Volume 53 Number 50
                    Produced: Tue Jan  2  6:03:14 EST 2007

Subjects Discussed In This Issue: 

Separation of Church and State
         [R E Sternglantz]
Separation of Church and State - Trees and Menorahs
         [Yitzchak Moran]
Source of US rights
         [Hillel (Sabba) Markowitz]
Trees and Menorahs
         [Orrin Tilevitz]


From: R E Sternglantz <resternglantz@...>
Date: Thu, 28 Dec 2006 08:00:29 -0500
Subject: RE: Separation of Church and State

David Charlap posted:

> There have been dozens of recent decisions by activist judges to
> permit religious symbols by every religion in the world EXCEPT FOR
> Christianity.  This is creating justifiable hatred by the
> Pro-Christian groups against these courts and the groups (like the
> ACLU) that persist is filing the suits.

Can you please bring our attention to some of these specific decisions?
And I assume you approve of the decisions by activist judges to forbid
private employers from forcing employees to work on Shabbos.

There are a number of different issues here, as I see it.  There are
rules governing religious displays on state property.  As a matter of
fact, these rules are constantly in flux and are highly fact specific.
As an interesting example, sometimes the Ten Commandments are regarded
by the courts as a religious display, and sometimes as a cultural
artifact.  This is maddening and confusing.

I will be the first to agree that the Allegheny decision (regarding
trees and creches and menorahs) is a frustrating one.  In some ways,
because the rule on creches is a plurality (and not a majority), it
offers questionable guidance.

But the issue of people bringing lawsuits to stop one religion from
making displays on state property when other religions are barred from
doing so is distinct from PROTESTS of major retailers employing
thousands of employees (for instance) whose stores become (dare I say)
shrines to a particular religion for at least a full month of the year.
I'm allowed to say - I won't shop at any store that acts as if
Christianity is everyone's religion, where checkout people are obligated
to give me good wishes for a Christian holiday.  And I think it's
perfectly legitimate to protest this and to organize protests, if that's
your thing -- and that's part of what the ACLU does.  And maybe if I'm
an employee of such an establishment, and my employers compel me to
participate in activities promoting Christianity, I have a right to sue.

Does it not bother you, at least a little bit, to get those "good

> As a backlash to these decisions, there are several groups that are
> pushing for legislation that would (if passed) create a very real
> establishment of Christianity as a state religion.  Some of the
> supporters (including Congressmen) even go so far as to admit this,
> using phrases like "this is a Christian nation...".

All kinds of legislation is proposed daily by all kinds of people.  We
can't gauge our behavior so as not to incite crazy people to propose
crazy legislation.

> Just this past week, one Congressman is protesting the fact that
> another (a Muslim) wants to put his hand on a Koran for a private
> swearing-in ceremony.  He wants to prohibit swearing on anything other
> than a Christian bible.  This is just another symptom of the backlash
> we're all experiencing as a result of courts passing anti-Christian
> legislation from the bench.

Please.  This is clearly anti-Islamic hate-mongering and has nothing to
do with separation of church and state or a backlash by the crowd who
find "Happy Holiday" offensive.

> As for the bottom line, I know what the courts have said, and their
> decisions make no sense.  They sound more like political activism than
> any logical derivation from law or facts.

I would suggest that you reread Allegheny.  Because the maddening thing
about that decision -- with MULTIPLE opinions pro and con both creche
and menorah -- is that the justices were all very clearly struggling to
reach a decision based on facts.  There is a very very long section on
Chanukah and menorahs and various other symbols.  The decision is many
things, but I don't think that anyone (except maybe the Christian
Fundamentalist Religious Right) has ever accused it of being political



From: Yitzchak Moran
Date: Thu, 28 Dec 2006 10:19:44 -0800
Subject: RE: Separation of Church and State - Trees and Menorahs

On Fri, 22 Dec 2006 05:26:58 -0800, Leah S. Gordon
<leah@...> writes:
> Luckily, I don't have to convince the readers of M.J that public
> displays of the majority religion are problematic; there are large
> bodies of legal thought and work to support me.  (I do think it is odd
> that minority religious people on M.J would be so quick to chime in on
> the pro-Christmas side of things.  I would like to hear from more who
> live in less heavily Jewish areas and/or whose children attend public
> schools etc.)

Chime Chime.

A number of years ago, for various reasons 'way too boring to go into
here, my family moved from the SF Bay Area to Austin, TX.  While the
Jewish population in the Bay Area isn't huge, there are a number of
Orthodox shuls, as well as C and R, a Chabad presence in various
locations including Santa Cruz, a number of mikvahs (mikvot?), several
day schools, etc.  It was easiest to deal with Christmas while my
daughter was at Day School, because she was, basically, heavily
insulated.  And this insulated us, to a large degee.  So when I bumped
into Christas trees and creches and whatnot in inappropriate places, it
really didn't bug me so much as *surprise* me.  "Oh, yeah; it's
Christmas.  I forgot."  (Really, it's true.  We shop online, so I never
go to the mall and things.)

The Austin Jewish population is *much* smaller (although there is, thank
goodness, a great kosher butcher and deli at the local H.E.B.
supermarket), and my kids are in public school.  And while not exactly
the American South, it's still, well, Southie, to use a Colbertism.  In
music at school, they sing carols.  In language arts, they do crossword
puzzles with a "Santa Clause" theme.  *Everyone* says "Merry Christmas."
Etc.  It's completely unavoidable, and we are uninsulated, and it is
very difficult.

We live in a fairly well-off area, and so our neighbors are, in the
main, highly educated professionals.  And ironically, they tend to be
*more* tolerant and thoughtful about our being Jewish than folks in the
Bay Area were.  Even so, there is no question that it very difficult for
ourselves and our children to be members of such a tiny minority.  And
it definitely *has* made more more militant about issues such as
Christmas trees and such on school and courtyard grounds, folks arguing
that I should just be "in the spirit of the season," and on and on.
That way lies total assimilation, and frankly, it honks me off.  I would
send my kids to day school here, but there are some serious side issues
with learning disabilities that prevent that, unfortunately.  This is
one of those cases where, honestly, moving to New York or making Aliyah,
if we can, is probably the best long-term solution.  (Which, for *other*
reasons, is very difficult.  Sigh.)

By the way, and for those who wonder: *I* personally don't mind the Ten
Commandments display on the grounds of the State Capitol here (this was
in the news in a lot in the last couple of years).  I know it might
sound strange, but it really *is* just one of many many displays on the
Capitol grounds, it doesn't really stand out, and it doesn't bang you
over the head with being overtly religious.  The memorial to police
officers who have died in service to the state is *much* larger and more
impressive, for example.  The life-sized collection of bronzes of
children showing the multicultural heritage of Texas catches your eye a
lot more.  And so on.  So while it does sound weird, I have to say that,
in this case, having the Ten Commandments on public property strikes
*me* as adhering to the Constitution just find.  And I'm pretty militant
about the topic.

N.B.: This is a side issue, and I haven't quite gotten my mind around it
yet, but I find it fascinating that my much more Christian, much more
Southern neighbors here are *more* tolerant of my Jewishness than my Bay
Area neighbors were.  Partly this appears to be simply politeness;
people in this part of the country really *are* more polite.  But partly
it seems that, since the *Christians* here are, on the whole, more
devout, they have respect for *anyone* who is more devout, be they
Christian or not.  I am sure that this is not true across the economic
spectrum, but it is certainly true in *my* neighborhood.  In the Bay
Area, on the other hand, I often had the feeling that I had some kind of
communicable social disease by trying to be observant in *any* faith,
and was thereby looked down on.

It is interesting to me that the ostensibly "more liberal" Bay Area
seems to be *less* tolerant to people who want to be religious than the
supposedly "bigoted" South, but that's been my--admittedly
limited--experience.  The gist here seems to be, "Well, at least you
believe in God!"  The gist in the Bay Area is, "You believe in God?
What are you, some kind of idiot?"  I'm over-simplifying, of course, but
that's the gist.



From: Hillel (Sabba) Markowitz <Sabba.Hillel@...>
Date: Thu, 28 Dec 2006 23:14:39 -0500
Subject: Re: Source of US rights

> From: David Charlap <shamino@...>
> Orrin Tilevitz wrote:
>> Third, Daniel has somewhat of a point; in no legal system is there an
>> inherent right to freedom of speech--or any freedom for that matter,
>> including the freedom to live.  In Germany during the Second World War,
>> Jews had no such right under law.  What gives us these freedoms in the
>> U.S. is our Constitution. ...
> I have no idea what the theory is for other nations, but in the US, this
> is not the case.  Rights are not granted by the Constitution.  Several
> fundamental rights (like the right to live) are inherent and come from
> God.  The legal system exists to guarantee these rights, not to create
> them.

In fact, one of the reasons that we have a bill of rights was because
the framers could not resolve the argument as to whether they were
needed or not.  Those who were against these amendments felt that people
might come to believe that the rights enumerated within them were being
granted by the government rather than inherent in the society that they
were setting up.  They argued that the explicit statements would not be
required as they would "of course" be understood as implicit in the
Constitutional system being set up.  It was a compromise that made them

For example see http://www.usconstitution.net/consttop_bor.html and

An interesting point is the contrast between the Torah and the U.S.
Constitution.  The Torah speaks of responsibilities and rights are
derived from those responsibilities.  A person has the responsibility to
give a fair day's work for his pay and the "master" has the
responsibility to pay his workers.  The U.S. law gives the worker the
right to get his pay and the "master" the right to expect a fair day's
work.  The responsibility is thus derived from the rights.

Similarly with the right to private property.  The U.S. law has the
right to one's property and thereby derives the prohibition of theft.
The Torah has the responsibility of a person not to steal and derives
the right to one's private property from that.

I think that if one concentrates on his own responsibilities, the rights
will flow out of every one's actions much more easilly than if everyone
insists on his own rights.

Hillel (Sabba) Markowitz | Said the fox to the fish, "Join me ashore."
<Sabba.Hillel@...> | The fish are the Jews, Torah is our water.


From: Orrin Tilevitz <tilevitzo@...>
Date: Thu, 28 Dec 2006 08:33:58 -0800 (PST)
Subject: Trees and Menorahs

>From David Charlap:
>>what would you (or anyone) suggest to reduce the intolerance and/or
>>chillul hashem all over this issue?  Have you constructive
> Very simple.  Stop all of the politically correct lawsuits. Allow
> towns to put up their Christmas displays, on condition that they
> permit the other religions in town to put up displays for Chanuka,
> Kwanzaa, and anything else the locals want to set up.

You would still have lawsuits over where these displays are put and
similar issues.  Without more, the majority display will be bigger and
in the prime location, and you will have a de facto establishment of the
majority religion.  Things could get very ugly, very fast.  In fact,
underlying a lot of law in the religion area - and, for that matter, in
the civil rights area generally - is a judicial effort to prevent the
tyranny of the majority.

> There have been dozens of recent decisions by activist judges to
> permit religious symbols by every religion in the world EXCEPT FOR
> Christianity.

Could you please cite them - I'll take even one - by name and where those
decisions were published?

> And these are precisely the activist decisions that will ultimately
> destroy our freedom of religion.

So an "activist" decision is one prohibiting the display of religious
symbols?  Although in the past the Court has had judges on the political
left whom most lawyers and scholars would regard as "activist", the
"activist" judges on today's Court are Justices Scalia and Thomas, and
perhaps (it's still too early to tell) Roberts and Alito.  They are not
on the political left.  The first two, and perhaps the next two as well,
are (I believe) the only judges who would vote for the position you
espouse, that public display of religious symbols is OK no matter what.
The rest of the Court today is actually a pretty conservative bunch,
adhering very closely to precedent even if they disagree with it and
simply trying to come up with the right answer with the minimum of
judicial legislating.

> Regardless of the wording, the court decided to prohibit Christian
> displays while permitting Jewish displays.

Well, no.  They said "yes" to a tree and a menorah (the latter with
reluctance), and "no" to a creche.

> Christmas trees and menorahs are absolutely religious symbols.

As I pointed out, courts below the Supreme Court have agreed with you
about menorahs and as a result prohibited their display.  But that's not
the answer you want.  To you - and me - a Christmas tree is a religious
symbol, but many people disagree.  Also, to me, other religious symbols
include a six-pointed star, a palm branch, and a black hat.  Unless you
adopt the position - and most of the Court does not - that public
displays of religious symbols are OK in all cases, you need to draw
lines somewhere.  That is what the Court is doing.  It's not easy.
These lines may make little intellectual sense, but sometimes an answer
that's fair does not.

> If the respective religions did not exist, the symbols wouldn't exist
> either.

Of course they would.  There were evergreens around long before
Christmas (and Christmas long before Christmas tree).  Absent religious
Judaism, a menorah is an 8-branched candelabrum.  Even a creche, in the
right context, is a nice domestic scene.  That is the point at least a
plurality of the Court is after: context matters.


End of Volume 53 Issue 50