(fwd) review of Please Don't Wish Me a Merry Christmas

[Eugene Volokh]

    (Redistributed pursuant to the permission granted in the final
paragraph.)

------- Forwarded Message Follows -------

Priority:       normal
Date sent:      Wed, 16 Apr 1997 17:52:05 CST-6CDT
Send reply to:  neal_tate at UNT.EDU
From:           Neal Tate <ntate at abn.unt.edu>
Organization:   University of North Texas
Subject:        Review:  PLEASE DON'T WISH ME A MERRY CHRISTMAS: A CRITICAL HIST
To:             UNT-LPBR at UNT.EDU

Title: PLEASE DON'T WISH ME A MERRY CHRISTMAS: A CRITICAL
HISTORY OF THE SEPARATION OF CHURCH AND STATE
Category: First Amendment/Church and State

LAW AND POLITICS BOOK REVIEW
ISSN 1062-7421
Vol. 7 No. 4 (April 1997) pp. 164-166.

An Electronic Periodical Published by
The Law and Courts Section
The American Political Science Association
Herbert Jacob, Founding Editor

C. Neal Tate, Editor
Department of Political Science
University of North Texas
Denton, TX 76203-0338
E-mail: neal_tate at unt.edu
Bruce Thomas, Administrative Assistant

The Law and Politics Book Review is published on the
UNT-LPBR list from the University of North Texas.  This is a
moderated list and does not accept any messages except via
the editor.  Please send all comments and questions to Neal
Tate via E-mail:  neal_tate at unt.edu.
____________________________________________________________
PLEASE DON'T WISH ME A MERRY CHRISTMAS: A CRITICAL HISTORY OF
THE SEPARATION OF CHURCH AND STATE by Stephen M. Feldman.  New
York: New York University Press, 1997.  395 pp.  Cloth $29.95.

Reviewed by Matt Wetstein, Social Science Division, San Joaquin
Delta College.


        If you run across Stephen Feldman during the holiday season,
here is some advice for you: please don't wish him a merry
Christmas.  He is likely to give you an icy glare and launch
into a lively and critical analysis of the history of the
separation of church state from the perspective of a well-read
American Jew.  Instead of placing yourself in that situation, I
recommend that you buy this wonderful book and enjoy the way
Feldman can use personal stories and critical historical
analysis to turn the dominant story of church-state separation
on its head.

        A Professor of Law and Political Science at the University of
Tulsa, Feldman makes two important arguments in this book.
First, he criticizes the "dominant story" of church state
separation as promoting religious freedom and toleration in
America -- particularly freedom for "outgroups" like Jews and
other non-Christians.  Instead, Feldman argues that the history
of church-state separation seen in a different light (a mainly
Jewish light) is a history of domination by Christian religious
groups, and a history of antisemitism.  Second, Feldman argues
that American legal scholars are wrong to argue that the notion
of religious toleration is a uniquely American product.  Thus it
is wrong to claim that the separation of church and state is (to
quote Stephen Carter from THE CULTURE OF DISBELIEF [1993]) "one
of the great gifts that American political philosophy has given
to the world" (Carter as cited in Feldman, 5).  Instead,
Feldman's critical history of this concept maintains that the
idea evolved slowly through western history as Christianity
evolved.  For much of western history, religious toleration
meant tolerance of Christianity, not of other religious
movements.

        In many ways, this is a book about the dominant power of
Christianity in the western world, and the strands of
antisemitism that came with that domination.  Feldman traces the
argument back to the time of Jesus and the struggle to develop a
Christian faith in the wake of his persecution, trial, and
crucifixion.  Jews, of course, became the scapegoat outgroup
because of their alleged role in the crucifixion.  Later
acceptance of Christianity by Roman emperors led to the struggle
over the division of power in "this world" between rulers of the
state and rulers of the church.  Thus, separation of church and
state is a construct that has troubled western history since the
days of Roman power, and any historical study of the battles
between Catholic church leaders and civil kings and princes
makes this evidently clear.

        This is a book filled with nuggets of important material for
scholars of church history, Jewish persecution, normative
political theory, and constitutional law.  The historical sweep
of the book is impressive -- ranging from the beginnings of the
Christianity to the late 20th Century.  The book is often
painful to read because of the detailed accounts of Jewish
persecution through history by Christian and civil rulers.
Scholars of normative theory will find a

Page 165 follows:

number of great authors discussed, including Augustine, Aquinas,
Hobbes, Locke, Martin Luther, Machiavelli, and Madison.
Inevitably, the discussion of these authors turns to their
treatment of Jews, "heathens," and religious minorities in
theological or political terms.  Constitutional laws scholars
will derive benefit from the discussion of establishment and
free exercise clause cases in Chapter 9 of the book.

        The book's strengths are many.  Foremost, the topic and thesis
of the book are important.  In an age of growing intolerance
between ethnic and religious groups, it is important to
recognize scholarship that highlights the past vilification of
Jewish people, and the roots of religious toleration and
intolerance.  This history of intolerance of the "prototypical
religious outgroup" is clearly described and is systematically
developed through the historical chapters.  The roots of
religious toleration are rightly found outside of America, prior
to the writing of the U.S. Constitution.  The volume of sources
cited in this work to document this history is extraordinary.
The evidence of de facto Protestant domination in American
history, and de facto establishment of Christian traditions is
clearly described.  In brief, this is a significant work of
scholarship, deserving the attention of scholars of religious
studies, history, normative political theory, and constitutional
law.

        Of particular interest to readers of the LAW AND POLITICS BOOK
REVIEW is the nuanced analysis of religious cases in Feldman's
work.  Once again, a critical Jewish eye is taken toward the
Supreme Court's rulings.  While Feldman applauds rulings that
establish protections for religious outgroups (for example LEE
V. WEISMAN [1992], overturning prayer at a public school
graduation), he points out that the Court usually writes from a
decisively Christian conception of religion.  Thus, victories
emerge on occasion, but the Court often sides against religious
minorities, and often endorses laws that appear to entangle
Christian traditions with government.  One example of this
argument should suffice.  In 1961 the Supreme Court upheld as
constitutional Sunday closing laws without exemptions for Jews
or others who celebrate non-Sunday sabbaths.  The Court's
rationale was to honor a day of "rest, repose, recreation, and
tranquility" -- a secular day of rest, regardless of the
Christian roots of the law (MCGOWAN V. MARYLAND, [1961]).
Contrast that ruling with the Court's rejection of a Connecticut
law in 1985 in THORNTON V. CALDER.  There the Court overturned a
state law establishing an employee's right not to work on
his/her religious sabbath.  Feldman criticizes the ruling in the
following way:

        "If the dominant story of church and state is accurate -- that
is, if the separation of church and state were a constitutional
principle that equally protects the religious freedom of all,
including outgroups -- then one would expect the Court to uphold
the Connecticut statute.  After all, the Court already had
upheld Sunday laws, and this statute appeared merely to
accommodate the religious practices of outgroups.  Nonetheless,
the Court held that the statute violated the establishment
clause.  To reach this conclusion, the Court relied on the
second prong of the Lemon test, reasoning that the primary
effect of the statute was to advance religion" (Feldman 252).

        Thus, what was good for Christianity (that is, a secular day
of rest) in 1961 was not good for others in 1985.  This provides
a brief taste of the argument Feldman makes in this book.

        While Feldman's book is clearly a superb work of scholarship,
one minor flaw emerges.   Feldman's emphasis on the mistreatment
of Jewish people through history means that many other religious

Page 166 follows:

outgroups are omitted from the analysis.  In Feldman's defense,
this is perhaps an unfair criticism, because it is obvious he
set out to write a book on church state separation from the
perspective of a critical Jewish scholar.  Indeed, the opening
line of the book reads:  "I am Jewish" (Feldman 1).  But a
nagging question is left with the reader:  What about other
religious perspectives that are not Christian?  For example, the
religious conversion of Native Americans, and the attempt to
bring them into the "city of God" at the end of a sword, gets no
attention here.

        On another level, it is important to realize how many non-
Jewish minority groups were active in bringing suits before the
Supreme Court to defend their religious freedom, their right to
free expression, or to attack religious establishments.  The
list of denominations is long, and includes Jehovah's Witnesses
(CANTWELL V. CONNECTICUT, [1940]), Native Americans (OREGON V.
SMITH, [1990]), Seventh Day Adventists (SHERBERT V. VERNER,
[1963]), Buddhists (CRUZ V. BETO, [1972]), Moslems (O'LONE V.
SHABAZZ [1987]), the Santeria faith (CHURCH OF LUKUMI BABALU AYE
V. HIALEAH [1992]), the Amish (WISCONSIN V. YODER, [1973]), and
the Hare Krishnas (INTERNATIONAL SOCIETY FOR KRISHNA
CONSCIOUSNESS V. LEE [1992]) -- just to name a few standout
cases.  Indeed, one of the striking features of recent religious
cases is the propensity of religious denominations of many
different traditions to join hands in filing briefs with the
Court to protect religious freedom.  But bringing law suits and
winning them are two different matters.  Thus, Feldman is right
to draw attention to one critical point: while Christian sects
often win free exercise cases (even members of small minority
Christian groups), non-Christians never win free exercise cases
before the Supreme Court (Feldman 246).

        Still, there is little here to quibble with and much to
applaud.  Indeed, readers might get the most benefit out of the
many modern-day examples of antisemitism Feldman catalogs in the
closing chapter of the book.  The examples are astounding, and
certainly influenced Feldman's book title.  The only warning I
provide for readers of the LAW AND POLITICS BOOK REVIEW is that
the book is longer on history, and shorter on constitutional law
than they may desire.  But if you seek more evidence of the
historical development of church and state issues, and religious
toleration, you will find much in Feldman's book to enjoy.

        With that, I wish you all a very merry .... reading holiday!
************************************************************
Copyright 1997 by the author.
Readers may redistribute this article to other individuals
for noncommercial use, provided that the text and this
notice remain intact and unaltered in any way. This article
may not be resold, reprinted, or redistributed for
compensation of any kind without prior permission from the
author. If you have any questions about permissions, please
contact C. Neal Tate, Editor, The Law and Politics Book
Review (neal_tate at unt.edu), Department of Political Science,
University of North Texas, Denton, TX 76203-0338 or by phone
at (817) 565-2386 or(817)565-4818 (fax).
************************************************************
Previously published reviews may be obtained at the Law &
Politics Book Review web site: http://www.psci.unt.edu/lpbr/