The Supreme Court will decide this month on two cases that could overhaul the law governing religion and schools. These cases raise both constitutional questions and the larger question of how Jews should navigate between the Scylla of secularism and the Charybdis of Christianity. Should we continue to strive to prevent Christianity from dominating public spaces or allow Judaism to thrive in private spaces?
A case, kennedy, is about a public school coach who violated a school order by praying on the 50-yard line during mandatory post-game team meetings, rather than before or after them (or elsewhere). He challenged this restriction on when and where he could pray.
The carson case, on the other hand, involves the Maine program that subsidizes private school tuition for families in rural areas who do not have a public school. Because Maine excludes religious schools from the program, parents who wanted to enroll their daughter in a religious school challenged the exclusion.
Although many expect most judges to vote the same, either in favor of the religious claims of coach and parents or school restrictions, the constitutional imperative is not to guarantee that there is more or less religious practice, but that religious decisions follow private choice. not government pressure. According to this standard, the parents should prevail, but not the coach.
Two similar cases produced a split result in 2000. Centrist Justices Kennedy, O’Connor, and Breyer joined liberal Justices Stevens, Ginsburg, and Souter in quashing the football game prayer in the Santa Fe cases, and with conservative Justices Rehnquist, Scalia, and Thomas to maintain an equal distribution of aid to all students, whether “religious, irreligious, or non-religious,” in Mitchell vs. Helms.
The 2000 cases
In Santa Fe, students voted to allow a student to lead a voluntary prayer, but Texas demographics ensured that the student would not be Jewish or Muslim, under “majority process.” . . guarantees. . . minority candidates will never win. The Court banned the prayer because it implemented the favoritism that the Establishment Clause of the Constitution was meant to prevent, where the majority preferentially favors its activities and institutions over the minorities”.
No favoritism or pressure appeared in Mitchell vs. Helms, where the government provided computers and other resources for everyone. Schools received the same funding (per student), so parents had no incentive to choose a particular school. It was not a single majority vote that determined how much each school would receive, but the independent enrollment choices of thousands of families.
This year’s cases warrant a similar distribution. State employees can practice their religion, but the coach refused to pray on the sidelines or the 50-yard line after the mandatory team meeting. He insisted on praying before not just a divine audience but a (captive) human audience: dozens of teenage gamers desperate to win his favor. Although the coach insisted that he would not reward the students for their participation or penalize them for their refusal, at least one atheist participated because he feared otherwise losing game time. The judge Kavanaugh acknowledged during oral argument that when a coach says there will be an “optional” practice tomorrow, it’s not really optional.
The pressure in Maine, however, is pushing against religion. Parents receive approximately $11,000 per student, if they attend a non-religious school. From kindergarten to twelfth grade, a family with three children loses nearly half a million dollars by choosing religious education. It resembles the very patronage the Constitution opposes: a majority (albeit secular) funding its own schools and denying others.
This unconstitutionally penalizes religious practice. True, the Court ruled in 2004 that states could prioritize secular programs over religious ones, and therefore award scholarships to study engineering but not theology. But all Maine curriculum schools must follow a prescribed secular curriculum; religion would be a complement and not a substitute.
Likewise, if a state provided clothing to families in need, it could constitutionally refuse to provide hijabs and tallitot. But he could not penalize religious families by denying them shirts, pants, and shoes just because they also wore religious clothing. Likewise, the state cannot deny funding to families because their school teaches reading, writing, arithmetic and the Bible.
Scylla or Charybdis
If judgments for the parents and against the coach help protect private choice from public pressure, which case is more important? Both involve pressure to conform, but is it worse when it promotes Christianity, or when it hinders Judaism? Should we privilege the exclusion of religion from public schools, or dispense it in private schools?
Both involve pressure to conform, but is it worse when it promotes Christianity, or when it hinders Judaism?
I first perceived this tension as an undergraduate student. When Hillel considered building a sukkah, she encountered objections from Jewish students. If we built a sukkah, they said, we couldn’t oppose the campus Christmas trees. Their priority was not to allow Jewish practice but to prevent Christian expression.
Some argue that the Jewish community should always pursue the religion-free and “neutral” public realm that Richard John Neuhaus described in his book “The Naked Public Square.” For example, Professor Noah Feldman opposes the inclusion of religious schools in funding programs, even though fewer families can access Jewish schooling, because inclusion could “end up subsidizing Christian education with which the Jews might not agree with”. But Jews (and others) disagree with much of what is taught in public schools today. Today, anti-Jewish harassment stems less from Christian theology than from political accusations of Israeli “genocide” – promoted by California’s mandatory ethnic studies curriculum.
Even the public school calendar lacks neutrality. Because interschool games are held on Saturdays but not Sundays, Christians can play on Saturdays and go to church on the Sabbath. But Jews must choose between out-of-school attendance and Shabbat, unless they attend a Jewish school, which allows them to benefit from flexible schedules.
There are risks for religious minorities where religion has too much influence, but also where it has too little. Feldman speculates that our social standing will diminish if “the state funds the teaching that non-believers will go to hell,” as if that is why non-Jews choose religious education. Be that as it may, hostility to religion also diminishes us. The EU’s highest court recently upheld the national ban on kosher (and halal) slaughter, and many want to ban circumcision. Such coercive bans on core Jewish practices tangibly harm our community more than pessimism about our afterlife prospects. And American Jews will have a harder time getting time off for religious holidays when the culture stops valuing them.
Public and private spaces
The 19th century maskil YL Gordon maxim, “Be a Jew at home and a man in the street,” sums up the imperatives. Students should be able to participate in public education regardless of their religious identity; they should not be pressured to engage in religious practice or feel like outsiders when they refuse. But they should also have the ability to pursue their own religion in private settings without crushing financial disincentives.
Both goals count. Throughout American history, when Jews in public were vulnerable but their homes were strong, the community focused more on secularizing the public sphere than maintaining the private sphere. Our opposition to external discrimination has succeeded; a century after the appointment of Louis Brandeis as the first Jewish judge sparked anti-Semitic opposition, a third of the Court was Jewish.
As in the Song of Songs (1:6), however, we have neglected our own “vineyard.” Fewer Jews now know an aleph of a bet, let alone the wisdom of the Talmud, in part because a non-neutral, unconstitutionally required monopoly is draining our resources. It may be time to change course.
Michael Keiter is a Certified Appellate Law Specialist who has filed approximately 30 factums in cases before the Supreme Court of California and the United States, including carson.