What the Constitution Has to Say About Religion in America

In light of my rabbi's upcoming Adult Education course entitled "Separation of Church and State: How Hard Should Jews Push," I have decided to do a blog series entitled "Religion in America."  For the next two weeks, I will have various blog entries surrounding a myriad of topics, including prayer in school, whether Christmas should be a federal holiday, and the display of the Ten Commandments on government property.

Before we begin delving into these topics, however, we need to have a legal basis upon which we support ourselves.  In this country, the legal document with the most authority is the United States Constitution.  As far as I am concerned, the Constitution is the most brilliantly written secular, legal document in history.  It protects the freedoms of the people while giving the government the minimal amount of power so that society can properly function.  Therefore, we must then ask ourselves, "what does the Constitution have to say about religion?"  The most relavent section of discussion is undoubtedly the First Amendment.  The text is as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

From the Constitutionalist standpoint, there are two clauses: the Establishment Clause and the Free Exercise Clause.  The Establishment Clause is just that--to make sure that an official religion was not established.  For time's sake, I will further review the concept of "separation of church and state" in my next entry.  The reason why the Founders of the Constitution did not have such a broad take on the Establishment Clause is because it would be a violation of the Free Exercise Clause. 

Some might believe that the Free Exercise Clause only covers belief systems.  However, both the Founders and various Supreme Court rulings over time have found that "free exercise" applied to religious practice, as well.  However, the Free Exercise Clause is not a carte blanche for "anything goes."  In regards to freedom of speech, you cannot yell "Fire!" in an open movie theater.  And with respects to the Second Amendment, we prohibit felons from possessing fire arms.  As a society as a whole, we find that some freedoms need slight curtailing so that overall freedom [of religion] can be maintained.  Two such cases that come to mind are Reynolds v. United States (1879), which banned the Mormon practice of polygamy, and Employment Division v. Smith (1990), which declared that a generally applicable drug law applied to Native Americans who would typically use peyote for their religious services. 

If one needs more clarity on the balance between Establishment and Free Exercise, one only need to look towards the Northwest Ordinance, which not only was drafted within the same time period of the Constitution, but approved by the very same Congress that approved the Constitution.

I will conclude with a couple more passages that are relevant to "religion in America."  The first is Article Six, Section Three, which states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

My secular and liberal friends think that the fact that there was no religious test to get into office meant that government should be absolutely separate from religion, but what they fail to realize is that most states at that time had official state religions.  Therefore, the implementation of this article was more pragmatic genius than it was a stab against religion.   

Finally, we have the Fourteenth Amendment, and to be more specific, the Due Process Clause, which states:

....nor shall any State deprive any person of life, liberty, or property, without due process of law....

The Due Process clause is of value.  As previously stated, states used to have official religions.  Now with the Due Process clause, such an occurrence can never happen, and religious freedoms are now also protected on the state level.  It is because of this clause that most of the Supreme Court cases surrounding the theme of religion in America are on the state level.

Now that we have sufficient Constitutional background, I only find it fitting that the next topic of discussion is what the Constitution does not say, mainly the topic of "separation of church and state."

The Problem of Orthodox Judaism and Excessive Codification

Although I am not an Orthodox Jew, I nevertheless enjoy Conversations, which is a publication from The Institute of Jewish Ideas and Ideals, a Modern Orthodox organization.  As their website states, they "offer a vision of Orthodox Judaism that is intellectually sound, spiritually compelling, and emotionally satisfying."  For those of you acquainted well enough with the Jewish community, these are all things that the Orthodox community severely lacks, and I applaud this organization for setting the example of what Orthodox Judaism should be.  With that in mind, I want to tell you that I received my latest volume of Conversations.  There was an article that I read that was of utmost interest.  It was written by Rabbi Nathan Cardozo, and the article is entitled "On the Nature and Future of Halakha in Relation to Autonomous Religiosity."  In essence, what this article ends up being is a constructive criticism of the Orthodox community, most notably of how they inaccurately perceive the functionality of Jewish law to the point where the current halachic system has extinguished any notion of spirituality (i.e., a sincere, intimate relationship with G-d) for just about any "outsider" who is potentially interested in living a "halachic lifestyle."

Since the article is lengthy, what I will do is give you a bulleted list of his main points, most of which are given verbatim, and then I will give my reaction to the article:

1. There are countless young Jews who search for an authentic Jewish religious way of life, but are unable to find spiritual satisfaction in the prevalent halachic system as practiced today in most Ultra- or Modern Orthodox communities.
2. Jewish law is codified in much greater detail than ever before, making many wonder whether our ancestors were really observant.
3. The majority of halachic literature today is streamlined, allowing little room for halachic flexibility and for the spiritual need for novelty.
4. One of the Talmud's greatest contributions to Judaism is its indetermination, its frequent refusal to lay down the law.  As such, the Shulchan Aruch and Mishneh Torah are un-Jewish in spirit, as they oppose the heart and soul of the Talmud. 
5. Elu v'elu, which means "these and those are the words of G-d (Eruvin 13b)."  Think of Beit Shammai and Beit Hillel.
6. Such codices [as the S.A. and M.T] lead to intellectual laziness.
7. The Torah, which is the word of G-d, can only be multifaceted.  Like G-d Himself, it can never fit into a finalized system, for it is much too broad in scope. 
8. Each person receives the Torah individually, according to his own personality and exceptional circumstances.  Only one text was received [at Sinai] due to the fact that there was a need for unity and affiliation amongst Jews.  A fixed text was necessary to facilitate discussion, not agreement.
9. We surely must move beyond the conventional way in which halacha has been applied.  If the existential predicament of blending autonomy and tradition is not resolved, it will ultimately distance many fine Jews from the Jewish tradition and religious observance.  This internal danger is greater than the external threat of secularism.

My Remarks: Before I begin, I just want to say that I do not have to be in the Orthodox community to be able to point out inherent flaws within a given system.  If you are Orthodox and decide to shoot criticism my way, just remember this--anything that shifts the criticism unto me personally will only be seen as a form of deflection and merely showing you skirting the issue at hand.  After all, the basis and inspiration of these sociological observances are that of an Orthodox rabbi.  With that disclaimer in mind, let us begin.

I find R. Cardozo's analysis of the situation to be precise.  The problems that Cardozo describes outline the very reasons why I have decided not to live in an Orthodox community, even in spite of my affinity for Jewish traditions.  Mainstream Orthodox Jews have reduced Judaism to an exceptionally narrow form of religious behaviorism in which the baseline is piety.  The over-codification of Jewish law violates the very spirit that Talmudic discourse was meant to transmit from generation, that being of דבר אחר (alternative opinion).

The regression of the halachic system that has made halacha what it is today began with Maimonides.  Prior to Rambam, Jewish law was multifaceted and flexible, and it somehow managed to consistently uphold Jewish values.  When Rambam came into contact with the ever-so codified Muslim law (shar'ia law), that all changed.  That influence caused Rambam to write Mishneh Torah, not to mention that most Jews during that time were lost as to how to best practice. (One has to note that even though there were attempts to codify prior to Mishneh Torah, this was the first codification with any form of gravitas in the Jewish world.) The fact that the title of his text was titled "Second Torah" not only reeks of chutzpah, but also come with an inherently authoritarian bent.  And it's no wonder there was a wide range of adverse reactions to the book when it first came out, from prohibition of reading the book to actually burning the book.  It was a violation of the Talmudic precept of דבר אחר.  Unfortunately, more codification was underway. The Shulchan Aruch came along, and the rest is history.

When asked for a reason why such a law exists, many practicing Jews fall back on the answer of "such and such text tells me so."  It's robotic, not to mention, as Rabbi Cardozo points out, a form of intellectual laziness.  The halachic system as practiced by most observant Jews lacks spirit and spontaneity. Halacha has become a mind-boggling complexity of nuances that have become so numerous that no one man can know all of them.  As such, it has become dry, insipid, and irrelevant for many who want to be observant while maintaining a sound sense of spirituality in a secular world.  Halacha is used as the proverbial stick that Orthodox rabbis metaphorically beat its congregants with in order to keep them in line.  It's no wonder that nearly 90% of Jews are non-observant!  

Rather than be an impersonal form of societal control in adherence to a skewed form of Jewish practice, halacha should inspire people to lovingly and willingly foster a relationship with G-d. Yes, there are certain principles and maxims that Jews should stick by, but on the whole, there should be a sense of autonomy to decide what is best for the individual.  As Pirke Avot 1:3 points out, the best kind of relationship with G-d is one with kavannah and a liberated volition, not one in which fear of divine retribution is your primary motivator.

I hope that many of the changes that R. Cardozo suggested in his article are actually implemented.  A paradigm shift is necessary for Orthodox Judaism to thrive in the long-run.  However, since the trend in the Orthodox community is towards the acquiescence of Haredization, I will not exactly hold my breath in anticipation for these reforms to occur.  A turn to an even more stringent, authoritarian practice as mainstream will surely be the death of Orthodox Judaism, that much I can say.  I just pray to Hashem that Orthodox Judaism pulls off a reversal in its trend towards ever more codification.

Libertarian Explains How You Can Be Pro-Israel and Libertarian

One of my friends, Aaron Biterman, recently posted an online entry about the defense of Israel from a libertarian perspective.  Some of you are probably wondering how the two mix.  After all, if you talk to enough libertarians, it's almost as if they were strict isolationists.  I know I used to think that once upon a time.  At the very least, as Biterman points out, one should advocate for Israel's right to self-defense from autocrats who want to deprive Israelis of their most basic freedoms.  I've come across enough libertarians who are on the deep end when it comes to Israel, the first one coming to my mind being Ron Paul.  But as Biterman states, "The same libertarians defending Israel’s right to self-defense can simultaneously defend a non-interventionist foreign policy. There is no contradiction, except by those who would have Israel wiped off the face of the earth due to an erroneous claim to ‘property rights’."  I found it to be a good read, and if you happen to be a pro-Israel or Zionist libertarian looking for some clarity on the issue, I'd highly recommend this article. 

Good Riddens to Helen Thomas

Like most Jews, I'm glad to see Helen Thomas go.  In all sincerity, who says such idiocies?  The fact that America has given her the ability to have four decades of "experience" in journalism while being able to express such stupidity is beyond me.  Moments like these only augment my cynicism--this is who we, as Americans, consider to be a good reporter?  One who doesn't even do something as basic as find out the most simple facts before she tells the Jews to "get the hell out [of Israel]" and "go back to where they came from?"  You must be joking! 

She might have angered a lot of Americans, but "surprise, surprise," she made new friends with Al Qassam, who so happens to be the military wing of Hamas.  Yes, that is the same Hamas that is a well-known terrorist organization who has been spending its entire existence in attempts to eradicate Jews [unsuccessfully] from Israel.  This wretched woman got off way too easy by simply retiring.  May G-d deliver this woman the retribution she deserves, because quite frankly, such stupidity and hatred is unacceptable.  In case anybody hasn't seen the footage to figure out why I am riled up, here you go:

Why People Are "Spritual But Not Religious"

A good friend of mine recently sent me a CNN article entitled "Are there dangers in being 'spiritual but not religious.'"  One of the amazing trends I found in this article is that 72% of millenials (i.e., 18-29 year olds, i.e., my generation) consider themselves "more spiritual than religious."  With this in mind, it should go without saying that in terms of looking at past generations in contrast with millenials, millenials are the most irreligious. 

From a theoretical sense, religion offers all the spiritual needs a human needs: a way to connect to a Higher Power, a path of how to lead a good life, and ways (i.e., beliefs and rituals) to find ultimate meaning in life.  But, as the article shows, millenials have made a shift from the traditional approach on spirituality (i.e., religion). 

Upon sending me the article, my friend asked me the question "Why do you think young people are getting away from organized religion?"  This question made me pause for a while, and ultimately led to my response to below.

1) We live in a pluralistic society.  With the expansive multiculturalism and diversity in America, most millenials have been exposed to every major religious practice in the world.  As important as it is to have a sense of comparative religion, it has created a backlash of moral relativism.  From a statistical standpoint, it is not possible that all the religions can be correct.  You cannot simultaneously have one god, multiple gods, and no god(s).  An erroneous assumption made by millenials is that since one can only statistically be right, they just automatically go with the assumption that no religions are right.   

Plus, the backlash of moral relativism has also developed a mentality of "no one has a monopoly on the truth."  This is why you see many millenials [in the article] cherry-picking certain tenets or rituals from different religions, mainly because they want to view themselves as having more savoir-faire than past generations, but also because they're testing out the spiritual landscape.

2) Individualism and autonomy are two resultants of the hippie counterculture movement back in the 1960s, and they have stayed within the psyche of the typical American individual ever since.  American society emphasizes the society, whereas religion emphasizes the community.  In addition, for many millenials, organized religion translates into conformity, societal pressures, and dogmatic extremism.  Most millenials feel that strictures of organized religion impede them from having any sincere relationship with a higher power.   

3) People are lazier than they used to be.  Due to many technological advancements, millenials are more accustomed to instantaneous results.  We go online to chat on an instant messenger.  If we don't get through the fast food line in 30 seconds, we become irritable.  Programs of how to lose weight in just two weeks or "seven days to a happier you" are common in a society that wants everything right now.

Religion is a life-long journey that takes a lot of effort, time, and discipline.  If you are looking for a quick-fix for your spiritual problems, you're not going to go to religion because that would take too long.  Saying that you're spiritual might make you feel all wonderful on the inside, but the irony is that it usually turns into nothing more than a highly-self indulgent form of hedonism.  Being "spiritual but not religious" ignores the fact that there is a highly subjective element to it, and this is particularly true when it comes to morality.  If everyone turns down this path, who are we to say that Joe Schmo's spiritually-based morality isn't better than mine?  Also, the hubristic nature of the "spiritual but not religious" individual ignores the fact that priests, monks, imams, and rabbis have been pondering the important questions of life for centuries.  When it comes to developing wisdom, insight, or realization, there is something irreplaceable about millennia of tradition and the pensive thought that has come with it.

4) Religious institutions are not meeting the demands of its congregants.  It's time to shift over the analysis from society and its individuals over to religious institutions.  In the words of Rabbi Abraham Joshua Heschel, we get a sense of what went wrong with religious institutions:

"It is customary to blame secular science and anti-religious philosophy for the eclipse of religion in modern society.  It would be more honest to blame religion for its own defeats.  Religion declined not because it was refuted, but because it became irrelevant, dull, oppressive, [and] insipid.....when religions speaks only in the name of authority rather than with the voice of compassion, its message becomes meaningless." (Between G-d and Man, p. 35)     

Ever since the Enlightenment period, religion, as an institution, has had problems in responding to the constant change that the period brought with it, whether it would be how to deal with science, technology, emerging ideologies that happen to conflict with the given religion's teachings, globalization, and a sincere pursuit for social justice. 

Although Heschel spoke these words over fifty years ago, the sad truth is that religious institutions have an overall problem with presenting a relevant, vibrant spirituality to millenials.  Since religious institutions are failing in providing something as simple as the spiritual needs of the millenial, the millenial seeks spirituality somewhere else, mainly within themselves.

5) Christianity is partially at fault.  It might seem harsh at first glance to blame a religion that a third of the world practices, but it is a theory I have been kicking around, and it merits analyzing.  As I previously stated, we are a multi-religious society, and millenials have had unprecedented access to information regarding other religions.  However, in spite of the increase of "spiritual but religious" millenials, 76% of Americans still consider themselves to be Christian.  The reason why this has any bearing on why people become "more spiritual than religious" is that in spite of being exposed to many religions, most Americans, even millenials, still view religion through a Christian lens.

Many millenials were raised in Christian households.  With the advent of the Internet, not to mention an unprecedented amount of children question authority figures, millenials have come to view Christianity as a non-sensical theology.  They sit in their church pews and realize how stupid it all is.  Not only do I have a lot of friends my age who have done that, but I also have done that myself.

However, millenials take their newly founded sentiment and translate it into faulty logic: since Christianity doesn't make sense, that means other religions do not make any sense.  As innacurate as this is, it causes millenials to discredit all religions in their mind, hence them becoming "spiritual but not religious."

Postscript: We have many factors in play.  Society has induced the notions of individuality, autonomy, and the need for immediate results.  This permeates a spiritual laziness because in all honesty, who wants to work at a long-term relationship with G-d when you can feel self-satisfied with vibrational healing and New Age music?  One also has to figure that if religious institutions hadn't let their guard down by not doing their job, none of this would have happened in the first place.  Religion without spirituality is boring, dry, and ultimately lacks any meaning.  This is what most religious institutions, whether that would be on the Left or the Right, face--an incapability to meet the spiritual demands of the millenial.  One the other hand, spirituality without religion (i.e., G-d) is nothing more than a wishy-washy subjectivity that attempts to justify hedonism and bad behavior.  By becoming "spiritual rather than religious," what many millenials have done is throw out the baby with the bath water.  Religious institutions have much to offer.  It's no accident that they have survived for so long--it's because what they have to offer has no substitute good.  Rather than do away with religious institutions, what millenials should be doing is fixing our religious institutions to provide both religiosity and spirituality.  However, before we can even discuss repairing them, we need to first realize that America is becoming spiritually bankrupt in more ways than one. 

Darfur: Not Quite the Disaster We Thought

"The road to hell is paved with good intentions."  In Marc Gustafson's article, Rethinking Darfur, he certainly reminds us of that adage.  Gustafson goes into detail of how the Darfur activists have mischaracterized the conflict, mainly in the fact that activists, most of whom I presume lean to the Left, made it seem as if the rebels were downtrodden altruists.  It turns out that both sides are guilty of atrocities.  Furthermore, more people have died from malnutrition issues rather than the violence itself.  The fact that there was a peace agreement on the table before the activists tried to shift funding priorities from humanitarian aid to "peacemaking forces" put off any hope of ceasefire back in 2006. 

As Gustafson points out, what should have been an "open and shut" incident has been prolonged by misinformation by activists who were solely motivated by "good intentions," rather than basing their good intentions of sound fact-finding.  Their ignorance of how to handle international affairs caused much more suffering to occur.  But I'm sure that the activists will still sleep soundly because they're idiotic enough to think that their good intentions mitigate any actual prolongment of civil war for which they are responsible.  And to think I was actually duped into donating tzedakah money to the Save Darfur Coalition!  That sure will make me think twice before I give tzedakah in the future.   

Flotilla, Shmotilla: A Falsified Diversion

In international news, yet another scenario occurred to provoke anti-Israel sentiment throughout the world.  The IDF had boarded a flotilla coming into a blockaded Gaza from Turkey.  What wasn't expected was a violent reaction, let alone a death toll.  As if it were a surprise, the U.N. immediately blamed Israel before doing anything resembling an investigation, and European leaders condemned Israel for its "disproportionate" response to attacking supposed peace "activists."

First of all, I will respond with the fact that there is nothing peaceful about Hamas.  Aside from the fact they have been firing hundreds of rockets into Israel, the very reason for needing a blockade in the first place, we also have the fact that Hamas' constitution calls for the eradication of the state of Israel.  One also has to keep in mind the "cheery" mood these "peace activists" were in the day beforehand, when they were cheering for the death of Jews (notice how mainstream media would never report anything like that):





Also, what kind of peace activists have you met that whack people upside the head with metal poles: 



I can think of only one country in the world that has to apologize every time it acts in its self-defense.  I can only think of one country in the world that has myth-like expectations thrusted upon it.  I can only think of one country that is inaccurately vilified on a constant basis, and that country is Israel.  It wouldn't matter if the maritime blockade were legitimate or if Israel is still making sure that Gazans get sufficient aid, in spite of the fact that Hamas is trying to annihilate Israel.  If this were any other country in the world, the international community would be giving them a pat on the back for protecting their citizenry.  But this is Israel we're talking about here.  The double standards used with Israel (i.e., too high of standards) and Palestine (i.e., no standards whatsoever) is mind-blowing, but it makes sense.  Israel just so happens to be the only Jewish state on the planet, and its existence alone, never mind its success, gets under the skin of so many people. 

What I can safely predict is that this flotilla incident will be used to ignore bigger problems, such as the ineptness of Hamas to run a government, the fact that the UN perpetuates the plight of the Palestinian with such NGOs as UNWRA, or the fact that most Palestinians would rather see their children go to suicide bomber summer camp rather than make peace with the Israelis.  Until people in this world can gain a better sense of right and wrong, I am afraid that Israel will erroneously be seen by many as an antagonist rather than what it should be viewed as: a beacon of hope, democracy, and prosperity in an otherwise dark abyss of totalitarianism.