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Mark Pelavin
Domain's Guest
Mark Pelavin
Leading lobbyist for the Religious Action Center of Jewish Reform movement will discuss recent decisions by the Supreme Court. Readers can send questions.
Mark J. Pelavin is the Associate Director of the Religious Action Center of Reform Judaism (RAC). He is one of the Jewish community's leading legislative strategists, and, having worked in Washington for over 15 years, one of its senior lobbyists.
Mr. Pelavin, an attorney, plays a leadership role on the RAC's entire agenda, although he is particularly recognized for his expertise on issues concerning the separation of church and state. He is an expert in confronting the religious right (more bio here).
Our discussion this week will focus of the recent decisions by the US Supreme Court. Readers can send questions to rosnersdomain@haaretz.co.il.
Dear Shmuel Rosner
I would like to ask your guest why he would call his actions "Jewish" and not just the name it deserves: left, liberal, progressive etc. I don't mean to say it in a derogatory way, just to try and understand what all this has to do with Judaism.
Waiting for your reply,
Olga Gorovsky
Long Island, NY
Dear Shmuel and Olga,
I am writing today from the Union for Reform Judaism?s Kutz Campus for Reform Jewish Teen Life, which serves as a leadership academy for our youth. I trust you will not mind that I used your very provocative question as the center of the class which I taught this morning. The campers were very helpful to me in thinking about the various issues raised by your question.
I suppose I have not been as explicit in this dialogue as I might have been about the Reform Movement?s approach to public policy, and why we believe that are our actions are, indeed, ?Jewish? and not only ?liberal? or ?progressive? (even when they are that as well).
The word "Jewish" is not self-defining. Plainly, it means more than rituals, although we should not understate the importance of "customs and ceremonies" in offering people a sense of location in a chaotic world.
Any serious definition of "Jewish" draws on our sacred texts and on the experiences of our people through history. There are, obviously, a variety of ways in which to read those texts and remember that history.
One plausible way is to read them as calling for what the Catholic Church calls "a preferential option for the poor" and what Jews call "social justice."
Reform Jews did not invent the concept of social justice, nor were they the first to speak of compassion for the poor, the widowed, or the orphaned. It is a tiny step from such concerns to a commitment to a decent minimum wage, universal health care and similar programs often thought of as "liberal" or "progressive." Such a commitment is, for example, powerfully suggested in Isaiah 58, which guides us in our care of the hungry, the poor, and the homeless and which rabbis of the 4th century instructed us to read in the synagogue on Yom Kippur. We believe that our duty is not only to read the words of Isaiah, but to act on them, and we insist that such action is not only consistent with the Jewish tradition but implied by it.
So while it's true that many of the positions we articulate are progressive, it is the source of those positions that are intrinsically "Jewish" (acknowledging, of course, that the Jewish community has NEVER been monolithic in its understanding of Jewish law, values or traditions). Seeking a society that cares about vulnerable populations (i.e. providing a safety net for the poor, health care to the aged, support systems for disabled, education for children, etc) may be considered progressive today, but we come to that position out of an ancient Jewish worldview that commands us to care for the 'poor, the widow and the orphan.' Just as the rabbis of Talmud and other rabbinic literature interpreted those ancient commands to apply them to their times (i.e. requiring each community to establish soup kitchens and clothing funds and burial societies and general funds for the poor), we continue to apply our Jewish values to today's realities.
In class today, our conversations about this question actually led back to (of all things!) the recent Supreme Court term. One of the most striking and most dangerous trends from the Court is its all but universal siding with business (the bigger the better) against individual plaintiffs. Today ?the poor, the widow, and the orphan? are not being heard by the nation?s highest Court. And that, I believe, is absolutely a ?Jewish? concern.
Dear Mr. Pelavin,
I read your dialogue with Mr. Rosner with great interest, and came to the conclusion that the separation of church and state has become a religion in and of itself. I'm not Orthodox myself and do support separation - but why is it that the Reform movement goes to such trouble to defend something that is well defended in the constitution and not under any serious threat of being abolished (even if Bush gives some money to his evangelical friends).
I feel that you waste time on a battle of the past.
Thank you
Jeremy Korb
Dear Jeremy,
What a great question for the 4th of July! It speaks to so much that is special and important in the American experience.
Why does the Reform Movement (as well as the overwhelming majority of American Jews, together with Americans of all faiths) make defense of the wall of separation such a high priority?
We do so because we know that no small part of the success of the American experiment is due to this very principle, and because we know that it is this principle which has allowed the Jewish community to become truly at home in America. Jews found a home, a haven, in America where -- because of the principle of separation of church and state ? we have flourished. We have been spared the kind of sectarian divisiveness, competition and strains that have torn apart so many countries. Those strains continue to exist in nearly every corner of the globe today.
You suggest that the separation of church and state is ?not under any serious threat of being abolished.? That is an interesting way to phrase the question. On the one hand, I suppose I agree that there is not a serious current threat to ?abolish? the separation of church and state (i.e. to establish a state religion). On the other hand, do we not need to be aware of threats to the separation principle that fall short of abolishing it? Jefferson?s metaphor of the ?Wall of Separation? is very helpful; what we are seeing today is a constant chipping away at the wall, often at its very foundation.
Why do I say that the attacks are aimed at the wall?s foundation? While the debates in the past were over specific interpretations of the Constitution and current policies -- ie: can a rabbi offer a prayer at a public middle school graduation without it promoting religion (the Court said ?no? in Lee v. Weisman), or can a school provide a sign language interpreter to a deaf student who attends Catholic school (the Court said ?yes? in Zobrest) -- the current debates are about the very nature of American society. Is it -- or is it not -- the role of government to promote religion (as opposed to civic virtues that are commonly shared)? And in particular, is it the government?s role to promote Christianity? Those who would undermine the separation of church and state today do so with the specific goal of toppling the wall altogether, denying the critical role of the First Amendment and seeking to turn back the clock to a time when 'diversity' meant Lutheran and Baptist, rather than today's robust, pluralistic community where Sikhs, Jews, Catholics, Muslims, Buddhists AND Protestants are all equal in the eyes of the state.
So today, as we celebrate America?s Independence Day, American Jews do so as part of a remarkable nation. And we do so knowing that we owe no small measure of our freedom to the wisdom of the Framers of the Constitution, and, in particular, to Mr. Jefferson?s ?Wall of Separation? between church and state.
Mark
Since justices are appointed for life, what can socially liberal Jews do to voice their objections to recent decisions in an effective manner? Unfortunately, I firmly believe the answer is "nothing."
I respond almost daily to RAC e-mail and only get form letters in reply usually from Rep. Mike Doyle who votes as I would most of the time.
Unfortunately Senator Specter in spite of being Jewish, himself, has been less independent in the last year or so and I never hear from the newly elected Senator Casey.
I feel frustrated and helpless as I see Constitutional rights abused by the current administration. Can you offer advice about anything we Jews can do that may make a difference?
I appreciate the opportunity to ask you these questions and applaud the opportunities for social action offered by the RAC. Thank you.
Shirley Tucker
Dear Shirley,
Thank you for this important question (and for your kinds words about the work of the Religious Action Center!).
I certainly understand, and often share, your sense of frustration. It's true that the essential principle of judicial independence limits (if not restricts entirely) the ability of the public to hold judges accountable for their decisions. It is an imperfect system, but, as they say, better than all others. But I hope that you do not allow that frustration to fester into helplessness. Frustration, and anger, can be powerful forces for change.
Certainly the most important arena for change on the level you are seeking is the political arena. Who is in the Senate, who sits on the Senate Judiciary Committee, who occupies the White House ? those are the most important forces in shaping the Federal Bench. If you are unhappy with the direction of the courts, you need to make that clear as you make your political decisions (who to vote for, work for, contribute to). And, by the same measure, those are supportive of the current direction of the Courts need to do the exact same thing.
The legislative arena, too, is crucial. Senator Specter is a perfect example; he is someone who has opposed some of the most extreme judicial appointments, and supported others. That suggests, to me, that he (like most members of the Senate) is open to persuasion on any given nominee. By making your voice heard during the "advise and consent" process the Senate goes through when considering individuals nominated by the president, you can influence the composition of our courts. And never think that because you do not receive a response to a call, letter or email you send to your members of Congress you are not being heard. Members of Congress are hard-wired for getting re-elected. Each is attuned to what the voters are saying.
Further, there will certainly be legislative responses to some of the recent decisions, as has been the case in the past with the laws such as the Civil Rights Restoration Act (responding to Supreme Court?s Grove City decision, among others) and, more recently, the Religious Land Use and Institutionalized Persons Act of 2000 (responding to the decision in City of Boerne v. Flores).
There are other arenas as well. As I mentioned yesterday, it has become a hobby horse of mine that other Jewish organization, which know well the importance of the Federal Court, have sat out the debates over specific nominees. (The National Council of Jewish Women is a notable, and important, exception.) I understand their wishing to live in a time when judicial nominations were not political. But that time ? if it ever existed -- has come and gone. Saying you are against the politicization of the judicial selection process today is much like saying you are against gravity; you can say it as much as you want, but it does not really change anything.
Depending on your views, there is also a wide array of organizations working in this area that could you use your support. The Alliance for Justice, the Leadership Conference on Civil Rights, and People for the American Way do a great job vetting nominees and potential nominees, and organizing the opposition to the most egregious candidates. The American Constitution Society is doing important work organizing the legal community, and raising awareness of the politicization of the judicial selection process. The ACLU, Americans United for the Separation of Church and State, the NAACP Legal Defense Fund and many, many others continue to develop and bring important cases challenging the worst of these rulings and trying to shape the law in better directions.
The final arena may be the most important ? the personal. You can multiply the power of your own voice by letting your family members, friends, co-workers and others know what's going on. People have busy lives, and too often they don't see the very real connection between Supreme Court rulings and the humdrum of their everyday. By letting others know how the Court's decisions impact them (the recent desegregation case, for example, will have a real and immediate impact on families with school-age children) through letters to the editor, calling into radio shows, holding a roundtable discussion in your synagogue, church, mosque, community center or elsewhere, and simply by talking to people you know (including those in other states - to increase the awareness level across the country) you can make a difference.
Shirley, when I get frustrated I look for inspiration. I remember the words of Rabbi Tarphon, who taught that ?"The day is short and the work is great, and the laborers are sluggish, and the wages are abundant, and the master of the house is demanding." And then he added, "It is not necessary for you to complete the work, but neither are you free to desist from it." And I think of a more contemporary sage, Dr. Martin Luther King, Jr., who taught that ?the arc of history is long, but it bends toward justice.?
So, yes ? be frustrated. Even angry. But never, never, helpless.
Mark
Dear Mark,
You write that "Hein is particularly disturbing for two reasons, over and above its result". But if the result is what you do not like - isn't that an expression of political preference rather than law? Would you complain in the same manner about "ignoring precedent" if it was a decision you liked better policy wise?
Shumel,
Of course results matter. They matter first and foremost. But process matters too, and for the Supreme Court, it matters very much.
I think it matters that the Roberts Court is quick to discard precedent. Our legal system demands consistency and predictability. The system can not work when the rules keep changing. That does not mean that there is never a time when an old precedent needs to be overruled, but it does mean that the Court must do so rarely and carefully. Think of the contrast between the narrow, fractured rulings in this term?s school segregation cases and the unanimous 9-0 ruling in Brown v. Board of Education, where the Court did explicitly overturn its previous rulings upholding segregation.
I also think, specifically, that it matters that the Court?s rulings have come from such a deeply divided court. The Court is at the height of its authority, especially its moral authority, when it speaks with one voice, or at least with a broad consensus. Further, so many of its recent ruling have been hyper-technical and have provided lower courts with the type of guidance they need to apply the law fairly and accurately.
So, yes, if the Court were reaching decision with results I liked, but doing do by routinely upsetting precedent by 5-4 votes, I would be deeply troubled.
As for your broader point, of course taking sides in a case means expressing a ?political preference.? (I would have said ?policy preference,? since that might make clear that our involvement is in support of, or in opposition to, specific policy positions rather than political parties.)
One of the things which makes Court watching so interesting is that all of the Justices are working with the same raw material ? the same statutes, opinions, and, of course, the same Constitution. Yet, they often reach different conclusions. Your question implies there is something untoward about that. I don?t see it that way at all.
It is naive to think that political or other ideologies play no role in Court decisions. Justices aren't automatons, nor would I want them to be. They bring to the Court their personal backgrounds, experiences, prior rulings and much more. To say that Justices Scalia and Breyer or Thomas and Ginsberg are blank slates is ridiculous. That's why they wind up on differing sides of so many cases. And in the same way, the history and experiences ? and political views ? of the Reform Movement shape our approach to individual cases.
This is one reason why the Reform Movement has become increasingly active in the debates over nominees to the Federal Bench, and, especially, to the Supreme Court. One clear lesson of this Supreme Court term, and the last week full of 5-4 decisions in particular, is that it turns out that it does matter who sits on the Court. Does anyone doubt that at least some of these cases would have come out differently if John Roberts was not Chief Justice? Or if Samuel Alito was not on the Court? And was anyone at all surprised by their votes on key cases? Although many Jewish groups joined briefs in cases this term, and many issued statements critical of decisions, only the Reform Movement and the National Council of Jewish Women opposed Alito?s nomination. (An insightful, prescient, and well-argued call on Jewish organizations to participate in the confirmation process is here. It is, of course, written by your correspondent.)
What does the result in, for example, Hein, mean? It means it will be far, far more difficult for those who want to challenge government funds flowing to religious institutions to do so. It means that those who are working to defend the wall of separation between church and state, which has meant so much to the American Jewish community, have lost an effective tool. It is important to remember that it is precisely that wall, and the principle of separation between church and state, which has allowed the Jewish community to flourish in the United States. That wall has protected religion from the often-heavy hand of government, and sheltered not only our community but an astonishing and inspiring array of faiths.
The same dynamic can be seen in the school segregation cases, in Carhart (the late term abortion case), and a dozen other cases this term. In every Supreme Court case, you make a judgment as to the legal impact and the policy impact of the case. Under the Warren and Burger Courts, the pattern had been positive in both, since the Court had moved to find in the Constitution a robust expansion of the rights of women and minorities and expansion of our civil liberties and an expansion of both religion clauses. The result strengthened America?s culture of religious, racial and ethnic pluralism and tolerance. This Court however is abandoning those core values with alarming speed, and with far-reaching implications for both Jewish interests and Jewish values.
So, Shmuel, I make no apologies for taking sides. Our community has too much at stake to stand on the sidelines.
Mark
Dear Mark,
Let us start by posing a question that will let readers get a sense of what you think in general about the current Supreme Court. Of the several important decisions the court have reached last week, can you tell us which one you find most disturbing and which one the most encouraging - and why?
Best
Rosner
Shmuel,
I know you meant to start off with an easy question, but this is much harder than it might seem! It is hard because there are so many disturbing cases to comment on, and so few which are at all encouraging.
The good news first. Perhaps the most encouraging development came last Friday, the day after the Court formally concluded its term. The Court, reversing itself, voted to hear the appeal of the prisoners held at Guantanamo. The case sets up a test of one of the central principles of the administration's detention policies: that it can hold "enemy combatants" without allowing them habeas corpus proceedings, which have been used in English and American law for centuries to challenge the legality of detentions.
Early this term, the Court had voted to deny a hearing in this exact same case. Supreme Court watchers have not been able to come up with another example of the court agreeing to hear a case which it turned down earlier in the term.
As I will discuss below, and most likely throughout our dialogue, the barring of the courthouse door has been a recurring theme for this Court. That is why I'm so appalled by the status of the Guantanamo detainees; not that they have not won their cases, but that they have been denied access to the courthouse all together. The fact that the Court is now willing to hear the case suggests that these detainees will, after 6 years, get their day in court.
So much for the encouraging news. Disturbing cases are easy to come by; the challenge is choosing one.
I think that the Term's most significant church/state case - Hein v. Freedom From Religion Foundation - illustrates many of the disturbing trends of the term. The case, decided by a 5-4 vote, concerned President Bush's "Faith Based Initiative," which allows government funding to flow to religious institutions. However, the specific issue is one that only a lawyer could love. The case is not about the constitutionality of the initiative, but rather the question of who is qualified to bring a lawsuit challenging the program. The general rule is that taxpayers do not have a right (do not have, in legal terms, standing) to challenge the expenditure of government funds. The rule makes sense; you can imagine the chaos which would ensue if anyone who was unhappy with a governmental policy (the Iraq war, for example) could bring suit to stop the government from spending funds for that policy.
For 40 years, however, the Court has recognized an exception to that general prohibition, allowing "taxpayer standing" for challenges under the First Amendment's Establishment Clause concerning government spending in support of religious activities or institutions. That exemption also makes sense. The Establishment Clause reflects the Framers of the Constitution's view that religion is so important that the constitutional rules concerning it are different.
Hein is particularly disturbing for two reasons, over and above its result. First, as noted above, I am especially leery when a decision closes off the court house to plaintiffs.
In Hein the Court did not just rule against the challenge; it effectively told the plaintiff he could not even get into the courtroom.
Second, the Hein decision illustrates the radicalism of the Court, and its willingness to walk away from its own past decisions. Hein turned on the interpretation of a 40 year old case - Flast v. Cohen. Flast (an 8-1 decision, by the way) had generally, almost universally, been understood to allow taxpayers to challenge government spending which, they believe, violated the Establishment Clause.
In Hein the Court did not overrule Flast (which at least would have had the virtues of clarity and intellectual honesty). The decision, instead, rested on the fact that the funding challenged in Hein was directed by the Executive Branch (under a broad grant of discretion from Congress) rather than a specific Congressional appropriation.
Writing on the Huffington Post, Geoffrey Stone, Dean of the University of Chicago Law School, explains how this Court has treated the principle of stare decisis (respect for past decisions):
The tactic, in short, is to purport to respect a precedent while in fact interpreting it into oblivion. Every first-year law student understands the technique. It works like this: "Appellant argues that Smith v. Jones governs the case before us. But Smith v. Jones arose out of an accident that occurred on a Tuesday. The accident in this case occurred on a Thursday. We do not overrule Smith v. Jones, but we limit it to accidents that occur on Tuesdays."
No less an authority than Justice Scalia made the same point in Hein, where he wrote that "laying just claim to honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive." And he was in the majority!
The Court, in my view, spent much of this term beating its own precedents to a pulp. We will, I hope, talk more about that as our dialogue continues.
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