Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— The First Amendment to the United States Constitution
This week we at Judaism in the Foothills received permission to place a nine-foot Chanukah Menorah outside a prominent building in Evergreen, Colorado. While researching the case for placing a Jewish symbol in a public place I came face to face with the First Amendment of the United States Constitution. This amendment enforces the separation of church and state. Indeed contemporary philosophers argue that history tells us that when religious leaders become powerful there is almost always bloodshed. They therefore conclude that the only way to ensure peaceful societies is by separating church and state. Is this really correct? Is religion so corrupt that it could never rule in a way that would not lead to homicide?
Before we answer this we must analyze the differences between free and totalitarian societies. Free countries have two main characteristics: freedom of speech and the rule of law and judicial independence. The truth is that in a free society the rule of law and freedom of speech limit but also complement each other: whereas the law may at times curb freedoms at the same time judicial independence guarantees the rights of citizens to their freedoms.
The imperative is that one can express one self in speech in any way one wishes as long as one is not infringing upon the rights of others. Thus, the freedom to speak out does not include the right to scream ïFire’ in a crowded theater, but criticizing the movie is the right of every citizen. Our actions are different to this. Even in open and democratic societies actions are extremely limited even when they do not hurt others. For example, one may not use or even possess narcotics, in the United States Cuban cigars are illegal, polygamy is illegal in most Western countries and the list goes on.
Most people accept that to avoid anarchy some freedom of action must to be curbed and the rule of law must prevail. The right that is most sacred in a free society is freedom of expression _ people should have a right to express virtually any opinion or idea they wish. Conversely, in totalitarian societies people may be free to marry more than one wife or to smoke Cuban cigars but they are not completely free to express their views and opinions. Furthermore in totalitarian societies the rule of law is in the service of the regime rather than the people. This is why totalitarian regimes end up killing their own citizens and threatening their neighbors. They have no respect for the rights of others _ anyone who opposes them must be eliminated.
Unfortunately history has shown that religious, theocratic regimes have the same faults, which lead to the same tragic and barbaric consequences. In fact history tells us that not only will they eliminate anyone who actively opposes their supposedly ‘divine ‘ message, often they have a mission to force neighboring countries and the rest of the world to accept it as well. This is because they have two major flaws. Firstly, they maintain a one-size fits all approach to humanity, whereby all people must either follow their religion and beliefs or be branded infidels or heretics who should be killed. Secondly, their religions are based primarily on ideas rather than practices. In order to ensure people are keeping to their religion these theocracies feel compelled to control the speech and expression of their people[1].
This is where Judaism differs radically. Judaism does not believe that all people must accept the Jewish religion; in fact it discourages gentiles who would like to convert. Furthermore Judaism is first and foremost a religion of practice[2]; philosophy and theology are secondary. Finally, traditionally Judaism’s supreme judicial body, the Sanhedrin, was independent of the governing establishment. Thus according to Talmudic law the government could not control judicial decisions[3].
These three points are extremely significant. Having no desire to proselytize other people a Jewish kingdom had no religious motive to conquer or threaten neighboring countries or its own citizens. On the contrary – we are commanded to respect and love people different to ourselves[4]. In fact the command to love the stranger occurs 36 times in the Bible, many more times than Sabbath observance rules, dietary laws, or admonitions against stealing, lying or coveting.
Secondly since Judaism focuses on practice, Jewish societies have always thrived on free and open debate. Indeed Judaism’s rabbinic magnum opus, the Talmud, can be defined as one big debate full of conflicting and dissenting opinions. A student of Jewish thought cannot help but be amazed at the mosaic of different opinions that coexist in Jewish law, theology and philosophy.
Thus, although Judaism promotes a theocratic type of government it nonetheless upholds the two most important principles of free societies: freedom of expression and judicial independence. Since Judaism inherently respects diversity and would never impose Judaism upon gentiles, a law separating church and state would be superfluous in an authentically Jewish state[5].
When religions of the world become more tolerant of diversity and begin to recognize the rights of others to think and believe differently to them, we may no longer need a separation of church and state. Until that time however this separation is an ingenious device that imposes upon religions the Judaic value of tolerance and love of the stranger. Its integrity must be protected at all costs.
[1] The Crusades of the 12th and 13th centuries and the Inquisitions of the 13th – 15th centuries are but an example of the above.
[2] See Daniel Rynhold who makes this point in the introduction to his book ‘Two models of Philosophy, ‘ Oxford University Press, 2005.
[4] Off course all freedoms have limits and non-Jews living in a Jewish kingdom would not be permitted to undermine the values on which the Jewish kingdom they inhabit is based. Thus gentiles living in a Jewish kingdom would be permitted to worship and live in virtually anyway they wish, however idolatry and immorality that would undermine the ethical monotheism Jewish values and society are based would be prohibited. This can be compared to the anti-terror measures that are designed to defend the values of freedom which countries such as the United States and Britain stand for.