a realizable one. At its best, it means fairness toward all. As interpreted by secular Jewish thought, however, it means the construction of neutered, unencumbered selves interacting in an artificial, post-religious social space. Indeed, in some ways this vision does describe the world many of us inhabit. I would like to think, however, that for those who are morally serious this description, this putatively normative ideal utterly fails. We don't leave our innermost convicted selves behind when we do our best work in the world. At least we should not. The world depicted by 20th century social science or 21st century post-modernism of insubstantial selves who are indistinguishable from their masquerading public performances or ironic poses is simply a world of lies. Our challenge in the 21st century is to take our principled selves and our principle-nurturing communities seriously enough so that we neither betray them in public intercourse nor tyrannize others with them. We need, as Os Guinness puts it, not a naked public square but a "civil public square."

The need for such a civil public square is particularly acute in the other great center where Jews live, the State of Israel. There the church-state arrangements are quite different from those of the US, as is the underlying political culture. In Israel there are officially recognized religious communities with ties to the state. The officially recognized Jewish community is Orthodox, with the imported diaspora liberal Judaisms increasingly involved in litigation and public agitation to establish their legitimacy. The disposition of religion and state in Israel is in many ways a constant, if unintended, reminder of the genius of the American founders in framing the Constitution and the First Amendment. Israel's challenge is to find a way, within the Byzantine possibilities of its political system, to allow greater religious liberty for non-Orthodox religious Jews, to allow all forms of Judaism to flourish. The problem, however, is not only a matter of political will and ingenuity. In a deeper sense, Israel must find a way to let historic Judaism thrive within an increasingly secular civil society. It is common now to speak of "post-Zionism" and "a state of all its citizens" in Israel. Many on the left see Judaism as an obstacle to the realization of a full and credible democracy. They are appalled, not only by the second class status of some Israeli Arabs, but by what they see as the obscurantism of the rabbis, the zealotry of the religious settlers and territorial maximalists, and the corruption of the state sponsored religious apparatus. Their answer is to divorce not only religious institutions from the state, but to jettison Judaism from the public culture of the Israeli nation. This hyper-secularism misunderstands, I would argue, the nature of democracy and badly misreads its favorite model of democracy, the United States. It certainly sins against the principles of religious liberty as much as, one could argue, the Jewish religious establishment has. Surely the antidote to a coercive religious establishment cannot be a coercive post-religious establishment. The challenge for Israeli Jews is to balance liberty with civility, freedom with a commitment to the common good. Israeli is a noisy and vigorous democracy, strong on expression and weak on seeking consensus. Its challenge is to create a civil public square where deep differences are handled with principled tolerance.

As I suggested at the outset, the Enlightenment founders of our modern world had an ambivalence about religious liberty. The premise of my analysis has been that Jews and others should not. We should hold religious liberty up as an orienting conviction, not as a passive concomitant to the other values of a free society. To be able to have this confidence in religious liberty, however, we must have some confidence in our ability to sustain the rule of law, to nurture and insist on civility, to find ways of naming and encouraging citizens to commit to the public good and to act responsibly as beings capable of, as Madison put it, "deliberation and choice." Absent what Ernest Barker called the restraining "traditions of civility," the challenges of the 21st century will be challenging indeed.

© 2000 The Becket Fund for Religious Liberty
all rights reserved

This paper was presented at a conference entitled "Religious Liberty and the Ideology of the State," in Prague, Czech Republic, in August, 2000. It will be edited for publication. Do not quote without written permission of The Becket Fund.