PLEASE DON'T WISH ME A MERRY CHRISTMAS: A CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE by Stephen M. Feldman. New York: New York University Press, 1997. 395 pp. Cloth $29.95.

Reviewed by Matt Wetstein, Social Science Division, San Joaquin Delta College.
 

If you run across Stephen Feldman during the holiday season, here is some advice for you: please don't wish him a merry Christmas. He is likely to give you an icy glare and launch into a lively and critical analysis of the history of the separation of church state from the perspective of a well-read American Jew. Instead of placing yourself in that situation, I recommend that you buy this wonderful book and enjoy the way Feldman can use personal stories and critical historical analysis to turn the dominant story of church-state separation on its head.

A Professor of Law and Political Science at the University of Tulsa, Feldman makes two important arguments in this book. First, he criticizes the "dominant story" of church state separation as promoting religious freedom and toleration in America -- particularly freedom for "outgroups" like Jews and other non-Christians. Instead, Feldman argues that the history of church-state separation seen in a different light (a mainly Jewish light) is a history of domination by Christian religious groups, and a history of antisemitism. Second, Feldman argues that American legal scholars are wrong to argue that the notion of religious toleration is a uniquely American product. Thus it is wrong to claim that the separation of church and state is (to quote Stephen Carter from THE CULTURE OF DISBELIEF [1993]) "one of the great gifts that American political philosophy has given to the world" (Carter as cited in Feldman, 5). Instead, Feldman's critical history of this concept maintains that the idea evolved slowly through western history as Christianity evolved. For much of western history, religious toleration meant tolerance of Christianity, not of other religious movements.

In many ways, this is a book about the dominant power of Christianity in the western world, and the strands of antisemitism that came with that domination. Feldman traces the argument back to the time of Jesus and the struggle to develop a Christian faith in the wake of his persecution, trial, and crucifixion. Jews, of course, became the scapegoat outgroup because of their alleged role in the crucifixion. Later acceptance of Christianity by Roman emperors led to the struggle over the division of power in "this world" between rulers of the state and rulers of the church. Thus, separation of church and state is a construct that has troubled western history since the days of Roman power, and any historical study of the battles between Catholic church leaders and civil kings and princes makes this evidently clear.

This is a book filled with nuggets of important material for scholars of church history, Jewish persecution, normative political theory, and constitutional law. The historical sweep of the book is impressive -- ranging from the beginnings of the Christianity to the late 20th Century. The book is often painful to read because of the detailed accounts of Jewish persecution through history by Christian and civil rulers. Scholars of normative theory will find a number of great authors discussed, including Augustine, Aquinas, Hobbes, Locke, Martin Luther, Machiavelli, and Madison. Inevitably, the discussion of these authors turns to their treatment of Jews, "heathens," and religious minorities in theological or political terms. Constitutional laws scholars will derive benefit from the discussion of establishment and free exercise clause cases in Chapter 9 of the book.

The book's strengths are many. Foremost, the topic and thesis of the book are important. In an age of growing intolerance between ethnic and religious groups, it is important to recognize scholarship that highlights the past vilification of Jewish people, and the roots of religious toleration and intolerance. This history of intolerance of the "prototypical religious outgroup" is clearly described and is systematically developed through the historical chapters. The roots of religious toleration are rightly found outside of America, prior to the writing of the U.S. Constitution. The volume of sources cited in this work to document this history is extraordinary. The evidence of de facto Protestant domination in American history, and de facto establishment of Christian traditions is clearly described. In brief, this is a significant work of scholarship, deserving the attention of scholars of religious studies, history, normative political theory, and constitutional law.

Of particular interest to readers of the LAW AND POLITICS BOOK REVIEW is the nuanced analysis of religious cases in Feldman's work. Once again, a critical Jewish eye is taken toward the Supreme Court's rulings. While Feldman applauds rulings that establish protections for religious outgroups (for example LEE V. WEISMAN [1992], overturning prayer at a public school graduation), he points out that the Court usually writes from a decisively Christian conception of religion. Thus, victories emerge on occasion, but the Court often sides against religious minorities, and often endorses laws that appear to entangle Christian traditions with government. One example of this argument should suffice. In 1961 the Supreme Court upheld as constitutional Sunday closing laws without exemptions for Jews or others who celebrate non-Sunday sabbaths. The Court's rationale was to honor a day of "rest, repose, recreation, and tranquility" -- a secular day of rest, regardless of the Christian roots of the law (MCGOWAN V. MARYLAND, [1961]). Contrast that ruling with the Court's rejection of a Connecticut law in 1985 in THORNTON V. CALDER. There the Court overturned a state law establishing an employee's right not to work on his/her religious sabbath. Feldman criticizes the ruling in the following way:

"If the dominant story of church and state is accurate -- that is, if the separation of church and state were a constitutional principle that equally protects the religious freedom of all, including outgroups -- then one would expect the Court to uphold the Connecticut statute. After all, the Court already had upheld Sunday laws, and this statute appeared merely to accommodate the religious practices of outgroups. Nonetheless, the Court held that the statute violated the establishment clause. To reach this conclusion, the Court relied on the second prong of the Lemon test, reasoning that the primary effect of the statute was to advance religion" (Feldman 252).

Thus, what was good for Christianity (that is, a secular day of rest) in 1961 was not good for others in 1985. This provides a brief taste of the argument Feldman makes in this book.

While Feldman's book is clearly a superb work of scholarship, one minor flaw emerges. Feldman's emphasis on the mistreatment of Jewish people through history means that many other religious outgroups are omitted from the analysis. In Feldman's defense, this is perhaps an unfair criticism, because it is obvious he set out to write a book on church state separation from the perspective of a critical Jewish scholar. Indeed, the opening line of the book reads: "I am Jewish" (Feldman 1). But a nagging question is left with the reader: What about other religious perspectives that are not Christian? For example, the religious conversion of Native Americans, and the attempt to bring them into the "city of God" at the end of a sword, gets no attention here.

On another level, it is important to realize how many non-Jewish minority groups were active in bringing suits before the Supreme Court to defend their religious freedom, their right to free expression, or to attack religious establishments. The list of denominations is long, and includes Jehovah's Witnesses (CANTWELL V. CONNECTICUT, [1940]), Native Americans (OREGON V. SMITH, [1990]), Seventh Day Adventists (SHERBERT V. VERNER, [1963]), Buddhists (CRUZ V. BETO, [1972]), Moslems (O'LONE V. SHABAZZ [1987]), the Santeria faith (CHURCH OF LUKUMI BABALU AYE V. HIALEAH [1992]), the Amish (WISCONSIN V. YODER, [1973]), and the Hare Krishnas (INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS V. LEE [1992]) -- just to name a few standout cases. Indeed, one of the striking features of recent religious cases is the propensity of religious denominations of many different traditions to join hands in filing briefs with the Court to protect religious freedom. But bringing law suits and winning them are two different matters. Thus, Feldman is right to draw attention to one critical point: while Christian sects often win free exercise cases (even members of small minority Christian groups), non-Christians never win free exercise cases before the Supreme Court (Feldman 246).

Still, there is little here to quibble with and much to applaud. Indeed, readers might get the most benefit out of the many modern-day examples of antisemitism Feldman catalogs in the closing chapter of the book. The examples are astounding, and certainly influenced Feldman's book title. The only warning I provide for readers of the LAW AND POLITICS BOOK REVIEW is that the book is longer on history, and shorter on constitutional law than they may desire. But if you seek more evidence of the historical development of church and state issues, and religious toleration, you will find much in Feldman's book to enjoy.

With that, I wish you all a very merry .... reading holiday!