From the WSJ Opinion Archives
HOUSES OF WORSHIP
Do as I Say, Not as I Do
Noah Feldman's puzzling compromise between religion and secularism.
If Roy Moore is to be allowed to place a 3,200-pound granite monument in front of a courthouse, why shouldn't Orthodox Jews be allowed to stick some small strips of plastic on telephone poles?
That's a question that could puzzle readers of "Divided by God," the latest volume from Noah Feldman. In the book, Mr. Feldman--the 33-year-old legal rock star and New York University professor who was chief adviser for the Iraqi constitution--proposes a Solomonic compromise. He urges legal secularists to abandon their fight against religious symbols on public grounds and asks "values evangelicals" to stop pushing for public funding of their programming. To take a couple of real-life examples where such a compromise might play a part: Even though some folks in Cleveland have won their battle to gain public funding for local Catholic schools, they shouldn't take the money. And the secularists who just managed to get the Supreme Court to throw the Ten Commandments monument out of a courthouse in Kentucky should let it stay.
Mr. Feldman's is a strange proposal, not only because there is no reason to believe that either side will make the concessions he calls for but also because of the fact that, not too long ago, Mr. Feldman offered his services pro bono to the city of Tenafly, N.J., in its fight against Orthodox Jews who wanted to have an eruv, or Jewish ritual boundary, placed around the town. (On the Sabbath, Talmudic law prohibits carrying objects outside a dwelling, but it is allowed if a boundary is placed around a number of dwellings.) In most modern urban landscapes, barely distinguishable pieces of plastic and string are added to telephone poles to create the eruv.
The Tenafly eruv went up in late 1999, but when the mayor found out about it a year later the borough council demanded that it be taken down, prompting the Orthodox community to file a lawsuit claiming religious discrimination. Eventually the Third U.S. Circuit Court of Appeals ruled that the borough had indeed violated the Orthodox community's right to free exercise of religion. The key to the decision was the court's finding that the city had pursued an anti-Orthodox agenda, using for the purpose a semi-enforced local ordinance aimed at keeping telephone polls clean.
Wasn't the eruv a perfect example of a religious symbol on public grounds? To judge by his own thesis, shouldn't Mr. Feldman have helped the Orthodox community in their lawsuit instead of Tenafly in its effort to ban the eruv?
It was the neutrality of the local ordinance, Mr. Feldman told me in a recent interview, that was the basis of his defense of the city and that led him to get involved "when almost no one else would touch the case." Mr. Feldman contributed what borough officials estimate to be $75,000 worth of his time. The Tenafly dispute, Mr. Feldman argues, had nothing to do with the Establishment or Free Exercise clauses of the Constitution and everything to do with the fact that "there is a neutral, generally applicable law in place."
But Mr. Feldman says he was especially "bothered to see what was essentially an intra-Jewish community problem . . . treated as a federal lawsuit." He wished that the eruv association had found a more civil resolution to their problem than "suing the Borough council members in their individual capacities and accus[ing] them--including the Jews on the council, a majority--in open court of being anti-Semites." He believes "the whole issue arose out of miscommunication and misunderstanding."
That may be. But it seems disingenuous of Mr. Feldman to write in support of greater freedom for religious displays in his book while using a technicality to argue against it in northern New Jersey. There is another inconsistency here as well. The argument of "Divided by God" is more political than legal. Mr. Feldman hopes to persuade activists on both sides of the church-state debate to rest their cases not on the outcome of litigation over the meaning of the First Amendment but on a sense of what is proper for American society.
If Mr. Feldman is so loath to use the legal process to sort out these issues, it is reasonable to wonder why he pushed a rather dubious case through multiple levels of appeals, pro bono, when, as he himself boasts, almost no one would take money to argue on the council's behalf. He could have offered instead to mediate between the two sides.
After Mr. Feldman's loss in court, he went on to write a book telling everyone else why they should forget their victories. It's not exactly a winning argument.
Mr. Weiss writes the religion blog Canonist.com and is editor and publisher of CampusJ.com.
