Reclaiming Religious Liberty, the Most Cherished American Freedom

An address by Rabbi Philip Lefkowitz, Spiritual Leader of Agudas Achim North Shore Congregation and founding Chairman of the Legislative Commission of the Chicago Rabbinical Council, delivered at Halas Hall, Lake Forest, Illinois, October 14, 2012

The First Amendment to our Constitution, in a heretofore-unprecedented statement, restricts the government from placing limits upon any religious practice or establishing a specific religion. Yet, in his farewell address to the nation, President George Washington advises:

Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports... And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.”

Considering the revolutionary period, it is a bit odd that George Washington, the gentleman from Virginia, the General who led our forces to victory, who occupied the famed chair of the rising sun during the deliberations of the Continental Congress, as Benjamin Franklin noted, symbolic of the very birth of our nation, presents us with the seeming paradox of our country’s unique principle foundation. While stressing the pivotal importance of religion in determining morality, he, as our other founding fathers, elected to create a society in which the government and the church are separate with the law protecting the church or more appropriately, the free expression of all religious denominations, from any interference by the government.

How did Washington understand this unique approach was to function? If religion is indispensable, how was it to affect our society, and the manner in which we govern ourselves?

May I suggest that it was understood by our first President, and indeed by all our founding fathers, that the principles by which our society would function both in terms of the daily interpersonal relationships of its citizens and the enactment of law by its government, would be based upon what we commonly refer to as the Judeo-Christian ethic, the shared moral values of Judaism and Christianity.

It is for us then to determine what exactly this cornerstone of society, this Judeo-Christian ethic, actually means. May I, as a Rabbi, offer some understanding of it in terms of my Jewish tradition.

Unlike Christianity, which seeks its moral and ethical guidance through the concept of agape love, as evidenced by G‑d to man, and as expressed in the life of Jesus of Nazareth, Judaism sees its morality in the law. The first five books of the Old Testament contain 613 specific G‑d ordained commandments. Expressed both in the positive and the negative, they constitute the rules and regulations by which a society must function and, in turn, its morality. Indeed they encompass the entire spectrum of human endeavor. In administering these laws, this Jewish morality, our judges, our rabbis, are instructed that, in situations where a specific law is not clearly found, they must go beyond the letter of the law, “doing what is right in the eyes of the L‑rd” Deuteronomy 13:18, extrapolating from the law the moral direction required to deal with the situation placed before them. It is these laws, the laws found in the first five books of the Old Testament, the Torah, to which our founding fathers referred when developing our Constitution.

To highlight this point – It is clear from the Torah that, in administering justice, the individual whose actions are to be judged is considered innocent until proven guilty. It is the task of the prosecutor to bring forward the evidence necessary to convict the individual. One can postulate that this principle is premised upon the fact that G‑d is our Creator and therefore our true judge, and only out of necessity is man allowed to stand in judgment over his fellow.

Considering the basis of British Common law, the law that was in force in the colonies prior to the Revolution, this foundational principle of American jurisprudence is a major departure. Rooted in the Divine right of kings to rule over their subjects, British law accuses an individual of wrongdoing. It falls to the individual to prove his innocence. Rooted in the Judeo-Christian ethic, American law charges an individual with wrongdoing. It falls to the State to prove the guilt of the individual beyond a reasonable doubt.

America’s own history tragically bears witness to the suffering experienced when our society ignores these definitive moral guideposts. Our collective Judeo-Christian heritage makes abundantly clear that a touchstone of a moral society, a G‑dly society, which walks in the paths of righteousness, is that compassionate society, which cares for the poor and the afflicted. It is this compassion that creates the human being out of a mere homo-sapien.

Yet, in 1927, a case was brought before the United States Supreme Court known as Buck versus Bell. The case dealt with a woman by the name of Carrie Buck, who was determined unfit to reproduce because she was considered to be retarded. She had been placed in the Virginia State Colony for Epileptics and Feebleminded, where she was convinced to undergo a form of tubule ligation.

That determination of retardation was made by Harry Laughlin of the Eugenics Record Office in Cold Springs Harbor, New York, then the premier institution in the United States in the field of eugenics. Laughlin never met Carrie Buck, basing his decision largely upon the statement of a nurse who said the following regarding the Buck family. “These people belong to the shiftless, ignorant, and worthless class of antisocial whites of the South.”

Laughlin determined that sterilization would be a force for the mitigation of race degeneracy.”

Basing his ruling on a Massachusetts law mandating vaccination for public school children, Justice Oliver Wendell Holmes, an icon of the liberal and progressive movements in the United States, wrote the following in his one-page ruling, “The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough.”

The only Justice dissenting from this opinion was Justice Pierce Butler, a Catholic, following the then common practice of the court not to write dissenting opinions. In a time when eugenics was considered all the rage in the United States, it was the Catholic Church, which stood in opposition to this godless approach to human life. It is important to note that the Supreme Court never formally rejected the fundamental principle in Buck versus Bell, generally referred to as negative eugenics, removing, in this instance, sterilizing “undesirable” individuals in society, much as one thins out weak cattle from the herd. The ultimate goal is the same – to create a super human being – the perfect American human specimen.

There comes to mind, the hellish spectre of a decrepit Hitler, slowly rising from his exalted seat in the pit of eternal damnation, with a confident smile of victory upon his face, raising his hand in the Nazi salute, mustering his last ounce of strength and shouting: Ach meine kinder, meine kinder – Amerika über alles!”

President Washington, the proverbial Biblical Prophet, exhorts us to be ever on the alert, ever vigilant, warning, “that no national morality can prevail in exclusion of religious principle.” We must be ready to do battle in defense of this fundamental underpinning of American society, taking on those who would distort, and thereby weaken, the Judeo-Christian ethic, the very basis of this magnificent experiment in governance we call, the United States of America. The concept of religious freedom encapsulated in the first amendment to our Constitution defines our society. The very future of the United States depends upon it.