Chapter Three
SECULARISM IN CONTEXT
TWO STATEMENTS on the subject of secular principles in India: (1) “[T]he individual should be the unit for policies and laws of the State, and not the religion or caste to which he belongs or the region in which he lives; . . . nothing should be conceded to a religion-based group or organisation which is denied to or not available to a secular group or organisation; . . . nothing should be conceded to a group or organisation of one religion which is denied to or not made available to groups or organisations of other religions.”1 (2) “[S]ecularism, according to our concept, does not mean that religion must be forcibly ousted from all sorts of social relations. Article 44 [The State shall endeavor to secure for the citizens a uniform code throughout the territory of India] cannot be given this meaning as long as religion is playing an active role in most of the other aspects of life.”2 Question: Which of the two comments reveals a stronger commitment to the essentials of secular constitutionalism?
A satisfactory answer would require additional information, but upon initial inspection, the first comment appears more comfortably to com-port with liberal constitutional expectations about Church/State relations. Its emphasis on the individual rather than the group, and its expres-sion of neutrality among religions and between religious and nonreligious institutions, suggests greater loyalty to secular constitutional principles than does the second’s deference to religiously based differential legal treatment. The answer, of course, is not so straightforwardly simple, as the identities of the two commentators alone point to a larger issue. Arun Shourie, author of statement 1, is perhaps the leading ideologue of the Hindu right, a prolific writer and a BJP (Bharatiya Janata Party)-affiliated member of Parliament. Tahir Mahmood, author of statement 2, is a prominent legal scholar, whose leadership of the National Minorities Commission frequently placed him in opposition to the Central Government’s BJP-led government. Each has insisted passionately that he is fighting for a secular India.
Shourie is a fierce advocate for equal treatment of religious groups in India, which, according to his analysis, has consistently been undermined by a policy of appeasement of minorities. “Inflaming minorities,” he asserts, “has become lucrative politics.”3 He prefers an American-oriented solution, in which the State takes no formal cognizance of religion.4 Toward this end, it would be wise to tighten constitutional provisions in order to ensure that the only religiously inspired acts to receive legal protection would be those that were, in John Stuart Mill’s sense, genuinely self-regarding. “[I]n every instance the interest of the public, that of the country, must take precedence over the right to religion, just as much as they do over civil rights.”5 Shourie accepts the reality of the thickly constituted character of Indian religious belief and practice, an acceptance that provokes one to ponder whether his fervent declaration concerning the superior claims of public policy over conscientious objection does not in fact amount to a declaration of war against religion. Would not the claims of religion be systematically trumped under his strict separationist scheme?
The answer depends on which claims or, more precisely, which religion’s claims? Given the intimacy with which temporal and spiritual realms have been historically entwined in India, the prospect is substantial that important areas of public policy will embody the substance of religious beliefs, at least those of the majority. So understood, secularism appears in the form of a radical majoritarianism in the service of an assimilationist agenda, in which those in power have been extended an implicit license to impose the norms and practices of the dominant culture on the rest of the society. In this account, the social reform contemplated in Article 25 refers to the State’s constitutional authority to alter the regressive social practices of minority religions. And, as we shall see, the most effective way of realizing these ambitions is to follow the Constitution’s directive to implement uniformity in the making and enforcement of law for all the people of India, regardless of their religious affiliation.
For Tahir Mahmood, on the other hand, the liberal presumptions of equal treatment and individual consideration should be qualified by time and circumstance. As a Muslim and a reformer, his sensitivity to both the egregious social inequities within his own community and the malevolent designs of some within the majority Hindu community toward minorities is deeply felt. “In this complex situation, the opinion that Article 44 demands a mechanical application of any single personal law to the entire nation, or that this can be achieved by one stroke of legislative action, ignores the ground realities. . . . A uniform civil code may only emerge, through an evolutionary process, out of the extremely rich composite legal heritage of the Nation, of which all the personal laws are equal constituents.”6
Shourie considers Mahmood’s solicitude for the group interests of minorities to be reflective of the elitist “pseudosecularism” that passes for enlightened opinion in contemporary India. Mahmood’s response is to insist that “If there has been any appeasement in this country it has been of the majority.”7 The polemical tone of this debate need not conceal the importance of the theoretical issues in play here. Nor should the transparency of the political agendas that lie just below the surface of the principled disagreement between these individuals detract from the intriguing conceptual matters that are implicated in their conflicting views. Perhaps of most interest is the question of context. How do we situate arguments of the kind made by Shourie and Mahmood in order to understand their implications for a secular polity? For example, Shourie’s arguments have decidedly assimilationist consequences, but their significance for the achievement of secular constitutional goals will vary widely from polity to polity. In the United States, the political assimilation that is fostered by the majoritarian subordination of conscience to law might be a good thing; in India, however, its more cultural incarnation penetrates more deeply into the conduct of peoples’ lives and could interfere with the constitutionally prescribed goal of social amelioration.
This chapter and the next explore the variability of secular constitutional arrangements in light of the three models introduced in the previous chapter. It seeks to join a comparative perspective to a more theoretically driven argument for “contextual secularism.” The term appears in the work of Rajeev Bhargava, who, contrary to theorists “who espouse the cause of secularism in order to secure full-blooded autonomy or full participatory democracy or perfect equality,” has advanced an alternative rationale geared to the achievement of “a minimalist agenda of decent human existence.”8 At the core of the idea of contextual secularism is the “strategy of principled distance,” which, according to Bhargava, means that “[T]he State intervenes or refrains from interfering, depending on which of the two better promotes religious liberty and equality of citizenship.” 9 A secular State may consequently assume one of a variety of forms, all of which must comport with the principle of equal dignity for all with-out necessarily fulfilling a concurrent expectation of equidistance in the government’s relations with the religious groups within its jurisdiction.
In Bhargava’s account, “Contextual secularism advocates State intervention for the sake of substantive values.” Thus a “decent human existence” requires observance of the principle of equal respect; comparative analysis suggests that in addition to this basic, and rather generally stated, minimal requirement, a contextual rendering of Church/State relations should also take into its purview those aspirations that have a connection to the more particular constitutive features of individual polities. With this end in mind, we turn now to our three models of secular constitutional development, considering first the American and Israeli cases.
THE UNITED STATES: ASSIMILATIVE SECULARISM
“The United States of America solves its minority problems, more or less, by trying to make every citizen 100 percent American. They make everyone conform to a certain type. Other countries, with a longer and more complicated past, are not so favorably situated.”10 Nehru of course had his own country in mind when he reflected wistfully on the American solution to the problem of diversity. Unaccustomed as most thoughtful Americans are to viewing their past as uncomplicated, it is worth being reminded—in this case by an Indian writing from the darkness of a British prison cell—that in comparison with experience elsewhere, in which problems associated with communal divisions have a way of appearing utterly intractable, the United States, however complex its history, has not been quite so burdened.
Nehru went on appropriately to acknowledge that the history of racial conflict in the United States did not conform to this upbeat account, but as to religion, the solution adverted to in his observation has been as successful as it has been logically consistent with the premises of American nationhood. That is not the same as saying that the solution is or is not fully consistent with the specific intentions of the authors and ratifiers of the First Amendment, only that its broad outlines respect the vision incorporated in the liberal philosophical commitments that informed their work. In the late eighteenth century, “minority problems” had mainly to do with religious differences. The best account of how the new constitutional order addresses these problems will be one that displays the greatest consistency with the larger project of nation-building to which the designers of this order were committed.11
It is in this sense that Nehru’s allusion to an assimilative solution reveals considerable insight into the nature of the American regime. The effort to “make every citizen 100 percent American” is, rightly understood, a very American thing to do, since being an American consists largely of sharing in those constitutive ideas that define membership in the political community. Assimilation in this context relates exclusively to principles, not to ethnically or religiously derived models of ideal behavior working to achieve social conformity. While these models surely have had a historic association with much of the assimilative experience in the United States, they are not dictated or even encouraged by the logic of the assimilationist assumptions of the American secular constitution. Indeed, the greatest assurance that the protection of diversity for all religious beliefs will be taken seriously—including those beliefs that violate the spirit of the “self-evident” principles underlying the constitutional agreement—lies in the achievement of political assimilation.
A brief examination of the issue of polygamy may make this argument more concrete, while serving as well as a point of comparative reference for India and Israel, which have also had their constitutional battles over this question. In all three countries, restrictions or bannings of a practice seen by many to be morally offensive confronted the judicial system with challenges that illuminate distinctive features of their respective secular constitutions. In the United States, however, this illumination may initially seem dim at best, for in the Supreme Court’s rejection of the Mor-mons’ religious-based constitutional claims, its occasional appeal to sectarian and cultural intolerance tends to obscure and confuse the assimilationist logic of its argument.
Thus in Reynolds v United States, Chief Justice Waite pointed out that “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”12 In Davis v Beason, Justice Field found justification for prohibitory legislation against polygamy in “the general consent of the Christian world.”13 And in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v United States, Justice Bradley described the practice as “abhor-rent to the sentiments and feelings of the civilized world,” and opined that “[T]he organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism.”14 If assimilation is part of the message in these comments, it seems directed toward compelling the Mormons to accept the moral standards of the country’s western, Christian majority. Such a message would have echoed (as judicial opinions often do) the sentiments of the general population, whose deep revulsion toward the Mormons and their aberrant ways often expressed itself in a linkage of polygamy with slavery as twin vestiges of a barbaric past.
But the assault on the Mormons may also be viewed, even if not expressly stated in the opinions, as a defense of liberal constitutionalism, and it is in this connection that their peculiar institution became a useful foil for affirming the supremacy of the civil law.15 It has been pointed out, for example, that the early leaders of the Mormon Church rejected Tocqueville’s admonition that “religions . . . ought to confine themselves within their own precincts.”16 Marital practices were just one element—albeit the most notorious—in a regulative culture whose domain extended well into the temporal side of human experience. But unlike the Old Order Amish, who could never seriously be accused of harboring theocratic designs, the Mormons made it easy for people to believe that the religion’s geographic base in Utah was expected to serve as a home for illegitimate sovereign ambitions. Not so hollow, then, was the claim made in 1888 by Utah’s non-Mormon governor that “[The Mormon] priesthood not only rules the Church, it governs the state.”17
The Supreme Court was well aware that the Mormon challenge was both religious and political. “So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief?”18 The Court’s answer: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”19 This answer of course could apply with equal force to anyone—Mormon or non-Mormon—who sought immunity from the law on account of religious beliefs. Concerns over whether an individual citizen would be permitted to become a law unto himself or herself naturally escalated to worries of a larger corporate challenge to the supremacy of law, underscoring the wider possible implications of a lax attitude toward law-abidingness. Coupled with the frequent linking of polygamy with slavery in mid-nineteenth-century America and the urgency of protecting national authority against politically concentrated, religiously sanctioned illegal behavior becomes all the more comprehensible.
If the Court’s stance in the polygamy cases is taken to be consistent with the logic of the secular constitution, can one then conclude, as some commentators have done with respect to more recent cases denying constitutional exemptions to religious objectors, that the basic orientation of the approach is antireligious? If not, is it then merely indifferent to religion, an expression of neutrality between religion and irreligion? With respect to the first query, quite the contrary, for while the hostility to Mormonism in the Reynolds and Beason opinions is scarcely concealed, the broader meaning of the decisions manifests a rather different and more sympathetic sensibility toward religion in general. Even the rigid distinction between belief and practice that figures so prominently in Indian case citations, and that appears increasingly disconnected from contemporary realities associated with the ubiquity of the welfare state, conveys an understanding that the substance of religious opinions is beyond the legitimate reach of the state.20 “The care of each man’s soul,” as John Locke argued, “is left entirely to every man’s self.”21 Indeed, the formula developed by the Court for protection of speech under the First Amend-ment—content neutrality—arguably has a more appropriate place in the protective arsenal of religious freedom.22 “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”23 And consistent with this strict neutrality in doctrinal questions of religious faith there is, despite the temptation to avoid restricting religion by defi nitional intervention, a notable absence in the Waite and Field opinions of any suggestion that polygamy is either nonessential to Mormonism or untrue to the religion’s basic precepts. While not directly at issue here, one can nevertheless see how, within the framework of liberal constitutionalism, institutional autonomy in matters of belief and theology fol-lows directly from the subordination of spiritual to temporal authority.24
It is regrettable that the justices did not elaborate on the theoretical rationale for this subordination. Thus it is not simply that “Government could exist only in name” if deference to religious belief required that the law not be uniformly applied; rather it is that government of a certain type—one “instituted among men” for the protection of certain unalienable rights—would be in principle untenable. As Philip Hamburger has shown, this understanding seems to have been accepted even by religious dissenters in the late eighteenth century, who saw the connection between rights of exemption for the religiously scrupulous and the creation of unequal civil rights. In the language of the Virginia Act For Establishing Religious Freedom, men’s “opinions in matters of religion” shall “in no wise diminish, enlarge, or affect their civil capacities.”25 The notion that people formed government to secure their “secularWelfare” was not perceived as antireligious; instead, following Locke, religiously committed people appreciated that the promotion of their spiritual interests was inseparable from the advancement of their temporal well-being. Michael McConnell, on the other hand, believes that the assimilation of freedom of religion into a Lockean philosophical framework denies the singularity of religion in contemporary life. “Under this view the religion clauses of the first amendment become an instrument of secularism to be interpreted in secular terms.”26 While perhaps true, this does not mean that a secular interpretation that realizes the goal of equality, understood in terms of Lockean natural rights, is antithetical to the interests of religion. As for denying the singularity of religion, Locke’s notion that “[T]he private judgment of any Person concerning a Law . . . does not take away the Obligation of that Law”27 does blur the distinctiveness of religious belief, but more important, it provides a basis for denying government the authority to move against any singular religious belief. His letter, after all, concerned toleration (of religion). As expressed in Beason, “However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.”28
The subordination of religion in this sense does not contradict our recognition of the prominent historical role of religion in the creation and development of the nation. Polemical discourse on Church and State has helped to obscure the connection between secular foundations and spiritual aspirations. The “nonreligious character of its founding principle”29 provided the “new nation” with much of its distinctive character, but more important, that principle was itself the precondition for a regime of religious liberty. In upholding civil law against the “private judgment”of the Mormons, the Court tacitly acknowledged the secular origins of constitutional authority. Implicitly, too, it affirmed the subordinate position of religious opinion to the political truth that constituted American nationhood. In sharp contrast is McConnell’s view that “Even the mighty democratic will of the people is, in principle, subordinate to the commands of God, as heard and understood in the individual conscience.”30 But the logic underlying the Court’s judgment suggests that what is “heard and understood in the individual conscience,” even if asserted to be divinely inspired, enjoys only the status of opinion, and therefore is in principle subordinate to the commands of law.
McConnell’s examination of free exercise bears directly on the nexus between national identity and the secular constitution. “While the government is powerless and incompetent to determine what particular conception of the divine is authoritative, the free exercise clause stands as a recognition that such divine authority may exist and, if it exists, has a rightful claim on the allegiance of believers who happen to be American citizens.” 31 Since there can be no serious quarrel with the existence of such a claim, the only question McConnell’s comment raises has to do with its scope and magnitude. The implication would seem to be that the First Amendment establishes the priority of divine obligation to the obligations of citizenship, for believers “who happen to be American citizens” are clearly not being exhorted to give first consideration to their public secular responsibilities. Tom Paine’s declaration—“Our citizenship in the United States is our national character”32—will likely not provide convincing justification for them to subordinate their claims of conscience to the public will as expressed in law.
The law in question in the Beason case was unusually severe, going so far as to deny the vote to anyone practicing or even advocating polygamy. It was part of a broader legislative design to destroy the political power of the Mormon Church. Its emphasis, however, on the right to franchise, a right that in theory is emblematic of citizenship, makes the point (in an admittedly heavy-handed way) that the pull of divine authority should not be permitted to tear one away from the routine performance of civic responsibilities; that if it does, the price to be exacted will be relinquishment, effectively and symbolically, of one’s attachment to the nation. The punitive character of the law and the dubious constitutionality of its transparently targeted attack on a specific religion should not deflect from a central premise of American national identity that is, intended or not, incorporated in its deeper meaning: that bound up in the idea of American citizenship is the bedrock and regime-defining principle of natural equality, according to which, claims grounded in the superior obligation of conscience are not entitled to special consideration.33 “The voting booth,” said a justice of the Supreme Court, “is the temple of American institutions.”34 For the Mormons, who officially abandoned their commitment to plural marriage in response to the Beason ruling, this can serve as a summary of the painful lesson learned in their encounter with the American legal system.
If the logic of the secular constitution is not in principle antireligious, is it an expression of neutrality between religion and irreligion? Does it require “a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion”?35 Does the Establishment Clause, as Kathleen Sullivan has suggested, mandate “official agnosticism”?36 To queries of this kind categorical response must remain elusive; nevertheless, limited governmental support for religion can be consistent with the advancement of the secular aspirations of American nationhood. Such support is of course not constitutionally required, but may, under carefully circumscribed conditions, be pursued at the discretion of the government. The inquiry, then, into the secular purpose of a given law needs to broach more than one layer of understanding.
The argument presumes the State’s posture of official impartiality in its dealings with particular religions. While this neutrality is no longer a matter of serious disputation within legal circles, it is a constitutional requirement that should be seen as an extension of the broader claim being made here about nation-building. In this sense, the framers’ permissiveness toward established churches at the state level is arguably in tension with the spirit of the Constitution’s underlying principles, which suggest that, as in the case of race (a more notorious example to be sure), constitutional evolution was necessary for the document to work itself pure. The logical conclusion of governmental religious preference would be its use in determining a person’s citizenship status, but as MichaelWalzer has pointed out, “The United States is a nation of cultural nationalities,” and so Amer-ican “[c]itizenship is separated from every sort of particularism: the state is nationally, ethnically, racially, and religiously neutral.”37 Walzer sees neutrality as vital for immigrant societies such as the United States,38 but not all immigrant societies—Israel, for example—are so decidedly and profoundly identified with a universalist political creed. It is this latter identification that renders neutrality not only desirable but necessary.
This is what is so appealing in Justice O’Connor’s much-discussed doctrinal contribution to First Amendment jurisprudence. “The Establishment Clause,” she posits, “prohibits government from making adherence to a religion relevant to a person’s standing in the political community.”39 “If government is to be neutral in matters of religion . . . [it] cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.”40 Debate over this sort of judicial deference to the sensibilities of outsiders often focuses on the empirical question of whether a particular prayer or religious display actually conveys a message of second-class citizenship. More important, however, is the question of how this deference applies to the content of American identity. For example, in the current debate over multiculturalism, it has been contended against both those who define the nation as little more than a collection of groups, as well as those who define it as the realization of an idea, that “a cultural concept of nationhood,” emphasizing the historic connections of the American people to a particular religious tradition, presents the best account of who Americans are as a people.41 O’Connor’s “endorsement test” is a rejection of this concept of nation-hood, using religion to establish that full and equal membership in the political community is not to be affected by one’s contingent affiliation, that religious identity shall not be permitted to encroach upon the constitutive domain of political identity.42
Upon this doctrinal foundation there is an understandable temptation to build to the conclusion that “[T]he Establishment Clause . . . bars ‘endorsement’ and ‘acknowledgment’ of religion.”43 After all, if “standing in the political community” captures the essential meaning of American citizenship, and thus underscores the necessity for religion’s subordination in the political arena, does it not then require the erection of an im-penetrable wall separating Church and State? How, it may be asked, is endorsement of religion in principle any different from the endorsement of any particular religion? If the answer is that the distinction conforms to the intentions of the framers, it will succeed in persuading only those predisposed to accept the mandate of originalist jurisprudence, leaving others to wonder whether such deference is justified under a dramatically reconfigured social and religious environment. And assuming that this jurisprudential battle can be won, along comes someone like Leonard Levy (ironically an outspoken opponent of a legal philosophy of original intent), making a compelling case that “It was . . . public support on a nonpreferential basis that the establishment clause of the First Amendment sought to forbid.”44 Must we therefore be an expert on the conflicting historical sources to be heard on this issue?
Distinguishing between these two forms of endorsement should neither abandon the quest for historical certainty nor too narrowly restrict the scope of inquiry. We must first pursue the First Amendment implications of the American concept of nationhood—emphasizing its principled foundations—and then assess the significance in the context of the thinness of American religiosity. To start, consider the merits of a remark attributed to President Eisenhower: “Our government makes no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”45 Presumably, Eisenhower was attempting to convey a message along the lines of Tocqueville’s admonition that religion is “indispensable to the maintenance of republican institutions,” while also displaying a politically astute respect for the great diversity of religious commitment that exists in the United States.46 His appreciation of the secular benefits of spiritual life might be seen as drawing upon the famous sentiments of the nation’s first president, whose farewell address is well known for emphasizing the salutary effects of religion in public life.
But a closer look at the statement reveals a problem if it is taken to mean that the American founding is rooted in a particular religious commitment, since all revealed religions are at their core exclusionary and hence in conflict with the natural right of equality. If, on the other hand, “religious faith” means religious-like devotion to a set of commonly accepted precepts, then Eisenhower could have had in mind the Declaration of Independence, which expresses a creed that has appropriately been labeled the “Theology of the Republic.”47 This rendering, however, is also problematic, since the “I don’t care” proclamation in the second part of the sentence is in tension with the self-evident truth that lies at the heart of the Declaration. Unlikely as it may be (although mindful of his oft-noted propensity for obfuscation, deliberate or otherwise), let us suppose that what Eisenhower really meant was something like the following: Our government makes no sense unless it is understood to rest upon what Chesterton called the “dogmatic and even theological lucidity [of] the Declaration of Independence”;48 and whatever religious beliefs might reinforce the religious-like political truths of that document should be sup-ported by government.
In relation to the assimilative mission of the secular constitution, much of the appeal of this position lies in its functional value, as it exploits the pervasive religiosity of the American people to solidify the consensus underlying the national creed. Over the years, proponents of a civil religion have in various ways argued along these lines, agreeing with Benjamin Franklin about “the necessity of a Publick Religion.”49 Dubious over the long-term prospects of the modern liberal state without the legitimating advantages traditionally associated with religion, they have written extensively and controversially about the religious power of American ideals. “The American Way of Life,” it is said, “is the operative religion of the American people.”50 The United States is a “Nation with the Soul of a Church,” and as such, its reliance upon myth, symbol, and ritual, like that of other churches, is vital to the success of its mission in this world. Accepting the essentially privatized condition of religion in the United States, and yet concerned that this reality will prevent the polity from developing the bonds of unity that a functioning society must have, civil religion theorists hope to nurture and develop what is, in effect, a synthetic religious tradition that draws upon a multitude of sources from within the American political, cultural, and religious experience.51
But whatever its functional appeal, drawing upon religious traditions to support the secular purpose of strengthening the bonds of nationhood confronts a potentially fatal objection. How does one go about choosing from among the tenets of religion those that reinforce the political truths of the Declaration of Independence, without engaging in impermissible discrimination, which is to say, endorsement of particular religions? If compatibility with the tenets of the “Theology of the Republic” is a criterion for preferential treatment, then followers of religions whose beliefs and practices are agreeable with egalitarian assumptions about human nature will enjoy a favored status in the eyes of the State. Judges, more-over, will be set up as arbiters of theological doctrine, determining which religious opinions are, in effect, safe, and which threaten to divert from the goal of political assimilation.52 The substance of religious beliefs, then, contrary to the results we have seen in applying the Free Exercise Clause, would again enter the purview of the State. As far as the tenets of any given religion are concerned, the law might still know no heresy, but in determining policy in relation to the civil religion, some beliefs would obviously come to be perceived as heretical.
An additional problem in advancing only religious ideas consistent with national ideals is that the salutary subversive role that religion can play in a pervasively liberal society could be discouraged. Perhaps the ideal solution would be to encourage the pluralism of American religious life, so that churches could solidify their standing as sanctuaries against the nation (or at least as intermediaries between the State and the individual) while drawing upon many of the beliefs common to most believers in this country—what Franklin called the “essentials of every religion”—to enrich popular understanding of the moral principles that make religious freedom possible. As Christopher L. Eisgruber and Lawrence G. Sager point out, “[P]olicy makers might legitimately take into account the instrumental value of religious institutions as aids to moral development in a democratic society.”53 A delicate balance to be sure—but one that is not in principle unattainable, as is occasionally discernible in the Supreme Court’s tortuous maneuvering through the minefield of Church/State litigation. What may appear to the scholar as ad hoc and incoherent is often precisely that, but it is also reflective of the necessarily complex pattern of judicial response to what has been referred to as “the special place of religion in the Constitution.”54 Because the location of this special place is fixed in relation to regime-defining principles, the constitutional law that stems from it should be shaped accordingly.
Those, for example, who might find the Court’s guardianship of the public schools against sectarian intrusion inconsistent with its solicitude for the tax-exempt status of religious institutions or its relative tolerance for public displays of religious symbols should consider these results in light of the “delicate balance.” While the Court has no business inquiring into the substance of religious belief, it is responsible for determining the conditions under which spiritual and temporal affairs may appropriately intersect. When it excludes all religious presence from the public schools, and when it permits all religions to benefit from the tax policies of the State, the Court’s discretion is limited to specifying criteria and occasions for erecting Jefferson’s wall of separation. Informing these determinations is a secular interest in the constitutive principles of the nation, which of course includes doing right by religion. In the case of the schools, it requires a recognition of the unique historic role played by public education in assimilating Americans into a common political culture. As Justice Brennan said in Abington v Schempp: “It is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort—an atmosphere in which children may assimilate a heritage common to all American groups and religions.”55 Or as his jurisprudential adversary, Justice Frankfurter, put it fifteen years earlier: “The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny.”56
Justice Brennan also wrote in a landmark case from New York that “Government may properly include religious institutions among the variety of private, nonprofit groups that receive tax exemptions, for each group contributes to the diversity of association, viewpoint, and enter-prise essential to a vigorous, pluralistic society.”57 Brennan, however, went on to justify the ruling by emphasizing how the secular activities of churches benefit the community, thereby underplaying the principal, which is to say religious, mission of these institutions.58 He was perhaps mindful of Justice Douglas’s dissenting opinion, wherein his frequent ally argued that “[S]ectarian causes must remain in the private domain not subject to public control or subsidy.”59 In so doing, he missed the opportunity to articulate the ways in which the community’s secular interests might be advanced by the religious activities of religions. “[A]s important as the public schools have been,” Robert Bellah has suggested, “the real school of republican virtue in America . . . was the church.”60 The oft-noted paradox in American culture of pervasive secularism and wide-spread religiosity is not so very difficult to comprehend in light of the mutually reinforcing dynamic that exists between the two conditions. Religion as practiced in most churches, synagogues, and mosques in the United States is generally supportive of the principles upon which the Constitution rests.61 Where it is not, where religious teachings contradict these principles, the predominant thinness of American religiosity ensures that public support for religion will not become a self-inflicted wound.As a result, judges will not be expected to intervene with regard to the substance of religious opinions. In the American context, being selectively indiscriminate, in the sense of choosing where it is appropriate to support religion without regard to doctrinal content, is an affordable luxury, both for the pluralism it encourages and the unity of national purpose to which it can contribute.
Looking, then, at the controversial Establishment Clause test introduced by the Court one year after Walz, we might say the following. The first prong of the so called Lemon test, that governmental action must have a secular purpose, is, standing alone, quite reasonable. Thus as long as a secular rationale can be legitimately invoked, the provision of non-preferential aid to religion would not under this requirement be proscribed. But in conjunction with the test’s second prong, that the primary effect of the action must neither advance nor inhibit religion, there is reason to doubt that framing a secular purpose in terms of facilitating the political assimilation of a diverse population would pass constitutional muster. The primary effect of providing tax relief to churches is by design to advance the interests of religion; in this respect, the majority was surely more disingenuous than the minority. A likely indirect effect of such aid is that religion will be strengthened as a viable source for the legitimation of regime principles, which in the United States is critical to the realization of constitutional and hence national aspirations. Whether governmental support hinders or retards this realization is always an empirical question. Thus the elementary and secondary public school context may reveal, as many of the Court’s rulings suggest, that the primary effect of aiding religion through its introduction into a very special environment (i.e., young-sters brought together for a shared learning experience) is to undermine, not support, an acceptable secular purpose. Financial support for parochial schools is more complicated, for the advancement of religious education, while in principle perhaps consistent with a legitimate, if not primary, secular purpose,would have to be considered in light of the possible devastation it might create for the public schools. My purpose here is not to address the particulars of these issues but only to suggest that the appropriate framework for assessing the relevant evidence is one that directs attention to the complex pattern of interaction between religious and national identities. In the end, that means, paraphrasing Jefferson, that for Americans, we are all separationists, we are all accommodationists.
ISRAEL: VISIONARY SECULARISM
[T]his pretended right of every qualified subject to a share of the honours and profits in the disposal of the supreme magistrate is altogether groundless and visionary.
Let it be remembered, that . . . it hath been proved at large, that REWARD IS NOT ONE OF THE SANCTIONS OF CIVIL SOCIETY: the only claim which sub-jects have on the magistrate for obedience, being protection.
Now the consequence of this is, that all places of honour and profit, in the magistrate’s disposal, are not there in the nature of a TRUST; to be claimed, and equally shared by the subject: but of the nature of a PREROGATIVE; which he may dispose of at pleasure, without being further accountable, than for having such places ably supplied.62
William Warburton, the author of this formidable prose, was an Englishman whose writings in the 1730s had considerable influence in eigh-teenth-century American debates over religious liberty. An Anglican defender of an established church, he wrote controversial tracts in which he argued for equal protection for all people to pursue their natural right to religious liberty, while also claiming special privileges for members of the established religion. As Philip Hamburger has shown, supporters of American establishments put Warburton’s arguments to effective use in their contest with religious dissenters over the future of Church/State relations in the colonies, and in due course, the new nation. In the end, the Antiestablishment Clause of the First Amendment signaled the eventual triumph of the dissenters’ position, a triumph that has come to serve as an appealing model for framers of secular constitutions based on liberal principles.
For many in Israel inspired by the promise of that country’s Declaration of Independence to “guarantee full freedom of conscience, worship, education and culture,” the American model is eminently worthy of emulation. But it is Warburton’s model—or at least a variation thereof—that exemplifies the actual workings of the Israeli secular constitution. The dominant political and legal approach to religion in the preconstitutional period of American history, more so than what has prevailed during most of the subsequent national experience, illuminates the Israeli constitutional solution. The specific facet of the colonial treatment that warrants particular attention is the distinction between equal protection and equal civil rights, a distinction that is useful in analyzing problems of diversity among religious groups in Israel as well as within the majority Jewish population. A framework for exploring the Israeli experience with visionary secularism thus begins with a brief account of the eighteenth-century debate in a place depicted by many at the time as “the new Israel.”
Two standards shaped the intellectual contours of the argument over religious liberty. “Equal civil rights was a standard demanding that civil law treat individuals the same [for example, in the allocation of money]—that it not distinguish among individuals on the basis of their religious differences. By comparison, equal protection of the laws was a lesser degree of equality—an equality only of the protection provided by civil law for natural liberty.”63 Lesser in this context does not connote triviality, for indeed religious liberty was widely understood to be the most important of the natural rights for which the safeguards of modern constitutionalism were crafted. Following Locke, eighteenth-century Americans (both dissenters and, increasingly, establishmentarians) shared in a consensus concerning government’s need to protect the inalienable right to worship as one pleased. Calculation as much as conviction supported the consensus; thus in the various contests over State neutrality that dominated colonial politics, the equal protection position was used defensively by proponents of established religions to protect their unequal “privileges” against the challenge of the dissenters.
The appeal of Warburton’s ideas to the American establishments resided in the ingenuity with which the Anglican balanced toleration and privilege. Advocates of equal civil rights demanded an equality of legal privileges to go along with the equality of natural liberty that the estab-lishments had been willing to extend to them.64 “With the idea of equal protection, an establishment could provide dissenters an egalitarian reas-surance that no one would be subjected to greater legal obligations or ‘restraints’ than anyone else on account of his or her religion, but an establishment did not thereby promise to share equally or to forgo its privileges, such as state financial support. In short, equal protection required equal obligations and permitted unequal privileges.”65 For War-burton, “honour and profit” were within the “prerogative” of the State, which had the responsibility of delivering “protection” to everyone in the exercise of their religious liberty. This was a solution that worked for a while, only to be superseded by a more inclusive understanding of rights in which the assimilative aspiration of American self-understanding came to be embodied in the Establishment Clause of the First Amendment. Jefferson, in other words, eventually prevailed: The spirit of the secular constitution incorporated his view that the profession of religious opinions by men “shall in no wise diminish, enlarge, or affect their civil capacities.”66
How does the equal protection argument/defense apply to Israel? There are obvious complications in drawing parallels between eighteenth-century colonial America and contemporary Israel, but the essentials of the comparison are still worth pursuing. One difference in the two situations that need not preoccupy us is that Israel, unlike the colonies, does not have a legally established religion. In that respect, it also differs from a country like Sweden (at least until very recently), which suggests that the presence of a legally established Church is not a very reliable indication of the functional importance of establishment within a particular country.In a variety of ways—legal and nonlegal—Judaism in Israel enjoys a preferred status over other religions in the country, such that any realistic assessment of its place in Israeli life would have to conclude that it has been effectively established as the nation’s favored religion.67 And essential to this preferred position is another characteristic that distinguishes it from the early American establishments, the ethnic or national attributes of the dominant religion. The equal protection claim voiced by Protestant establishments in the colonies was not used in defense of the prerogatives of a people, but of people who happened to share a common faith.
The same Declaration that guarantees full freedom of worship to all its citizens begins by proclaiming Israel as “the birthplace of the Jewish people.” “Here their spiritual, religious and national identity was formed.” It is within this juxtaposition of individual rights and national self-definition that the distinction between the two forms of equality dis-cussed above becomes quite relevant. The Zionist vision, embodied in the Declaration’s assertion of “the right of the Jewish people to national revival in their own country,” establishes the constitutional parameters within which Church/State issues are to be addressed. The fact, however, that for most Israelis this religiously informed vision is only minimally imbued with constitutive social significance means that a genuine secular commitment to protect religious liberty is compatible with the nonneutrality of the State in matters associated with religious affiliation.
This compatibility is not entirely unproblematic. There are occasions when policies stemming from the Zionist commitment of the State do impinge on the religious liberty of minorities, but the predominant thinness of religiosity within the Israeli Jewish community prevents visionary secularism from becoming an oxymoron.68 A 1988 Supreme Court case involving the denial of a political party’s right to participate in Knesset elections because it denied “the existence of the State of Israel as the state of the Jewish people” speaks directly to these issues.69 The disqualified party was the Progressive List for Peace (PLP), against which, according to a bare majority of the Court, there was insufficient evidence to justify its removal from the ballot. But there was general agreement that a removal could occur even in the absence of subversive activity; questioning the substantive vision of Israel as the State of the Jewish people could still incur significant political consequences despite the differences among judges on the scope and meaning of that vision. One of the dissenters was Justice Elon, who wrote: “The principle that the State of Israel is the state of the Jewish people is Israel’s foundation and mission, and the principle of the equality of rights and obligations of all citizens of the State of Israel is of the State’s essence and character. The latter principle comes only to add to the former, not to modify it; [there is nothing in] the principle of the equality of civil rights and obligations to modify the principle that the State of Israel is the state of the Jewish people, and only the Jewish people.”70
While more emphatically expressed than most judicial pronouncements on the Jewish foundations of the State, these sentiments are nevertheless suggestive of the basic orientation of visionary secularism. Thus the clear distinction between equal citizenship rights and full membership in the political community is discernible also in opinions of judges more secularly inclined than Justice Elon. These equal citizenship rights (analogous to the guarantees of equal protection in the eighteenth century) include religious freedom. This is perhaps not so evident in Ben Shalom: Arabs whose religious beliefs require that they live in a land that is not identified with the Jewish people will no doubt experience a denial of equality when they seek, in violation of the law, to support their beliefs with political action. On the other hand, so will the Jews whose denial of the “democratic nature of the state” places them in violation of the same Basic Law as that invoked in Ben Shalom.71 In both cases, the dual aspirations (de mocracy in a Jewish State) of the Israeli national commitment (or vision) exert pressure, however indirect, upon religious belief. Rare as this dis-criminatory result is likely to be, its occurrence is nevertheless a predict-able byproduct of the convergence of faith and ethnicity, religious beliefs and national aspirations. In Israeli law, a minimalist conception of the Jewish character of the State prevails, but it is still with much less confidence than in the United States that one can say of the law that “[I]t knows no heresy, and is committed to the support of no dogma.” Because the subordination of religion is not a necessary premise of visionary secularism (in the way that it is for an assimilative model), religious opinion is less amenable to judicial protection under the doctrinal aegis of content neutrality.
Direct infringements on free exercise are relatively uncommon in Israel, and as we shall see, at least as likely to be felt by people belonging to the majority community. Much like in India, allegations of legal bias against religion are heard with disproportionate frequency from within the dominant religious group.72 Consistent with the logic of Justice Elon’s comment, minority grievances over religious questions focus less on perceived violations of religious liberty than on inequities associated with the State’s distribution of rewards and privileges. They speak most directly to the issue of standing in the political community, and their general target is preferential treatment.73 Implicated are both substantive policies—legal differentiations affecting immigration (the Law of Return), political representation (the Chief Rabbinate of Israel Law), administration of religious endowments, and provision for religious training seminaries—as well as largely symbolic ones—the design of the flag (inspired by items important to the Jewish tradition) and the national anthem (which is also the hymn of the Zionist movement). They amount, in short, to the kinds of policies and privileges that the tolerant establishments in the American colonies defended so vigorously against their dissenting opponents.
But in contrast to the American colonies, the privileges at issue in Israel are centrally related to the question of political identity. For this reason their legitimacy will surely prove less vulnerable to erosion than was the case in the United States. It is not that the combination of pecuniary rewards, such as state support of ministers, and philosophical commitments, such as the notion that state-supported Christianity was essential for harmonious social relations, could not help win political skirmishes. But in the long run, a defense of a status quo grounded in considerations increasingly out of sync with revolutionary political ideas could not fall back upon a second line of defense rooted in the primordial instinct of survival. After all, for the American establishments, the enemy was on the other side of a wide sea; that fundamental reality, as well as the fact that establishments and dissenters reversed roles from colony to colony, suggests that the stakes involved in the maintenance of privilege were of insufficient weight to resist the moral and political challenge of the underprivileged.
Scholarly accounts of Israeli political culture rightly emphasize Jewish privileges as an integral component of ethnic or national conflict. For example, Sammy Smooha uses the term ethnic democracy to characterize a system “in which the Jewish majority has established institutionalized dominance” over an Arab minority that has been extended political and civil rights to individuals.74 Similarly, for Yoav Peled, “[T]he dominant strain in Israel’s political culture may be termed ethnorepublicanism. Jewish ethnicity is a necessary condition for membership in the political com-munity, while the contribution to the process of Jewish national redemption is a measure of one’s civic virtue.”75 Implicit in this conceptualization are contrasting notions of citizenship, republican for Jews and liberal for Arabs. “Thus, while Jews and Arabs formally enjoy equal citizenship rights, only Jews can exercise their citizenship as practice, by attending to the public good.”76 Peled’s portrayal of the Israeli polity as a “two-tiered democracy” mirrors the image evoked by Justice Elon’s constitutional assertions in Ben Shalom. In essence, the fulfillment of Jewish national aspirations requires the denial of Arab national aspirations, which is another way of saying that non-Jews are effectively excluded from the civil religion of Israel.77
Missing from these accounts is an answer to the following question: If, as Elon contends, the principle of equal civil rights does not modify the principle of Israel as the State of the Jewish people, does it also follow that the particularism of the latter principle leaves the universalistic premises of the former principle unmodified? Might it even be the case that under certain circumstances the identification of the State with the fate of a particular people actually strengthens the commitment to equal civil rights, in particular the free exercise of religion? In the case of the Protestant establishments, toleration was a good deal for the dominant religion.“Dissenters sought equal civil rights and were fobbed off with equal protection.” 78 Without denying the presence of less cynical motivations in accounting for the Israeli commitment to religious liberty (as there were also in the eighteenth century), surely there is here too a strong element of calculation involved in the official endorsement of the equal protection principle. In addition, it is possible that the strength of the libertarian commitment is reinforced, albeit inadvertently and counterintuitively, by the nationalist impulse in Jewish life in Israel. Thus the pursuit of religious national aspirations—not present in the American case but essential to the Israeli—can, as many orthodox Jews in Israel have, to their dismay, come to realize, weaken and dilute the theological or spiritual content of religious devotion, providing, as an incidental if not unimportant political benefit, a more hospitable environment for exercising religious tolerance toward minorities.79
Israel, like India, operates under a system of personal laws that has its roots in preindependence experience. In Israel, the administration of communal affairs under ecclesiastical authority is traceable to the millet system of Ottoman rule. For centuries in the Islamic-dominated Middle East, Jews and other nonassimilating minorities exercised considerable autonomy in maintaining control over the internal affairs of their communities. The establishment of the Jewish State was not accompanied by any effort to uproot the historic patterns of the area, and so deference to the primordial attachments of religion and ethnicity was maintained and institutionalized in the decision-making structure pertaining to questions of personal status. Through the Ministry of Religious Affairs, funding is provided for officially recognized religions to administer the facilities that perpetuate their separate existence. Ethnoreligious groups compete with the State for the right to exercise coercive authority over individuals whom the group views as its members and whom the State recognizes as citizens of one polity.
It is not, however, a zero sum competition. Thus part of the State’s recognition of a common legal citizenship is its accommodation of the group-based nature of membership in the political community.80 It is in the interests of the State in the pursuit of its visionary aspirations to protect the right of minority communities to freedom of religion, although this may leave individuals without adequate freedom from religion. From the perspective of the majority group, communal autonomy supports political stability by providing nondominant (and unassimilable) groups with mechanisms that enable them to minimize the effects of their inferior position in the larger society. To this end, the secular constitution assigns a meaning to equal protection premised upon the equal right of officially sanctioned communities to govern themselves in select areas of social life.While the State retains the authority to impose uniformity upon these communities, it does not follow a guiding, or “directive,” principle to eliminate disparate communal legal experience.81
Thus there is no reliance in Israel’s leading polygamy case on a constitutionally approved exception to an equal protection requirement of uniformity. 82 Discrimination among communities with regard to the legal proscription of polygamy was, as we shall see, justified in India on the basis of pragmatic considerations having to do with the need to pursue social reform in incremental stages. As long as the distinctions or classifications in the law were reasonable (e.g., recognizing one community as ill prepared for social reform), discrimination would be upheld. In the decision of the Israeli Supreme Court, the antidiscrimination norm was found to be unaffected by the legislative determination to allow a community-based variable application of the criminal law. The difference in the Indian and Israeli approaches is a subtle one, but revealingly suggestive of a greater acceptance in the latter case of differential treatment as a constitutive part of the solution to the problem of intercommunal diversity.
Yosifof, an Israeli Jew, had been convicted of the felony of bigamy. The core of his complaint was that the section of the Criminal Code ordinance under which he was convicted discriminated improperly among the in-habitants of Palestine.83 In brief, it permitted a Muslim to have more than one wife but effectively precluded Yosifof from the same indulgence. Mar-riage, he claimed, was an institution common to all communities, and the State (or mandatory power in this instance) could not legislate different principles for different communities. In upholding Yosifof’s conviction, Justice Landau pointedly distinguished between the American and Israeli concepts of equal protection, noting, for example, that discrimination in the United States (and, we might add, in India too) “is permitted subject to the condition that it expresses itself in the form of a classification on a reasonable basis, while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.”84 Yosifof, then, cannot claim to be a victim of discrimination, even if as a Muslim he would be able legally to do what he cannot do as a Jew. How can this be?
According to Justice Landau, “The distinguishing feature implicit in the expression ‘discrimination’ is an attitude which is unequal and unfair—for different classes of people.”85 Placing the issue of differential treatment within the context of “the social realities of the country,” he analogized the marriage law to the rule requiring that official court documents be issued in the language of the person to whom they are addressed. There is no discrimination involved in such a policy, only “a desire to confer equal status upon all the official languages.”86 With the issue of equality defined in terms of the status accorded to separate communities (and with no effort to distinguish language and religion), the fact that individuals experience a varied legal reality across communities does not substantiate a claim of discrimination. “We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to the question cannot be otherwise than in the negative.”87
Justice Landau was careful to emphasize the continuity of the challenged law with earlier practice under Ottoman rule, but his opinion is at least as noteworthy for its consistency with the logic of visionary secular-ism. “Wherein lies the discrimination upon race or religion in handing the final decision in regard to permission to marry more than one wife . . . to the competent Rabbis of the Jewish community?”88 The power of the religious communities to issue binding decisions itself derives from secular law that is premised upon an equal protection principle specifically adapted to the circumstances of a culturally divided, differentially privileged, society.89 This calls attention to Will Kymlicka’s influential liberal argument for cultural rights. “A government that gives special rights to members of a distinct cultural community may still be treating them as individuals; the provision of such rights just reflects a different view about how to treat them as individuals and equals.”90 Along these lines, Justice Silberg’s concurrence asserts that one of the appropriate functions of the state is “the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear.”91 Consistent with Kymlicka’s liberal emphasis, the State’s encouragement of cultural autonomy enhances and reinforces a sense of personal identity and capacity. Freedom of choice, the argument goes, is meaningful only within a secure cultural context. But for Justices Landau and Silberg, the identification of individual rights with the rights of groups also helps to legitimate the more particularistic aspects of Israeli nationhood. Because, as Landau said in Rufeisen of the Jewish people, “[N]ationalism and religion are inseparably interwoven,”acknowledging the equal status of religions in matters of personal status advances the national aspirations of the religious community for whom the State was conceived as a homeland. Tolerance of alternative ways of life may render less objectionable the privileges associated with preferred status.92 Or as a New Hampshire Anglican explained in 1790: “The pres-out, ervation of a religious, pure heart, is not less important; but becomes more so in a country where all religions are most justly tolerated, and ought and are promised to be protected.”93
The British Mandate Ordinance has been superseded by a penal law that makes polygamy universally illegal in Israel. But policy concerning marriage and divorce remains essentially under the jurisdictional control of religious authorities. Unlike in India, where the Special Marriage Act provides an escape from the legal monopoly of the various personal law regimes, Israelis are much more constrained in their choices within these domains of intimate association. The proscription against civil marriages in particular is a major source of irritation and complaint within the non-Orthodox segment of the Jewish population.94 As Smooha points out, the structural separation of religious communities in exercising authority over personal status “gave the religious sector a staggering lead in the struggle against the disestablishment of religion.”95 As suggested earlier, this lead has been maintained only in part through strategic electoral politics; its favored position is also an extension of the same logic that renders structural separation a fixture in the workings of the secular constitution. The difficulty reform-minded Jews have had in achieving intrareligious pluralism is to some extent the flip side of the constitutional commitment to group-oriented interreligious pluralism.96
In the words of a former chief rabbi: “Freedom of religion is intended for members of all religions, including the minorities, to enable them to pursue their own faith; this freedom of religion . . . is not intended to achieve an opposite objective, with the result that the dominant religion in the state, i.e., the Jewish religion, be jeopardized and torn asunder.”97 Such words from an orthodox rabbi are not surprising, although the allusion to domination is striking. But consider as well the words of a secular Jew, Israel Yeshayahu of the Mapai Party, who in support of the 1953 Rabbinical Courts Jurisdiction Law said: “If Israeli marriages and divorces are not in accordance with the traditional laws, . . . the national identity will be obliterated.”98 However exaggerated the concern voiced in this remark, it expresses a worry that seems inevitable in a situation where nationalism and faith converge to provide content to a critical dimension in the regime’s political culture. Thus the prospect of fragmentation in the Jewish religious community casts a more ominous shadow in Israel than in the United States, where nationalistic forces do not exert a similar pressure on American Jewry to accept a monolithic religious front.As the journalist Yossi Melman has shrewdly observed, “Zionism was meant to offer a solution to the problems of the Jewish people as a whole and, ironically, not to those of the individual Jew.”99
An important case in 1972 focused the Supreme Court’s attention on the 1953 law. The Rogozinskys, claiming to be without religious belief, had been married in a nonreligious ceremony. As offspring of Jewish mothers, they conceded that they were Jews according to halakhic interpretation, but in accordance with their subjective view that they were not Jews, they insisted that their marriage fell outside the jurisdiction of the Rabbinical Court’s statute. In essence their claim was that the State had no authority to force them to be Jews, and in the process deny them their “freedom of religion and conscience,” as promised in the Declaration of Independence. The Court rejected their arguments, deferring to the 1953 law’s adoption of Jewish religious law as the arbiter for determining who is a Jew. Thus their marital status could only be resolved by the Rabbinical Court.
Justice Berinson’s opinion for the Court was an exercise in judicial self-restraint. “[I]t is clear that the Law of the State which turned over the matter of marriage and divorce of Jews in Israel . . . to the jurisdiction of the Rabbinical Courts, and directed that such marriages and divorces be conducted according to the law of the Torah, has preference over the principle of freedom of conscience, in the same way as every provision of a law interpreted differently prevails over everything else stated in the Declaration of Independence.”100 Berinson’s understandable reluctance to challenge the principle of legislative supremacy cannot conceal the fact that the question at the heart of this case—who is a Jew?—is answerable only within a complex matrix of theological and political considerations. Ultimate reliance on religious law to provide an answer has a largely functional significance, as it establishes objective criteria for the concept of nationality that defines Jewish political identity. In this context the meaning of who is a Jew in the Jewish State is supplied by theological reasoning, but elsewhere, for example in the case of Brother Daniel, a distinctly secular meaning—the common understanding of the “ordinary simple Jew”— had greater instrumental value than a halakhic test for determining Jewishness under the Law of Return. Brother Daniel, after all, was the son of a Jewish mother; his assertion that, despite his conversion to Christianity, he still identified as a Jew was theologically correct but, because in this instance it unnecessarily complicated the test for establishing the nationality of a Jew, politically incorrect. For the Rogozinskys, on the other hand, personal subjectivity did not coincide with the objectivity of Jewish law, which to their misfortune permitted the law to deny them the right to act in accordance with a conscientiously held belief.101
Judicial outcomes such as this may cause one to reflect that “[T]he willingness of the Israeli public to tolerate the intolerance of the ultra-Orthodox calls into question its characterization as a liberal democracy.” 102 But there are other cases that clearly establish that the scope and reach of religious law is ultimately a matter for secular determination, and that in this regard the liberal democratic aspirations of the Declaration of Independence often function as a set of “directive principles.”103 More- over, in a regime where there is no formal written constitution, they tend quite naturally to pull judges in the direction of judicial activism; whereas, as we will see in India, when directive principles are relegated to an unenforceable section of an otherwise reform-oriented document, they are just as likely to serve as a force for self-restraint.104 Thus could an orthodox Supreme Court justice conclude that the exclusion on sexual grounds of a female candidate from a Jewish religious council “conflicts with the fundamental principle of the Israeli legal system, according to which gender discrimination is forbidden.” “This fundamental principle,” Justice Elon went on, “is stated in the Declaration of Independence, and is among the fundamental ideals that have been expressed in legislation [the 1951 Equal Rights for Women law], and is not merely an ‘unwritten right’ whose origin is in the judicial legislation of this court.”105 While there are “circumstances . . . in which the principle of gender equality is inapplicable,” the administrative nature of the council’s functions ensured that this was not one of them.
In his concurring opinion, Justice Barak went further, pointing out that in addition to being an administrative body, the religious council was also “concerned with religious services for all Jews—religious and secular.”106 Moreover, even if in accordance with halakhic interpretation a woman’s membership on a religious council were forbidden (an interpretation that Justice Elon, to the consternation of his observant peers, disputed), the Declaration’s principle of equality demanded deference. “It must not be forgotten that the chief rabbis also function in the context of the law and the principle of equality, which applies to everyone, applies to them as well.”107 For Justice Barak, the ambiguous language from the Knesset denying women the right to serve on religious councils meant that the secular law’s antidiscrimination principle must take precedence over contrary religious law. Where the legislative will is not explicitly stated, the Court has an obligation to defend egalitarian principles of general applicability. Nothing, of course, prevents the Knesset from privileging a rival principle by committing additional sectors of Israeli life to the jurisdictional control of religious law. Thus unlike the United States, where “a state may not delegate its civic authority to a group chosen according to a religious criterion,”108 this action always remains an option in Israel. While it is an option that, for a variety of reasons, will not often be exercised, the very existence of a discretionary authority of this kind is an expression of the complex, and occasionally conflicted, character of nationhood in Israel.
CONCLUSION
Tocqueville’s famous insight that Americans possessed the distinct advantage of having “arrived at a state of democracy without having to endure a democratic revolution,” no longer as uncontroversial as it once was, still clarifies comparative perspective on such matters as secular constitutional design and development. If he and his latter-day intellectual disciples, most notably Louis Hartz, exaggerated the differences between the United States and Europe, their emphasis on the absence of a feudal tradition in the former (the South excepted) was not misplaced. The Americans’ fortunate circumstance of having been “born equal, instead of becoming so” meant that their social and political development could proceed largely in the absence of the bitterly divisive ideological battles that prevailed in most other places. As for their secular constitutional development, what is interesting is not simply the founding commitment to a secular polity, but that in order to achieve that goal, they did not have to break the chains (again with some local exceptions) of a dominant religion. By contrast, in having to overcome a feudal religious order, Indian constitutionalists understandably moved in the direction of a more transformative constitution, in which the commitment to secularism was directly related to the goal of social reconstruction. As for the third of our comparisons, the Israeli sociologist S. N. Eisenstadt’s Tocquevillian contrast between his own country and the United States is very suggestive. “[T]he United States in many ways constitutes the most purely ideological society in the world. . . . Here . . . lies the greatest difference between the American revolution and the Zionist movement. The Zionist movement was also highly ideological and highly revolutionary, but it combined these elements with the strong primordial and historical components of Jewish identity, with which its political aspirations were connected.”109 What Eisenstadt describes as “the almost total denial of the symbolic validity of hierarchy” in the American case is precisely what is present in the Israeli case, serving to set the parameters of its daunting project in visionary secularism.110
As we move on in the next chapter to consider the secular context of India’s constitutional approach to religion and politics, another of Tocqueville’s insights—this one explicitly focused on religion—invites consideration. Reflecting on the indirect influence that religious beliefs exert on political society in the United States, Tocqueville wrote: “Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions; for if it does not impart a taste for freedom, it facilitates the use of it.”111 The first part of that observation applies, at least in a formal sense, to all countries where religious authority is not expressly represented in the structure of governance. So it would not apply to Israel, but in India it would seem to hold, since the framers of the Constitution concurred in the sentiment behind Tocqueville’s further claim that “The church cannot share the temporal power of the state without being the object of a portion of that animosity which the latter excites.”112
But as to the second part, India presents an interesting contrast with the United States, and to a certain extent Israel. On the one hand, the argument is often made that Hinduism is a tolerant religion that “facilitates” freedom, an argument that demands to be taken seriously in ad-dressing the world’s largest democracy and its main religion. As exemplified by the teachings in the Gandhian tradition, Hindu religious ideas and practices need not contradict the fundamentals of secular democracy. Yet against this is the quite obvious way—one need look no further than the theologically sanctioned social stratification that has endured in India for centuries—in which religion on the subcontinent stands intransigently in defiance of a democratic way of life. A book entitled Democracy in India would be hard put to assert, as Tocqueville did about the United States, that “[N]o religious doctrine displays the slightest hostility to democratic and republican institutions.”113 Even discounting the extravagance of the claim as applied to the United States, one cannot help but be struck by a fundamental incongruity in the very notion of an easy compatibility between religion and politics in the Indian setting. That is not to say that the basic condition of Church/State relations has been one of unremitting hostility; indeed, State-sanctioned accommodation of religious needs will find a much more hospitable constitutional environment in India than in the United States. But that same environment will countenance, even encourage, the State’s restriction of religious freedom in the interest of democratic freedom.
Tocqueville actually did write about India. While his commentary never matched his American opus in mass or style, it is clear in its depiction of a radically different political predicament, one that emphasizes circumstances much less fortunate for democracy than what he encountered in America. One might speculate that had he gone on to write a companion volume to his study of democracy in America, the substitution of India in the title would have been followed by a question mark. The Frenchman never visited India, but he understood very well the religious challenge to democratic institutions in that distant place. “India cannot be civilized as long as she conserves her religion and her religion is so intermingled with the structure of its social state, of its customs and of its laws, that one does not know how to destroy it. Religions of this sort survive long after people stop believing in them. It is a vicious circle.”114 The predictive value of this sentiment would depend to a large extent on the accuracy of another of Tocqueville’s musings about India. “I am convinced that Hindus have never adopted anything from another nation. Everything in this culture is imprinted with the cachet of independence and originality.”115 As we shall see, the success of India’s ameliorative project of constitutional secularism is at least partly contingent on proving Tocqueville wrong.
1 Shourie 1997a, ix.
2 Mahmood 1995, 168.
3 Interview with the author, New Delhi, November 19, 1998.
4 In an interview with the author, Shourie used the American model of Church and State to describe his position. But with regard to certain matters, especially involving free exercise questions, his antiexemption views probably reflect a minority perspective within the American political context, and certainly within the academic mainstream. Nevertheless, as we shall see in this chapter, this minority view is quite consonant with the underlying logic of American constitutional secularism. I return to this question in the concluding chapter.
5 Shourie 1997a, 68.
6 Mahmood 1995, 17.
7 Interview with the author, New Delhi, February 8, 1999. The disagreement is reminiscent of the sharply divergent views expressed on the American Supreme Court by Justices Scalia and O’Connor. In a memorable exchange in one of the Court’s most controversial First Amendment cases, Scalia conceded that “[L]eaving accommodation to the political process will place at a relative disadvantage those religious practices not widely engaged in”; but in rejecting a constitutional claim for a religiously based exemption from a general legal obligation, he accepted such a result as an “unavoidable consequence of democratic government,” by which he meant, majority rule. Smith at 890. O’Connor countered with the assertion that the constitutional guarantee of religious freedom was designed “to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.” Ibid. at 902. These opinions receive a more extensive analysis in chapter 9. In both India and the United States, the debate over secularism ultimately turns in large measure on the limits and prerogatives of the majority. The same could be said of Israel, but there the debate is usually framed in terms of the limits and prerogatives of the minority, specifically the ultra-Orthodox, whose power to impose their will on the secular majority often frames the debate over religious liberty in that country.
8 Bhargava 1998, 494, 496. For a thoughtful account of religion, the state, and politics that emphasizes the contextual dimension, see Demarath 2001. As Demarath rightly points out, “[A]ny given religion is best understood—perhaps only really understood—in its myriad social and political settings.” Ibid., 7.
9 Ibid., 515.
10 Nehru 1959, 154.
11 The novelty and distinctiveness of the project is an oft-told tale that focuses on a set of political principles that together constitute the basis of American national identity. Samuel Huntington, for example, has argued that this identity is understandable only in terms of the political principles of the Declaration of Independence, that Americans have nothing vital in common, no cementing unity, without the amalgam of goals and values that constitute the American Creed. “National identity and political principle [are] inseparable.” Huntington 1981, 24. This is the emphasis also of Liah Greenfeld’s thoughtful account of American nationalism, with its “essential autonomy from material or ‘objective’ ethnic and structural factors.” Greenfeld 1992, 402. I am in basic agreement with this account, although Rogers Smith is wise to point out that ethnic and cultural factors have historically been important in making sense of American national identity. Smith 1988, 225. I disagree, however, in finding that this historical reality calls into serious doubt the validity of Hunting-ton’s creedal understanding of nationhood.
12 Reynolds at 164.
13 Beason at 343.
14 Late Corporation of the Church of Jesus Christ of Latter-Day Saints et al.
15 An 1885 article in the Salt Lake Tribune suggested what was ultimately at stake in the combined legislative and judicial attack on polygamy. “The essential principle of Mormonism is not polygamy at all, but the ambition of an ecclesiastical hierarchy to wield sovereignty; to rule the souls and lives of its subjects with absolute authority, unrestrained by any civil power.” Van Wagoner 1989, 133. It is in this light that President Hayes’s rationale for moving against the Mormons must be seen. “Laws must be enacted which will take from the Mormon Church its temporal power. Mormonism as a sectarian idea is nothing, but as a system of government it is our duty to deal with it as an enemy of our institutions, and its supporters and leaders as criminals.” Quoted in Hansen 1981, 144. As Hansen suggests, the close identification of polygamy with the Church as a political force meant that the defeat of one was directly tied to the defeat of the other. It is worth noting in this regard that the treatment of polygamy in American courts has historically been more tolerant than has been the typical approach in many Western countries. As Leon Sheleff has pointed out, this is in large part attributable to the unique legal situation that polygamy created within the Native American community. Sheleff 1995, 253. Unlike the Mormons, the anomalous status of Native American tribes meant that the religions of these tribes posed no threat to the wider political culture.
16 Hansen 1981, 114.
17 Van Wagoner 1989, 133.
18 Reynolds at 166.
19 Ibid. at 167.
20 On the ubiquity of the welfare state and its implications, see Carter 1993, 133, 138; and McConnell 1992, 692.
21 Locke 1963, 48.
22 It may be asked what the Free Exercise Clause contributes to individual freedom that is not covered under the protection of opinions in the speech guarantees of the First Amendment. The answer is not much if it is correct to maintain, as the prevailing orthodoxy in these matters has it, that there is no such thing as a false idea as far as the Constitution is concerned, that in the marketplace of ideas all opinions are of equal status and dignity.Walter Berns, however, makes a compelling argument that the Founders drew a principled distinction between religious and political speech, that the very reason for absolute protection of the former means that there must be limits on the latter. Berns 1970, 146. Philip Hamburger too presents compelling historical evidence that religious liberty was considered a unique “inalienable right,” immune in a way that speech was not, from governmental restraints based upon the substance of belief. Hamburger 1993, 312. Finally, John Mansfield has written of the Constitution that it embodies a particular philosophy that includes assumptions about human nature, human dignity, and the meaning of life. “It is not neutral in regard to these matters. If ‘separation of church and state’ requires a constitution that is neutral on these questions, then the United States does not have a constitutional regime of ‘separation of church and state.’ ” Mansfield 1984, 856. From this he properly concludes that certain religious views are false under the Constitution. But they are not false as to their religious content, merely incompatible, whatever their theological validity, with the political truths underlying the Constitution.
23 Watson at 727.
24 In a 1976 case, Justice Brennan rightly suggested that civil courts “must accept [ecclesiastical] decisions as binding on them, in their application to the religious issues of doctrine or polity before them.” Serbian Orthodox Diocese at 709. The key precedent for this important ruling is Watson v Jones, which was decided a few years before the Reynolds decision. In Reynolds, it is interesting to note, the Court alludes to India in raising a rhetorical question: “[I]f a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?” Reynolds at 166. By maintaining the distinction between belief and practice, the Court never puts itself into the position of having to determine whether the woman’s belief is erroneous or misguided. In India, as we shall see, there is a greater temptation to become judicially involved in the determination of the substantive merits of the beliefs in question. And this temptation is related to the greater difficulty in India in separating opinion and practice. The influence of Reynolds is obvious in Justice Scalia’s controversial opinion for the Court in Employment Division v Smith: “[C]ourts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Employment Division v Smith at 887. In chapter 9 I reflect further on the common assumption that judges must remain completely indifferent to the substance of theological opinion.
25 Hamburger 1992, 947.
26 McConnell 1990b, 1416.
27 Locke 1963, 48.
28 Beason at 342–3.
29 Berns 1970, 20.
30 McConnell 1990b, 1516.
31 Ibid.
32 Quoted in Greenfeld 1992, 426.
33 Christopher L. Eisgruber and Lawrence G. Sager have in this regard persuasively argued that constitutional solicitude for religious practices should be based upon the vulnerability of religions to discrimination rather than on any unique value ascribed to conscientiously motivated practices rooted in religious belief. Concerns over discrimination might justify constitutional protection, but a claim of constitutional privilege (which extends from the allegedly privileged status of religious beliefs) ought not to override a legitimate governmental interest. “In a liberal democracy, the claim that one particular set of practices or one particular set of commitments ought to be privileged . . . bears a substantial burden of justification.” Eisgruber and Sager 1994b, 1260. One should, however, be sensitive to the fact that, as the Williamses have pointed out, nonvolitionist religions (which in the United States are minority religions) will by their very nature pose a greater threat to governmental interests. Thus they remind us that “The Court has . . . arrived at a formally nondiscriminatory position but the etiology of that position is saturated with volitionist bias.” Williams and Williams 1991, 846.
34 Justice Brewer as quoted inWalzer 1992, 59. “If the manyness of America is cultural,” Walzer has observed, “its oneness is political.” Ibid., 29. By oneness is meant a set of unifying (and universal) precepts into which the diverse strands that contribute to the manyness of American society come together. Or as Sidney Mead noted: “[A] definitive element of the spiritual core which identifies [the United States] as a nation is the conception of a universal principle which is thought to transcend and include all the national and religious particularities brought to it by the people who come from all the world to be ‘Americanized.’ ” Mead 1975, 63.
35 Justice Rutledge dissenting in Everson at 31.
36 Sullivan 1992, 206.
37 Walzer 1992, 9.
38 Walzer 1994, 70.
39 Lynch at 687. See also Shklar 1990, 25–62.
40 Allegheny County at 627.
41 O’Sullivan 1994, 36, 38.
42 As we shall see in chapter 9, implementation of O’Connor’s inclusive ideal can benefit from careful consideration of the Indian emphasis on ameliorative aspects of secularism.
43 Sullivan 1992, 206.
44 Levy 1986, xvi.
45 Mead 1975, 25.
46 Tocqueville 1945, vol. 1, 316. Tocqueville’s pivotal role in the emergence of the civil religion school is discussed at some length by Sanford Kessler, who sees Tocqueville’s intellectual descendants today occupying a middle position in the often heated debate over secularization in contemporary American society. Characterized as “religious fundamentalists,”these commentators are quite eclectic in their politics, united only in their shared assumption that religion is crucial in fostering the mores that sustain freedom. Kessler 1994, 5, 14.
47 Mead 1975, 18.
48 Quoted in Ibid., 20.
49 Quoted in Marty 1987, 42.
50 Herberg 1974, 77.
51 It is easy to see how the justices of the Supreme Court, guardians of the nation’s covenantal document, will naturally be viewed as the carriers of the civil religion. A vast literature in political science is devoted to the sources of the Court’s legitimacy, much of it looking into the mystical ways in which the divinity of the Constitution radiates to the advantage of its official interpreters.
52 Consider, for example, how two civil religion legal scholars address the establishment issue. “[T]he preliminary question before the Court in each Establishment Clause case should be whether the questioned practice involves civil or theological religion. If it involves civil religion, it is permissible; if it involves public acknowledgment of or government sup-port for theological religion, then it will be subject to Establishment Clause scrutiny and may be impermissible.” Maddigan 1993, 18. A second writes: “When faced with questions arising out of the social context of civil religion, courts must somehow tread a line between the expression of shared and constitutive values on the one hand and impermissible establishment on the other.” Mirsky 1986, 1255.
53 Eisgruber and Sager 1994b, 1267.
54 Smith 1984.
55 Abington at 241.
56 McCollum at 231.
57 Walz at 689.
58 Brennan’s strategy was consistent with Chief Justice Burger’s opinion of the Court, which relied upon the benevolent neutrality of the policy. “The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility.” Ibid. at 678. In a 1989 case, Texas Monthly, Inc. v Bullock, the Court overturned a tax exemption for religious periodicals, with Justice Brennan arguing for the Court that, here, unlike in Walz, the exemption was a policy especially designed for the benefit of religion. In Bob Jones University v United States, involving the withdrawal of tax relief from a religious school that practiced racial discrimination on the basis of religious belief, the Court upheld the IRS action in a way that clarified the underlying philosophy of the earlier cases. Chief Justice Burger wrote: “[G]overnmental interest [in racial equality] substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.” Bob Jones University at 604. John Mansfield sees the denial as “necessarily rest[ing] upon a judgment that the religion that preaches racial discrimina tion in education is false in this respect.” Mansfield 1984, 875. He may be right with regard to what the Court intended. If so, what they should have intended is this: Its truth or falsity as religious doctrine is irrelevant to the issue at hand. But in the political arena, it is a mere opinion, which, if incompatible with public policy (and the public philosophy that underlies it), need not benefit from public resources.
59 McCollum at 710.
60 Bellah 1975, 180.
61 This phenomenon has historic roots in American political culture. In their study of religion in contemporary American society, Kosmin and Lachman show the connections between late eighteenth-century political ideas concerning the importance of the individual and American denominations of that time. “An interesting aspect of the great diversity of religions in Colonial America was that they all developed a common image of the American nation. This brought about the extraordinary American development of a generalized religion integrating a society even while the nation had many religions. Within American society, the collective religion became America’s civil religion, incorporating secular as well as religious values and emphasizing a national purpose.” Kosmin and Lachman 1993, 22. This view should be placed within a wider historical perspective. Harold J. Berman, for example, has observed that “Liberal democracy was the first great secular religion in Western history—the first ideology which became divorced from traditional Christianity and at the same time took over from traditional Christianity both its sense of the sacred and some of its major values.” Berman 1983, 3, 38. The most discussed and debated attempt to demonstrate the integration of religious and secular ideas and practices in the United States is Max Weber’s classic study of the Protestant work ethic and the development of American capitalism. It is not necessary wholeheartedly to embraceWeber’s thesis to acknowledge the historical symbiosis between religious and political beliefs. This does not contradict what was said earlier, that religion can also function as a refuge from the values of a liberal order.All of the religious traditions are rich and diverse enough to sustain both supportive and subversive roles.
62 Hamburger 1993, 321.
63 Ibid., 299.
64 As one dissenter, Samuel Stillman, put it, “The authority by which he [i.e., the ‘magistrate’] acts he derives alike from all the people, [and] consequently he should exercise that authority equally for the benefit of all, without any respect to their different religious principles.” Quoted in Ibid., 342.
65 Ibid., 318.
66 Ibid., 350.
67 Donna Arzt has made the useful suggestion that the term association be employed to describe the relationship between religion and the State in Israel. Implying something short of establishment, it entails regulation of, support for, and recognition (as in imprimatur) of religion. Arzt 1991, 32. Some Israeli scholars have also attempted to demonstrate the preferred position in Israeli practice of European Jews over Middle Eastern Jews, particularly in the 1950s and 1960s when modernization and the consolidation of the State were viewed as critical to the success of the Zionist project. See, for example, Cohen-Almagor 1995; and Smooha 1978.
68 There have been many empirical studies of Jewish religious commitment in Israel, all of which suggest that for the great majority of Israelis, being Jewish plays an important role in their lives (in different ways) but is not a way of life. Many of these findings are included in Sobel and Beit-Hallahmi 1991.
69 Section 7a to the Basic Law: The Knesset.
70 Very similar to these views of the observant Justice Elon are the following sentiments of the late secularist Labor Party leader, Yigal Allon. “It is necessary to declare it openly: Israel is a single-nationality Jewish State. The fact that an Arab minority lives within the country does not make it a multinational state. It only requires that the state grant equal citizenship to every citizen of the state, with no differences based on religion, race, or nationality.” Quoted in Lustick 1980, 65. There is, however, a sizable and vocal group of Israeli Jews, largely confined to the academic arena, who call into question the continuing relevance of Jewish nationalism. These “post-Zionists” emphasize the obsolescence of Zionism in Israel today while turning a critical eye to the accepted Zionist narrative of Israel’s past.
71 This of course is what happened to Meir Kahane and his anti-Arab Kach list. Unlike the judicial response to the PLP case, the Supreme Court unanimously upheld the removal of Kahane’s party from the ballot for the 1988 elections. Neiman. Most Jews in Israel found Kahane’s ugly racist attacks on Arabs outrageous and offensive, and had no problem dissociating these views from their understanding of Judaism. But Kahane and his followers insistently maintained that his party’s positions were the true expression of the Jewish faith and tradition. For them, in other words, the Basic Law denied them political and religious freedom. It should be noted, in this regard, that the Declaration’s affirmation of democratic values itself has a specifically religious foundation, as it is “based on the precepts of liberty, justice and peace taught by the Hebrew Prophets.” The Kahane case warrants comparison to rulings by the Indian Supreme Court that are explored in depth in chapters 6 and 7. On the basis of a stump speech in which the Hindu supremacist Balasaheb K. Thackeray called Muslims “snakes,” this leader of the Shiv Sena Party was barred from forthcoming elections, a decision upheld by the Court. At the same time, however, the Court ruled that another politician’s pledge to turn Maharashtra into India’s “first Hindu state” was not an offense under Indian law. What was forbidden was the conveying of a hostile attitude toward other faiths, not the expression of a politically subversive idea. Thus in both India and Israel you can run afoul of the law by voicing hatred toward communal groups, but in the former, such expression does not implicate one in the illegal larger project of undermining democratic institutions.
72 In India, however, the complainants tend to be identified with Hindu revivalism, whereas in Israel the people who see themselves as victims tend to be associated with more secular and less nationalistic Jewish loyalties. Apropos this difference, and relevant to my subsequent discussion of personal law in Israel, Varshney has pointed out that Hindu nationalists insist that Muslims assimilate, rather than maintain their distinctiveness. Varshney 1993, 231. In contrast, Jewish religious nationalists are the most adamant of Israelis in opposing any move that might lead to the slightest integration of the Jewish and Muslim communities. These distinctions receive a more extended treatment in chapter 8.
73 See, in addition to Justice O’Connor’s Establishment Clause formulation, the scholarly discussions by Shklar 1990; Karst 1989; and Spinner 1994.
74 Smooha 1993, 108.
75 Peled 1992, 435.
76 Ibid., 432.
77 Liebman and Don-Yehiya 1989, 48. David Kretzmer suggests that the maintenance of the distinction between rights and privileges is at the root of the otherwise inexplicable Population Registry Law, which requires that all citizens of Israel be registered by “nation.” “Reg-istration of ‘nation’ is irrelevant in determining the rights and obligations of citizens, but it strengthens the dichotomy between the state as the political framework of all its citizens, and the state as the particularistic nationstate of the Jewish people.” Kretzmer 1990, 44.
78 Hamburger 1993, 336.
79 See in this regard Eric Cohen’s comparative analysis of citizenship, nationality, and religion in Israel and Thailand. His study tries to provide an explanation for the Thai polity’s failure, in contrast to the mixed success in Israel, in achieving a harmonious solution to its Muslim minority problem. He finds that Judaism, as a political force in Israel, is mediated through the secular ideology of Zionism, leading to an attenuation in the conflict between the State and its Arab minority. Cohen 1989, 68. “[E]ven when symbols originating in Jew-ish religion were incorporated into the body of the central political symbols of the state, they were not perceived as religious, but as historical national symbols; their religious salience was low not only in the perception of the Jewish but also of the non-Jewish citizens.” Ibid., 70. There are several reasons for the more violent history of the Thai government’s relations with its Malay Muslim minority, but the one that is most relevant in this context is that Buddhism as a political presence has retained its religious significance, so that Muslims tend to perceive demands upon them as infringements upon their religion. “The Thai-Malay conflict, like that between Israel and the Arabs, is essentially a national and political one; but in Thailand it is expressed in a religious idiom, which in Israel, at least for the time being, it is not. It is this religious dimension of the conflict that endows it with its violent character.” Ibid., 87.
80 Ian Lustick has argued that a key to understanding the striking political quiescence of Israel’s Arab minority (at least up to 1980) are the measures taken by the government to achieve religious fragmentation in the Arab community. “[T]he particular programs implemented by the regime with respect to the religious segmentation of the Arab population were designed to preserve these identities and encourage their use as meaningful political categories. These efforts must be understood as part of a general desire to inhibit the emergence of ‘Arab’ as the most meaningful category of political identity and association for Israel’s non-Jewish population.” Lustick 1980, 133. In this sense, the laws of personal status, as well as their earlier incarnation in the millet system, can be understood as the logical extension of a system that in various ways commits itself to the special concerns of a dominant group.
81 This might fruitfully be contrasted with the early policies of the State regarding ethnic communities within the larger Jewish community. As Cohen-Almagor has shown, Israeli nation-building ideology emphasized the need to undermine cultural and traditional particularities in the interest of creating a new kind of Jewish person, the Sabra. Cohen-Almagor 1995, 466. Thus the elimination (or at least major modification) of disparate communal experience was consistent with political aspirations—but characteristically only within the Jewish community.
82 Yosifof at 481.
83 The case involved a statute passed under the mandate, a fact that does not undermine its comparative value, since it presents an underlying theory for the law of personal status that also applies to laws enacted subsequent to 1948. The statute did not absolutely forbid polygamy for Jews, but required that “a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.” Thus the statute sought to bring the criminal law of the state into conformity with Jewish and Muslim law. Because of the different attitudes of the religions toward polygamy, the effect of the law was to make it much more difficult for Jews to engage in the practice.
84 Yosifof 1962, 185.
85 Ibid., 184 (emphasis added).
86 Ibid., 185.
87 Ibid., 187.
88 Ibid., 186.
89 It should be noted, however, that the system of personal law existing in Israel is quite different from what prevails in India. As Marc Galanter and Jayanth Krishnan have pointed in Israel the personal law is adjudicated and administered in religious courts that are an extension of religious institutions. In contrast, in India it is the responsibility of common-law judges functioning in regular State courts to rule on matters of personal law. Galanter and Krishnan 2000.
90 Kymlicka 1989, 211. It is an argument that is developed further in a subsequent work.Kymlicka 1995a. See also Chandhoke 1999. For a nonliberal critique of the comprehensive liberal justification of cultural rights, see Deveaux 2000. For Deveaux, “[T]he value of cultural membership . . . does not reduce [as in Kymlicka] to the ways in which groups foster their members’ personal independence.” Ibid., 254.
91 Yosifof 1962, 195.
92 Consider in this regard the following comment by a Druze Arab member of the Knes-set: “Of all the Arabs in the Knesset today, I’m the one who noticed something in the abor-tion law. This law was passed by the Knesset and therefore must apply to all citizens of Israel, including the Arabs. But the law is drawn from the Halakha. I rose and said: Fellow members, I don’t want this to become a precedent in Israeli legislation, that a law drawn from the Halakha is applied to Moslems and Druze. . . . There was once a law prohibiting polygamy, but that law was not drawn from the Halakha.” Quoted in Hareven 1983, 64.It is not surprising that an abortion statute passed by a predominantly Jewish legislature might have been inspired by Jewish law. It is also not surprising that this would be noticed by a member of a religious minority. The law’s effect, however, is to cause this member to identify with an aggrieved national minority, the Arabs, thus displacing religion onto nationality in a manner that may call into question the legitimacy of the regime’s fundamental distinction between rights and privileges. Maintaining abortion as an issue to be ad-dressed within the separate religious domains of personal law might be morally problematic, but it can also be seen as serving the political purposes of the Jewish majority by minimizing the impact of religious nationalism. Thus it is significant that this Druze member of the Knesset specifically mentions the legal treatment of polygamy as less objectionable, because it was not derived from the Jewish law.
93 Quoted in Hamburger 1993, 366.
94 For some observers too they call into question the commitment of the polity to a secular constitution. For example, the Israeli constitutional scholar Amnon Rubinstein has written, “If religious freedom means not only the freedom to follow and observe one’s religion, but also to be free from religion and religious rites, it exists in Israel only to a limited degree.” Rubinstein 1967, 414. (As a Knesset member and government minister, Rubinstein has worked steadily to introduce constitutional protections for religious freedom.) Even more opposed is Gershon Weiler, whose objection extends to the whole concept of the personal laws. “The very idea of a personal status, something that attached to the individual citizen in addition to his status qua citizen, is in clear conflict with the idea of equality of citizens.” Weiler 1988, 235. To see how these arguments connect to broader debates currently raging among political philosophers, see the collection of essays on multiculturalism and minority cultures in Kymlicka 1995b.
95 Smooha 1978, 63.
96 It also bears at least a faint resemblance to the early American experience, in which establishmentarians and dissenters debated over the best way to deal with the issue of diver-sity. Establishment writers argued with vigor and persistence that religious divisions were a threat to social and political unity. Hamburger 1993, 357. There is evidence, however, that constraints on religious pluralism are loosening somewhat. Thus, for example, it has been decided that secular organizations specializing in pluralist education will receive State funds for the first time. Also, the Supreme Court has ruled that the State must allocate funds to the Reform and Conservative Movements from the Religious Ministry’s budgets for Torah culture and education. And in an eagerly awaited ruling in March 2002, the Court declared that the Interior Ministry was obligated to register Reform and Conservative converts to Judaism, converted by rabbis abroad or in Israel.
97 Chief Rabbi Isaac Nissim, as quoted in Abramov 1976, 360.
98 Quoted in Ibid., 194 (emphasis added).
99 Melman 1992, 7.
100 Rogozinsky at 135.
101 Another way to approach this case would be to see its resolution as consistent with the more particularistic strand in the Declaration of Independence. Justice Berinson refers to the universalistic sentiments of the document and then indicates that they have no constitutional weight in negating the choices made by the legislative branch. But the choice made by the Knesset (to the extent that it reflected a principled determination) can itself be seen as drawing an inference from a particular reading of the Declaration’s affirmation of the Jewishness of the State, and then applying it to the institution of marriage.
102 Arzt 1991, 61.
103 In this regard, Martin Edelman has usefully distinguished between cases where existing arrangements are not explicitly legislatively mandated and those where they are statutorily specified. Edelman 1996, 21. In the first category, the Court has generally supported outcomes favorable to religious freedom interests. Thus, for example, in cases involving the Ministry of Religious Affairs’ supervision of kashrut, the Court has intervened on several occasions to limit its discretionary authority. In the second category, where the Knesset has laid down specific policies favoring Orthodox Jews, the Court has been reluctant to challenge the sovereign legislative will. Particularly with regard to many matters involving marriage and divorce, this restraint has been a source of great and festering frustration to many non-Orthodox Jews. Whether the newly claimed authority to exercise judicial review over laws passed by the Knesset (see chapter 8) will lead to significant changes in this area remains to be seen.
104 The Israeli Supreme Court’s use of the Declaration of Independence as a source for resolving constitutional questions has evolved over the years. The first Court, for example, said that the Declaration “contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal.” Zeev at 89. However, it became a major source for judicial policy-making and judicial instruction in the principles of the polity. Indeed, judicial activism in Israel has meant pursuing the rights-oriented implications of the Declaration of Independence. In recent years, this activism has been reinforced by the 1992 adoption of a Basic Law on Human Dignity and Freedom, which, as interpreted by the Supreme Court (especially the chief justice), has inaugurated a “constitutional revolution”featuring judicial review over the actions of the legislature. Some implications of this revolution are explored in chapter 8.
105 Shakdiel at 240.
106 Ibid. at 272.
107 Ibid. at 277.
108 Kiryas Joel at 2488.
109 Eisenstadt 1992, 151.
110 Ibid., 123.
111 Tocqueville 1945, vol. 1, 316.
112 Ibid., 321.
113 Ibid., 312.
114 Tocqueville 1962, vol. 3, 480. Tocqueville went on to describe Hinduism as abominable , although his complete appraisal of the religion is more restrained and mixed than that might suggest. However, he was more pessimistic than the founders of independent India regarding the prospects for significant government-sponsored social amelioration. “The immense majority of Hindus belong to the lower castes. No matter what happens, their birth has placed them poor and always on the lowest rungs of the social ladder where one has little to hope from the government and little to fear from it. They emerged from the foot of Brahma and not from his head; this misfortune is without remedy. What difference does it make to them who is their master! Revolutions are really only interesting to the upper castes, which are composed of a very small number of men. Thus is the power which rules millions of subjects definitely supported only by the interests or the efforts of a few individuals.” Ibid., 448.
115 Ibid., 544.