The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Growing up as a Jew in legendary Calumet City, Illinois (or here, here and here) gave me a somewhat different perspective on Christianity and antisemitism than Jews growing up in, say, Skokie or Scarsdale. Cal City was predominately Polish Catholic, with 4 Catholic churches and several Catholic grade schools serving a population of 28,000. I was one of 4 Jews in my high school class of 400. In grade school, I played a shepherd kneeling down before the manger in our public school's annual Christmas pageant. In seventh grade, I had the starring role as Scrooge in our public junior high school's production of A Christmas Carol (which was directed by our Jewish band leader). And I heard antisemitic remarks on a regular basis, getting into a fist fight with another boy on the playground in second grade who called me a "dirty Jew."
So you can imagine that I became a strong supporter of the separation of church and state. I still am, but with two important and relatively recently acquired caveats. The first is that, since I became an originalist in the late 1990s, I have paid closer attention to the text of the Establishment Clause of the First Amendment. Although I have not written on the subject, nor studied it with the seriousness required to make me a true expert, I have come to believe that a constitutional bar on established churches is not a bar on all religious expression in the public sphere. For example, federal offices may close on Christmas, and prayers may be said in Congress before a session begins.
Perhaps more importantly, unlike the protections of the rights of freedom of speech, press, assembly and the free exercise of religion, I no longer think that the Establishment Clause of the First Amendment concerned an individual right or liberty. Instead, as Justice Thomas has insisted, "Congress shall make no law respecting an establishment of religion" meant that Congress could neither establish a national religion nor "disestablish" a state religion.
In this way, the succinctly-worded First Amendment is both antiestablishmentarian at the federal level and antidisestablishmentarian at the state level. And if it did not protect an individual right, the Establishment Clause did not refer to a right that was also among the "privileges or immunities of citizens of the United States," which was secured against violation by state legislatures by the 14th Amendment. It was not, for example, among "the personal rights guarantied and secured by the first eight amendments of the Constitution" listed by Senator Jacob Howard in his speech to Congress explaining what the Privileges or Immunities Clause protects.
In short, on this reading of the 14th Amendment, neither Congress nor the federal courts have any say in how states promote religion, up to and including a state-established church – provided that states do not "prohibit" or "abridge" anyone's free exercise of religion. Although I remain open to persuasion to the contrary by evidence of original meaning of which I am unaware, I now think that holding a Christmas play in a public grade school does not violate the federal constitution. Along with the 16th Amendment authorizing an income tax, this is one of ways my commitment to originalism yields constitutional conclusions at odds with my own policy preferences.
But today, on Easter, a second change in my outlook has particular resonance. For, as I look around the world, I now see something I never thought I would: I see innocent Christians being persecuted and hunted down and murdered because of their religion, just like Jews. In areas of the world that have relatively recently been rendered judenfrie, "Judenrein," Christians are being massacred and their churches destroyed. Christians are now the subject of the same sort of genocide to which the Jewish people were subjected in Europe and which is now being threatened in the Middle East.
Of all the Jewish holidays, Passover has always meant the most to me, and it is one that we have always celebrated in our home every year. Just as the Sedar has meant even more to me in recent years than it did before, with massacres like that in Garissa al-Shabab, I feel differently today than I have on any previous Easter. As a Libertarian, Contrarian, Nonobservant, but Self-Identified Jew, I feel today a degree of solidarity with practicing, believing – or nonobservant but self-identified – Christians that I have never felt before. Where it once felt incongruous, it now seems entirely fitting that Passover and Easter coincide.
So today, I wish all my Christian friends, and Christians everywhere, a heartfelt "Happy Easter."
UPDATE: For a thoughtful contrary view on the Establishment Clause and the Fourteenth Amendment see, Kurt Lash's 1995 article, The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle.