Forget the U.S. election returns for a moment and jump in a taxi to northern Manhattan, where at Yeshiva University something is happening. A line is stretching for blocks. People are waiting to get in to a conversation with the longest-serving justice on the U.S. Supreme Court, Antonin Scalia.
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He has just been in the papers for confessing to New York magazine that he believes in the Devil. The interviewer responded with incredulity, “You do?” The justice declared, “Of course! Yeah, he’s a real person.” What, he was asked, is the Devil up to? “What he’s doing now,” Scalia replied, “is getting people not to believe in him or in God.”
For such sentiments, he's being mocked in liberal salons and on the Internet. But it turns out that in the heart of liberal New York, Scalia is a rock star. As are the two figures with whom he took the stage at Yeshiva, a rising sage of Modern Orthodoxy, Rabbi Meir Soloveichik, and a legendary constitutional lawyer, Nathan Lewin.
Their topic was “Synagogue and State.” The evening reflected something I’ve been watching for a while now. Even as religion comes under attack in America today, a counterrevolution of sorts is quietly under way. Its vanguard is among the most sophisticated, learned and joyful intelligentsia in the land.
They are referencing America’s own parchment. Soloveichik is about to be, at age 36, invested as rabbi of the Spanish and Portuguese Synagogue, which corresponded with George Washington, who had, in 1787, presided at the drafting of the very Constitution about which Soloveichik opened the conversation with Scalia.
The justice started with the Establishment Clause, which says: “Congress shall make no law respecting an establishment of religion.” Why, Scalia posited, did the authors of the Constitution put it that way? They could have said: “Congress shall not establish a religion.” The answer turns out to be that the Bill of Rights was originally intended to apply only to the Congress.
What the Founders feared was a national church. They did not intend to write a restriction on the states, several of which had established religions at the time of the American founding. The established church in Massachusetts was the Congregationalist, and in Virginia the Anglican.
It was not only a national church that the Founders feared but the danger that Congress would try to regulate or even disestablish state churches. The Bill of Rights could not be incorporated against the states until after the Civil War, when the 14th Amendment was ratified, vouchsafing for all Americans equal protection of the laws.
Scalia didn’t talk about specific cases before the Supreme Court. He did suggest that Establishment Clause jurisprudence is exhibiting “incoherence.” It is clearly going to be tested in historic ways as the battle over such issues as abortion, same-sex marriage, contraceptives and even circumcision work their way, some for a second or third time, toward the high court.
Where does the interest of the Jewish community lie? Lewin was quoted by Yeshiva’s website as saying that in his years litigating these issues, “I’ve often found Jewish groups” — he named the American Jewish Congress and the Anti-Defamation League — “on the other side of the case” urging the preservation of the church-state separation. He characterized the community’s long-time concern as “proselytization, that Jews would become Christians if they attended public institutions where the separation of church and state were not enforced.”
Experience has shown, Lewin allowed, that “we shouldn’t be concerned about that fear so much as assimilation.” He cited the recent Pew Research Center study showing, as Lewin put it, “not that people are trying to convert Jews to Christianity, but that Jews are not being given sufficient knowledge or background to keep them Jewish.”
The packed auditorium couldn’t get enough of the trio of sages. It was remarkable to watch. The thing that struck me is that the evening unfolded in the heart of a city that just the day before had, in a landslide election, taken a sharp turn to the left. As the religious and constitutional battles come to a head, my instinct would be not to underestimate the merry movement that is determined to beat the Devil.
Seth Lipsky is editor of The New York Sun, published in print between 2002 and 2008 and now online at www.nysun.com. He is a veteran of The Wall Street Journal, where he was a foreign editor and a member of the editorial board. He was the founding editor of The Forward and editor from 1990 to 2000. His books include “The Citizen’s Constitution: An Annotated Guide,” and most recently “The Rise of Abraham Cahan.”