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How—and Why—American Jews Have Contended for Religious Freedom: The Requirements and Limits of Civility*

Published online by Cambridge University Press:  24 April 2015

Samuel Rabinove
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Extract

The issue is not only what we debate, but how. … Conflicts over the relationship between deeply held beliefs and public policy will remain a continuing feature of democratic life. They do not discredit the First Amendment, but confirm its wisdom and point to the need to distinguish the Religious Liberty clauses from the particular controversies they address. … In the public discussion, an open commitment to the constraints and standards of the clauses should precede and accompany debate over the controversies. … Civility obliges citizens in a pluralistic society to take great care in using words and casting issues.”

— The Williamsburg Charter

Throughout history — and throughout the world — religious minorities of all faiths generally have not fared very well at the hands of religious majorities. Sadly, that has been the norm rather than the exception. And the Jews were always a religious minority in every country in which they lived. The seventeenth century French philosopher, Blaise Pascal, spoke both from knowledge and personal experience when he wrote in his Pensees: “Men never do evil so completely and cheerfully as when they do it from religious conviction.” All peoples, of course, are products of their collective historical experience. The Jews are no exception.

Type
I. Commentary on The Williamsburg Charter
Information
Journal of Law and Religion , Volume 8 , Issue 1-2 , 1990 , pp. 131 - 152
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1990

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Footnotes

*

This article is based on a paper read at a conference on “The First Amendment Religious Liberty Clauses and American Public Life,” at the University of Virginia, April 11-13, 1988.

References

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2. Id at 188.

3. Id at 189.

4. Id at 201.

5. Id at 206.

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12. Lebeson, at 59 (cited in note 10). See also Reichley, A. James, Religion in American Public Life 75–76 (The Brookings Institution, 1985)Google Scholar.

13. Lebeson, at 60-61 (cited in note 10).

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19. Id at 43-44.

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32. 268 US 510 (1925).

33. The First Amendment's Free Exercise Clause had not yet been deemed applicable to the states. Cantwell v Connecticut, 310 US 296 (1940).

34. 319 US 624 (1943).

35. Id at 642.

36. 374 US 398 (1963).

37. Id at 406.

38. Id at 409.

39. 480 US 136 (1987).

40. 406 US 205 (1972).

41. 474 US 481 (1986).

42. This, of course, relates to the three-part test set forth in Lemon v Kurlzman, 403 US 602 (1971). For a measure to pass muster under the Establishment Clause, it must have a secular purpose, a primary effect that neither advances nor inhibits religion, and must not foster excessive entanglement between government and religion.

43. Goldman v Weinberger, 475 US 503 (1986).

44. Id at 523.

45. 10 USC § 774 (1987).

46. 370 US 421 (1962).

47. 374 US 203 (1963).

48. 465 US 668 (1984).

49. After this article had been written, the Court ruled in Allegheny County v ACLU Greater Pittsburgh Chapter, 109 S Ct 3086 (1989), that the display of a creche by a Roman Catholic group on the grand staircase of a county courthouse violated the Establishment Clause because of the unmistakably religious character of the message communicated by the creche. In a companion case, Chabad v ACLU, the Court ruled that the display of a menorah next to a large Christmas tree did not violate the Establishment Clause, on the view that the menorah's symbolic message is not exclusively religious, but secular as well. The AJC and the National Council of Churches filed an amicus curiae brief in this case urging that both symbols are religious in character and for that reason ought not to be displayed on government property.

50. Id at 674-77.

51. Id at 677.

52. Id at 700-01 (Brennan dissenting).

53. Id at 727 (Blackmun dissenting).

54. McCreary v Stone, 739 F 2d 716 (2d Cir 1984), judgment aff'd by equally divided court sub nom Board of Trustees of Village of Scarsdale v McCreary, 471 US 83 (1985).

55. Commonweal (Nov 29, 1985) 659-60.

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59. The Williamsburg Charter, 12 above.

60. Bellah, Robert N., Conclusion: Competing Visions of the Role of Religion in American Society, in Bellah, Robert N. and Greenspahn, Frederick E., eds, Uncivil Religion: Interreligious Hostility in America 228 (Crossroad 1987)Google Scholar.