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Elena Kagan’s Very Jewish Dissent—and Mistake

The Supreme Court Justice appeals to her heritage, with one small misstep

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Supreme Court Justice Elena Kagan (KNIX)

Today, in a 5-4 opinion, the Supreme Court upheld the right of the Town of Greece, New York, to begin monthly meetings with a prayer, ruling that the practice did not violate the Constitution’s Establishment Clause. Proponents of the practice noted that the town had never discriminated between religions in selecting prayer leaders and allowed chaplains of all faiths and none to address the meetings. Opponents maintained, among other points, that the predominantly Christian character of the area resulted in de facto establishment of Christianity through the practice, because nearly all chaplains available were Christian. In an opinion written by Justice Anthony Kennedy, the court sided with the town, stating “The town of Greece does not violate the First Amend­ment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.”

Two of the justices in the minority authored dissents, one of them being Elena Kagan, who concluded hers with a fascinating–and very Jewish–rhetorical flourish. It also featured a small mistake. After critiquing the arguments of the majority, Kagan closed with an appeal to her own Jewish heritage:

In 1790, George Washington traveled to Newport, Rhode Island, a longtime bastion of religious liberty and the home of the first community of American Jews. Among the citizens he met there was Moses Seixas, one of that congregation’s lay officials. The ensuing exchange be­tween the two conveys, as well as anything I know, the promise this country makes to members of every religion.

Seixas wrote first, welcoming Washington to Newport. He spoke of “a deep sense of gratitude” for the new Ameri­can Government—“a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine.” The first phrase there is the more poetic: a gov­ernment that to “bigotry gives no sanction, to persecution no assistance.” But the second is actually the more star­tling and transformative: a government that, beyond not aiding persecution, grants “immunities of citizenship” to the Christian and the Jew alike, and makes them “equal parts” of the whole country.

Washington responded the very next day. Like any successful politician, he appreciated a great line when he saw one—and knew to borrow it too. And so he repeated, word for word, Seixas’s phrase about neither sanctioning bigotry nor assisting persecution. But he no less embraced the point Seixas had made about equality of citizenship. “It is now no more,” Washington said, “that toleration is spoken of, as if it was by the indulgence of one class of people” to another, lesser one. For “[a]ll possess alike . . . immunities of citizenship.” That is America’s promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming only that they, like anyone “who live[s] under [the Government’s] protection[,] should demean themselves as good citizens.”

For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I there­fore respectfully dissent from the Court’s decision.

While I hate to quibble with Justice Kagan’s laudable–if debatable–effort to bring the Jewish story to bear on contemporary jurisprudence, setting aside the merits of her argument, Kagan made a small but important factual error. Newport was not “the home of the first community of American Jews.” That distinction belongs to New Amsterdam, where Jews fleeing persecution settled in 1654, and quickly established a flourishing community despite many obstacles, as recounted by Jonathan Sarna in his Yale University Press book American Judaism. (Newport is home to the country’s oldest standing synagogue, where Kagan spoke last year, which may have been the source of the confusion.)

Hopefully, the Court will rectify this error, not only for the sake of history, but because it makes Kagan’s point all the more poignant. By acknowledging New Amsterdam and its inter-religious struggles, perhaps parenthetically, the closing anecdote would become an appeal to today’s New York to remember the lessons of its colonial roots.

UPDATE (5/19/14): The Supreme Court has corrected Kagan’s dissent.

Previous: A Very Chutzpadik Justice
Related: Law Practice: Supreme Court Justice Elena Kagan, Jewish Law, and the Principle of Binding Precedent

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Elena Kagan’s Very Jewish Dissent—and Mistake

The Supreme Court Justice appeals to her heritage, with one small misstep

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