Justice Stevens and the Jews

If you want a good topic to discuss this week, the legal decisions of retiring Justice Stevens would make for good conversation. He was narrow on free exercise when at the expense of something else and liberal on free speech. He has many angles that would make good Jewish conversation. I expect an op-ed from someone in Jewish paper in the next few weeks.

Stevens wrote against allowing a yarmulke in the Air Force, and was against the Kiryas Yoel redrawn religious district. He was against school vouchers and anything that would lead to religious indoctrination. Yet he allowed preaching and outreach in public place and full freedom for Santeria. He is against crèches in town squares and a few years ago Noah Feldman took him to task in the NYT’s for this.

Justice Stevens religion clause jurisprudence is reviewed in the following articles: Eduardo M. Penalever, Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens (SSRN, November 2005); Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 Fordham L. Rev. 2177 (2006);

Ht/Religious Clause

But regardless of Stevens views, we should be appreciative living in a country with an establishment clause, freedom of religion and freedom of speech. More importantly, we should not abuse it. In the last few years, I have seen and heard arguments that run like this: Our preschool should not have to meet OSHA guidelines or health department rules because that would take away our ability to learn Torah. There is a sense that if we have religious freedom then that means we don’t have to follow other laws. I have also seen these arguments quoted in the papers to defend the various Jewish criminals of the last three years.

From our own perspective, have we created an appreciation for freedom of speech, freedom of religion, or freedom of religious conscious in our Judaism? Are these valuable rights only to receive and not to give? Can Judaism formulate anything close to modern views on these topics? Rav Herzog somewhat tried to create such an approach in Israel based on the need to follow world opinion and the dictates of the UN. Recent poskim, however, have rescinded Rav Herzog’s attempts. Now what? What about here in America?

From another angle, Justice Stevens is being called the last of the non ideological justices. Now everything is ideological. In the late 1950’s, there was even an essay on the end of ideology.
Would Rav Moshe Feinstein be the last of the non ideological poskim? Are all sides now ideological? (Let’s acknowledge that the sanctimonious on all sides, would see their leaders as non-ideological. But that is not an argument. ) Are we at a point of change, unlike the 1950’s, where are all halakhic positions are ideological?

Copyright © 2010 Alan Brill • All Rights Reserved

One response to “Justice Stevens and the Jews

  1. Pitifully few people seem to understand the somewhat limited scope of the free exercise clause – until they have to deal with a zoning board or the like and learn that laws with rational justification not intended to infringe on religious exercise are usually constitutional.

    More importantly, the original idea of disestablishmentarianism, that religion could best flourish when it was not state sanctioned, seems to have been lost on many.

    I’m not sure that all psak is ideological, but since it usually becomes public overnight clearly all psak is now political. The idea that most psak is something that occurs between two parties and may only be published years or decades later is over.

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