By Rabbi J. David Bleich
Discrimination on any grounds is anathema to those raised in countries espousing democratic traditions. No wonder, then, that the current controversy concerning recognition by the Israeli government of conversions performed under non-Orthodox auspices has generated much sympathy for the Reform and Conservative movements. And, as spokesmen for those movements have been quick to point out, the conversion issue is but the tip of the iceberg. The issue, they claim, is acknowledgment of pluralism and with it parity in all socio-religious matters.
Precisely. However, to identify legitimization of pluralism with either redress of discrimination or acknowledgment of a democratic right represents a false equation. The real issue is establishment of a state religion by the State of Israel and whether such establishment is either discriminatory or undemocratic. Separation of Synagogue and State may or may not be a social, political and/or religious desideratum, but is has no intrinsic connection with either democracy, discrimination or religious liberty.
The political institutions of Great Britain are, today, no less democratic than those of the United States. Arguably, Great Britain has achieved greater success in establishing a truly democratic form of government than has the United States. The established church exists and flourishes in Britain yet religious liberty in that country is alive and well. Indeed, in the wake of Department of Human Resources of Oregon v. Smith and the ensuing decision of the Supreme Court declaring the Religious Freedom Restoration Act to be unconstitutional, there is probably more reason to be concerned with regard to religious liberty in the United States than in Britain. In Britain, the only group with reason to complain of compromised religious freedom is the Church of England. Precisely because of its “privileged” status as the established church it is subject to a significant degree of government influence in its internal affairs. In Britain, it is more than theoretically possible for an atheist occupying the office of Prime Minister to dictate the selection of members of the church hierarchy.
One of the main arguments for disestablishment of Synagogue and State in Israel is that, due to the vagaries of the composition of the electoral college entrusted with such matters, the secular government effectively controls the election of the members of the Chief Rabbinate. Those whose historical memory does not fail them will recall that the late Rabbi Shlomo Goren ran for the office of Chief Rabbi on a platform promising a resolution of the Langer affair that threatened to bring down the Labor government of Golda Meir. And solve the political problem he did — but, hardly to the glory of the Chief Rabbinate, in an ultra vires manner for which he was reprimanded and fined by the Israeli Supreme Court.
Nor, historically speaking, is separation of Church and State a cornerstone of the American form of democracy. Just a bit more than a hundred years ago, in Church of the Holy Trinity v. U.S., a justice of the U.S. Supreme Court declared that “this is a Christian nation.” Today, students of constitutional law find that statement, if not embarrassing, at least quixotic. But, at the time it was written, the learned author found no contradiction between that pronouncement and the (anti-) Establishment Clause of the First Amendment. At issue before the Court was an anti-immigration statute. The declaration was in support of a finding that “the common understanding of the terms labor and laborers does not include preaching and preachers.” Lest anyone assume that clergymen actually work, the court found it necessary to add that it would be unthinkable to assume that Congress, in enacting an anti-immigration statute, intended to bar an invitation to an Anglican clergyman to minister to the religious needs of U.S. citizens.
The declaration resonates with a more profound meaning. It clearly reflects a literal interpretation of the Establishment Clause as prohibiting only an established state church, but in no way precluding governmental preferment of religion and religious values. The authors of the American constitution certainly envisioned a Christian nation, de facto if not de jure. Indeed, the Bill of Rights did not at all interfere with the ongoing relationship with established religions that then existed in nine of the thirteen states. Quite to the contrary, the First Amendment was designed to prevent the establishment of a national church that would effectively supplant the churches established by the various states. As a matter of historical fact, the Bill of Rights was made binding upon the individual states, rather than upon the federal government exclusively, only after the various state churches had long been disestablished. Dicta regarding the applicability of the Establishment Clause to state governments first appeared in 1940 in the U.S. Supreme Court decision in Cantwell v. Connecticut and the first explicit ruling to that effect was not handed down until after World War II in a 1947 decision in Everson v. Board of Education.
Modern states that have formalized a relationship with a church body by establishing it as the national religion have not done so in order to enforce either beliefs or practices upon their nationals. They have done so either to accommodate the needs of a pronounced majority of the populace or for reasons that are nationalistic and cultural in nature. Religion, even for the non-believer, is pedagogically potent. Religion is recognized as an eloquent, symbolic and poetic means of transmitting moral values. That recognition was surely a major factor in the Supreme Court’s decision in Marsh v. Chambers in which it held that minimal, non-coercive expressions of religion is the form of “In God We Trust” on coins and currency or the delivery of an invocation by a chaplain at sessions of a legislature are compatible with the Establishment Clause of the U.S. constitution.
In Israel, establishment of Synagogue and State and enshrinement of the so-called status quo is designed to satisfy both purposes. Sociological surveys report that roughly one fifth of the Israel population is dati or Orthodox. Yet the number of Israelis who are selectively observant is far, far higher. Religious amenities, no less so than social amenities, are often best provided by government. Surely, for example, kashrut in the army and in public institutions can be guaranteed only by the government. Israel, because its citizens are Jews, has its own idiosyncratic reasons for establishment of religion. Some years ago, when Gideon Hausner introduced a private member’s bill in the Knesset that would have provided for civil marriage, it was forcefully opposed by Golda Meir, a women who could hardly be described as a religious hardliner or as a champion of religious coercion. Her concern was sociological, not religious. She did not want Israel to develop into a country in which Jewish citizens could not freely marry one another. Precisely because she was a secularist whose children freely integrated in the society in which they found themselves, she had reason to fear that one of her grandchildren might face impediments in marrying the person of his or her choice. For her, preservation of the unitary nature of the Jewish people demanded that religious courts be vested with exclusive jurisdiction in matters of marriage and divorce. Even secularists recognize that Judaism as a religion has a tremendous impact upon Jewish nationalism, not to speak of its force as a matter of culture, sentiment and nostalgia.
A state can have an established religion but, unless it is polytheistic in nature, it cannot establish multiple religions. Not every truth need constantly be shouted from the rooftops. Nevertheless, despite the need for self-regulation on the part of responsible Orthodox spokesmen with regard to time, place and manner of expression, the simple truth is that the Reform and Conservative movements — whose matrilineal adherents are Jews in the full sense of the term — subscribe to a religious ideology that is quite distinct from traditional Judaism. More than a century ago, Rabbi Samson Raphael Hirsch correctly insisted that the differences between Orthodoxy and Reform, both in theology and in practice, were no less than those between Catholicism and Protestantism which were recognized by the state as distinct religious communities. Were there any Sadducees extant today it might be necessary to present a detailed rebuttal to any claims they might advance to being the exponents of the authentic, pristine Judaism revealed at Sinai. Any similar claim on the part of Reform or Conservative spokesmen could only be dismissed peremptorily as an historical absurdity. That traditional Judaism makes that claim while other movements do not — and cannot — make such a claim is why we subscribe to disparate religious ideologies.
Moreover, any such claim is totally irrelevant to the issue of Synagogue and State. Traditional Judaism is the state religion of Israel by virtue of operation of the political process — and if disestablishment is to occur, that, too, should be the result of internal Israeli political processes. In a democratic society, whether or not to establish religion and, if so, which religion to establish is a matter to be determined by the citizens of a state and only by its citizens. The Israeli populace has already spoken. As Professor Shlomo Avineri so eloquently put it: “The synagogue I choose not to attend is Orthodox.”
Professor Avineri’s frame of reference is, of course, nostalgia and sentiment — but surely such feelings are also real. More pragmatically, considerations of unity and practicality require a highest common denominator. The army cannot have three different mess halls with three different standards of kashrut. The Orthodox soldier cannot eat in the Reform mess hall, but a kitchen supervised by an Orthodox rabbinate creates no real burden for the Reform soldier. Problems of illegitimacy can be obviated only by applying standards recognized by all.
Reform and Conservative spokesmen complain that, for them, the net effect of establishment of an Orthodox Synagogue is denial of communal religious privileges and curtailment of autonomy. They are right. But it is for Israeli adherents of those movements to decide whether they are willing to pay that price in order to remain one people within our common homeland.
As stated earlier, there is absolutely no contradiction between establishment of a state religion and untrammeled religious freedom for members of dissenting religious groups. In Israel, all religious denominations not only enjoy freedom of worship and religious expression but are also granted judicial autonomy in matters of marriage, divorce and personal status. Both the Samaritan community, whose status as Jews was a matter of dispute among the Sages of the Talmud, and the Karaites, whose identity as Jews was never questioned, enjoy the status of independent edot (religious communities). In addition to enjoying religious autonomy, the salaries of their clergy and the costs of maintaining their religious courts are defrayed by the State of Israel. The Reform and Conservative movements, if such is their desire, are entitled to no less. The late Rabbi Joseph B. Soloveitchik is quoted as stating the obvious truism that the chasm separating traditional Judaism from those movements is greater than that separating the Rabbanite and Karaite communities. Both consistency and intellectual honesty demand that a petition for recognition of a separate and distinct Reform and Conservative edah or edot, if presented, receive a positive response. But then it would also be clear upon whom rests the onus of formalizing the schism. Let it be remembered that, Hirschian-style secession notwithstanding, from the inception of the Reform movement, despite fundamental differences between Reform and Orthodoxy, at no time did Orthodox rabbinic authorities take action designed to effect a religious schism.
Ultimately, be’ezrat HaShem, religious unity will be achieved in our community: “And they shall all form one company to do Your will with a whole heart.” The only question is how soon that goal will be realized and how soon all Jews will return to our common root and to the commandments and beliefs which constitute our ancestral heritage. The paramount reason for decrying establishment of disparate edot is that such a turn of events would surely delay the coming of that day. And that would be a tragedy for all.
Rabbi Bleich is Rosh Yeshivah and Rosh Kollel L’Horaah at Rabbi Isaac Elchanan Theological Seminary and Tenzer Professor of Law at Cardozo School of Law, Yeshiva University.