National Day of Prayer

The recent district court case of Freedom from Religion Foundation v. Obama (2010) has caused quite a controversy because U.S. District Judge Barbara Crabb ruled that the National Day of Prayer is unconstitutional.  In spite of the ruling, she has decided to stay her ruling due to the anticipation of appeals, which should be telling because her actions are "saying" that even she thinks it'll be overturned.

Does a National Day of Prayer violate the Establishment Clause?  Based on my blog series these past few days, I hope you know that the answer is a resounding NO!  Whose religion is being established here?  Even though there are a lot of Christians participating in this event, it is a non-coercive event in which people of all faiths partake.  Just to re-iterate that last part, 1) the government is not forcing you to pray, and 2) this is for people of all religious backgrounds, not just Christians.

Leaving constitutionality out of this for a moment, prayer is something more than just a Christian practice. Prayer is a universal expression of man's angst and desire to connect to a higher, transcendent being, whether that would be Hashem, Buddha, Allah, Jesus, or Mother Nature.  Short of your extreme nihlists, this is a yearning that every human has.  I find that the universality of prayer is precisely why there should be a National Day of Prayer.  Every American, regardless of belief, can come together in a pluralistic environment to pray.  The statement that is being made is that in spite of difference in religious background, we are all human and we desire prayer.

I will end this blog post with a quote from Obama's 2009 National Day of Prayer proclamation.  And I don't do so because I think he's a wonderful president (obviously!), but because he's a great orator, and in this instance, he's correct:

"Let us also use this day to come together in a moment of peace and goodwill. Our world grows smaller by the day, and our varied beliefs can bring us together to feed the hungry and comfort the afflicted; to make peace where there is strife; and to lift up those who have fallen on hard times. As we observe this day of prayer, we remember the one law that binds all great religions together: the Golden Rule, and its call to love one another; to understand one another; and to treat with dignity and respect those with whom we share a brief moment on this Earth." 

   

And let us say Amen!

6/28 Addendum: The text of the law itself states the following:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to G-d in prayer and meditation at churches, in groups, and as individuals.

I am not bothered by the bit where it mentions G-d.  The technicality by which I am bothered, which was pointed out by a lawyer I know, is "at churches."  Keeping in mind that this was written in 1952, the only way to be a "good American" was to be a "faithful Christian."  The fact that you go to church to pray, rather than a house of worship, makes the law as written a violation of the Establishment Clause.  However, if they were to modify the law to make it more inclusive, I would find no Constitutional violation.   

Religious Displays on Public Property

I find this topic to be a tricky one.  The Supreme Court's rulings on the matter are no less confusing and contradictory, which is why I won't even go there.  Where one draws the line between establishing an official religion and eroding religious freedom can be difficult.  But I would contend that the purpose was not to eliminate religion from the public sphere to reduce religion to "a private matter."  I would certainly see that as an erosion on my freedom of religion.  It's just that this needs to be dealt tactfully, especially since a whopping 76% favor religious symbols in the public sphere.  What is a great testament to that is what we already have in public buildings:

 
Here we have an engraving of Moses on the Supreme Courthouse in DC.  Establishment of religion?  Hardly!  He's surrounded by Greeks and Romans.  What is merely being recognized is that Mosaic law, as well as common law, both have shaped American jurisprudence.

Here is a picture I took at Jefferson Memorial a couple years back.  It's a quote from Jefferson, and much to my amazement, it mentions G-d!  But read the quote in its entirety.  Although it mentions that freedoms are G-d-given, the state (i.e., man) is meant to ensure those rights, rather than lead to a slippery slope to slavery and despotism. 

Here is a statue of Father Junípero Serra.....in the U.S. Capitol Building!  But there are statues of other people, non-religious people, and that includes former U.S. presidents.  Again, religion is not being established.  Can people recognize that we live in a country that has had significant Christian influence, but at the same time can respect people of other religions?  I don't look at this statue and say, "oh, this statue of Serra violates my First Amendment rights.  Tear it down!"  I think, "Serra played a role in American history, even though he was a big-time Catholic." 

There are people out there who see anything remotely religious and are automatically offended--it's practically a gag reflex for them.  I must have missed that clause in the Constitution that guarantees one's right not to be offended......oh, wait, I forgot; it's non-existent!  On some level, people just need to develop a stomach for religious displays in public.

On the other hand, I can see scenarios in which it could become troublesome.  Let's take the Nativity scene, for example.  If you want to display a Nativity scene, you can do so on your own property.  After all, we still have this notion called "property rights" in America.  I can display my menorah on my window sill, you can put your Nativity scene or inflatable Santa Claus on your front lawn, and that's OK because that is private property.  I will tell you, though, why it should not go on public property: because it's public property.  That might seem tautological, but let's examine the difference between public and private property.  Private property is excludable and rival, whereas public property is not.  On public property, if a Christian has the "right" to erect a Nativity scene, the atheist has the "right" to kick it down.  Especially when funded by tax-payer dollars, but even when not, such displays should not be on public property. 

Barring such displays on public property does not infringe on one's freedom of religion, especially when you can put up such a display at your own home.  And for those of you wondering, this would mean I wouldn't even want to see a menorah on public property.  I don't want the government imposing my religious practices [even if subtly] on others, just like I wouldn't want Christianity imposed upon me. 

Before concluding, I would like to make a distinction between religious displays in public and practicing religion in public.  For one, as previously stated, not putting up a menorah or Nativity scene does not violate the Free Exercise clause.  Two, if a religious group would like to hold a prayer service or ritual in a public venue, that is fine, as long as the government does not discriminate against one's religious practice, whether it'd be Christian, Jewish, Muslim, or Buddhist.  The beauty of America is that we can be open about being religious and are able to express it.  We should keep that consideration in mind while preserving the First Amendment in its totality, which means both the Establishment and the Free Exercise Clauses.   

Public Display of Ten Commandments

The Ten Commandments have played an important role in shaping Judaism, Christianity, and the Western World.  Many an outcry have been made regarding the public display of the Ten Commandments.  In recent memory, the Supreme Court has made two rulings on the matter: McCreary County v. ACLU (2005) and Van Orden v. Perry (2005).  In the former, it was ruled unconstitutional because it promoted religion, whereas in the latter, it was considered constitutional because it was secular in its meaning.  I would like to point out the irony that the Supreme Court ruled on both of these contradictory rulings on the same day: June 27, 2005!  This example of case law epitomizes the confusion that America has on the role of religion in America.

If we set the Supreme Court's bewilderment aside for a moment, there is a way where we can clearly see if there is establishment of religion going on here.  Let's take a look at the Jewish version (i.e., the original and correct version) of the Ten Commandments:

Does this version match up with the Christian version?  The answer is "no," but needs elaboration.  Not only is the answer "no," but the Protestants and Catholics cannot even agree upon what the Ten Commandments are.  The Catholics combine the First and Second Commandments.  They then make Commandment #9 not coveting your neighbor's wife, and Commandment #10 is not coveting your neighbor's goods.  In Judaism, the Tenth Commandment is an all-inclusive commandment against coveting.  In the Protestant version, they do away with the First Commandment all together.  They split up the Jewish version of the Second Commandment, which reads as following: #1: Thou shall not have other gods before me.  #2: Thou shall not make graven images. 

Since America has historically been predominantly Protestant, the version that has been displayed is the Protestant version.  Since preference has been given to one version over the other, the display of the Ten Commandments on public property violates the Establishment Clause, thereby making it unconstitutional.

Jesus Fulfilled What Exactly?

"Jesus fulfilled 'The Law.'"  This phrase that I hear from Christians is equally as amusing as "Jesus died for your sins."  The question that remains in my mind is what does it mean when they say "Jesus fulfilled the Law?"  The origin of this notion comes from the Christian "New" Testament in Matthew 5:17:

“Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them.”

If we look at the verse and see that Torah was not meant to be abolished, that means from a contextual standpoint, Jesus must have done something to satisfy its requirements, which Christians would erroneously argue was Jesus' death.  Please refer to my previous blog entry as to why the notion of Jesus dying for anybody's sins is, at the very least, not based on the Hebrew Scriptures that Christians claim that Jesus supposedly fulfilled. 

My foremost comment on this topic is that the origin of having the Torah fulfilled is entirely Christian.  There is not a single mention of the law having to be fulfilled in the entirety of Tanach (Hebrew Scriptures).  As a matter of fact, Tanach talks about the eternality of following Torah (Deut. 11:1, 28:46, 29:28, Psalm 111:7-9, 2 Kings 17:37, Ezekiel 37:24-25), as well as the eternality of G-d's covenant with the people Israel (Genesis 17:9-10).  Anything which contradicts the eternality of Judaism or the Jewish people, such as Jesus fulfilling the law and superseding Judaism, is in direct contradiction with Tanach.  What this ultimately means is that the discrepancies caused by their "Old" and New" Testaments, by definition, makes the Christian Bible a self-contradicting text. 

Now, even if Jesus were this alleged fulfillment of "the Law," he would have to be considered a lousy candidate.  Under Jewish law, marriage and procreation are both mitzvahs, neither of which Jesus did because Jesus remained celibate for all of his days.  Also, as I mentioned in a previous blog entry, Jesus violated the Jewish law of b'al tashchit when he caused the fig tree to die.  Although I can find a myriad of reasons, these two alone exempt Jesus from being considered to be a "perfected embodiment of Jewish law."

My final point regarding this discussion is that even if we give this notion an iota of validity, the main question itself, "Did Jesus fulfill the law," is a conundrum unto itself, which I have illustrated in this handy flowchart: 

Access Denied: Parshat Chukat Edition

After reading about the red heifer in Numbers 19, Miriam dies.  As such, there is no water, and *surprise, surprise,* the Israelites kvetch.  So, G-d tells Moses the following:

קַח אֶת-הַמַּטֶּה, וְהַקְהֵל אֶת-הָעֵדָה אַתָּה וְאַהֲרֹן אָחִיךָ, וְדִבַּרְתֶּם אֶל-הַסֶּלַע לְעֵינֵיהֶם, וְנָתַן מֵימָיו; וְהוֹצֵאתָ לָהֶם מַיִם מִן-הַסֶּלַע, וְהִשְׁקִיתָ אֶת-הָעֵדָה וְאֶת-בְּעִירָם

Take the rod, and assemble the congregation, thou, and Aaron thy brother, and speak ye unto the rock before their eyes, that it give forth its water; and thou shalt bring forth to them water out of the rock; so thou shalt give the congregation and their cattle drink. -Numbers 20:8

Instead of speaking to the rock, Moses decides to smack it twice, and as a result, he is denied entry to Israel.  The question remains: why?  Why would hitting a rock twice cause Moses' hard work of nearly forty years to be for naught because of a rock?  The beauty of this answer, or rather answers, is that this becomes a nice prooftext of how the Torah is a multi-faceted text that speaks to man in more ways than one.  With that in mind, let's find out why G-d denied Moses access to the Holy Land:

1) Take a look at the verse again, and you will notice that G-d told Moses to speak to the rock, not to hit the rock twice. According to Beer Mayim Chayim, the rock was not in its normal place, and Moses lost his patience.  Therefore, he found another rock and did what he was used to doing (Exodus 17:6)--he hit the rock. For Maimonides, he thought that Moses had deviated from the golden mean of patience at this point.  Not only do we see that patience is a virtue, but also have G-d emphasizing the character trait of bitachon, or trust in G-d.  Moses' lack of [unwavering] trust is what caused it.

2) If you take a look at verse 10, you will see that it says: “Listen, O rebels, shall we bring forth water from the rock for you?”  We can thank Ramban for this one. You give credit where credit is due, right? Moses apparently forgot that. In the previous miracles, Moses made it clear that G-d was the source of these miracles. This time, Moses did not make that clear.  Moses forgot that G-d is the Master of the Universe and the ultimate source of everything.  Because Moses did not sanctify G-d's name in front of the people Israel, he did not merit entry into Israel.

3) This insight comes from Rashi: anger management issues. Moses had to deal with a bunch of kvetchers for a long time.  I'm surprised he didn't lose it earlier.  But at the same time, if you lose your temper over something as simple as water, you know it’s time to appoint a new leader. Even for one moment, why would anger deny him the very thing he wanted? Because, as the Talmud points out in Shabbat 105b, anyone who tears his clothing, breaks vessels, or scatters his money in anger is an idolater. Why is anger akin to idolatry? Anger is about the self. It is about “me, me, me,” and subsequently takes G-d out of the picture because idolatry is, by definition, making anything but G-d the main focus. And you thought that idolatry was just about statues. Plus, when you’re angry, you don’t have any self-control. Without self-control, you’re no better than an animal—a concept we’ll touch upon in a moment. What can be imparted upon us is that even if justified in our anger, we should not always act on it just because we can.  The fact that Moses could not exhibit self-control, a feature that separates man from animal, kept him from entering the land of Israel.

4) Rashi brings up yet another explanation. Since a rock has no free will, having an inanimate object “listen” to Moses means that the Israelites should do so all the more so. But this effect was lost when Moses hit the rock.

5) I have a fifth interpretation to add, one I came upon very recently. This one takes a little closer look at the Hebrew text itself. When G-d tells Moses to speak to the rock in verse 8, G-d tells Moses to give drink to the assembly and the animals (בְּעִירָם).  In this verse, the direct object indicator את is used.  However, look in verse 4 (in the national grievance) and 11 (when they receive the water). The absence of the את  in verses 4 and 11 shows us something very important—since they did not use the את to distinguish between man and animal, they viewed themselves as animals (Meshech Chochmah). They were acting on pure animal instinct, which, according to Maslow’s Hierarchy of Needs, is on the bottom. The people were acting like animals.  Where I surmise that this animal behavior is linked to Moses' denial to the land of Israel is when you see two verses next to each other, you can derive interconnectedness, much like Rashi did with the sotah and Nazirite.  With that in mind, we see that Moses didn’t correct this misperception, and as such, he was not allowed in the Land of Israel.

Which reading of this text is correct, you might ask?  Since they all have textual backing, the answer is "all of them!"  In a nutshell, 'tis the beauty of Judaism.  This is so fascinating to me that I had to publish this, even though we technically just began Parshat Balak.  Impatience doesn't exclude the anger.  Anger doesn't exclude a reading on what it means to be human or constantly thanking G-d for providing us with our needs.  As a matter of fact, most of these responses are intertwined. 

Again, a theme which I will use again and again--truth speaks to us in many ways.  It's not that absolute truth doesn't exist.  It's just that reality, and subsequently truth, are more complicated and nuanced than one can imagine.  That's why I love Judaism in its authentic form.  We can grapple with the many facets of truth while recognizing the source of that reality. 

Shavua tov!

Ceremonial Deism and the Constitution

Many are wondering what I mean by ceremonial deism. Ceremonial deism is a legal term that means "a ritual that mentions the divine, but the ritual is rendered non-religious through its long, customary usage."  The two most popular examples of ceremonial deism are the words "under G-d" in the Pledge of Allegiance and "In G-d We Trust" on our currency.

Historically speaking, the words "under G-d" were added to the Pledge of Allegiance in 1954 to "stick it to those g-dless Communists."  Adding "In G-d We Trust" to our currency, on the other hand, goes all the way back to 1864 when it was put on the two-cent.  It had been put on other coins in the early twentieth century, and was finally added to paper currency in 1956.  1956 was also the year where Congress had, for the first time in history, declared a national motto ("In G-d We Trust").  Prior to that, E Pluribus Unum (From Many, One) had been the unofficial motto of America.

In the case of Elk Grove Unified School District v. Newdow (2004), Justice Sandra Day O'Connor explains (p. 35) why the Pledge of Allegiance does not violate the Establishment Clause.  O'Connor has always been a proponent of the endorsement test.  Since the Pledge of Allegiance does not endorse one religion over the other, it does not violate the Establishment Clause.  The Pledge of Allegiance is meant to be a non-religious expression of patriotism. 

I would argue that it doesn't violate the Establishment Clause because G-d is a generic term that can apply to Christianity, Judaism, or Islam.  Whether it violates the Free Exercise clause, however, is another story.  Although it's technically voluntary to say the Pledge, children are too impressionable to see the difference and will most likely be peer pressured into saying.  Being a Jew, I would be uncomfortable with the fact that I would have to pledge allegiance to a flag.  Since a practicing Jew, as well as a practicing Muslim, should ultimately "pledge allegiance" to G-d, such a practice, no matter how seemingly voluntary, can be seen as an infringement of the Free Exercise Clause, as well as on the Free Speech Clause.    

The currency controversy is slightly different.  Most people don't look down at their money and think, "Oh, the government is establishing [or endorsing, for that matter] Christianity as this country's religion.  Let's take it off the money," although there are some atheists out there who decide to cross off the motto.  I'm not even going to go into how much it would cost to efface that from currency.  Even though it mentions the divine, is putting "In G-d We Trust" on our money a religious act?  The answer is in the negative.  Furthermore, as previously stated, which monotheistic version of G-d is in reference?  As such, it technically is not a violation of the Establishment Clause.  It also has nothing to do with the Free Exercise Clause because it doesn't inhibit one's religious practice in any way.  In addition, the practices are innocuous enough where it doesn't really sway First Amendment rights either way.  Unless ceremonial deism becomes used for more nefarious means, I don't see any reason to spend additional time on the matter.

Constitutionality of School Vouchers

One can make this about whether school vouchers work or the economic practability of such vouchers.  Obviously, being libertarian, the ideal country would be one in which the government would not have to tax for education, especially considering that it is not a public good.  However, if we live in a world where such taxation exists, I would much rather have it reappropriated to the taxpayers.  That way, it creates competition with the public school system, which now gives the public school system incentive to improve upon itself.  Also, it gives the taxpayer more say as to where his money is used.

My brief on this issue will be brief.  In order to figure out the constitutionality of school vouchers, one has to know what a school voucher is.  In essence, a school voucher is a certificate issued by the government to help offset costs if they so choose to send their child(ren) to a private school.  In short, a school voucher reallocates tax dollars back to the taxpayer in order to bring a more level playing field in the choice between public and private school.  If a parent does decide to send their child to private school, they still have to pay taxes for public school.  This description should make the answer a bit self-evident.  The government is giving the money to the taxpayer and saying, "Apply it to whichever school you like, whether it would be religious or secular."  The act neither establishes nor endores a specific religion.  Therefore, the answer must be that school vouchers do not violate the Establishment Clause.  This is the exact same thought process that the Supreme Court thought when it decided on Zelman v. Simon Harris (2002), the Supreme Court case which stated that school vouchers are constitutional.  Since the aid was not direct, the aid was thereby constitutional, much like it was in Everson v. Board of Education (1947).