Obiter

January/February 1998 For years the Christian Right has warned that separation of church and state is eradicating Christianity from American life. In contrast, law professor Stephen Feldman warns that separation of church and state, in fact, subjugates minority faiths (especially the Jews) and ensures Christian cultural and political hegemony.

"Significantly, in late-twentieth-century America," Feldman writes in Please Don't Wish Me a Merry Christmas (NYU Press), "the conceptualization of the separation of church and state reflects the symbols and structures of Christian dominion--including anti-Semitism."

Feldman's argument, basically, is that separation of church and state is the progressive, almost Hegelian entelechy of New Testament anti-Semitism. On this premise Feldman builds an iconoclastic edifice in which the New Testament dichotomy between "Christian spirituality and Jewish carnality" becomes the architectonic formula through which practically all Western history can be interpreted.

An interesting thesis, except for one problem: it's dead wrong. Feldman's book is like Riemannian geometry: it might be eternally coherent, but it doesn't fit the world around us.

First, New Testament criticism of the Jews doesn't make it anti-Semitic any more than its criticism of the Gentiles--"carried away unto these dumb idols" (1 Corinthians 12:2); vain, ignorant, blind, greedy, unclean," given . . . unto lasciviousness (Ephesians 4:17-19); living in the "lust of concupiscence" (1 Thessalonians 4:5)--makes the book anti-Gentilic.

Next, Feldman's problem is one that typically afflicts philosophers and social theorists more than (one would think) law professors: he hits upon a claim with some truth, but then expands it into a full-blown system when that specific truth is nothing more than appendage to reality, not a foundational structure to it. Though, no doubt, Western anti-Semitism was and is real, and has had its impact, to a degree, in our culture, in Feldman's Weltanschaung everything from Augustine's City of God, Thomist political theory, Calvinist predestination, and Hobbes's Leviathan to the free exercise and nonestablishment clauses of the U.S. Constitution, Engel v. Vitale, and even Employment Division v. Smith have their roots in New Testament anti-Semitism, a ridiculous assertion.

In a somewhat ironic twist, Feldman's book reflects the kind of paranoia lurking in right-wing militias, only instead of seeing a conspiratorial Jew behind everything that happens in America, as the Right does--Feldman sees an anti-Semite, or at least, conscious or unconscious anti-Semitism.

For instance, Mr. Feldman asserts that the rationale behind the 1990 Smith decision was "unconscious religious oppression, and more specifically, unconscious antisemitism" (Smith, incidentally, dealt with a Native American denied unemployment benefits after he was fired for taking peyote as part of a religious ritual). Even Lee v. Weisman, in which the U.S. Supreme Court struck down prayers at a high school graduation, had (said Feldman) anti-Semitic overtones because it was a rabbi, as opposed to a preacher or a priest, who delivered the unconstitutional prayer. (Of course, what does Mr. Feldman do with the fact that Antonin Scalia, who wrote the majority opinion in the "anti-Semitic" Smith decision, also wrote a scathing dissent in the "anti-Semitic" Weisman one?)

The problem is not that separation of church and state doesn't work; it works too well. America's founders understood that religion would function best if separated (as much as possible) from governmental control and authority--which is exactly what Feldman can't stand.

Two fact underlie the issue: (1) separation of church and state has allowed religion to flourish, (2) and because Christianity (mostly Protestantism) is the majority religion in America, Christianity has flourished and become a dominant cultural force, a reality that Mr. Feldman sees as proving his thesis, which is that separation of church and state isn't all that it's cracked up to be.

In fact, the opposite is true. Christian vitality and cultural hegemony proves just how well separation has served this nation. Church-state separation was never meant to eradicate Christianity from American public life; on the contrary, separation was meant to allow all religions to grow, progress, evangelize, and prosper as much as possible within constitutional limits, which is what has happened--and because the vast majority of citizens in this country profess some sort of Christianity, some sort of Christian ethos pervades American life.

No doubt, separation hasn't worked perfectly; minority faiths have not fared as well as one would have liked in the courts, and Feldman did a good job of showing this reality, even if his analysis is twisted by viewing every judicial failure as having latent anti-Semitic overtones.

Which leads to another problem with his polemic: Feldman can't seem to differentiate between Christian cultural dominance and outright anti-Semitism, a dangerous line to blur. On page 285 of Please Don't Wish Me a Merry Christmas, for example, Feldman writes about a magazine that reported on Jewish dominion in Hollywood and how the Jews (described as "clannish, vulgar") denied employment to non-Jews. Yet Feldman all but equates that outright anti-Semitism with Christmas lights and music and the Tulsa zoo, an unfortunate and untrue parallel.

Any American Jew knows the reality of anti-Semitism in this country. My father, after serving in World War II, had to forget his dream of being an engineer because he was told that "with a name like Goldstein, you'll never get into an engineering college."

Years later, when we moved to Miami as a family, the neighbors used to yell to their kids, "Come in the house until the Jews get off the streets." We moved to Surfside, on Miami Beach, where we lived a block from the fabulously wealth Indian Creek Island, where Jews were not allowed to buy houses (though last I heard, the good Christian folk on the island allowed a Jewish woman to stay after her husband died). Meanwhile, on the end of Surfside was Bal Harbour, which, as far as I know, is still Judenrein.

Thus 200 years of church-state separation hasn't eradicated anti-Semitism, and probably won't 200 years from now either. Nevertheless, separation of church and state has done an excellent job of keeping it from becoming institutionalized the way it has been in many other countries that haven't tried the separationist model.

Though Feldman's book has some merit (he does a good job of outlining the historical developments that led to church-state separation, despite his skewed view of the rationale behind those developments), it adds nothing of value to church-state theory. In fact, it will probably do harm in the sense that those who oppose separation because they deem it a tool for antireligionists to eradicate Christianity from public life could see in Feldman's book evidence for that assertion. After all, Feldman seems to think that separation has failed because it hasn't eradicated Christianity from the public square. The failure, however, isn't in church-state separation, but in Feldman's skewed understanding of what the principle is all about.

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