HEARING ON RELIGIOUS LIBERTY AND THE BILL OF RIGHTS HUNTER COLLEGE, NEW YORK CITY July 10, 1995

TESTIMONY BY RABBI ARTHUR HERTZBERG Rabbi Emeritus of Temple Emanu-El, Englewood, New Jersey; former President of American Jewish Congress; and founding Board of Director of The Interfaith Alliance

Mr. Chairman and all of the other members of the subcommittee:

Some thirty years ago, in the immediate aftermath of the religious tension which surrounded the election of the Catholic John F. Kennedy to the presidency, I spent a year doing little else other than studying the question of the place of religion in American society. In fact, I co-authored a book on this subject with a distinguished Catholic and Protestant. I came to the conclusion that the separation of church and state in America asked something very new and quite remarkable, of all the religions in America. In theory, almost everyone of a religious tradition asserts their own theology as the truth -- the only truth-- for all of humanity. Most go even further and insist that they must use every available means to persuade others of the truth, as each tradition defines and proclaims it. In the United States, we agreed, when the Constitution was ratified, that each religious tradition has the right to hold its own view of itself, but -- and that but is crucial -- the religions of America agreed to self-limitation. They agreed that no church or synagogue - - or mosque or ashram -- would try to use the state to impose its will or views on the others. The religious communities agreed to a new "social compact": the survival and free flourishing of each of the traditions is a good to be protected and encouraged by the behavior and policies of all the others. It is this social compact which is now under attack. I have come here today before you to defend this hallowed American doctrine.

Let me deal immediately with two contentions that have been at the center of public discussion in these hearings on "religious liberty and the Bill of Rights". These arguments have been frequently used by those who advocate state-sponsored prayer and other forms of state-sponsored religious activity. Those who keep saying that "there ought to be a new law" offer anecdotal evidence to support their point that religion is being assaulted in American public life and that school children, in particular, have been widely abused by being denied their right to say their personal prayers within public schools. But this is not convincing evidence: There are at least as many stories about children who have been harassed for remaining silent during the singing of Christmas carols, or who have been taunted and maligned for exercising their constitutional right to walk out of the room when public prayers have been recited. The second contention is that some new law, or perhaps even a constitutional amendment, will right these wrongs, and especially the wrongs that are being done to small children, who might be prevented form saying grace for themselves before or after meals in school lunchrooms.

Such laws already exist. It is long established that the right to private personal prayer anywhere is protected. Every citizen is just as protected in his or her right to be different. He or she has a right to his or her faith, or even to the lack of any faith. More laws will not create more sensitive and discriminating teachers. We must teach all the teachers the distinction between personal religious speech, which is absolutely protected, and all forms of religious coercion, which are, without a doubt, unconstitutional.

Many of those who advocate the need for new laws claim they want to protect the original intent of the American Constitution. But the writings of the founders refute this claim. Let us examine the writings of James Madison, who although he firmly believed in the superiority of Christianity, nevertheless pleaded for the separation of church and state. The arguments of Madison's Memorial and Remonstrance of 1785, to the legislature in Virginia, are often quoted as the authoritative expression of what was in the mind of the future author of the First Amendment. He believed that church-state separation was the best way not only of protecting religious liberty, but also of promoting the vitality and integrity of his own religious community. Above all, he was concerned that attempts to defend the establishment of religion would actually result in what he called "proscribing all difference in religious opinion." According to Madison, we must allow for full equality and equal freedom of expression of all religious traditions if we are to ensure the health and prosperity of both the State and our religious communities.

Madison thus insisted that the separation of church and state did not give the Christian majority a rationale for complaining that its rights in the public arena had been lessened. The church in Virginia, and those in several other colonies, were encouraged to flourish under their own power, but they were forbidden, even for their own good, to coerce or lean on other faiths and opinions.

That part of the American society to which I belong, the Jewish community, remains committed, in its overwhelming majority, to the principles advocated by Madison. More than ninety percent of the organized Jewish community has repeatedly reaffirmed its support of total religious neutrality in all state supported institutions. I need not be high- sounding, theoretical, to explain the reason for this Jewish opinion. Public prayer in America usually means Christian prayer. In the nineteenth century, when the public schools were dominated by Protestant religious forms, the Roman Catholic community brought suit several times against reading the Bible in public schools, because the texts were always read from Protestant translations. Public prayers in the schools, then were Protestant prayers, so the Catholics sued to have them banned. Most Jews remain committed to the position of the Catholic Church more than a century ago. Those who are raised in their own unique religious sensibility should not be forced to live in the atmosphere of other peoples' religion. I remember as a child, in the public schools in Baltimore, hearing the Christian prayers in class and at assembly so often, that I was reminded everyday of something against which I thought the Constitution protected me. I thought I was being taught in schools that a true American is a Christian and that I, therefore, was a permanent outsider. I sit before you today because I do not want that to happen to my grandchildren, in this land of liberty. I do not want them to be overwhelmed in the schools by religious symbols and words which come from other faiths. It will not help me if such practices are made legal by new language in the law. It will be a step towards the enactment of Christianity, or at least of its atmosphere, in the public schools.

Let us not invent new formulas which will enable the religious purposes and sensibilities of one part of our society to coerce, even subtly, all of the rest of us. Surely, we can protect the right of children to say their prayer, their various ways, without making creches, with an occasional addition of Hanukah menorahs, an inescapable part of the public school scene. I would be less than candid if I did not add that the Jewish community is eager to join in the defense and promotion of religious expression in American. However, we must not allow any group or individual to manipulate our nation's strong religious traditions to benefit their own political or religious agenda. This country belongs to all of its citizens and to all of its spiritual traditions.