Jews and Religious Liberty

Both as individuals and as a group, Jews have stood in the forefront of many important struggles for religious liberty in the United States. The dedication of Jews to American religious freedom reflects their long history of persecution abroad; their position until recently as the only numerically significant non-Christian group in the United States; and their prominence in the legal, political, and intellectual life of the nation. As members of the nation’s most visible religious minority, they have been important beneficiaries of the free exercise and Establishment Clauses. Their treatment by the Christian majority has provided a measuring rod of the limits of American religious toleration.

Since colonial times, Jews have found in America a haven from persecution. Even here, however, Jews have suffered from prejudices and until recent times have encountered various forms of legalized discrimination. The small number of Jews who settled in the colonies gradually acquired freedom of worship, but all of the colonies at least formally barred Jews from voting and holding public office. In most of the colonies, Jews were required to contribute to the financial support of established churches. The hope of full political emancipation under a republican government may help to explain why Jews tended to favor independence during the American Revolution.

Although most states after the Revolution removed at least some disabilities from Jews, many forms of institutionalized political discrimination lingered for a long while. Since the establishment and free exercise clauses of the federal constitutions served only as limitations on federal power until the middle of the twentieth century, states were not bound by the free exercise and Establishment Clauses of the U.S. Constitution, even though many state constitutions contained similar provisions. Until well into the nineteenth century, several New England states imposed taxation for the support of Christian religions. Jews could not vote or hold public office in Connecticut until 1818, in Rhode Island until 1842, and in North Carolina until 1868. Meanwhile, many states continued to restrict legal testimony by Jews. Some state courts upheld discrimination against Jews on the ground that Christianity was part of the common law.

Although the Jewish population grew steadily throughout the nineteenth century and burgeoned early in the twentieth century, Jews continued to encounter many painful and ominous reminders that their legal status was precarious. Jewish insecurity was exacerbated by the continuation of persecution of Jews in other nations and by the persistence of anti- Semitic prejudices in the United States. Discriminatory hiring practices and quotas on admission of Jewish students to universities remained widespread until after the Second World War.

Widespread laws requiring the closing of most businesses on Sundays were a special source of frustration throughout the nineteenth century and most of the twentieth. These laws imposed special hardships on the many Jewish business owners who closed their shops on Saturday, the Jewish Sabbath. Although most legal challenges were unsuccessful, the ongoing campaigns against these so called ‘‘blue laws’’ helped to forge a tradition of legal activism in support of religion and strict separation of church and state.

Jewish opposition to Sunday closing laws culminated in two U.S. Supreme Court decisions, Gallagher v. Crown Kosher Super Market of Massachusetts (1961) and Braunfeld v. Brown (1961), in which the Court rejected arguments by Orthodox Jewish merchants that the closing laws violated both the establishment and free exercise clauses and constituted a denial of equal protection of the laws. A narrowly divided Court held that the statutes were primarily secular in purpose and that they advanced a legitimate state interest by encouraging a uniform day of rest. The Court contended that exceptions would confer unfair economic advantages and present difficult enforcement problems. In one of the dissents, Justice Potter Stewart complained that the Pennsylvania law ‘‘grossly violate[d]’’ the free exercise clause by offering an Orthodox Jew ‘‘a cruel choice’’ between ‘‘his religious faith and his economic survival.’’ Although Sunday closing laws have continued to survive constitutional challenges, legislatures have tended to eliminate them in response to the growing secularism and commercialization of society.

Jews also have been sensitive to Protestant Christian practices in the public schools. Unlike Roman Catholics, who established a widespread network of parochial schools, Jews generally preferred to remain in the public schools, which they regarded as providing unique opportunities for assimilation and the erosion of anti-Semitism. Only since the late twentieth century have Jews created significant number of Jewish day schools. Jewish support for an 1869 Cincinnati ordinance that prohibited religious instruction in public schools culminated in a landmark decision of the Ohio Supreme Court, Board of Education v. Minor (1873), which upheld the law on the ground of religious freedom.

Jewish opposition to religious exercises in the public schools contributed to the U.S. Supreme Court’s decisions during the early 1960s prohibiting prayer in the public schools and the reading of the Bible for devotional purposes. Jewish individuals and groups were active in opposing the New York Board of Regents’ prayer that the Court’s decision in Engel v. Vitale (1962) found to violate the Establishment Clause. Two of the five plaintiffs in that case were Jewish, and amicus briefs were submitted to the Court by the National Jewish Community Relations Advisory Council (NJCRAC), the Synagogue Council of America (SCA), the American Jewish Committee (AJC), and the Anti-Defamation League (ADL). The same organizations were the only religious organizations to submit briefs in School District of Abington Township v. Schempp (1963), in which the Court declared that the Pennsylvania Bible reading law violated the Establishment Clause. Jews have remained vigilant in their opposition to religious intrusions in public education.

Even though Jews often have benefited from judicial decisions concerning religious freedom, Jews generally have lost cases before the Supreme Court concerning public accommodation of their special religious concerns. In addition to their rulings in the Sunday closing cases, the Court in Goldman v. Weinberger (1986) upheld an Air Force prohibition on unauthorized head covering that had been challenged by an Air Force psychologist who wore a yarmulke. In its five-to-four decision, the Court emphasized that the judiciary should exercise special deference to the needs of the military. In a sharp dissent, Justice William J. Brennan dismissed as ‘‘totally implausible’’ the military’s argument that the wearing of a yarmulke threatened group identity, declaring that ‘‘a yarmulke worn with a United States military uniform is an eloquent reminder that the shared and proud identity of United States servicemen embraces and unites religious and ethnic pluralism.’’ The Air Force later repealed the prohibition.

In a 1994 decision, Kiryas Joel School District v. Grumet, the Court invalidated a New York law that had created a special public school district for the education of handicapped children who were members of the Satmar Hasidic sect. The state had created the school district because the Orthodox children were uncomfortable attending public schools with persons whose traditions differed from their own. The Court held that the statute violated the Establishment Clause by conferring governmental benefits and powers on a group that defined itself in terms of religion in a manner that did not necessarily prevent religious favoritism. Three dissenting Justices emphasized that the statute involved no public aid to religion and did not mention religion.

Jewish organizations have achieved widespread acclaim for their active participation in a broad spectrum of cases involving legal and moral issues. Early in the twentieth century, Reform Rabbi Stephen S. Wise was instrumental in establishing the Joint Committee on Social Action, and Conservative Judaism soon formed a counterpart. As early as 1925, the AJC submitted an amicus brief in Pierce v. Society of Sisters (1925) in successfully opposing the constitutionality of an Oregon law that required all children to attend public elementary schools. Jewish organizations were particularly vocal in demanding the dissolution of segregation and other barriers to equality for African Americans. Various Jewish organizations have frequently filed briefs on their own behalf and jointly with non-Jewish organizations such as the American Civil Liberties Union. Briefs submitted by Jewish organizations in civil liberties cases have received much praise for their superior quality.

Despite widespread Jewish support for scrupulous separation of government and religion, Jews during recent years increasingly have expressed fear that rigid separation will undermine all religions, erode public morality, and exacerbate interfaith conflict. Although misgivings about separationism have appeared in all branches of Judaism, hostility against strict separation has been most pronounced among Orthodox Jews. Many Orthodox Jews opposed the Supreme Court’s prayer and Bible reading decisions, and others have actively supported public aid to yeshivas and other non-public schools, the placement of menorahs on public property, and school vouchers.

Jews have made major contributions to American law as lawyers, judges, and academics. Seven Jews have served as associate justices of the U.S. Supreme Court: Louis D. Brandeis (1916–1939); Benjamin N. Cardozo (1932–1938); Felix Frankfurter (1939– 1962); Arthur J. Goldberg (1962–1965); Abe Fortas (1965–1969); Ruth Bader Ginsburg (since 1993); and Stephen J. Breyer (since 1994).

WILLIAM G. ROSS

References and Further Reading

• Borden, Horton. Jews, Turks, and Infidels. Chapel Hill: University of North Carolina Press, 1984.
• Cohen, Naomi W. Jews in Christian America: The Pursuit of Religious Equality. New York: Oxford University Press, 1992.
• Dalin, David G., ed. American Jews and the Separationist Faith: The New Debate on Religion in Public Life. Washington, D.C.: Ethics and Public Policy Center, 1993.
• Dinnerstein, Leonard. Anti-Semitism in America. New York: Oxford University Press, 1994.
• Feldman, Egal. Dual Destinies: The Jewish Encounter with Protestant America. Urbana: University of Illinois Press, 1990.
• Sachar, Howard M. A History of the Jews in America. New York: Knopf, 1992.

Cases and Statutes Cited

• Board of Education v. Minor, 23 Granger (23 Ohio St.) 211 (1873)
• Braunfeld v. Brown, 366 U.S. 599 (1961)
• Engel v. Vitale, 370 U.S. 421 (1962)
• Gallagher v. Crown Kosher Super Market of Massachusetts, 366 U.S. 617 (1961)
• Goldman v. Weinberger, 475 U.S. 503 (1986)
• Kiryas Joel School District v. Grumet, 512 U.S. 687 (1994)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925)
• School District of Abington Township v. Schempp, 374 U.S. 203 (1963)