THE BLOG
05/30/2014 02:39 pm ET Updated Jul 30, 2014

Numbers and Religious Liberty

There are several names for the fourth book of the Torah. In Hebrew it is titled Bamidbar, "in the wilderness," because the book describes events that occur as the Israelites journey through the wilderness of Sinai on their way to the Promised Land. But "Numbers," the name by which it is most familiar to us and which comes from the Septuagint, the Greek translation, is fitting because the book opens with God's command to Moses that he "number" the Israelites, that he count them: "On the first day of the second month, in the second year following the Exodus from the land of Egypt, the Lord spoke to Moses in the wilderness of Sinai, in the tent of meeting, saying: Take a census of the whole Israelite community by the clans of its ancestral houses, listing the names, every male, head by head."

From then till now, the Jewish people's strength has never been in numbers. Indeed our status as a religious minority has resulted in our persecution across history and the globe. That is why we count our acceptance in America such a blessing. Rabbi Alexander Schindler, the Reform Movement's former president, once wrote: "Everywhere else in our wanderings we suffered persecution; never here. In all other countries there was an established faith; here there is none. That is why...the separation of church and state is a gut issue for American Jews...[and] why we prize the First Amendment as the very cornerstone of our liberties."

And that is why the Supreme Court's recent decision in Town of Greece v. Galloway allowing sectarian religious invocations at local government meetings is so upsetting.

The case stretches back to 2007 when two citizens of Greece, New York outside Rochester complained that meetings of the town opened almost exclusively with Christian invocations. For nine years running, every prayer had been Christian. Believing such a practice to violate the First Amendment's establishment clause, they sued the town.

The Court's decision handed down at the beginning of May was close, 5-4. One notes that its Jewish members all voted against the ruling, including Justice Elena Kagan who wrote for the minority. "I would hold that the government officials responsible for the above practices -- that is, for prayer repeatedly invoking a single religion's beliefs in these settings -- crossed a constitutional line," she said.

The religious right, which decries any attempt to remove sectarian religious expression from the government square as a "war on religion," is hailing the court's decision as a "great victory" for religious freedom -- but in doing so, turns the meaning of "religious freedom" on its head. Listen to the perverse rationale of the Becket Fund for Religious Liberty's Eric Rassbach, who claimed after the ruling: "Prayers like these...demonstrate our nation's religious diversity."

Nothing could be further from the truth! How does prayer consistently Christological in nature demonstrate diversity? There are pockets of this country where small minorities -- Jews, Muslims and others -- struggle to maintain their identity and sense of belonging. When they attend their towns' Memorial Day gatherings, all they hear are prayers of someone else's faith.

Many leaders in the American Jewish community share my view, but not all. The Orthodox Union welcomed the Court's decision in Town of Greece v. Galloway. And in his recent piece in The Jewish Week, Hebrew Union College-Jewish Institute of Religion sociologist and professor Steven M. Cohen suggested that as discrimination against American Jews has given way to our widespread acceptance, conditions no longer warrant our heightened concern over the separation of church and state, and that for our increasingly assimilated Jewish community the presence of greater religion in public life could encourage affiliation and engagement.

I reject that conclusion. It is my job to engage our people Jewishly, not the government's.

Now having said this, I am not opposed to prayer or expressions of faith in government settings. I think it is even helpful for communal leaders to be reminded that their labor on behalf of the people they represent constitutes a sacred trust. In the ruling, all nine justices -- including the four in the minority -- supported the practice of legislative prayer affirmed as constitutional in 1983 when in Marsh v. Chambers Chief Justice Warren Burger noted that the same week of September 1789 the First Congress finalized the language of the Bill of Rights they also authorized a paid Presbyterian chaplain to open their deliberations. So the framers saw no contradiction. Three years ago, in fact, I was invited to deliver an invocation on the floor of the House of Representatives.

But the instructions given me were clear -- that my words should recognize the diversity present in the chamber. And that is what is disappointing about this ruling: Not its support of legislative prayer, but the low bar it establishes for a prayer's permissibility. The standard that it not "denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion" is just not high enough. As Justice Kagan wrote, "Every citizen, irrespective of her religion, owns an equal share in her government." None should be made to feel otherwise.

Ultimately the courts interpret the framers' intent. But this ruling should raise serious concerns for us, a people few in number whose survival and prosperity in America were made possible only by the First Amendment's protections; a people summoned by our history to build a just and compassionate society for all.