In the August issue of COMMENTARY, Hal Lehrman reported from Tel Aviv on the controversy taking place in Israel over the difficult question of religion and the state. Here, Milton Konvitz presents the case for what might be called the American libertarian point of view.  Much of the material in this article was embodied in a speech Dr. Konvitz delivered at the annual meeting of the American Council for Judaism in April of this year. Other viewpoints on this important subject will be presented in subsequent issues.

_____________

There are many who, in a flush of enthusiasm, and perhaps under the influence of the doctrine of the Chosen People, insist that in future years the State of Israel is destined to be the teacher and the rest of mankind its pupils; that Israel, the stone that had been rejected, will become the cornerstone of the world’s structure of civilization and culture.

Most American Jews probably have more modest expectations. They believe that Israel will occupy a respectable place among the nations of the world; that it will contribute its share to international welfare and culture; that if it becomes a light unto other nations, it is unlikely that it will be in any significant way a greater light than, for example, France, England, or the United States.

But all of this means looking into the womb of time. What will happen, will happen only after great struggles, much suffering, with losses here and gains there. One thing seems certain: the future of Israel will be determined in large part by strangers outside the land—by the Russians, the British, the Arabs, the Americans, the Chinese, and the other peoples of the world. The citizens of Israel will not be permitted to become isolationists. Their smallness or greatness of mind and soul will be beaten out on the anvil of history, and it will be the vocation of other peoples to wield the hammer.

Israel is now subject to the forces of history precisely in the same way as Holland or Eire, Egypt or Burma—or Russia or the United States, for that matter. One may consider the question whether this fact is good or bad from the standpoint of the future of the Jews of Israel or of the world; but raising the question will in no way alter the fact that Israel exists. When I hear it said that the American Council for Judaism now “accepts” the State of Israel, I recall what Carlyle said of Margaret Fuller when he heard that she had decided to “accept” the universe: “Gad! She’d better!”

_____________

The Jews in the Galut, the world of “Exile” outside Palestine, need a spiritual center in Palestine, said Ahad Ha’am. But one should add that the Jews in Palestine need the spiritual values that the Galut has created or accepted. The Galut is two thousand years older than the State of Israel. What Israel will contribute to the Galut remains to be seen (I write this with hope, for we must desire great things for and from Israel). At the present time, however, I should like to submit the thought that Israel can learn something from us in the Galut, more particularly from American Jews. I should like to state baldly that we American Jews enjoy some ideals and some institutions which it would repay the citizens of Israel to study and even to duplicate.

The chief values that Israel can learn from us as Jews and Americans are those of religious liberty and cultural pluralism.

Orthodox Judaism is, in its basic theory, not libertarian. Its ideal is a theocratic government, a state in which the laws of Moses and of the Shulchan Aruch, as well as the legal dicta found in the responsa and halachic writings of the great rabbis, would determine the ways of men in business, domestic, and all other affairs of life. It does not contemplate the free, legislative creation of law by a body of representatives chosen by the people. Government under Orthodox Jewish law negates any notion of religious liberty for the Jewish citizen, for there can be no freedom for Jews from Jewish law. Desecration of the Jewish Sabbath would call for punishment by civil authority; an organ in the synagogue would be prohibited; radical unauthorized changes in the order of public prayers or religious services would be criminal offenses.

In the United States, Orthodox Jews, rabbis and laymen (except a handful of extremists, not unlike fundamentalists found in other religious communities), have made radical departures in practice. Orthodox rabbis are on speaking terms, and sometimes even on friendly terms, with Reform and Conservative rabbis. An Orthodox Jew sits at the same table with a Reform or agnostic Jew, and he will limit his diet to the fruit-cup while his friend will eat a non-kosher steak, but neither will criticize the other or harbor any grievance. “America is a freie medina,” we used to say, and we follow the policy of “live and let live.” Even the Orthodox have learned to follow Jefferson’s example in avoiding debates on religious beliefs and practices, and they believe with him that whether a man believes in one god or in twenty gods, it “neither picks my pocket nor breaks my leg,” and hence is nobody’s business.

American Jews have accepted the fundamental tenets of religious freedom wholeheartedly. A few years ago, there were Jews who followed some Protestants and the Catholics in sponsoring “released time” in public schools; today almost all American Jews seek ways to avoid getting involved in even this relatively mild form of state aid to religion. Our rabbinical and lay organizations have filed briefs with our highest state and federal courts in support of the principle of separation of church and state—their absolute separation. In our private and in our public lives we follow the constitutional principle of separation of church and state, and of complete religious freedom.

In our religious institutions we follow the congregational pattern—each synagogue or temple has complete and ultimate authority over choice of rabbi, choice of prayer book, order and conduct of service; and the variations, as we know, are multitudinous. Men are selected as rabbis and other religious functionaries who have never studied for the calling they fill, yet no one attempts to assert authority over them by ordering them to “cease and desist.” We have no hierarchy, and our rabbis have no more authority than we are willing to delegate to them.

_____________

Now and then someone will express displeasure with our libertarian society. They want “order” and more “order”—as if freedom of individual judgment and decision is not itself an “order.” Henry Hurwitz, editor of the Menorah Journal, has recently called upon American Jews to return to the synagogue and to make of the synagogue the central institution in the Jewish community. “This way lies the true Jewish future in America,” he says, “that all of us throughout the country who regard religion, broadly conceived in the comprehensive classic Jewish sense, as the sole justification of organized Jewish life in America should now withdraw from the secular bodies and concentrate on a religious reorientation and reorganization of all legitimate Jewish interests. This can be done only on the basis of the Synagogue.” He demands the “reaffirmation of the Synagogue as the seat, center, and incentive of Jewish life in America . . . .”

Despite the record of Mr. Hurwitz’s significant contributions to Jewish life and culture, his plea will be considered most uncongenial to the spirit of American democracy, as we Jews have come to interpret that spirit. His plan implies that the synagogue will be the institution called upon to play the same role in the lives of American Jews that the church plays in the lives of American Catholics. It calls for the “Synagogue” with a capital “S,” so that we may speak of the Jewish Synagogue as we speak of the Catholic Church. This would be a move in the direction of cutting down the liberty of Jews to have “synagogues,” written in lower case, big synagogues and little synagogues, shtiebels, temples, centers. It is easy for Catholics to concentrate their special interests around the Church, for there is only one Church for them. But for Jews there is no one Synagogue. Catholics know only one Christianity, that of the Roman Catholic Church; all other forms are schisms and heresies. Jews know many forms of Judaism.

_____________

There are many Jews whose devotion and contributions to Jewish life are beyond question but who claim no synagogual affiliation. Morris R. Cohen, founder of the Conference on Jewish Relations and of the magazine Jewish Social Studies, was such a Jew. Horace M. Kallen, vice-president of the American Association for Jewish Education, is such a Jew. Albert Einstein is such a Jew. Are we to force upon them membership in a Synagogue?

Similar objections may be made to the plans for a new American Jewish community projected by the respected educator and theologian Mordecai M. Kaplan. Membership in the Jewish community is to be voluntary under his scheme, but a non-member will be denied “permission to worship in any of the community’s synagogues, religious education for his children, religious services in celebration of Berith Milah, Bar Mitzvah, marriage, burial in a Jewish cemetery and with Jewish religious rites.” The community is to lay down the qualifications of rabbis and define their authority, duties, and rights with respect to tenure and promotions. “We Jews,” says Dr. Kaplan, “should strive to achieve a community status which is analogous to that of the Catholic Church . . . . American Jews should interpret their solidarity as a religio-cultural one, entirely parallel to that of the Catholic Church.”

Both Dr. Kaplan and Mr. Hurwitz seem to be afraid of diversities, differences. Although themselves prominent as dissenters, they seek for a unity, a reconciliation: we must have one great big Synagogue, or one great big Community. Dr. Kaplan would even like to see all the Jews of the whole world organized into one world community, with representation in the United Nations Assembly. And they are afraid of the new bugbear: secularism.

But American Jews will not agree to look for leaders solely among rabbis, or among any other one group or profession—they will take their leaders where they find them. American Jews will not agree to form one Community, claiming the right to bind and loosen, to elect and reject. They will not vest in anyone the authority to excommunicate Dr. Kaplan or to bum his books. They do not want a “closed shop” in Jewish life.

Religious freedom, as American Jews interpret it in their daily relations with fellow Jews and with non-Jews, means the recognition that religion is a matter for which one is only accountable to one’s Maker. Even the non-believing Jew is still a Jew if he identifies himself as such. I know atheist Jews who belong to Orthodox synagogues, and Orthodox Jews who belong to Reform temples. The spirit bloweth where it listeth. Some will say this is anarchy. American Jews call it freedom. It is something of transcendent value that we have garnered from democratic philosophy as expressed by Jefferson, Madison, and the Justices of the Supreme Court.

_____________

I should like to suggest that this lesson of American religious freedom and cultural pluralism, which we American Jews have learned, might well be studied by the Jews of the State of Israel. There are enough straws in the wind to indicate that many influential Jews in Israel could profit by it.

The Reconstructionist (April 1, 1949) reports a ruling made by the Israeli Minister of the Interior, as the official in charge of immigration, that calls for the compulsory circumcision of uncircumcised male children of immigrants. (A subsequent order provides that the government shall pay for the circumcision.) The same magazine also reports (March 18, 1949) a case of a young woman whose marriage has been prohibited. The woman was a childless widow, and was interested in an offer of marriage, but the rabbis, following Deuteronomy 25:5, have prohibited her from marrying until her late husband’s brother, now a mere infant, reaches the age of thirteen, the Biblical age of legal consent for males, and chooses to give her halitzah; for the Biblical law provides that, if a man dies, leaving a childless widow, his brother must marry her, and their first-born son must be given the name of the deceased man. Should the brother refuse to marry her, he may be released from his obligation by engaging in “a degrading ceremony.” Since marriage and divorce are matters that rest in the jurisdiction of the Orthodox rabbis, the woman is prohibited from marrying.

In the March 1949 Jewish Horizon, published by the Orthodox Hapoel Hamizrachi of America, Rabbi S. Z. Shragai, member of the Jewish Agency executive, writes that “the overwhelming majority of the State [of Israel] is in favor of retaining religious marriages, for it is appreciated that without them the Jewish people might well find itself divided into two sections. One section would in course of time, when Arab standards will have been raised, intermarry with them, become in fact a new Palestinian people and cease altogether to exist as a Jewish people. The second section would adhere strictly to Jewish family life and uphold the basis of the existence of the original Jewish people. And so to prevent such a tragic split as this, a large proportion of our irreligious leaders have given their consistent support to the retention of religious marriages.”

What an amazing statement this is! The “irreligious leaders” of Israel are against permitting civil marriages and favor placing marriage in the exclusive jurisdiction of the Orthodox rabbis because rabbis will refuse to officiate at the marriage of a Jew and an Arab, and so intermarriage will not be possible, and thus “the existence of the original Jewish people” will be assured!

This is the sort of thinking and behavior which once led Morris R. Cohen to assert: “Nationalistic Zionism demands not complete individual liberty for the Jew, but group autonomy . . . . Indeed, how could a Jewish Palestine allow complete religious freedom of intermarriage, and free non-Jewish immigration, without losing its very reason for existence? A national Jewish Palestine must necessarily mean a state founded on a peculiar race, a tribal religion, and a mystic belief in a peculiar soil . . . .”

Professor Cohen went, I believe, too far. Zionism does not necessarily mean tribalism. The people in the state of Israel have yet to show that they cannot meet the challenge to build a society in which individual freedom may be enjoyed to a maximum. “Zionists,” said Dr. Cohen, “have no confidence that with complete toleration and full freedom Judaism can hold its own in the open field.” I would put this in question form rather than as a bald statement, and would ask: Have the Jews in Israel no confidence that with complete toleration and freedom Judaism can hold its own in the open field?

_____________

In february, Rabbi Shragai and Rabbi Isaac Werfel, leader of the Labor Mizrachi party and head of the immigration section of the Jewish Agency, were interviewed by some thirty representatives of the Jewish press in New York. They were asked how they viewed the role of Orthodox Judaism in the state of Israel. Their reply was that the aim and object of Orthodox Jewry is to introduce laws which would enforce Sabbath and dietary law observance, and which would vest in the Orthodox rabbis and their religious courts jurisdiction pertaining to marriage and divorce and other aspects of family life. They stressed the fact that civil marriages must not be tolerated, and stated that children born of a marriage not performed by an Orthodox rabbi would be treated as illegitimate, and illegitimately born persons could not be married to legitimately born Jews. They emphasized their belief that the only guarantee for the preservation of the Jewish people and its “purity” is a law prohibiting civil marriages and divorces.¹

Some months ago, the Orthodox Mizrachi News Bureau in New York reported that the Israeli authorities had decided not to grant immigration certificates in cases where one member of a married couple is not a Jew. Exceptions were to be made if the non-Jewish mate had been active in helping Jews during the destruction of the Jewish communities in Europe. Even in such cases, however, express permission would have to be obtained from the Minister of Immigration, and, following the grant of such permission, the non-Jewish man or woman would be required to accept the Jewish faith.

Following protests against this order, made by some Jewish publications in this country, England, and Canada, the Israeli authorities issued statements to water it down. The Immigration Department said that each case of immigration of mixed couples “is subject to individual clarification and decision”; and Rabbi Werfel stated that while non-Jewish members of mixed marriages will not be barred as immigrants, “visa preferences will be accorded to Jewish immigrants and their families . . . .” Since there will be no dearth of Jewish immigrants for years to come, it is apparent that, although the formula will be different, the practice might well be the same. Rabbi Werfel added an “explanation”: the purpose of the order is to keep out of Israel former Nazis who sought conversion to Judaism so as to gain admission to Israel!

All these orders and prohibitions are consistent with the provision in the Israeli draft Constitution that the Jewish community shall have religious courts which are to have exclusive jurisdiction over the members of the Jewish community in all matters of personal status. This means, as Morris R. Cohen anticipated, not individual liberty but group autonomy; that is, a Jew will have rights and duties not as an individual, but as a member of the Jewish community. Whether he be Orthodox or Reform, believer or atheist, in matters of personal status he is to be subject to the Orthodox rabbinate and the traditional laws of Judaism. (Of the three non-Orthodox rabbis in Israel, two are not permitted to officiate at marriages or other functions.) The rabbinic judges receive their salaries and the funds for the maintenance of their courts from the government treasury; and since state and religion are so intimately related, there is a Minister of Religion. Religion has thus become a department of the state apparatus.

_____________

Among the most efficient enemies of religion are the misguided zealots who would use compulsion to insure, as they think, the future of their faith. To them may well be applied the judgment of Brandeis: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.” They in Israel who would use the law to coerce the spirit will make Judaism hateful to thousands who otherwise, in a context of freedom, might find Judaism attractive and valuable. They may end by making Judaism become associated with what is mean and reactionary.

We used to hear it said that whether or not you like strawberries and cream, “comes the Revolution, you’ll eat strawberries and cream!” In the same way, it appears, Orthodox leaders in Israel say, “whether or not you like kosher meat, comes the State of Israel, you’ll eat kosher meat!” Now I personally do not eat non-kosher food, but I make my choice as a free man; I choose kosher food with a free will; and since I choose it freely, my act has spiritual value to me. If I had no choice but to eat only kosher food, because the law so decreed, I would choke on it. Having eaten the bread of freedom, the bread of compulsion would be bread of affliction. In this spirit, too, do I observe the Sabbath; for only as a spiritually free person can I say: “Welcome, Bride Sabbath.” No law enacted by an assembly can designate any one day as the “Queen of days”—no more than the Soviet Politburo can decide in favor of one scientific theory among competing theories.

Because we are endowed with free will, we are, according to Jewish tradition, higher in the scale of spiritual existence than any mere angel and more valuable in the eyes of God. If the Jews in Israel should obey all the laws of the rabbis, even as the angels do the will of God, yet if they should do so only because they cannot help themselves, only because the laws of the country coerce their wills and limbs, then they will be less than human in the scale of spiritual existence. Do not the rabbis in Israel know that the Jews in Israel must be given freedom to sin, for if a man has no freedom to sin, he has no freedom to do good?

Not only the Israeli Jew, but Judaism, too, needs freedom. In freedom Judaism can flourish. Make it a state religion, with its precepts enforced by civil law, and it will be a captive Judaism; it will languish and invite a Kulturkampf. Zionist Jews, Arnold Toynbee has said, are a fossil—“a fragment of a fossil . . . .” Toynbee is wrong about the Jews, as he is about a good many other peoples who are remote from his Anglican Episcopal Church. But the Jews in Zion can make Toynbee’s judgment come true. In their hands Judaism may yet become a fossil. To prevent this from happening, they must make of Israel what both Jews and Gentiles have made of America: “a freie medina.”

Jews in the United States have learned to live in a unity which, as Professor Kallen has said, orchestrates our differences. Our differences are not wiped out; there is no Gleichschaltung; yet we do constitute a community. Now and then in a crisis some persons or groups will over-reach. Before the State of Israel came into existence, it appeared at times as if the members of the American Council for Judaism thought of themselves as the only loyal Americans in the Jewish community. This was an unfortunate impression to create. At the same time Zionists appeared to believe that they alone among Americans were loyal Jews. This, too, was an unfortunate impression to create. American Zionists were loyal Americans, just as anti-Zionists were loyal Jews.

But the crisis of 1946-1947 was one without precedent, and things were said and done that are not typical of American Jews. There are sharp differences among us, but we generally recognize the fact that it is good that this is so. It is the differences among us that make of the Jewish community an orchestra instead of a solo instrument. The differences add a zest to our lives, and sparks of truth fly where opinions clash. The important thing is that we act “le-shmo,” for the sake of Heaven, for the sake of principles, and not for expediency.

American Jews have made their contribution to the American philosophy of cultural pluralism. But they have received from America even more than they have given, and they would like to share this heritage with the Israelis.

_____________

High government officials of Israel have on more than one occasion stressed the distinction between Jews outside Palestine and Israelis; it would seem useful and necessary to make equally clear the distinction inside Israel between the Israeli as Jew and the Israeli as Israeli (Jew, Moslem, or Christian). Separating synagogue and state in Israel and adopting the philosophy of liberalism and cultural pluralism would seem to be a major and inescapable step in avoiding confusion between Judaism and Israelism.

Until this distinction is made, we must expect some embarrassing aberrations. Judge Morris Rothenberg, acting national chairman of the United Palestine Appeal and former President of the Zionist Organization of America, furnished us with a public example of what sometimes may happen when an American Jew acts without full awareness of his responsibilities. When Ernest Bevin arrived in New York several months ago, three Jewish boys attempted to pelt him with tomatoes. The boys were arrested and brought before Judge Rothenberg in the Magistrate’s Court. Judge Rothenberg disqualified himself and refused to accept a plea of guilty from the defendants, saying: “I have such a feeling of sorrow for the tens of thousands of survivors of the Nazi terror whom Mr. Bevin prevented from finding refuge in the Jewish homeland and caused to be imprisoned on the island of Cyprus, where they endured long months of further sufferings and humiliation, that I do not feel I can properly exercise the judicial function in these cases.”

Now Judge Rothenberg knew, as all other Americans knew, that Bevin was invited to come by the United States government to sign, in his capacity as British Foreign Secretary, the Atlantic Pact, on which the peace of the United States and of the world (including Israel) may well depend.

As a judge who has taken an oath to uphold the laws of the United States, Judge Rothenberg’s duty was clear. But instead of censuring their hooliganism (to which they were ready to plead guilty), Judge Rothenberg entered what was virtually an advocate’s plea on their behalf.²

If the separation between synagogue and state is made in Israel, the world will be able to see the Jew in the Israeli Jew in the same way in which we see the Jew in the Polish Jew or Hungarian Jew or Canadian Jew or American Jew, and we shall be able to maintain our spiritual bond with them and to seek their peace, prosperity, and welfare. But if synagogue and state should become one, there will be a division among us: some will see the Israeli merged in the Jew; more of us, however, will see the Jew merged in the Israeli. If this should come to pass, one fears a spiritual misfortune to them and to us beyond description. There would develop a breach between Israel and Galut as great as that between East and West. No Torah will come forth out of Zion. It will be a strange, frightening, and dreadful phenomenon: not the Jews in Galut, but the Jews in Israel, will have become “assimilated.” As one who sought and prayed for the establishment of the State of Israel, I can only envisage such an event with a sense of personal, as well as universal, tragedy.

_____________

In 1919, just a generation ago, Horace M. Kallen answered Morris R. Cohen, stating that the springs of Zionist affiliation among American Jews were to be found, not in tribalism, but in liberalism. American life, Kallen said, “just insofar as it has been liberal and liberating, has formed the dynamics and inspiration of the effort of American Jews in behalf of Zion . . . .” But now, thirty years later, we see forces working among American and Israeli Jews which seek to pervert the ideals of Brandeis, Mack, and Kallen; we see Jews who are attempting to compel the fulfilment of Morris Cohen’s prophecy of moral doom.

However, there are, we must remember, counter-forces among us. The Jewish conscience will neither slumber nor sleep: Zionism will be liberalism and not tribalism. It will be because we shall will it so. For the expression of this Jewish will and conscience, Zionists, anti-Zionists, and non-Zionists can and ought to unite—unite to maintain Judaism as a universal religion and the Jewish people as a world-wide spiritual fellowship.

_____________

¹ The Israeli Minister of Immigration has banned the arrival of vessels on the Sabbath. “Saturday is the official day of rest in the State of Israel,” he explained in the Knesset (Assembly). “Let the shipping companies arrange their itineraries so that their vessels reach here on week-days.” At the same time the Minister of Religion stated that buses operating under state franchises, and railways owned by the government, should be idle on the Sabbath. Orthodox spokesmen maintain “that the state should be bound by Biblical laws of Sabbath-observance and Kashruth (dietary laws), and that the government should concede to the religious courts (Jewish, Moslem, or Christian) complete jurisdiction over matters of personal status, including marriage, divorce, wills, and alimony” (New York Times, May 1, 1949).

² When I made this point in a speech recently, Judge Rothenberg replied: “I acted as I did in the interest of fairness, because I had repeatedly given public expression of resentment against Mr. Bevin’s grievous hurt to Israel in admittedly having supported the policy of furnishing arms to the enemies of Israel.” I am not criticizing Judge Rothenberg for withdrawing from the case. My criticism is directed against his statement, in which he made heroes of the defendants, although they were ready to plead guilty. In its context the incident is cited only as an illustration. I am attacking a danger, illustrated by the incident, rather than Judge Rothenberg.

_____________