Restoring the First Amendment’s Vision of Religious Freedom

October 27, 2023 | Tal Fortgang
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In the second half of the 20th century, the U.S. Supreme Court advanced an expansive interpretation of the First Amendment’s dictate that “Congress shall make no law respecting an establishment of religion,” creating a doctrine known as “separationism.” The Court is now moving in the opposite direction, which, Tal Fortgang argues, is a good thing:

Disestablishment and neutrality require the government to abstain from putting a thumb on the scale in the great ongoing debates about human nature and human purpose.

Importantly, though, a principle of non-interference and neutrality between sects does not mean that the state is antagonistic to any sect or to religion altogether. On the contrary, neutrality between sects is meant to allow all to flourish. This is the important distinction between separationism—which has mistakenly been touted as the best way to advance pluralism—and pluralism itself. By deeming religious behaviors and beliefs incompatible with public life, separationism denigrates traditional religion at the expense of secular belief systems. Pluralism is when a rabbi can offer a benediction at a public-school graduation as freely as any American who would speak about the value of liberation, equity, and justice.

But what about coercion? . . . On this front, perhaps some perspective from this yarmulke-wearing Jewish reviewer is indicated. My whole life has been spent standing apart from the mainstream in a distinctly religious way. Before hearing the national anthem at baseball games, I do not remove my hat, because Orthodox Judaism considers covering the head, rather than uncovering, a sign of respect. I learned that distinction from the earliest days my father and I would spend at Shea Stadium when I was just a small child.

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