Supreme Court Justice Antonin Scalia and Renowned Attorney Nathan Lewin Discuss Landmark First Amendment Cases at Straus Center Event
The First Amendment of the United States Constitution begins with a bold statement: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” How that statement shapes the interaction of religion and the public sphere in modern-day America, however, has been the subject of heated debate throughout American judicial history.
That question and others like it were the focus of a conversation between United States Supreme Court Justice Antonin Scalia and renowned attorney and Yeshiva College graduate Nathan Lewin, hosted by Yeshiva University’s Zahava and Moshael Straus Center for Torah and Western Thought and attended by a crowd of more than 1,200 in Yeshiva University’s Lamport Auditorium on November 6.
Titled “Synagogue and State in America: The Landmark First Amendment Cases of Our Age,” the discussion was part of the Straus Center’s “Great Conversations on Religion and Democracy Series” and was moderated by Rabbi Dr. Meir Soloveichik, the center’s director. Noting that Scalia had ruled on Supreme Court cases dealing with these issues and Lewin had argued them before that same court, Soloveichik said, “We are fortunate to welcome tonight two men of faith who have achieved such great knowledge of the law: one who judges this great nation and the other who has distinguished himself by arguing how that nation shall be judged.”
The evening began with an exploration of the original and present interpretation of the Establishment and Free Exercise Clauses, as well as three crucial Supreme Court cases where one or the other had been invoked: Lemon v. Kurtzman, which ruled that a Pennsylvania Act that allowed the state to reimburse private schools for the salaries of secular studies teachers was unconstitutional (1971); Goldman v. Weinberger, in which a Jewish Air Force officer was denied the right to wear a yarmulke when in uniform on the grounds that the Free Exercise Clause applies less strictly to the military than to ordinary citizens (1986); and Board of Education of Kiryas Joel Village School District v. Grumet, which held that the creation of a school district designed to coincide with the neighborhood boundaries of a religious group was an unconstitutional aid to religion (1994).
“There is incoherence in our Establishment Clause jurisprudence,” Scalia said, citing the 1994 case conclusion that government should neither prefer one religion to another, nor religion at all to irreligion. “There’s no way to support that proposition in light of American history—for instance, we’ve always held that tax exemptions for houses of worship are permissible. I think that has to say something about the reading of the Establishment Clause.”
The fact that the current reading of the Clause seems not to take such policies into account is a reflection of how far its interpretation has moved from its original reading, according to Scalia, who also observed that his court always began sessions with the words “God save the United States and this honorable court.”
“We have said all kinds of things that don’t comport with Americans’ perceptions of America in the name of the Establishment Clause,” Scalia said. “My approach is to look at the tradition of the American people, because there are practices which have been engaged in for time immemorial that should not be prohibited. God doesn’t have to be driven out of the public courts.”
Lewin brought insight to the discussion from the other side of the bench, touching more specifically on the American Jewish community’s unique relationship with the First Amendment. “Through all my years of litigating on these issues, I’ve often found Jewish groups, like the Jewish Congress or the Anti-Defamation League, on the other side of the case,” he noted. “I think the Jewish community then was concerned with proselytization, that Jews would become Christians if they attended public institutions where the separation of church and state were not enforced. Time has proved that we shouldn’t be concerned about that fear so much as assimilation—the PEW study has shown not that people are trying to convert Jews to Christianity, but that Jews are not being given sufficient knowledge or background to keep them Jewish.”
In response to a closing question from Soloveichik about whether Talmud study better prepared Jews to succeed in the field of law, Scalia and Lewin recalled their classes together at Harvard Law School in the 1950s. Remembering how Jewish students would attend Saturday morning classes without taking notes, Lewin shared his initial confusion about the ways Talmud and law study differed. “In Talmud, you don’t question whether the mishna is right,” he said. “But in law, you question everything.”
Scalia, however, thought Talmud study did offer his Jewish classmates one advantage: “They knew from the beginning of the year that there were no answers to the questions we were studying.”
A diverse crowd came to hear the discussion, including YU undergraduates, students in the Benjamin N. Cardozo School of Law, local high school students, and members of the public. Fred Mell ‘71YC, an attorney, found the camaraderie between Scalia and Lewin especially interesting. “I liked the back and forth, how even though they didn’t always agree on what the other was saying, they shared the belief that the law is based on interpretation,” he said. “The tension between the balance of the individual’s rights and the community’s rights is fascinating—it’s like the excitement of Yiddishkeit: finding that balance of faith and engagement with the general culture around us.”
To learn more about the Straus Center, visit www.yu.edu/straus.