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Published online by Cambridge University Press: 25 September 2015
In 1984, Richard John Neuhaus's book, The Naked Public Square, initiated a proliferation of publications addressing the role of religion in public life. Many of these echoed Neuhaus's concern that a strict adherence to the separation of church and state, particularly by the U.S. Supreme Court, has marginalized religious voices to the detriment of American culture. Consequently, the separationist position is now widely understood to mean that, as the following quote from a text on religion and politics illustrates, religion is to be kept out of public life.
The separationist position believes that religion should be kept in the private realm. It tends to emphasize the problems involved in the absolute nature of religion's claims over and against the compromises required for democratic life. Thus religious claims tend to divide the culture, rather than to unite it, which makes religion a potentially dangerous element in public life, and it should be kept in the private realm.
1. Neuhaus, Richard John, The Naked Public Square: Religion and Democracy in America (Wm. B. Eerdmans Publ'g Co. 1984)Google Scholar.
2. See Audi, Robert & Wolterstorff, Nicholas, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman & Littlefield Publishers, Inc. 1997)Google Scholar; Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Harper Collins 1993)Google Scholar; Religion Returns to the Public Square: Faith and Policy in America (Heclo, Hugh & McClay, Wilfred M. eds., Johns Hopkins Univ. Press 2003)Google Scholar; Guliuzza, Frank III, Over the Wall: Protecting Religious Expression in the Public Square (St. Univ. Press N.Y. 2000)Google Scholar; The Power of Religious Publics: Staking Claims in American Society (Swatos, William H. Jr. & Wellman, James K. Jr. eds., Praeger Publishers 1999)Google Scholar; Thiemann, Ronald F., Religion in Public Life: A Dilemma for Democracy (Geo. Univ. Press 1996)Google Scholar.
3. Corbett, Michael & Corbett, Julia Mitchell, Politics and Religion in the United States 387 (Routledge 1999)Google Scholar.
4. Leo Pfeffer was the most influential and articulate advocate, scholar, and jurist of the separation of church and state in twentieth century America. A Jew of Hungarian descent and the son of an Orthodox Jewish Rabbi, Pfeffer served for forty years, beginning in 1945, as a lawyer for the Commission on Law and Social Action of the American Jewish Congress. It was in this and other positions that he quickly became recognized as an expert in church-state relations. During his career, Pfeffer wrote briefs in over 120 church-state cases and gave oral arguments before the U.S. Supreme Court on numerous occasions. As a scholar, Pfeffer served as professor and chair of political science at Long Island University. In addition to numerous other publications, Pfeffer wrote the monumental work, Church State And Freedom (rev. ed., Beacon Press 1967)Google Scholar.
5. Neuhaus, Richard John, The Pfefferian Inversion, Nat'l Rev., 05 13, 1988, at 44Google Scholar; see also Neuhaus, Richard John, Genuine Pluralism and the Pfefferian Inversion, 25 This World 71 (1989) [hereinafter Genuine Pluralism]Google Scholar; Neuhaus, Richard John, Contending for the Future: Overcoming the Pfefferian Inversion, 8 J.L. & Religion 115–29 (1990)CrossRefGoogle Scholar.
6. Neuhaus, The Pfefferian Inversion, supra note 5, at 44.
7. Neuhaus, Genuine Pluralism, supra note 5, at 79.
8. Pfeffer, Leo, The Meaning of the First Amendment, 44 Liberty 5, 8 (1949)Google Scholar.
9. Pfeffer, Leo, The Unity of the First Amendment Religion Clauses, in The First Freedom: Religion and the Bill of Rights 133 (Wood, James E. Jr. ed., J.M. Dawson Inst. Church-St. Stud. 1990)Google Scholar. A favorite description of the unitary guarantee often quoted by Pfeffer was provided by Justice Wiley Rutledge in his dissenting opinion in Everson v. Board of Education. “‘Establishment’ and ‘free exercise’ were correlative and coextensive ideas,” Rutledge opined, “representing only different facets of the single great and fundamental freedom.” 330 U.S. 1, 40 (1947).
10. Pfeffer, supra note 4, at 137.
11. Pfeffer, Leo, Freedom and/or Separation: The Constitutional Dilemma of the First Amendment, 64 Minn. L. Rev. 561 (1980)Google Scholar.
12. Pfeffer, Leo, Creeds in Competition: A Creative Force in American Culture 15-18, 43 (Harper 1958)Google Scholar.
13. Pfeffer, The Unity of the First Amendment Religion Clauses, supra note 9, at 136-37.
14. Levy, Leonard W., The Original Meaning of the Establishment Clause of the First Amendment, in Religion and the State: Essays in Honor of Leo Pfeffer 44 (Wood, James E. Jr. ed., Baylor Univ. Press 1985)Google Scholar.
15. Pfeffer, Freedom and/or Separation, supra note 11, at 564.
16. Pfeffer, Church State and Freedom, supra note 4, at 180.
17. Lawyers and scholars cognizant in the field of free exercise of religion and church-state relations are aware that I am frequently characterized as an absolutist or extremist or doctrinaire or unrealistic or uncompromising. Even if I would, I could not challenge the thrust of the characterizations. My briefs, writings, and lectures manifest my commitment to absolutism in respect to all First and Fourteenth Amendment rights.
Pfeffer, Leo, An Autobiographical Sketch, in Religion and the State: Essays in Honor of Leo Pfeffer 487, 528 (Wood, James E. Jr. ed., Baylor Univ. Press 1985)Google Scholar.
18. See, e.g., Choper, Jesse H., The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673, 673–701 (1980)Google Scholar.
19. See Wallace v. Jaffree, 472 U.S. 38 (1985) (Rehnquist, C.J., dissenting); Cord, Robert L., Separation of Church and State: Historical Fact and Current Fiction (Lambeth Press 1982)Google Scholar; McConnell, Michael W., Accommodation of Religion, Sup. Ct. Rev. 1–59 (1985)Google Scholar.
20. “My own view is that the conflict between Free Exercise and Establishment is more apparent than real, and that a law which passes or fails under one test will do as much under the other.” Pfeffer, Leo, Religious Freedom and the American Community, 28 Judaism 137, 142 (1979)Google Scholar. See Kurland, Philip B., Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 196 (1961)CrossRefGoogle Scholar. Although his “strict neutrality” application of the religion clauses differed from Pfeffer, particularly in the area of free exercise, Philip Kurland likewise held to the unitary nature of the two clauses.
21. Pfeffer, Leo, Amici in Church-State Litigation, 44 L. & Contemporary Problems 94 (1981)Google Scholar; Pfeffer, Leo, The Current State of the Law in the United States and the Separationist Agenda, 446 Annals of Am. Acad. of Political & Soc. Sci. 1 (1979)CrossRefGoogle Scholar.
22. Pfeffer, Leo, Some Current Issues in Church and State, 13 Case W. Res. L. Rev. 21 (1961)Google Scholar; see Pfeffer, Leo, Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Petitioners at 16–17, Sch. Dist. of Abington Tp. v. Schempp, 374 U.S. 203 (1963) (Nos. 142 & 149) [hereinafter Schempp Brief]Google Scholar; Pfeffer, Leo, Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Petitioners at 15–17, Engel v. Vitale, 370 U.S. 421 (1962) (No. 468), 1962 WL 115801 [hereinafter Engel Brief]Google Scholar.
23. Id. at 22.
24. Pfeffer, Some Current Issues in Church and State, supra note 22, at 18.
25. Schempp Brief, supra note 22, at 21-25.
26. 330 U.S. 1, 15-16 (1947).
27. Neuhaus, Genuine Pluralism, supra note 5, at 74.
28. Neuhaus, supra note 1.
29. Neuhaus, The Pfefferian Inversion, supra note 5, at 44.
30. Pfeffer, Freedom and/or Separation, supra note 11, at 564.
31. Neuhaus, Genuine Pluralism, supra note 5, at 73.
32. Id. at 74; see also Neuhaus, Richard John, A New Order of Religious Freedom, 60 Geo. Wash. L. Rev. 620, 627 (1992)Google Scholar.
33. 343 U.S. 306 (1952).
34. Katz, Wilber, Freedom of Religion and State Neutrality, 20 U. Chi. L. Rev. 428 ( 1953)CrossRefGoogle Scholar.
35. See, e.g., McCoy, Thomas & Kurtz, Gary, A Unifying Theory for the Religion Clauses of the First Amendment, 39 Vand. L. Rev. 249 (1986)Google Scholar; The Williamsburg Charter, reprinted in 8 J.L. & Religion 5 (1990)CrossRefGoogle Scholar; Commentary on The Williamsburg Charter, reprinted in 8 J.L. & Religion 33 (1990)Google Scholar.
36. McConnell, Michael W., Accommodation of Religion, Sup. Ct. Rev. 1, 3 (1985)Google Scholar.
37. Neuhaus, Genuine Pluralism, supra note 5, at 74.
38. See Thiemann, supra note 2, at 44. For a litany of inconsistencies in the Court's aid to religious schools decisions, see Choper, supra note 18, at 680.
39. Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting).
40. Neuhaus, Genuine Pluralism, supra note 5, at 76.
41. I use the term accommodationist generally to refer to those that believe the Establishment Clause merely bans the national government from establishing a national church. Accommodationists argue essentially that the government may aid religion as long as it is done on a non-preferential basis. (Author's explanatory note.).
42. Neuhaus, Genuine Pluralism, supra note 5, at 75.
43. Id.
44. Id.
45. Id.
46. Id. at 76-77.
47. Id. at 77.
48. Id.
49. Id.
50. Id.
51. Id. at 78.
52. Id.
53. Pfeffer, A New Order of Religious Freedom, supra note 33, at 623.
54. Hitchcock, James, The Supreme Court and Religion in American Life: Volume II: From “Higher Law” to “Sectarian Scruples” (Princeton Univ. Press 2004)Google Scholar.
55. Id. at 157.
56. Id. at 163.
57. Id.
58. Guliuzza, supra note 2, at 52.
59. Id. at 52-56.
60. Thiemann, supra note 2, at 60.
61. Id. at 74-75.
62. Id. at 62.
63. Id at 60.
64. Id. at 108.
65. See Himmelfarb, Milton, Jewish Perceptions of the New Assertiveness of Religion in American Life, in Jews in Unsecular America 1–7 (Neuhaus, Richard John ed., William B. Eerdmans Publ'g Co. 1987)Google Scholar; American Jews and the Separationist Faith: The New Debate on Religion in Public Life 65–68 (Dahn, David ed., Ethics & Pub. Policy Ctr. 1993)Google Scholar.
66. For an excellent study of the Jewish quest for religious equality in Christian America, the development of the Jewish commitment to separation of church and state, and the emergence of critics to this tradition, see Cohen, Naomi W., Jews In Christian America: The Pursuit of Religious Equality (Oxford Univ. Press 1992)Google Scholar; Borden, Morton, Jews, Turks, and Infidels (Univ. N.C. Press 1984)Google Scholar.
67. Mittleman, Alan, Toward a Postseparationist Public Philosophy: A Jewish Contribution, 25 This World 92 (1989)Google Scholar.
68. Id. at 98.
69. Pickus, Noah, ‘Before I Built A Wall’—Jews, Religion and American Public Life, 15 This World 28, 29 (1986)Google Scholar.
70. Id.
71. Jonathan D. Sarna, Christian America or Secular America? The Church-State Dilemma of American Jews, in Jews in Unsecular America, supra note 65, at 8, 19.
72. Pickus, supra note 69, at 32; see also Friedman, Murray, The Utopian Dilemma: American Judaism and Public Policy 31 (Ethics & Pub. Policy Ctr. 1985)Google Scholar.
73. Id.
74. Id.
75. Mittleman, supra note 67, at 100-01.
76. Id. at 92.
77. Id. at 98.
78. See, e.g., Guliuzza, supra note 2, at 170.
79. Pfeffer, supra note 12. Pfeffer repeats these same themes in Pfeffer, Leo, God, Caesar, and the Constitution: The Court as Referee of Church-State Confrontation 2–39 (Beacon Press 1975)Google Scholar; Issues that Divide, 12 J. Soc. Issues 21, 21–39 (1956)CrossRefGoogle Scholar; Issues that Divide: The Triumph of Secular Humanism, 19 J. Church & St. 203–16 (1977)CrossRefGoogle Scholar.
80. Pfeffer, supra note 12, at 15.
81. Id. at 160.
82. See Pfeffer, supra note 17, at 487-533; Leo Pfeffer: Champion of Religious Liberty, 13 Reform Judaism 8-9, 29 (1984) (Interview by Aron Hirt-Manheimer & Steven Schnur.)Google Scholar; Dalin, David G., Leo Pfeffer and the Separationist Faith, 24 This World 138 (1988)Google Scholar.
83. Pfeffer, supra note 17, at 487.
84. Id at 488-89.
85. Id.
86. Pfeffer, Leo, Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Appellant, McCollum v. Bd. of Educ., 333 U.S. 203 (1948) (No. 90)Google Scholar.
87. Id. at 12.
88. Id. at 4.
89. Id. at 2.
90. Pfeffer, supra note 17, at 488-89.
91. Id.
92. Reichley, A. James, Religion in American Public Life 233 (Brookings Instit. 1985)Google Scholar.
93. Id.
94. Id.
95. Glazer, Nathan, American Judaism 87–88 (Univ. Chi. Press 1957)Google Scholar.
96. Cohen, supra note 66, at 126.
97. Pfeffer, supra note 17, at 487.
98. Dalin, David G., Leo Pfeffer and the Separationist Faith, 24 This World 136, 138 (1988)Google Scholar.
99. Shapiro, Edward S., A Time For Healing: American Jewry Since World War II, 5 Jewish People in Am. 56 (1992)Google Scholar.
100. See, e.g., Privilege to Become a Naturalized Citizen: Hearing on H.R. 5004 Before the H. Comm. on the Judiciary, 80th Congress (1948) (statement of Leo Pfeffer); Constitutionality of Metcalf-Baker Fair Housing Practice Bill: Memorandum submitted to New York State Legislature (Mar. 1, 1957) (memorandum of Leo Pfeffer); Immigration: Hearing on H.R. 8439 Before S. Comm. on the Judiciary, 85th Cong. (1958) (statement of Leo Pfeffer); Bills Concerning Wiretapping: Statement submitted to the Constitutional Rights Subcomm., S. Comm. on the Judiciary, 85th Cong. (1958) (statement of Leo Pfeffer), reprinted in Freda Pfeffer, The Writings of Leo Pfeffer, in Religion and the State: Essays in Honor of Leo Pfeffer, supra note 17, at 535-58.
101. See Pfeffer, supra note 17, at 503-06.
102. Pfeffer, Leo, Commentary on ‘Civil Religion in America’ by Robert N. Bellah, in The World Year Book of Religion. The Religious Situation (Cutler, Donald R. ed., Evans Bros. 1969)Google Scholar.
103. Id. at 362.
104. Id.
105. Id. at 363-64.
106. See, e.g., Daub, David, The New Testament and Rabbinic Judaism, 5 Judaism 373–75 (1956) (book review)Google Scholar; Ginsburg, Christian D., The Essenes and the Kabbalah, Congress Weekly, 10 8, 1956, at 15–16 (book review)Google Scholar; Cross, Frank Jr., The Ancient Library of Qumran and Modern Biblical Studies, 8 Judaism 89–91 (1959) (book review)Google Scholar.
107. Gordis, Robert, The Root and the Branch: Judaism and the Free Society 14 (Univ. Chi. Press 1962)Google Scholar.
108. Friedman, Murray, The Utopian Dilemma: American Judaism and Public Policy 3–4 (Ethics & Pub. Pol'y Ctr. 1985)Google Scholar.
109. Goodman, Lenn Evan, Equality and Human Rights: the Lockean and the Judaic Views, 25 Judaism 357 (1976)Google Scholar.
110. Auerbach, Jerold S., Liberalism & the Hebrew Prophets, 84 Commentary 58 (1987)Google Scholar. These themes are expanded in Auerbach, Jerold, Rabbis and Lawyers: The Journey from Torah to Constitution (Ind. Univ. Press 1990)Google Scholar; see also Kristol, Irving, Liberalism and American Jews, 86 Commentary 19–23 (1988)Google Scholar.
111. Id.
112. Id.
113. Gordis, supra note 107, at 14.
114. Pfeffer, Leo, Counterreflections on Church and Slate, 8 Midstream 15, 19 (1962)Google Scholar. On at least two occasions, Pfeffer used the resources of the Torah to advance his legal arguments. In an amicus brief filed in the case of Furman v. Georgia, Pfeffer urged that the death penalty constituted an affront on the dignity of man and did not comport with civilized standards, by quoting from the Talmud that “a sanhedrin that executes a criminal once in seven years is called a ‘court of destroyers.’” Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Petitioner at 6, 42, Furman v. Georgia, 408 U.S. 238 (1972) (Nos. 68-5027, 69-6003, 69-5030, 69-5031). Pfeffer also cited Torah, Talmudic, and post-Talmudic authorities in challenging a 1943 Hawaii statute forbidding the teaching of any foreign language in schools prior to the fourth grade. Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Appellee, Stainbeck v. Mo Hock Ke Lok Po, 336 U.S. 368 (1949) (Nos. 52,474).
115. Gordis, supra note 107, at 13-14.
116. Id.
117. Id.
118. Id.
119. Pfeffer, supra note 4, at 103-04.
120. Id. at 101-03.
121. Id. at 104; see also generally Pfeffer, , God, Caesar and the Constitution: The Court as Referee in Church-State Confrontation (Beacon Press 1974)Google Scholar; Pfeffer, supra note 11, at 565; Pfeffer, supra note 9, at 135; Brief for Appellants at 56-62, Zorach v. Clauson, 343 U.S. 306 (1952); Brief for American Ethical Union, et al. as Amici Curiae 8-9, Harris v. McRae, 448 U.S. 297 (1980).
122. Pfeffer, supra note 4, at 105-06.
123. Id. at 224-25.
124. Id. at 103.
125. Id. at 99-100.
126. Id. at 165.
127. See Pfeffer's review of Howe, Mark DeWolfe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Univ. Chi. Press 1965)Google Scholar. Pfeffer challenges Howe's thesis that the Supreme Court has misinterpreted the Establishment Clause as being based on Jefferson's anti-clericalism rather than Roger William's friendliness to religion. According to Pfeffer, “[i]n truth, it was not fear and distrust alone that motivated Williams and Jefferson but, no less, a conviction that the state had no business with religion because of the law of the Two Tables (Williams) or the social contract (Jefferson).” 81 Pol. Sci. Q. 655, 656 (1966).
128. Thiemann, supra note 2, at 74.
129. Neuhaus, A New Order of Religious Freedom, supra note 32, at 623.
130. Pfeffer, Leo, No Law Respecting an Establishment of Religion, 2 Buff. L. Rev. 225, 238–39 (1953)Google Scholar.
131. Pfeffer, Leo, The Future of the Bill of Rights: Church-Stale Relations, in The Future of Our Liberties: Perspectives on the Bill of Rights 111, 126–27 (Halpern, Stephen C. ed., Greenwood Press 1982)Google Scholar.
132. Pfeffer, supra note 12, at 30.
133. Id.
134. Id. at 29.
135. Id. at 154.
136. Id. at 167.
137. Pfeffer, Issues that Divide: The Triumph of Secular Humanism, supra note 79, at 204.
138. Id. at 206.
139. Id. at 212.
140. Id. at 214.
141. Id. at 214-16.
142. “American secular humanism is manifesting its potency in altering long-held doctrine and practice and narrowing the differences that divide Protestants, Catholics, and Jews.” Id. at 216; see also Pfeffer, Leo, Review: Secularization: A Case Study, 50 Tex. L. Rev. 1288–91 (1972)Google Scholar.
143. Pfeffer, supra note 12, at 134.
144. Id. at 164-65.
145. Id. at 168.
146. Id.
147. Id.
148. Hitchcock, supra note 54, at 152.
149. Pfeffer, supra note 12, at 46-48.
150. Id. at 158.
151. Id. at 161.
152. Id. at 17.
153. Pfeffer, supra note 80, at 207.
154. Hitchcock, supra note 54, at 133.
155. Sullivan, Kathleen, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 200 (1992)CrossRefGoogle Scholar.
156. Id. at 201.
157. Id.
158. Pfeffer, God, Caesar, and the Constitution, supra note 79, at 28-38.
159. Id. at 28.
160. Pfeffer, supra note 12, at 17-18.
161 Id. at 31.
162. Pfeffer, supra note 4, at 611.
163. Id.
164. See, e.g., Pfeffer, Leo, Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Appellant, Sherbert v. Verner, 374 U.S. 398 (1963) (No. 526) [hereinafter Sherbert Brief]Google Scholar.
165. See Pfeffer, Leo, Brief as Amici Curiae Supporting Petitioner, Worldwide Church of God v. State of Cal., 446 U.S. 987 (1980) (No. 79-1348) [hereinafter Worldwide Church Brief]Google Scholar; Pfeffer, Leo, Brief as Amici Curiae Supporting Petitioner, Moon v. U.S., 466 U.S. 971 (1984) (No. 83-1242) [hereinafter Moon Brief]Google Scholar.
166. Pfeffer, Worldwide Church Brief, supra note 165; Pfeffer, Moon Brief, supra note 165.
167. See Pfeffer, Leo, Brief for Synagogue Counsel of America and National Community Relations Advisory Counsel as Amici Curiae Supporting Appellees, Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961) (Nos. 11, 67)Google Scholar; Pfeffer, Leo, Brief for Appellant, Heisler v. Bd. of Rev. 102 N.E. 2d 601 (1951) (No. 18093)Google Scholar; Pfeffer, Sherbert Brief, supra note 164, at 16.
168. Pfeffer, Sherbert Brief, supra note 164, at 17.
169. See, e.g., Pfeffer, Leo, Brief for Synagogue Counsel of America and its Constituents as Amici Curiae Supporting Respondents, Wis. v. Yoder, 406 U.S. 205 (1972) (No. 70-110)Google Scholar.
170. Pfeffer, supra note 4, at 608.
171. Pfeffer, Leo, Brief for the American Jewish Congress as Amici Curiae Supporting Appellant at 12, U.S. v. Seeger, 380 U.S. 163 (1965) (Nos. 50, 51, 29)Google Scholar.
172. Neuhaus, The Pfefferian Inversion, supra note 5, at 44.
173. Prior to the 1963 Sherbert v. Verner decision and its requirement of a compelling state interest, Pfeffer contended, compared to other First Amendment freedoms, “free exercise did not have a separate but equal existence, or even one that was separate and unequal; it practically had no existence at all.” Pfeffer, Leo, The Supremacy of Free Exercise, 61 Geo. L.J. 1115, 1130 (1973)Google Scholar.
174. Sherbert v. Vemer, 374 U.S. 398, 413 (1963).
175. Id. at 415.
176. Pfeffer, Sherbert Brief, supra note 164, at 18.
177. Id. at 409.
178. Kelley, Dean M., Why Churches Should Not Pay Taxes (Harper & Row 1977)Google Scholar.
179. See Pfeffer, Leo, The Special Constitutional Status of Religion, in Taxation and the Free Exercise of Religion 7–10 (Baker, John W. ed., Baptist Joint Comm. Pub. Affairs 1977)Google Scholar; Pfeffer, Leo, Brief for Synagogue Counsel of America and its Constituents as Amici Curiae Supporting Appellee, Walz v. Tax Comm'n, 397 U.S. 664 (1970) (No. 135) [hereinafter Walz Brief]Google Scholar.
180. 397 U.S. 644(1970).
181. Many of Pfeffer's separationist allies broke with him on the issue of tax exemption. Groups such as the National Council of Churches and Americans United for Separation of Church and State filed briefs in Walz in favor of tax exemption. Pfeffer was even unable to gain support of his own organization, the American Jewish Congress, to take the unpopular decision of challenging the constitutionality of tax exemption. Pfeffer's opposing brief was eventually sponsored by the American Civil Liberties Union.
182. Pfeffer, God, Caesar, and the Constitution, supra note 121, at 71.
183. 448 U.S. 297 (1980).
184. Pfeffer, Leo, Brief for American Ethical Union et al. as Amici Curiae Supporting Appellee at 2, Harris v. McRae, 448 U.S. 297 (1980) (No. 79-1268), 1979 WL 199986 [hereinafter Harris Brief]Google Scholar; see also Pfeffer, Leo, Abortion and Religious Freedom, 43 Cong. Monthly 9–12 (1976)Google ScholarPubMed. This statement was originally submitted to the Subcommittee on Civil and Constitutional Rights, U.S. House Committee on the Judiciary, Mar. 24, 1976, and reprinted as a pamphlet, Abortion and Religious Freedom, by the Religious Coalition for Abortion Rights.
185. Pfeffer, Harris Brief, supra note 184, at 6.
186. Id. at 14.
187. Id. at 13; see also Pfeffer, God, Caesar, and the Constitution, supra note 121, at 112-13.
188. Audi, Robert, The Place of Religious Argument in a Free and Democratic Society, in Law and Religion: A Critical Anthology 69, 85 (Feldman, Stephen M. ed., N.Y. Univ. Press 2000)Google Scholar.
189. Pfeffer, supra note 12, at 18.
190. Id.
191. Id.
192. See, e.g., Pfeffer, Schempp Brief, supra note 22.
193. 374 U.S. 203 (1963).
194. See Pfeffer, Schempp Brief, supra note 22.
195. Id. at 11, 16-17.
196. Id. at 21.
197. Id. at 37.
198. See id.; Pfeffer, Engel Brief, supra note 22.
199. 374 U.S. at 223.
200. Schempp Brief, supra note 22, at 16-17.
201. Id. at 21.
202. Schempp, 374 U.S. at 222.
203. In Walz v. Tax Comm 'n, it was argued that a statute must not only have a secular purpose and a primary effect that neither advances nor inhibits religion, but also it must not foster “excessive entanglement” between church and state. 397 U.S. 664 (1970). Excessive entanglement was added to the purpose and effect tests of Schempp to form the three-part Lemon test that was first fully applied in the Lemon v. Kurtzman case involving public aid to religious schools in 1971. 403 U.S. 602 (1971). Naturally Pfeffer found the Lemon test to be an appropriate re-articulation of the no-aid test of Everson v. Bd. of Educ., 330 U.S. 1 (1947), and consistent with his understanding of the Establishment Clause since it reflected many of the constitutional considerations he put before the Court.
204. Ivers, Gregg, To Build A Wall: American Jews and the Separation of Church and State 113 (Univ. Press Va. 1995)Google Scholar.
205. Id.
206. Torcaso v. Watkins, 367 U.S. 488 (1961). Here the Court struck down a State of Maryland requirement that all state officeholders declare a belief in God. Roy Torcaso, an atheist and represented by Pfeffer before the Court, challenged the requirement of his first amendment rights. Significantly, the Court declared that the First Amendment prohibited different treatment of believers and non-believers by the government. It also accepted a broader definition of religion beyond theistic faiths.
207. Pfeffer, Leo, From Religious Monism to Pluralism, 31 Congress Bi-Weekly 7 (1964)Google Scholar; Pfeffer, Leo, A Momentous Year in Church and State: 1963, 6 J. Church & State 36 (1964)CrossRefGoogle Scholar.
208. Id.
209. Phillip Hammond, Can Religion Be Religious in Public?, in The Power of Religious Publics: Staking Claims in American Society, supra note 2, at 19, 30.
210. Id.
211. Id.
212. Id. at 31.
213. Neuhaus, supra note 32, at 629.
214. Id.
215. Guliuzza, Frank, The Supreme Court, the Establishment Clause, and Incoherence, in Religion, Public Life, and the American Polity 115, 135 (Lugo, Luis E. ed., Univ. Tenn. Press 1994)Google Scholar; Guliuzza is referring to Grand Rapids v. Ball, 473 U.S. 373 (1985) and Aguilar v. Felton, 473 U.S. 402 (1985), in which the U.S. Supreme Court struck down programs in which public school teachers were assigned to provide remedial education in nonpublic schools. These decisions were overturned by the more accommodationist Rehnquist Court in Agostini v. Felton, 521 U.S. 203 (1997).
216. Id.
217. Pfeffer, supra note 17, at 517-28.
218. Pfeffer, Leo, Federal Funds for Parochial Schools? No., 37 Notre Dame L. Rev. 309, 310 (1962)Google Scholar.
219. Early in Pfeffer's career, major advocates of this position, especially as it related to aid to parochial schools, included James O'Neill, M., Nonpreferential Aid to Religion Is Not an Establishment of Religion, 2 Buff. L. Rev. 242 (1953)Google Scholar; Blum, Virgil C., Freedom in Education: Federal Aid for All Children (Doubleday 1965)Google Scholar.
220. See, e.g., Leo Pfeffer Brief for Appellees, at 8-9 (1973) (Nos. 72-269 to 72-271). Levitt v. Comm. for Pub. Educ. & Religious Liberty, 413 U.S. 472.
221. Pfeffer, supra note 218, at 310-12.
222. Id. at 315-16.
223. Id. 317-18.
224. Id.
225. Id.
226. Pfeffer, Leo, The Price We Pay For Federal Aid, 11 Midstream 38, 40 (1965)Google Scholar; see also Pfeffer, supra note 218, at 315.
227. Pfeffer, supra note 218, at 319-20.
228. Id.
229. Pfeffer, Leo, The “Child-Benefit” Theory and Church State-Separation, 19 Church & State 6–7 (1966)Google Scholar.
230. 475 U.S. 503 (1986).
231. Dalin, supra note 82, at 140.
232. Id.
233. Id.
234. Goldman, 475 U.S. at 504.
235. Id. at 513-24.
236. Id. at 513.
237. Id. at 510.
238. Culminating in the controversial Oregon v. Smith peyote case where Justice Antonin Scalia declared that that compelling state interest test was a luxury “we cannot afford.” 494 U.S. 872, 888 (1990).
239. Pfeffer did not participate in or provide much commentary on the Goldman case as it occurred at the end of his career.
240. See Everson v. Bd. of Educ., 330 U.S. 1 (1947) and Lemon v. Kurtzman, 403 U.S. 602 (1971).
241. Choper, supra note 18, at 680-81; see also McConnell, Michael W., Religious Freedom at a Crossroads, in The Bill of Rights in the Modern State 115, 119–20 (Stone, Geoffrey R., Epstein, Richard A. & Sunstein, Cass R. eds., Univ. Chi. Press 1992)Google Scholar; Kritzer, Herbert & Richards, Mark, Jurisprudential Regimes and Supreme Court Decision Making: The Lemon Regime and Establishment Clause Cases, 37 L. & Soc'y Rev. 827 (2003)CrossRefGoogle Scholar.
242. Choper, Jesse H., Securing Religious Liberty Principles for Judicial Interpretation of the Religion Clauses 175 (Univ. Chi. Press 1995)Google Scholar.
243. This is not to suggest that Pfeffer found these practices, upheld in the Everson and Bd. of Educ. v. Allen cases, to be consistent with the broad reading of the First Amendment. He challenged, for instance, the child-benefit theory on which the transportation costs were justified and used other cases to contest the constitutionality of textbook loans. See Pfeffer, Leo, The ‘Child-Benefit’ Theory and Church-State Separation, 19 Church & State 6, 6–7 (1966)Google Scholar; Pfeffer, Leo, Brief for Appellants, Meek v. Pittenger, 421 U.S. 349 (1975) (No. 73-1765), 1974 WL 187585Google Scholar.
244. Wallace v. Jaffree, 472 U.S. 38 (1985).
245. Pfeffer, Leo, The Establishment Clause: An Absolutist's Defense, 4 Notre Dame J.L., Ethics & Pub. Pol'y 699, 728 (1990)Google Scholar.
246. Pfeffer, Leo, The Establishment Clause: The Never Ending Conflict, in An Unsettled Arena: Religion and the Bill of Rights 69, 90–91 (White, Ronald C. Jr. & Zimmerman, Albright G. eds., Eerdmans Publ'g Co. 1990)Google Scholar.
247. Id.; see Redlich, Norman, Separation of Church and State: The Burger Court's Tortuous Journey, 60 Notre Dame L. Rev. 1094 (1985)Google Scholar.
248. 421 U.S. 349.
249. Wolman v. Walter, 433 U.S. 229 (1977).
250. Id. at 248-55.
251. Id. at 236-48.
252. Pfeffer, Leo, Aid to Parochial Schools: A Chess Game with the Constitution, 1 Reform Judaism 5 (1972)Google Scholar; Pfeffer, Leo, The Case Against Parochiaid, 30 Church & St. 14, 15 (1977)Google Scholar.
253. Id.
254. Pfeffer, supra note 246, at 91.
255. Pfeffer, supra note 4, at 240.
256. Id. at 238.
257. Id. at 240.
258. Id.
259. Id.; 343 U.S. 306 (1952).
260. Pfeffer, supra note 4, at 239.
261. Id.
262. Id. at 240.
263. Id. at 240. In addressing whether a cross on a county seal should be challenged as a violation of the separation of church and state, Pfeffer once corresponded: “Here de minimus would certainly be an adequate defense if a court wanted to decide against you. This I think is the weakest of all the cases and I am inclined to question to the wisdom of an all out campaign on this issue.” Letter from Leo Pfeffer, to I.H. Prinsmetal (June 3, 1958) (Leo Pfeffer Papers, Syracuse University Special Collections, Box 16).
264. See Walz Brief, supra note 179.
265. Fowler, Robert, Hertzke, Allen, Olson, Laura & Dulk, Kevin Den, Religion and Politics in America 27 (3d ed., Westview Press 2004)Google Scholar.
266. According to Robert Wuthnow, church attendance hit an all-time high in the late 1950s with nearly fifty percent of Americans claiming they attended worship in any given week. After a slump in the 1960s, these figures stabilized during the 1970s and 80s to around forty percent. Church membership, under ten percent at the country's founding, grew to over sixty percent during the mid-twentieth century. Wuthnow, Robert, The Restructuring of American Religion: Society and Faith Since World War II 164–65 (Princeton Univ. Press 1988)Google Scholar.
Some 95 percent of Americans profess a belief in god or a universal spirit, with over 60 percent claiming never to doubt God's existence. More than six in ten say that religion is “very important” in their everyday lives and that “religion can answer all or most of today's problems.” Ninety percent associate with one of the many religious traditions present in the United States. While there is a small but growing segment of secular Americans, the vast majority of Americans continue to make religious faith an important part of their lives. Fowler, et al., supra note 265, at 27.
267. Pfeffer, supra note 4, at 166.
268. James E. Wood, Jr., Public Religion Vis-à-Vis the Prophetic Role of Religion, in The Power of Religious Publics: Staking Claims in American Society, supra note 2, at 44.
269. Id. at 44.
270. Pfeffer, supra note 4, at 221-64.
271. “It is quite significant that the principle of separation of church and state as established in the state legislatures and in the Constitutional Convention of the Federal Government were in large measure the outcome of the activities of church-related bodies.” Letter from Leo Pfeffer to Dean M. Kelley (Feb. 7, 1968) (Syracuse University Special Collections, Box 13, Leo Pfeffer Papers).
272. Pfeffer, supra note 4, at 221-22.
273. Id. at 728.
274. Pfeffer, supra note 4, at 221.
275. Wood, supra note 268, at 42.
276. Id.
277. Pfeffer, Leo, Blasphemy on the Potomac?: Exploitation of God and the Church-Good Public Relations But Dangerous National Policy, 11 The Christian Register 134 (1955)Google Scholar.
278. Neuhaus, Genuine Pluralism, supra note 5, at 78.
279. Pfeffer, supra note 277, at 11.
280. Wood, supra note 268, at 47.