Commentary Magazine


Festivals and Judges

The Twelve Weeks of Christmas

The last decorations will surely have been taken down from the lampposts by Lincoln’s birthday, so the end of the Christmas season is in sight. The Jews of America are completing another cycle of ease and unease—in November, Thanksgiving; in December, Christmas.

Thanksgiving seems made to order for Jews. As a friend and colleague has noted, it is celebrated by eating, and Jews eat rather than drink. Again, what one eats is not the flesh of an unclean animal or a fish without fins and scales, but a thoroughly kosher bird. And what comes out of the mouth on Thanksgiving is equally Jewish—both the message and the tone. Thanksgiving is the great point of intersection between Judaism and the sacral tradition of America. The Spanish-Portuguese Congregation’s Thanksgiving rite, which goes back to the 18th century, consists largely of psalms, including two from the Hallel.

In my town three Jewish and two Protestant congregations came together in a Conservative synagogue on the night before Thanksgiving, and aside from having to cover their heads and turn pages from right to left, the Christians seemed to find nothing exotic or inapposite about what was done and said. After all, the Methodist minister said in his sermon, thanksgiving psalms were recited in the Temple at Jerusalem long before the rise of Christianity. “We Gather Together” was also sung. It, too, is at home in a synagogue.

A rabbi told me that it was the Protestant ministers who had suggested a service on Wednesday night. In their experience attendance was likely to be unsatisfactory Thursday morning, because of the greater attraction of golf or sleeping late. They had heard that Jewish congregations did better on Friday night than Saturday morning, and for Thanksgiving they wanted to try Wednesday night. The experiment was successful. The ‘erev-Thanksgiving service next year will be held in one of the churches and the sermon will be preached by a rabbi.

(Reform Judaism in the United States tried two alternatives to its Saturday-morning service, which is not well attended: Sunday morning and Friday night. People found it as easy to stay away on Sunday as on Saturday, but late Friday night worked. Afterward the Conservatives took over the emphasis on Friday night, and now their Saturday-morning service can be so much the private domain of Bar Mitzvah boys, families, and guests that anyone else is apt to feel like a gate-crasher. Protestants have been complaining for years about their Sunday-morning attendance. Will they follow the Jewish example? And, since Saturday night will not do, will it be Friday night for Methodists and Baptists too? That would be a significant Jewish contribution to American religious life.)

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In the old days, say ten or fifteen years ago, Christmas did not start until after Thanksgiving. Now the merchants seem to be starting it earlier (and ending it later), and in the midst of our Thanksgiving weal we taste our Christmas woe. As Thanksgiving represents the convergence of the Jewish and the American, so Christmas represents their divergence. Christmas is inherently problematic for Jews—and ex-Jews—while it is not problematic in the same way even for ex-Christians. A Jew can have a tree, hang stockings on the mantelpiece, and send out cards, but if he chooses “Merry Christmas” cards he will have an uncomfortable moment when he asks himself whether “Season’s Greetings” would not be in better taste, and if he does his best for his children with tree and Santa Claus, he may still find it necessary to draw the line at a wreath on the door. The two or three months of Christmas remind us every year, against our will, that there is an America of people and things and custom that is not the same as the America of the great documents of freedom and not the same, either, as the America of Thanksgiving. In Christmas America, whether we are of the second or of the seventh generation, it is easy for us to feel that we are not quite native.

It is all there in “America,” the usual anthem when I was in school. “Sweet land of liberty” is ideological America, the country of the mind, whose doctrines are the Declaration of Independence and the Bill of Rights and Enlightenment and liberal Supreme Court decisions, to which one gives intellectual assent. In that America, Jews, not as the seed of Abraham or even as the children or grandchildren of immigrants from Central and Eastern Europe, but as liberals and adherents of the Enlightenment philosophy, are rooted citizens, while it is Madison Grant and Lothrop Stoddard—and perhaps Henry Adams, as he himself said, bitterly, about his place in the America of bustle and ambition—who are aliens.

“Land of the Pilgrims’ pride” is good for the Jews too. It is the America of Thanksgiving and its Pilgrims stand for all the immigrants who have ever come here, drawn to the new country and driven out by the old. Jews have had more cause than most to give thanks for that America, not least because its Thanksgiving has such a Jewish spirit about it and speaks in such a Jewish idiom. Still, “Pilgrims” can also mean the real, physical Pilgrims, Mayflower Anglo-Saxons. Then it leaves us on the outside, because it merges with the “land where our fathers died.”

That is the opposite of ideological America. It is ancestral, hereditary, almost biological. Few Jewish families have been here long enough for most of us to be able to say with any conviction that this is the land where our fathers died, but even those of us who are or could be Sons or Daughters of the American Revolution must perceive a fatal ambiguity in the words. We had our handful of Haym Salomons, but no Founding Fathers. In the America of the Christmas months Jews cannot spontaneously enjoy the family celebration. We feel like children who were adopted, so late in life that we cannot pretend to ourselves that there is no difference. Time has not controverted the prediction made almost a generation ago by Warner and Srole in their Social Systems of American Ethnic Groups, that an honorary birthright would be granted less readily to Jews than to others of European stock.

Since one of the three Americas, and not the least important, is a land of family (or clan) and memory, I am always startled when critics, often Jews, explain something about American literature by the standard assertion that rootlessness, or lack of tradition, or Americanness as an act of will rather than a matter-of-fact and natural identity, is the essential clue to America. In their own lives the critics might not want to belong to the societies revealed to us by Faulkner or Auchincloss or Cozzens or Marquand or O’Hara, but would they be accepted in those societies even if they wanted to be? Though Jewish literary intellectuals sometimes deplore America’s traditionlessness, it may be that their definition of America as personal-volitional is not less optative and contrary to fact than the desire of ordinary Jews to believe that America is the sweet land of liberty and the land of the Pilgrims’ pride, but not the land where our—which is to say, their—fathers died.

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Two Decisions

As the Romans said about books, Supreme Court decisions have their destinies. Justice Black’s majority opinion in the Regents’ Prayer case, which was handed down in June, suffered no lack of public attention or comment, whereas a year earlier a decision (or cluster of decisions) in four cases arising out of Sunday-closing laws had gone relatively unnoticed. Because it struck down the Regents’ Prayer as an impermissible breach in the wall of separation between church and state, the Supreme Court has probably never stood higher in Jewish esteem. Most Jews apparently do not know that in two of the Sunday-closing cases the Court ruled against Jews who wanted an exemption because they close their businesses on Saturday.

In one of those cases, having to do with a kosher market in Massachusetts, Chief Justice Warren’s majority actually reversed a lower court which had held that the state law was sectarian and discriminatory in enforcing the Christian at the expense of the Jewish Sabbath. In general, the majority found that Sunday-closing laws are neither sectarian (though in the Massachusetts law Sunday is always “the Lord’s day”) nor discriminatory; that to be sure, they had their origin in Christianity and Christian influence upon government, but that now they are secular; and that if forbidding work on Sunday to those who abstain from work on Saturday forces them to go out of business, too bad, they must take their loss. Justice Frankfurter, who took no part in the Regents’ Prayer decision, concurred with the majority in the Sunday cases—perhaps, in some measure, because his doctrine of judicial restraint teaches reluctance to overrule legislatures. But Warren, like Black, is a judicial activist, and his ruling against the Jews in the Sunday cases is unlikely to have arisen from that reluctance.

“The dissenting opinions were impressive. Justice Douglas said that Sunday laws are by their nature religious, that they violate the separation of church and state, and that everyone should be allowed to do business on Sunday. Justices Brennan and Stewart upheld the restriction on those who wish to do business on Sunday for merely commercial reasons, but were indignant about the refusal to exempt observers of the Jewish Sabbath. Brennan declared that the “effect [of Sunday laws without exemptions] is that no one may at one and the same time be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. . . . What overbalancing need is so weighty in the constitutional scale that it justifies this . . . limitation of appellants’ freedom? . . . It is not even the interest in seeing that everyone rests one day a week, for appellants’ religion requires them to take such a rest. It is the mere convenience of having everyone rest on the same day. . . . In fine, the Court, in my view, has exalted administrative convenience to a constitutional level high enough to justify making one religion economically disadvantageous. . . . The Court forgets, I think, a warning uttered during the congressional discussion of the First Amendment itself: ‘. . the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand. . . .’

Stewart, in turn, denounced “a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no state can constitutionally demand. For me, this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.”

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In the Regents’ Prayer case Stewart was the lone dissenter, and Douglas concurred but did not join with the majority. Both in that and in the Sunday cases each was consistent with himself and each delivered an opinion that had internal coherence and logic—unlike Warren’s majority in the Sunday cases and Black’s (which included Warren) in the Regents’ Prayer.

Douglas’s position, explicitly or implicitly, is this. Whatever may be the historical and contemporary relation among culture, society, and religion in the United States, our law and government must be secular. Consequently, there must be no legal or governmental support or encouragement of religion, or aid to religion. This means that not only prayers in public schools, however nonsectarian, are unconstitutional, but also chaplains in Congress and the armed services, chapel at the service academies, religious services in federal hospitals and prisons, religious proclamations by the President, use of the Bible for administering oaths, “In God We Trust” on our coins, the mention of God in the Pledge of Allegiance, tax exemptions and postal privileges for religious organizations, tax deductions for contributions to religious organizations, and the words that are part of the ritual for convening the Supreme Court itself: “God save the United States and this honorable court.” (He mentions these, and more, in the Regents’ Prayer case.) Similarly, law and government have no business remembering the Sabbath day, Christian or Jewish, to keep it holy. Douglas is insisting that law and government should be religion-blind, much as liberals used to insist that in matters of race, law and government should be color-blind.

Stewart, on the other hand, does not believe that government and law can or should be separated from society and culture. The no-establishment and religious-freedom clauses are foundation stones of American democracy, he would say, but the adjective is as significant as the noun. In America religious freedom and the mutual independence of church and state have not been threatened by such things as tax deductibility for contributions to religious institutions. On the contrary, Stewart believes, they have been strengthened. And it is precisely because he considers governmental benignity toward religion (but not toward any denomination) as permissible or actually desirable that he is concerned about the unfair treatment of any religious minority. Realizing that the Christianity of most Americans and the Christian influences on American culture and institutions must affect the public life, he is especially careful to protect the right of Jews not to be made to conform to Christian usages.

In the Regents’ Prayer case the Warren-Black majority refused to go as far as Douglas, but the distinction they drew between the Regents’ Prayer and the Supreme Court prayer—the former religious, the latter ceremonial or patriotic—is unconvincing. Douglas has the better of that argument, and so has Stewart: the Regents’ Prayer and the Supreme Court prayer must be offensive or inoffensive together. But not only are Warren and Black inconsistent within their decision on the Regents’ Prayer, they are also inconsistent between their Regents’ Prayer and their Sunday-closing decisions. If a nonsectarian prayer is unconstitutional, a fortiori so should a state’s enforcement of “the Lord’s day” be. Yet the majority could bring itself to deny that “the Lord’s day” is the Christian Sabbath! (“. . . the objectionable language is merely a relic”) It is not hard to imagine how they would have dealt with that relic if they had wanted to rule against the Sunday law rather than for it.

One lawyer told me that he welcomed the decision against the observers of the Jewish Sabbath because, in his opinion, a decision for them would have established a bad precedent, encouraging all sorts of exceptions for minority religions and thus weakening the separation principle. I am sure that other Jews besides him assign less value to protecting observers of the Jewish Sabbath against discrimination than to rejecting all sectarian special pleading, so called. Their admiration for Warren has not abated on account of his decision in the Sunday cases. I understand them, though I do not agree with them. What I do not understand is why a religious movement and a scholarly institution that say they are dedicated to strengthening Sabbath observance among Jews have continued, even after Warren’s decision, to go out of their way to shower honors upon him.

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The immanent logic of Warren and Black’s Regents’ Prayer position must lead them to Douglas’s, though in 1962 they stopped short of it. Then tax deductibility for contributions to Harvard might be unconstitutional, as aiding the Harvard Divinity School; together with deductibility for contributions to UJA and Jewish federations, because these are, after all, sectarian. Thanksgiving might be unconstitutional. The use of policemen to supervise the heavy traffic at the congregational religious school my children attend might be unconstitutional. I doubt that that is what we really want. And I doubt that we really think that the Supreme Court majority can go much farther toward full agreement with Douglas before the Congress and the state legislatures and the people amend the Constitution to legitimize breaches in the wall of separation that would retrospectively make the breaches we now complain of look like pinholes.

But even an uncontested definition of church-state relations in the spirit of Douglas, which raises higher the wall of separation, will not produce true religious neutrality in our public life. Sunday will still be the primary day of rest in the civil service. And there will always be a Christmas.

In a way, history has provided us with a laboratory experiment. Between 1905 and 1940 the Third French Republic had as much separation between church and state, legally and institutionally, as has ever been known in the West. France was committed to a religious neutrality sometimes indistinguishable from irreligion. Yet in that France, where all religions were ignored, Judaism was more ignored than Christianity. Children went to school—and still go—on Saturday, not Sunday. In England, with much less separation between church and state, there is more regard for the religious sensitivity of Jewish children, or simply their dignity.

Suppose an America with a religious neutrality something like that of the Third French Republic, and suppose another day added to the school week. Which would it be, Saturday or Sunday? A society truly neutral about religion, or even a truly neutral legal and institutional structure, never was and can never be.

The preference of many Jews for Douglas’s decisions over Stewart’s is one more symptom of the old modern-liberal-Jewish weakness for the hypothetical and abstract, to the neglect of the real and concrete. Still, there is a certain visionary quality about it that is in some sense admirable. Not so a preference for Warren’s decisions. Warren has deserved well of the Republic, and we should support him against the yahoos. That is enough. If he be not so to me, what care I how fair he be?

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“The Jewish Vote” Again

Time was not alone in talking, erroneously, about a Jewish vote for Morgenthau against Rockefeller in the election for governor of New York. When the Democrats nominated Morgenthau, they obviously hoped that his name, made famous by his grandfather and father, would appeal to Jewish voters. Yet the chances are that proportionately more Jews voted for Rockefeller in 1962 than in 1958, when his opponent was the incumbent Harriman, not a Jew. At the very least, they did not vote less for Rockefeller in 1962 than in 1958. Why that was so is unclear. Rockefeller is not strongly separationist in church-state questions, and in any event conscientious Democrats (or liberals) might be expected to reason that since a victory for Rockefeller would make him the front-runner for the Republican presidential nomination, he should be cut down.

Perhaps they did not want to cut down a liberal Republican, being more interested in preventing the nomination of a reactionary. (Like everyone else in New York State, they liked the liberal Republican Senator Javits, who won by a much larger majority than Rockefeller.) Perhaps they were unimpressed by Morgenthau, or resented the assumption that they would find a Jewish candidate irresistible. Perhaps they simply were not hungry. There were plenty of Jewish candidates for other high offices.

It is still safe to affirm that Jews vote less for a candidate as “one of our own” than any other comparable group in the United States, including white Anglo-Saxon Protestants where they are a minority.

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