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Three Models of Secular Constitutional Development: India, Israel, and the United States*

Published online by Cambridge University Press:  16 December 2008

Gary Jeffrey Jacobsohn
Gary Jeffrey Jacobsohn
Affiliation:
Williams College
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As a subject for serious investigation, constitutionalism in faraway places seems finally to have come of age. To appropriate the famous metaphor from the First Amendment arena that is the concern of this paper, it is as if, until relatively recently, a “wall of separation” had shielded both scholarly and judicial analysis of American constitutional issues from the experience of other polities. As a result, too often constitutional inquiry has been denied the illumination and insights of comparative research. My specific aim in this article is to explore the concept and practice of the secular constitution within three nations that are committed, albeit in different ways, to the principle of religious liberty.

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Studies in American Political Development , Volume 10 , Issue 1 , Spring 1996 , pp. 1 - 68
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Copyright © Cambridge University Press 1996

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References

1. For examples of comparative work that represent excellent exceptions to this characteristic insularity, see Glendon, Mary Ann, Abortion and Divorce in Western Law (Cambridge: Harvard University Press, 1987)Google Scholar on abortion and family policy; and Schaver, Frederick, “Social Foundations of the Law of Defamation: A Comparative Analysis”, Journal of Media Law and Practice 1 (1980): 3–23Google Scholar on the law of defamation.

2. See, for example, Walker, Graham, “The New Mixed Constitution: A Response to Liberal Debility and Constitutional Deadlock in Eastern Europe”, Polity 26 (1994): 504–15, esp. 510CrossRefGoogle Scholar.

3. The one notable exception was Justice William O. Douglas, who was especially interested in India. Douglas wrote a book (based on his Tagore Lectures) about the Indian constitutional system. Douglas, William O., From Marshall to Mukherjee: Studies in American and Indian Constitutional Law (Calcutta: Eastern Law House Ltd., 1956)Google Scholar. More importantly, his reflections on the Indian constitutional approach to Church and State figured prominently in several of his judicial opinions, e.g., McGowan v. Maryland, 366 U.S. 420 (1961); United States v. Seeger, 380 U.S. 163 (1965); Sherbert v. Verner, 374 U.S. 398 (1963). Douglas was a sympathetic observer of the Indian experience. At the same time, he used it to highlight some of the distinctive and desirable characteristics of the American approach.

4. de Tocqueville, Alexis, Democracy in America (New York: Random House, 1945), vol. 2, 28Google Scholar.

5. Fletcher, George, “Constitutional Identity”, Cardozo Law Review 14 (1993): 737–46, esp. 737Google Scholar.

6. Smith, Donald Eugene, Religion and Political Development (Boston: Little, Brown and Co., 1970), 11Google Scholar.

7. As Charles Taylor points out, the term secular was originally part of the Christian vocabulary, which serves as a useful reminder that liberalism fits most comfortably with certain kinds of religious experience. Taylor, et al. , Multiculturalism and ‘The Politics of Recognition’ (Princeton: Princeton University Press, 1992), 62Google Scholar. In this regard, Marc Galanter the leading American student of Indian law, writes of the First Amendment that it is a charter for religion as well as for government. “It is the basis of a regime which is congenial to those religions which favor private and voluntary observance rather than to those which favor official support of observance”. Galanter, , Law and Society in Modern India (Delhi: Oxford University Press, 1989), 249Google Scholar. There is also another kind of separation that should be minimized for our purposes. Cox's, Harvey definition of secularization involves, in addition to liberation from “religious and metaphysical tutelage, the turning of [man's] attention away from other worlds and toward this one”. Cox, The Secular City (New York: MacMillan, 1990), 15Google Scholar. But as Tocqueville suggests, a democratically constituted regime can be undermined by an exclusive focus on this-worldly concerns.

8. Way, Frank and Burt, Barbara J., “Religious Marginality and the Free Exercise Clause”, The American Political Science Review 77 (1983): 652–65, esp. 654CrossRefGoogle Scholar.

9. Margalit, Avishai and Raz, Joseph, “National Self-Determination”, in Kymlicka, Will, ed., The Rights of Minority Cultures (Oxford: Oxford University Press, 1995), 82Google Scholar.

10. As broad as my working definition of the secular constitution is, it cannot accommo-date a regime—I have in mind a country such as Iran—where the State identifies strongly with a religion that is constitutive of society.

11. There is a great temptation to deny Israel the status of a secular regime. See, for example, Tessler, Mark, “The Middle East: The Jews in Tunisia and Morocco and the Arabs in Israel”, in Wirsing, Robert G., ed., Protection of Ethnic Minorities (New York: Pergemon Press, 1981), 247Google Scholar. As I will explain in Section 4, however, one should resist this temptation, even while conceding that Israeli policies discriminate against non-Jews.

12. One way to depict the thickness of Hinduism in India in contrast with Christianity in the United States and Judaism in Israel is to observe the influence of the majority religions in these three places on the social practices of adherents of minority religions. Thus, for example, it has often been observed that although the caste system in India is uniquely associated with Hinduism, over a long period of time manifestations of its distinctive hierarchical social ordering have become entrenched in other communal settings, most notably the Muslim (most of whom, to be sure, are descendants of converts). See Dumont, Louis, Homo Hierarchicus: An Essay on the Caste System (Chicago: University of Chicago Press, 1970), 210Google Scholar; Derrett, J. Duncan M., Religion, Law and the State in India (New York: The Free Press, 1968), 558Google Scholar; Galanter, Marc, Competing Inequalities: Law and the Backward Classes in India, 1984), 17Google Scholar; and Prasad De, Krishna, Religions Freedom Under the Indian Constitution (Columbia, MD: South Asia Books, 1976), 105Google Scholar. There is nothing comparable to this in either of the two other countries. In the United States, Christian influence may be discernible in the participation by members of other religions in the traditions of Christmas, but this sort of trivial cultural impact only underscores the relative thinness of American religious practice. In Israel, too, the religion to which most people belong does not constitute a significant presence in the behavior of nonadherents, although this is at least partly attributable to the nonassimilationist character of Judaism.

13. The thinness of American religiosity is partially explained in theological terms. As Nord, Warren A. has observed, “Many Americans believe that believing is enough”. Nord, Religion & American Education (Chapel Hill: The University of North Carolina Press, 1995), 41Google Scholar. Thus Nord notes that Protestantism made doctrine and belief, rather than good works and religious practices, critical to religion. The contrast with Catholicism, Islam, Judaism, and Hinduism is not without political significance.

14. Adelaide Co. of Jehovah's Witnesses v. The Commonwealth, 67 C.L.R. 116, at 123 (1943).

15. In the Australian case, the Parliament had legislated to restrain the activities of the Jehovah's Witnesses, activities that it felt were prejudicial to the efficient prosecution of the war. The Court upheld these restrictions, while conceding that the religious group had not engaged in any overt hostile acts. For the restrictions to be upheld, it was deemed sufficient that the Witnesses possessed an attitude of noncooperation with the war effort, coupled with beliefs that all governments were “satanic”. It is perhaps worth noting that in the same year across the ocean the Jehovah's Witnesses were faring much better, as the American Supreme Court upheld their right to refrain from participating in a public school flag salute. West Virginia v. Barnette, 319 U.S. 624 (1943). The Reynolds and Beason cases, involving the efforts of the United States to curtail the activities of the Mormons in Utah, will be discussed more fully later in this article.

16. Adelaide, at 125.

17. Montesquieu, , The Spirit of the Laws, vol. II (New York: Hafner Publishing Co., 1966), 38–9Google Scholar.

18. Indeed, the leading authority on law and religion in India, J. Duncan M. Derrett, notes that the Article is “subject to so many qualifications and restrictions that the reader wonders whether the so-called ‘fundamental right’ was worth asserting in the first place”. Derrett, Religion, Law and the State in India, 451. The reference to “fundamental right” refers to the fact that Article 25 appears in Part III of the Constitution, labeled “Fundamental Rights”. There are additional rights present in this section that relate to religion, such as the freedom of religious institutions to manage their own affairs, and the freedom to avoid being taxed for the promotion or maintenance of any particular religion or religious de-nomination. Part IV of the Constitution—the “Directive Principles of State Policy”—also contains passages implicating religious freedoms, but the articles in this section of the document are essentially hortatory in nature, meaning that they are not justiciable in Court. As will be shown later, this does not mean they are unimportant.

19. Government of India Press, The Framing of India's Constitution: Select Documents, vol. II (New Delhi: Indian Institute of Public Administration, 1967), 265Google Scholar.

20. Austin, Granville, The Indian Constitution (Oxford: Oxford University Press, 1966), 50Google Scholar.

21. Galanter, Law and Society in Modern India, 247.

22. Justice Gajendragadkar in Yagnapurushdasji v. Muldas, S. Ct. J. 502, at 522 (1966).

23. Note, for example, the concern for the thickness of religion in this debator's comments on Article 44, the section in the Constitution concerning a uniform civil code. “We are at a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point where we must… say that the matters are not religious, they are purely matters for secular legislation”. Quoted in Baird, Robert D., Religion in Modern India (New Delhi: Manohar, 1981), 423Google Scholar, emphasis added.

24. Select Documents, vol. II, 143.

25. Austin, The Indian Constitution, 164.

26. In Ratilal v. State of Bombay, Chief Justice Mukherjea wrote: “A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well”. (A.I.R.S.C. 388, at 392, 1954) He elaborated upon this view in Comm. H.R.E. v. Swamiar: “A religion undoubtedly has its basis in a system of belief or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress”. (A.I.R.S.C. 282, at 290, 1954) Subsequent decisions have confirmed the precedential value of Mukherjea's view. See, for example, Yulitha Hyde v. State, A.I.R. Orissa 116, (1973).

27. Yagnapurushdasji v. Muldas, at 513.

28. This needs to be qualified in a way that incorporates an important insight appearing in Marc Galanter's discussion of caste in India. He maintains that it may make a great difference whether the characterization “religious” is attached to caste groups within a legal context, arguing that actual behavior, and thus real reform, could hinge upon such a determination. Galanter, Law and Society in Modern India, 141. The Constitution itself provides a negative judgment about caste, but since compliance with constitutional injunctions are rarely automatic, decisions about whether the origins of caste are rooted in religious or racial considerations become relevant to the work of the courts. For an intriguing view of why Hindus often assert to Westerners that caste is a social rather than a religious matter, see Dumont, Homo Hierarchicus, 25. As a rank amateur in this area, I express no opinion on the question of origins, but feel safe in simply acknowledging the deeply interwoven nature of caste and religion as they have evolved over the centuries. I would note, too, in this regard, Donald Smith's observation that it is a relatively recent phenomenon for caste to be repudiated as a Hindu religious value, and that this repudiation has had little effect upon the ordinary Hindu's acceptance of the divinely ordained character of the institution. Smith, Religion and Political Development, 35. Baird, Robert D. is similarly of the view that caste, for all of the sociological interest it has engendered, is ultimately a phenomenon sanctioned by religion. Baird, “Human Rights Priorities and Indian Religious Thought”, Journal of Church and State 11 (1969): 225CrossRefGoogle Scholar.

29. Select Documents, vol. II, 266.

30. Heimsath, Charles H., Indian Nationalism and Hindu Social Reform (Princeton: Princeton University Press, 1964), 326CrossRefGoogle Scholar.

31. The entrenched character of Hinduism in the social fabric of Indian society is a description widely accepted in a variety of literatures. Social theorists: Clock, Charles Y. and Stark, Rodney, Religion and Society in Tension (Chicago: Rand McNally, 1965) 34Google Scholar; Eisenstadt, S. N., ed., The Protestant Ethic and Modernization: A Comparative View (New York: Basic Books, 1968), 34Google Scholar; Loomis, Charles P. and Loomis, Zona K., eds., Socio-Economic Change and the Religious Factor in India: An Indian Symposium on Max Weber (New Delhi: Affiliated East-West Press, 1969), 79Google Scholar. India specialists: Weiner, Myron, “The Politics of South Asia”, in Almond, Gabriel A. and Coleman, James S., eds., The Politics of the Developing Areas (Princeton: Princeton University Press, 1960), 178Google Scholar; Stern, Robert, Changing India: Bourgeois Revolution on the Subcontinent (Cambridge: Cambridge University Press, 1993), 24Google Scholar. Legal scholars: Derrett, Religion, Law and the State in India, 57; Srivastava, Dhirendva K., Religious Freedom in India: A Historical and Constitutional Study (New Delhi: Deep and Deep Publications, 1992), 103Google Scholar; Alexandrowicz, C. H., “The Secular State in India and the U.S.”, Journal of the Indian Law Institute 2 (1960): 273–96, esp. 283Google Scholar. All of these perspectives generally share a consensus in highlighting the profound extent to which the religions of India – in particular, Hinduism – are solidly embedded in the existent social structure.

32. Madan, T. N., “Secularism In Its Place”, Journal of Asia Studies 46 (1987): 747–59, esp. 749CrossRefGoogle Scholar.

33. Chatterji, P. C., Secular Values for Secular India (New Delhi: Pauls Press, 1984), 23Google Scholar.

34. Dhavan, Rajeev, “Religious Freedom in India”, American Journal of Comparative Law 35 (1987): 209–54, esp. 250CrossRefGoogle Scholar.

35. Tocqueville, Democracy in America, vol. I, 310.

36. For a very good elaboration of Tocqueville's point as applied to India, Homo Hierarchicus, the work of another French sociologist, Louis Dumont, is an excellent place to go. Dumont's principal focus on the tension between the principle of equality and the principle of hierarchy is one that has a distinctly Tocquevillian ring to it. The decisive role of religion in this tension was affirmed in the very important official government report of the Mandal Commission, which was established in 1979 to investigate the conditions of the socially and educationally backward classes in India. That report indicates clearly that social inequality is deeply rooted in religious practices, and that the structural reality created by this history cannot be changed through the routine progress of modernization. See the discussion of the Mandal Commission Report in Sawhney v. Union of India (1992).

37. Carter, Stephen, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Harper Collins Publishers, 1993), 38Google Scholar.

38. Ibid., 43.

39. Fowler, Robert Booth, Unconventional Partners: Religion and Liberal Culture in the United States (Grand Rapids, MI: William E. Eerdmans Publishing Co., 1989), 4Google Scholar.

40. McConnell, Michael W., “Accommodation of Religion”, 1985 Supreme Court Review (Chicago: The University of Chicago Press, 1986), 17Google Scholar.

41. Carter, The Culture of Disbelief, 39.

42. Madan, T. N., “The Historical Significance of Secularism in India”, in Dube, S. C. and Basilov, V. N., eds., Secularization in Multi-Religious Societies (New Delhi: Concept Publishing Co., 1983), 12Google Scholar.

43. Wisconsin v. Yoder, 406 U.S. 205, at 216 (1971).

44. Wisconsin v. Yoder, at 224.

45. For example, a March 1994 Gallup Poll found that 59 percent of the American people felt that religion was very important in their lives, and another 29 percent felt it was fairly important. Saad, Lydia and McAneny, Leslie, “Most Americans Think Religion Losing Clout In the 1990's”, The Gallup Monthly Poll (04 1994): 2–4, esp. 3Google Scholar. This is consistent with the many studies showing, in comparison to many other countries, high attendance rates at formal religious services and high levels of belief in a Supreme Being. In the context of our contemporary “culture wars” figures like these have been cleverly manipulated to show how one side or the other is winning. But to show the relative importance of religion in people's lives is not the same as demonstrating that religion is fundamentally determinative of the social lives of most people. Thus in a comprehensive survey of American religious belief and behavior, George Gallup, Jr., and Jim Castelli conclude: “While religion is highly popular in America, it is to a large extent superficial; it does not change people's lives to the degree one would expect from their level of professed faith”. Gallup, and Castelli, , The People's Religion: American Faith in the 90s (New York: MacMillan Publishing Co., 1989), 21Google Scholar. The special character of religion in the United States may best be grasped by conjoining this conclusion with another, namely that the American “nation cannot by any stretch of the imagination be described as secular in its core beliefs”. Ibid., 90.

46. Bates, Stephen, Battleground: One Mother's Crusade, The Religious Right, and the Struggle for Our Schools (New York: Henry Holt, 1993), 309Google Scholar. In their study of volitionism and religious liberty, David and Susan Williams describe in detail the many aspects of Native American Indian religions that are strongly nonvolitionist in character. “This distinguishes them from primarily volitionist religions that dominate the American religious scene, and from the largely volitionist secular legal and philosophical traditions”. See their article, “Volitionism and Religious Liberty”, Cornell University Law Review 76 (1991): 769–926, esp. 795. Elsewhere I have described how this more totalistic religiosity is an important factor in the constitutionally anomalous status of Native Americans. Jacobsohn, Gary Jeffrey, Apple of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton University Press, 1993), 18–25Google Scholar. It is interesting, however, that this status does not ensure judicial relief from legal obligations that are challenged because of the burdens they place on the Indian way of life. See Lyng v. Northwest Indian Protective Association, 485 U.S. 439 (1988); Employment Division v. Smith, 494 U.S. 872 (1990). On this point see also Bradley's, Gerald arguments on separation of Church and State and the Christian tradition in “Church Autonomy in the Constitutional Order: The End of Church and State?”, Louisiana Law Review 49 (1989): 1057–85, esp. 1086Google Scholar. For those who insist that the lack of differentiation between the secular and the religious is a much more pervasive phenomenon in American life than I have suggested, these cases are not exceptional in what they portray about Indian culture. Thus, Justice Brennan's description in his Lyng dissent of the interwovenness of religion with the rest of life in the Native American experience has been sharply criticized for its highlighting of the alien features of this phenomenon. Glendon, Mary Ann and Yanes, Raul F., “Structural Free Exercise”, Michigan Law Review 90 (1991): 477–550, esp. 516CrossRefGoogle Scholar.

47. Quoted in Wunder, John R., “Retained by the People”: A History of American Indians and the Bill of Rights (Oxford: Oxford University Press, 1994), 194Google Scholar.

48. Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).

49. Sandel, Michael J., “Freedom of Conscience or Freedom of Choice?”, in East-land, Terry, ed., Religious Liberty in the Supreme Court (Washington, D.C.: Ethics and Public Policy Center, 1993), 493Google Scholar.

50. Maya, Nomi, Stolzenberg, , “‘He Drew a Circle That Shut Me Out’: Assimilation, Indoctrination, and the Paradox of a Liberal Education”, Harvard Law Review 106 (1993): 582–667, esp. 636Google Scholar.

51. Glendon and Yanes, “Structural Free Exercise”, 506.

52. Brief for the Petitioner in Board of Education of the Kiryas Joel Village School District v. Grumet, 3.

53. The state had been prompted to act by a 1985 Supreme Court decision, Aguilar v. Felton, 473 U.S. 402, which held that public school teachers could not conduct clasjes on religious school premises. Until that decision, the school district within which the Village of Kiryas Joel was then located had provided special education to disabled Satmar children at a religious school annex in Kiryas Joel.

54. Board of Education v. Grumet, 114 S.Ct. 2481, at 2511 (1994).

55. Ibid., at 2510.

56. Involved was the familiar and controversial three-pronged test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), which required that a law: (1) have a secular legislative purpose; (2) not have as its principal or primary effect the advancement or inhibition of religion; and (3) not foster an excessive government entanglement with religion. While criticized repeatedly both on and off of the Court, the test still stands, albeit on increasingly wobbly legs.

57. Sandel, “Freedom of Conscience or Freedom of Choice?”, 490.

58. By this I am referring only to the socioeconomic configuration of the majority Jewish population. Obviously, Jewish-Arab relations are associated with religious differences, and in this sense there surely is a regulative culture decisively at work. I address these issues in detail in Part 4.

59. Weissbrod, Lilly, “Religion As National Identity In a Secular Society”, Review of Religious Research 24 (1983): 190CrossRefGoogle Scholar.

60. Elazar, Daniel J. and Aviad, Janet, “Religion and Politics in Israel”, in Curtis, Michael, ed., Religion and Politics in the Middle East (Boulder: Westview Press, 1981), 195Google Scholar.

61. There are of course strong, articulate, and passionate voices on behalf of a strict separation of state and religion, but they possess quite limited appeal. Perhaps the most controversial is the late Yeshayahu Leibowitz, whose argument for separation was grounded in an understanding of the thickness of the Jewish religion, the fact that “the regime of the Torah… constituted a way of life”. See his Judaism, Human Values, and the Jewish State (Cambridge: Harvard University Press, 1992), 162. For Weiler, Geshon, on the other hand, it is to “escape the yoke of the Torah” that requires Israelis to accept “the principle that the religion of a person must be of no interest to the State”, in Jewish Theocracy (Leiden: EJ. Brill, 1988), 224, 234Google Scholar. For Leibowitz, separation preserves the integrity of Judaism; for Weiler, the integrity of the State.

62. Austin, The Indian Constitution, xiii.

63. I emphasize closure to highlight the contrast with the Israeli experience. The Knesset's deliberations over the constitutional question concluded with the passage of a compromise proposal, known as the “Harari Resolution”, which prescribed a process of incremental accumulation of individual chapters—or basic laws—that when terminated will together form the state constitution. This vaguely worded and much criticized legislation left unclear the status of the basic laws (of which there are presently eleven), just as it was silent as to a timetable for completion of the constitution. It provided formal commitment (sincere or otherwise) to the principle of a written constitution, while maintaining maximum flexibility in the Knesset's capacity to determine its realization. It was essentially a formula to proceed “with all deliberate speed”, although it lacked any method to enforce compliance. It left the State with an evolving constitution that conceivably possesses superior status to ordinary law, but which, predictably, coexists uneasily with the tradition of parliamentary supremacy.

64. It is worth noting that opposition to the adoption of a formal written constitution represented an interesting alliance, consisting on the one hand of extreme secularists such as David Ben-Gurion and on the other of ultra-Orthodox Jews, who maintained that Israel had no need of another constitution, the Torah being a more than adequate fundamental law. Indeed, it was the radically different understandings of the essence of the regime held by these alliance partners that suggests the great dilemma inherent in one of the principal arguments of the document's proponents—that it should serve as a pedagogical device for educating a diverse population in the political principles of the regime. Nevertheless, it is incorrect to suggest that Israel functions without a constitution. With the Declaration of Independence (often appealed to by the Supreme Court), sacrosanct legislation such as the Law of Return (entitling Jews emigrating to Israel automatic citizenship) and the Basic Laws (some of which have been interpreted as entrenched), there is in place the functional equivalent of a formal constitutional document. Much debate, of course, occurs over the question of how well this arrangement actually performs its functions.

65. See for example, Birnbaum, Ervin, The Politics of Compromise: State and Religion in Israel (Rutherford, NJ: Fairleigh Dickinson University Press, 1970), 270Google Scholar; Abramov, Zelman, Perpetual Dilemma: Religion in the Jewish State (Rutherford, NJ: Fairleigh Dickinson University Press, 1976), 328Google Scholar; and Englard, Itzhak, “Law and Religion in Israel”, Amencan Journal of Comparative Law 35 (1987): 125–208, esp. 187Google Scholar.

66. See Emanuel Gutmann, “Religion and Its Role in National Integration in Israel”, in Curtis, Religion and Politics in the Middle East, 197.

67. Liebman, Charles S. and Don-Yehiya, Eliezer, Religion and Politics in Israel (Bloomington: Indiana University Press, 1989), 3Google Scholar.

68. Rufeisen v. Minister of Interior, 16 P.D. 2428, at 2437 (1962). This phrase is reminiscent of language used by the U.S. Supreme Court in a case that recalls a period in American history when racial qualifications were very much a part of the naturalization process. (Such qualifications were eliminated by the Immigration and Nationality Act of 1952.) The matter at issue concerned the qualifications of a Hindu, who, while technically a Caucasian, was not, according to Justice George Sutherland, white in the “understanding of the common man”. United States v. Thind, 261 U.S. 204, at 209 (1923). I have discussed the Brother Daniel case at length in another place: Jacobsohn, Apple of Gold, 63–69. A recent episode in Israel is a vivid reminder of the continuing salience of the issues in that case. It involved the visit to Jerusalem of the Archbishop of Paris Jean-Marie Cardinal Lustiger, who claimed in his various appearances in Israel to be a Jew. The cardinal had converted to Christianity as a boy in Europe, a fact that did not in his estimation invalidate his self-identification with the Jewish people. His claim was widely denounced by both orthodox and secular Jews in Israel, to which he responded: “I am as Jewish as all the other members of my family who were butchered in Auschwitz or in the other camps”. New York Times, “The Cardinal Visits, and the Chief Rabbi is Pained”, Sec. A, p. 4. April 28, 1995.

69. Rufeisen v. Minister of Interior, at 2438.

70. Silberman, Charles, A Certain People: American Jews and Their Lives Today (New York: Summit Books, 1985), 70Google Scholar. Silberman's elaboration is not fully consistent with the Rufeisen decision, but it speaks to a distinction directly relevant to the distinctions made in this article: “One is a Jew by virtue of one's birth, not one's beliefs or practices. Thus it is that Protestants speak of joining a particular church and Catholics of becoming a Catholic, whereas Jews speak of being Jewish; for Jewishness is an existential fact”, 72–3. In this regard, it is worth noting the similarities to Hinduism, which like Judaism, is often identified (for all sorts of purposes, good and bad) with the story of a particular nation. More importantly, Hinduism is also not defined by particular beliefs and practices, a reality even more pronounced in India where the absence of an official, institutionalized religious hierarchy accentuates the heterogeneity of Hindu doctrine and behavior.

71. Tamarin v. State of Israel, 26 (1) P.D. 197, at 201 (1972).

72. Sharot, Stephen, “Judaism and the Secularization Debate”, Sociological Analysis 52 (1991): 271CrossRefGoogle Scholar.

73. Rufeisen v. Minister of Interior, at 2447.

74. Church/State relations in Israel are often characterized with reference to the “status quo”, a term referring to a compromise agreement between secular and religious forces that goes back to the inception of the State. As a result of the agreement, religious law has been accorded a limited presence in the life of the State. It is easiest to view the arrangement as a standard splitting of the difference, in which both sides settle for as little or as much as they can get away with. This is misleading, however, as it fails to convey a more principled side of the status quo as “one of the unique and prime factors ensuring the Jewish character of the State of Israel”. Eliash, Ben-Zion, “Ethnic Pluralism or Melting Pot: The Dilemma of Rabbinical Adjudication in Israeli Family Law”, Israel Law Review 18 (1983): 348–80, esp. 349Google Scholar. The debate over how to characterize this agreement, implicating as it does theological and nationalist dimensions of Judaism, is emblematic of “the crisis of Jewish identity”. As Peter Berger aptly puts it: “The Zionist attempt to redefine Jewishness in terms of a national identity… has the ambivalent character of, on the one hand, reestablishing an objective plausibility structure for Jewish existence while, on the other hand, putting in question the claim of religious Judaism to being the raison d'etre of Jewish existence—an ambivalence manifested in the ongoing difficulties between ‘church’ and state in Israel”. In The Social Canopy: Elements of a Sociological Theory of Religion (Garden City, NY: Doubleday, 1967), 69—70. For further insight into the intertwining of nationalistic elements and religious practices in Israeli Jewish and political cultures see Tabory, Ephraim, “Hate and Religion: Religious Conflict Among Jews in Israel”, Journal of Church and State 11 (1981): 275–83, esp. 280CrossRefGoogle Scholar. In general see Liebman and Don-Yehiya, Religion and Politics in Israel. And for additional insight into the complexity of the relationship between nationalism and religion in Israeli political culture, consider the reaction in Israel to the recent assassination of Prime Minister Yitzhak Rabin. Secular Jews were especially outraged that Rabin's killer was an orthodox Jew. For many the slain leader had become “an icon in a new kind of national religion” (New York Times, November 19, 1995, “Secular Israelis, Too, Have a Faith”, sec. 4, p. 4). Yet despite the backlash against the orthodox, particularly among young Israelis, a mass movement to get alternative branches of Judaism recognized is unlikely to occur. As the New York Times pointed out, “the State itself seems to be enough of an organization to let these young identify themselves as Jews”,p.4.

75. Eisenstadt, S. N., Jewish Civilization: The Jewish Historical Experience in a Comparative Perspective (Albany: State University of New York Press, 1992), 151Google Scholar.

76. Ibid., 123.

77. Nehru, Jawaharlal, The Discovery of India (Garden City, NY: Anchor Books, 1959), 154Google Scholar.

78. The novelty and distinctiveness of the project is an oft-told tale that focuses on a set of political principles that together constitute the basis of American national identity. Samuel Huntington, for example, has argued that this identity is understandable only in terms of the political principles of the Declaration of Independence, that Americans have nothing vital in common, no cementing unity, without the amalgam of goals and values that constitute the American Creed. “National identity and political principle [are] inseparable”, American Politics: The Promise of Disharmony (Cambridge: Harvard University Press, 1981), 24. This is the emphasis also of Liah Greenfeld's thoughtful account of American nationalism, with its “essential autonomy from material or ‘objective’ ethnic and structural factors” in Nationalism: Five Roads to Modernity (Cambridge: Harvard University Press, 1992), 402. I am in basic agreement with this account, although Rogers Smith is wise to point out that ethnic and cultural factors have historically been important in making sense of American national identity. See his “The ‘American Creed’ and American Identity: The Limits of Liberal Citizenship in the United States”, Western Political Quarterly 41 (1988): 225–51, esp. 225. I disagree, however, in Finding that this historical reality calls into serious doubt the validity of Huntington's creedal understanding of nationhood.

79. Reynolds v. United States, 98 U.S. 145, at 164 (1878).

80. Davis v. Beason, 133 U.S. 333, at 343, (1890).

81. An 1885 article in the Salt Lake Tribune suggested what was ultimately at stake in the combined legislative and judicial attack on polygamy: “The essential principle of Mormonism is not polygamy at all, but the ambition of an ecclesiastical hierarchy to wield sovereignty; to rule the souls and lives of its subjects with absolute authority, unrestrained by any civil power”. In Van Wagoner, Richard S., Mormon Polygam: A History (Salt Lake City: Signature Books, 1989), 133Google Scholar. It is in this light that President Hayes's rationale for moving against the Mormons must be seen. “Laws must be enacted which will take from the Mormon Church its temporal power. Mormonism as a sectarian idea is nothing, but as a system of government it is our duty to deal with it as an enemy of our institutions, and its supporters and leaders as criminals”. Quoted in Hansen, Klaus J., Mormonism and the American Experience (Chicago: University of Chicago Press, 1981), 144Google Scholar. As Hansen suggests, the close identification of polygamy with the Church as a political force meant that the defeat of one was directly tied to the defeat of the other. It is worth noting in this regard that the treatment of polygamy in American courts has historically been more tolerant than has been the typical approach in many Western countries. As Leon Sheleff has pointed out, this is in large part attributable to the unique legal situation that polygamy created within the Native American community. In his “Human Rights, Western Values and Tribal Traditions: Between Recognition and Repugnancy, Between Monogamy and Polygamy”, Tel Aviv Studies in Law 12 (1995): 237–66, esp. 253. Unlike the Mormons, the anomalous status of Native American tribes meant that the religions of these tribes posed no threat to the wider political culture.

82. Hansen, Mormonism and the American Experience, 114.

83. Van Wagoner, Mormon Polygamy, 133.

84. Reynolds v. United States, at 166.

85. Ibid., at 167.

86. On the ubiquity of the welfare state and its implications, see Carter, The Culture of Disbelief, 133, 138; and McConnell, Michael, “Accommodation of Religion: An Update and a Response to the Critics”, The George Washington Law Review 60 (1992): 685–742, esp. 692Google Scholar.

87. Locke, John, A Letter Concerning Toleration (The Hague: Martinus Nijhoff, 1963), 48CrossRefGoogle Scholar.

88. It may be asked what the Free Exercise Clause contributes to individual freedom that is not covered under the protection of opinions covered by the speech guarantees of the First Amendment. The answer is not much if it is correct to maintain, as the prevailing orthodoxy in these matters has it, that there is no such thing as a false idea as far as the Constitution is concerned, that in the marketplace of ideas all opinions are of equal status and dignity. Walter Berns, however, makes a compelling argument that the Founders drew a principled distinction between religious and political speech, that the very reason for absolute protection of the former means that there must be limits on the latter. In The First Amendment and the Future of American Democracy (New York: Basic Books, 1970), 146. Philip Hamburger, too, presents compelling historical evidence that religious liberty was considered a unique “inalienable right”, immune in a way that speech was not, from governmental restraints based upon the substance of belief. In “Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights”, 1992 Supreme Court Review (Chicago: University of Chicago Press, 1993), 312. Finally, John Mansfield has written of the Constitution that it embodies a particular philosophy that includes assumptions about human nature, human dignity, and the meaning of life: “It is not neutral in regard to these matters. If ‘separation of church and state’ requires a constitution that is neutral on these questions, then the United States does not have a constitutional regime of ‘separation of church and state’”. See “The Religion Clauses of the First Amendment and the Philosophy of the Constitution”, California Law Review 72 (1984): 847–907, esp. 856. From this he properly concludes that certain religious views are false under the Constitution. But they are not false as to their religious content, merely incompatible, whatever their theological validity, with the political truths underlying the Constitution.

89. Watson v. Jones, 80 U.S. 679, at 727, (1871).

90. In a 1976 case, Justice Brennan rightly suggested that civil courts “must accept [ecclesiastical] decisions as binding on them, in their application to the religious issues of doctrine or polity before them”. (Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, at 709, (1976) The key precedent for this important ruling is Watson v. Jones, 80 U.S. 679, a case that was decided a few years before the Reynolds decision. In Reynolds, it is interesting to note, the Court alludes to India in raising a rhetorical question: “[I]f a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?” (Reynolds, at 166) By maintaining the distinction between belief and practice, the Court never puts itself into the position of having to determine whether the woman's belief is erroneous or misguided. In India, as we shall see, there is a greater temptation to become judicially involved in the determination of the substantive merits of the beliefs in question. And this temptation is related to the greater difficulty in India in separating opinion and practice. The influence of Reynolds is obvious injustice Scalia's controversial opinion for the Court in Employment Division v. Smith: “[C]ourts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim” (at 887).

91. Hamburger, Philip A., “A Constitutional Right of Religious Exemption: An Historical Perspective”, The George Washington Law Review 60 (1992): 915–48, esp. 947Google Scholar.

92. McConnell, Michael W., “The Origins and Historical Understanding of Free Exercise of Religion”, Harvard Law Review 103 (1990): 1409–1519, esp. 1416CrossRefGoogle Scholar.

93. Locke, A Letter Concerning Toleration, 48.

94. Davis v. Beason, at 342–43.

95. Berns, The First Amendment, 20.

96. Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion”, 1516.

97. Ibid.

98. Quoted in Greenfield, Nationalism, 426.

99. Christopher L. Eisgruber and Lawrence G. Sager have in this regard persuasively argued that constitutional solicitude for religious practices should be based upon the vulnerability of religions to discrimination rather than on any unique value ascribed to conscientiously motivated practices rooted in religious belief. Concerns over discrimination might justify constitutional protection, but a claim of constitutional privilege (which extends from the allegedly privileged status of religious beliefs) ought not to override a legitimate governmental interest. They write, “In a liberal democracy, the claim that one particular set of practices or one particular set of commitments ought to be privileged… bears a substantial burden of justification”. In “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct”, The University of Chicago Law Review 61 (1994): 1245–1315, esp. 1260. One should, however, be sensitive to the fact that, as the Williamses have pointed out, nonvolitionist religions (which in the United States are minority religions) will by their very nature pose a greater threat to governmental interests. Thus they remind us that “the Court has… arrived at a formally nondiscriminatory position but the etiology of that position is saturated with volitionist bias”, in “Volitionism and Religious Liberty”, 846.

100. Justice Brewer as quoted in Walzer, Michael, What It Means To Be an American (New York: Marsilio, 1992), 59Google Scholar. “If the manyness of America is cultural”, Walzer has observed, “its oneness is political”. Ibid., 29. By oneness is meant a set of unifying (and universal) precepts into which the diverse strands that contribute to the manyness of American society come together. Or as Sidney, Mead noted, “A definitive element of the spiritual core which identifies [the United States] as a nation is the conception of a universal principle which is thought to transcend and include all the national and religious particularities brought to it by the people who come from all the world to be ‘Americanized’”. In The Nation With the Soul of a Church (New York: Harper and Row, 1975), 63Google Scholar.

101. Justice Rutledge dissenting in Everson v. Board of Education, 330 U.S. 1. at 31 (1947).

102. Sullivan, Kathleen M., “Religion and Liberal Democracy,” The University of Chicago Law Review 60 (1992): 195–223, esp. 206CrossRefGoogle Scholar.

103. Walzer, What It Means To Be an American, 9. The logical conclusion of governmental religious preference would be its use in determining a person's citizenship status, but, as Walzer has pointed out, “[t]he United States is a nation of cultural nationalities,” and so American “[c]itizenship is separated from every sort of particularism: the state is nationally, ethnically, racially, and religiously neutral.” Walzer sees neutrality as vital for immigrant societies such as the United States, but not all immigrant societies—Israel, for example—are so decidedly and profoundly identified with a universalist political creed. SeeWalzer, Michael, Thick and Thin: Moral Argument at Home and Abroad (South Bend, IN: University of Notre Dame Press, 1994), 70Google Scholar.

104. Lynch v. Donnelly, 465 U.S. 668, at 687 (1984). See also Shklar, Judith N., American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1990), 25–62Google Scholar.

105. Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, at 627 (1989).

106. O'Sullivan, John “America's Identity Crisis,” National Review (11 21, 1994): 36–45, esp. 38Google Scholar.

107. Sullivan, “Religion and Liberal Democracy,” 206.

108. Levy, Leonard, The Establishment Clause: Religion and the First Amendment (New York: MacMillan, 1986), xviGoogle Scholar.

109. Mead, The Nation With the Soul of a Church, 25.

110. Tocqueville, Democracy in America, vol. I, 316. Tocqueville's pivotal role in the emergence of the civil religion school is discussed at some length by Sanford Kessler, who sees Tocqueville's intellectual descendants today occupying a middle position in the often heated debate over secularization in contemporary American society. Characterized as “religious fundamentalists,” these commentators are quite eclectic in their politics, united only in their shared assumption that religion is crucial in fostering the mores that sustain freedom. See Kessler, , Tocqueville's Civil Religion: American Christianity and the Prospects for Freedom (Albany: State University of New York Press, 1994), 5, 14Google Scholar.

111. Mead, The Nation With the Soul of a Church, 18.

112. Quoted in ibid., 20.

113. Quoted in Marty, Martin E., Religion and Republic: The American Circumstance (Boston: Beacon Press, 1987), 42Google Scholar.

114. Will Herberg, “America's Civil Religion,” in Russell E. Richey and Donald G.Jones, eds., American Civil Religion (New York: Harper & Row), 77.

115. It is easy to see how the justices of the Supreme Court, guardians of the nation's covenantal document, will naturally be viewed as the carriers of the civil religion. A vast literature in political science is devoted to the sources of the Court's legitimacy, much of it looking into the mystical ways in which the divinity of the Constitution radiates to the advantage of its official interpreters.

116. Consider, for example, how two civil religion legal scholars address the establishment issue. “The preliminary question before the Court in each Establishment Clause case should be whether the questioned practice involves civil or theological religion. If it involves civil religion, it is permissible; if it involves public acknowledgment of or government support for theological religion, then it will be subject to Establishment Clause scrutiny and may be impermissible.” Maddigan, Michael M., “The Establishment Clause, Civil Religion and the Public Church,” California Law Review 81 (1993): 293–350, esp. 18CrossRefGoogle Scholar. A second writes: “When faced with questions arising out of the social context of civil religion, courts must somehow tread a line between the expression of shared and constitutive values on the one hand and impermissible establishment on the other.” Mirsky, Yehuda, “Civil Religion and the Establishment Clause,” Yale Law Journal 95 (1986): 1237–57, esp. 1255CrossRefGoogle Scholar.

117. Eisgruber and Sager, “The Vulnerability of Conscience,” 1267.

118. Smith, Michael E., “The Special Place of Religion in the Constitution,” 1983 Supreme Court Review (Chicago: University of Chicago Press, 1984)Google Scholar.

119. Abington v. Schempp, 374 U.S. 203, at 241 (1963).

120. McCollum v. Board of Education, 33 U.S. 203, at 231 (1948).

121. Walz v. Tax Commission of the City of New York, 397 U.S. 664, at 689 (1970).

122. Brennan's strategy was consistent with Chief Justice Burger's opinion of the Court, which relied upon the benevolent neutrality of the policy. “The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility” (Walz, at 678). In a 1989 case, Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), the Court overturned a tax exemption for religious periodicals, with Justice Brennan arguing for the Court that, here, unlike in Walz, the exemption was a policy especially designed for the benefit of religion. In Bob Jones University v. United States, 461 U.S. 574 (1983), involving the withdrawal of tax relief from a religious school that practiced racial discrimination on the basis of religious belief, the Court upheld the IRS action in a way that clarified the underlying philosophy of the earlier cases. Chief Justice Burger wrote: “[G]overnmental interest [in racial equality] substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.” Bob Jones University v. United States, at 604. John Mansfield sees the denial as “necessarily rest[ing] upon a judgment that the religion that preaches racial discrimination in education is false in this respect.” In “The Religion Clauses of the First Amendment,” 875. He may be right with regard to what the Court intended. If so, what they should have intended is this: its truth or falsity as religious doctrine is irrelevant to the issue at hand. But in the political arena, it is a mere opinion, which, if incompatible with public policy (and the public philosophy that underlies it), need not benefit from public resources.

123. McCollum v. Board of Education, at 710.

124. Bellah, Robert N., The Broken Covenant: American Civil Religion In Time of Trial (Chicago: The University of Chicago Press, 1975), 180Google Scholar.

125. This phenomenon has historic roots in American political culture. In their recent study of religion in contemporary American society, Barry Kosmin and Seymour Lachman show the connections between late-eighteenth-century political ideas concerning the importance of the individual and American denominations of that time. “An interesting aspect of the great diversity of religions in Colonial America was that they all developed a common image of the American nation. This brought about the extraordinary American development of a generalized religion integrating a society even while the nation had many religions. Within American society, the collective religion became America's civil religion, incorporating secular as well as religious values and emphasizing a national purpose.” Kosmin, and Lachman, , One Nation Under God: Religion in Contemporary American Society (New York: Harmony Books, 1993), 22Google Scholar. This view should be placed within a wider historical perspective. Harold J. Berman, for example, has observed that “liberal democracy was the first great secular religion in Western history—the first ideology which became divorced from traditional Christianity and at the same time took over from traditional Christianity both its sense of the sacred and some of its major values.” In “Religious Foundations of Law in the West: An Historical Perspective,” Journal of Law and Religion 1 (1983): 3–43, esp. 38. The most discussed and debated attempt to demonstrate the integration of religious and secular ideas and practices in the United States is Max Weber's classic study of the Protestant work ethic and the development of American capitalism. It is not necessary to embrace wholeheartedly Weber's thesis to acknowledge the historical symbiosis between religious and political beliefs. This does not contradict what was said earlier, that religion can also function as a refuge from the values of a liberal order. All of the religious traditions are rich and diverse enough to sustain both supportive and subversive roles.

126. McCollum v. Board of Education, at 101.

127. The Constitution makes a distinction between individual and collective freedom of religion. Under the latter heading all religious denominations have the right to manage their own affairs in matters of religion (Art. 26). In addition, all minorities, religious and linguistic, have the right to establish and administer educational institutions of their choice (Art. 30). Elsewhere, too, special provisions are included to address the particular needs of scheduled castes and scheduled tribes. And in Art. 48, as one of the Directive Principles of State Policy, the State is urged to take steps to prohibit the slaughter of cows—a clear singling out of the Hindu population for special consideration.

128. A helpful contrast might be made here with the approach taken by Justice Jackson in his famous opinion in the compulsory flag salute case. Jackson reminded his readers that the applicable principles “grew in soil which also produced a philosophy that the individual was the center of society” (West Virginia v. Barnette, 319 U.S. 624, at 640 [1943]). He then reflected on the need to protect individual rights in a different soil, in which the principle of noninterference no longer held sway. For the Indian judge, functioning within a legal culture where individualism was not rooted in the native soil, much greater sensitivity to group-related pressures was required.

129. Dhavan, “Religious Freedom in India,” 230.

130. On this point see Kumar, Ravinder, “The Ideological and Structural Unity of Indian Civilization,” in Dutt, R.C., ed., Nation Building in India: Socio-Economic Factors (New Delhi: Lancer International, 1987), 34Google Scholar.

131. The significance of this presumption becomes clearer if considered in the light of this observation by Harvey Mansfield, Jr., about modern constitutionalism: “The subordination of state to society… is the main truth of constitutional government, which is shared by liberals, conservatives, and even radicals, despite the various pet projects of intervention in others' liberties cherished by all three parties. That these projects are known as ‘intervention’ indicates the general expectation that government be limited.…” In “The Religious Issue and the Origin of Modern Constitutionalism,” in Goldwin, Robert A. and Kaufman, Art, eds., How Does the Constitution Protect Religious Freedom? (Washington, D.C.: The American Enterprise Institute for Public Policy Research, 1987), 3Google Scholar. Mansfield's point is that there is a general presumption in constitutional polities against the legitimacy of state intervention. A criticism that could be made of the prominent restrictive clauses in the Indian Constitution is that they reverse this presumption and thus threaten the viability of constitutional government. For some, no doubt, the plausibility of the criticism is rendered more obvious if Indian national identity is too closely associated with an ambiguous agenda of social reconstruction.

132. Mitra, Subrata, “The Limits of Accommodation: Nehru, Religion, and the State in India,” South Asia Research 9 (1989): 107CrossRefGoogle Scholar.

133. van DerVeer, Peter, Religious Nationalism: Hindus and Muslims in India (Berkeley: University of California Press, 1994), 23Google Scholar.

134. See Smart, Ninian, “India, Sri Lanka and Religion,” in Benevides, Gustavo and Daly, M. W., eds., Religion and Political Power (Albany: State University of New York Press, 1989), 28Google Scholar; and Smith, Anthony D., National Identity (Reno: University of Nevada Press, 1991), 114Google Scholar.

135. On the “contested meanings” of Indian national identity, see Varshney, Ashutosh, “Contested Meanings: India's National Identity, Hindu Nationalism, and the Politics of Anxiety,” Daedalus 122 (1993): 227–61Google Scholar. Of course not all of these meanings can plausibly apply to a constitution designated as secular. A major point of Varshney's essay is that “secularism, the ideological mainstay of a multireligious India, looks pale and exhausted” (”Contested Meanings,” 227). Thus, should Hindu nationalism ultimately prevail, an out-come that can no longer be casually and confidently dismissed, the secular constitution would quickly turn into a phenomenon of largely antiquarian interest. The real choice, then, as far as secularism in India is concerned, is encapsulated in T. N. Madan's alternative vision: “It should be realized that secularism may not be restricted to rationalism, that it is compatible with faith, and that rationalism (as understood in the West) is not the sole motive force of a modern state.” In “Secularism in its Place,” Journal of Asia Studies 46 (1987): 747–59, esp. 754.

136. For some this ameliorative solution entails an inherent contradiction in India's concept of secularism, a contradiction embodied in its “simultaneous commitment to communities and equal citizenship.” Rudolph, Lloyd I. and Rudolph, Suzanne Hoeber, In Pursuit of Lakshmi: The Political Economy of the Indian State (Chicago: The University of Chicago Press, 1987), 38Google Scholar.

137. Nandy, Ashish, “The Politics of Secularism and the Recovery of Religious Tolerance,” Alternatives 13 (1988): 177–94, esp. 179CrossRefGoogle Scholar.

138. See Heimsath, Charles H., Indian Nationalism and Hindu Social Reform (Princeton: Princeton University Press, 1964), 14CrossRefGoogle Scholar.

139. Select Documents, vol. II, 146.

140. State of Bombay v. Appa, A. I. R. Bombay 84 (1952).

141. Ibid., at 86.

142. Ram Prasad v. State of U.P., A.I.R. Allahabad 411 (1957).

143. State of Bombay v. Appa, at 86.

144. Ram Prasad v. State of U.P., at 413.

145. The last thing I would seek to do is offer an opinion on this question. That it is, however, a complicated question is suggested by the fact that polygamy in India has persisted from Vedic times down through modern independence. Kapadia, K. M., Marriage and Family in India (Oxford: Oxford University Press, 1966), 7Google Scholar. It is pointed out that while the Vedic ideal of marriage favored monogamy, polygamy was socially approved. A. K. Sur mentions in his study of Indian marriage that there have been periods in Indian history in which polygamy was widely practiced. He calls attention to the Mahabharata, where Krishna is said to have had 1,016 wives and in another place 16,000. In Sex and Marriage in India: An Ethnohistorical Survey (Bombay: Allied Publishers, 1973), 49–50. Hindu scriptures do indeed indicate that the need for progeny is the only reason for the institution of marriage. That any of this supports the view that plural marriage is integral to Hinduism is by no means obvious. But that it would be easy to generate a passionate argument over the matter is pretty obvious.

146. Ram Prasad v. State of U.P., at 414.

147. Derrett, Religion, Law and the State in India, 447. Derrett is not alone in raising such concerns. See also, Marc Galanter, Law and Society in Modem India, 249; and Dhavan, “Religious Freedom in India,” 223–24. There is also this comparative assessment: “Although the Indian Court has adopted the American and Australian concept of free exercise of religion, it has considerably curtailed the freedom to profess, practice, and propagate religion. The freedom has been further curtailed by the Indian courts by propounding the view that the Constitution protects only such religious practices as are an essential and integral part of a religion.” Srivastava, Religious Freedom in India, 313. While the adoption of the American approach is more complicated than Srivastava suggests, his reference is helpful in reminding us of the American reluctance to intrude into theological disputes.

148. State of Bombay v. Bombay, at 88.

149. Donald Smith's work emphasizes the absence of coherent ecclesiastical structure in India. He develops a distinction between “organic” and “church” models of religiopolitical systems, with Hinduism falling within the first category. In Religion and Political Development, 8. His argument is that Hinduism lacks effective organizational strength to reform itself, thus necessitating state intervention. See his India As a Secular State (Princeton: Princeton University Press, 1963), 231; and Caldorola, Carlo, Religions and Societies: Asia and the Middle East (Berlin: Moutan Publishers, 1982), 39CrossRefGoogle Scholar. This is also the argument of N. J. Demarath III and Phillip E. Hammond, who, following Weber, suggest that “both Judaism and Catholicism (together with another Jewish offshoot, Islam) [and unlike Hinduism] have highly developed organizational forms as a way of fulfilling the mandate for aggressively ascetic action in the interests of large-scale social change.” See their Religion in Social Context (New York: Random House, 1969), 50.

150. Douglas, From Marshall to Mukherjee, 316.

151. Ibid.

152. George Bernard Shaw once commented that “Hinduism is so elastic and so subtle that the profoundest Methodist and the crudest isolators are equally at home in it.” Quoted in Srivastava, Religious Freedom in India, 22. That of course is a caricature, but its basic point about the heterodox character of Hinduism is a familiar one amongst students of India. For example, Weber, Max noted that “the concept of ‘dogma’ is entirely lacking” in Hinduism, in Weber, , The Religion of India: The Sociology of Hinduism and Buddhism (Glencoe, IL: The Free Press, 1958), 21Google Scholar. More authoritatively, particularly in relation to the law, is Derrett's observation that “religious affiliation is not a question of an individual's belief, for on that footing he is free to believe or not believe in anything he likes, but of a social belonging” (Religion, Law and the State in India, 58). More recently, Lloyd and Suzanne Rudolph point out, “The Hinduism of the ‘Hindu majority’ encompasses diversity of gods, texts, and social practices and a variety of ontologies and epistemologies. Without an organized church, it is innocent of orthodox), heterodoxy, and heresy” (In Pursuit of Lakshmi, 37).

153. State of Bombay v. Appa, at 90.

154. Derrett, Religion, Law and the State in India, 559.

155. Dhavan, “Religious Freedom in India,” 224. Off of the Court, Gajendragadkar wrote: “Whether or not polygamy should be allowed, what should be the line of succession, what should be the shares of different heirs, what should be the law of divorce, are matters which should be determined not by scriptural injunctions, but by rational considerations.” Gajendragadkar, quoted in Baird, Robert D., “Uniform Civil Code and the Secularization of Law,” in Baird, Robert D., ed., Religion in Modern India (Manoher: New Delhi, 1981), 434Google Scholar.

156. Yagnapurushdasji v. Muldas, at 513.

157. Ibid.

158. Galanter, Law and Society in Modern India, 251.

159. Tribe, Laurence H., American Constitutional Law (Mineola, NY: The Foundation Press, 1988), 1232Google Scholar.

160. Epstein, Richard A., “Religious Liberty in the Welfare State,” William and Mary Law Review 31 (1990): 375–408, esp. 402Google Scholar.

161. Justice Ayyangar concurring in Saifuddin v. State of Bombay, A.I.R. S.C. 853, at 875 (1962).

162. An important constitutional issue in India involves the distinction between management of the property of a religious denomination and administration of religious matters. Dhavan's view is that there has been a “virtual takeover of the management of religious institutions.” In “Religious Freedom in India,” 230. If there has, then Donald Smith, writing in 1963, will have been proven correct when he suggested that a “broad conception of corporate freedom is not recognized by the Constitution of India.” In India As a Secular State, 247. Smith argues that this freedom presupposes the existence of well-organized churches, although Indian courts have tried to be protective of religious autonomy in connection with church endowments.

163. Tribe, American Constitutional Law, 1181.

164. Montesquieu, The Spirit of the Laws, vol. II, 52.

165. State of Bombay v. Appa, at 87.

166. Austin's analysis of the debates in the Constituent Assembly leads him to conclude that the placement of the provision for a uniform civil code in the nonjusticiable part of the Constitution was done largely to calm Muslim fears. In The Indian Constitution, 80. By placing it among the Directive Principles, its realization was to be contingent upon legislative, that is, political discretion. This is not inconsistent with Srivastava's account of the Assembly de-bates, in which, contrary to Muslim sentiment, the prevailing view was that the State should not be incapacitated in being able to legislate on any matter covered by the personal laws. See Religious Freedom in India, 242. Somewhat less convincing is his conclusion that “the recognition of heterogeneous personal laws, which tend to perpetuate social and religious division, is against the letter and spirit of the Constitution.” ibid., 263. Or at least this is a much more complex matter than is suggested by the comment. The dilemma confronting the framers was the same as that depicted by Varshney in his reflections on the contemporary scene. “Should the various religious groups in India be under a common civil code or under their distinctive religious laws? If secular nationalists claim that separate personal laws destroy national unity, they generate a reaction in the religious community whose personal laws are at issue. If, on the other hand, they promote personal laws on the argument that such concessions make minorities secure, they set off a reaction in the majority community that the state may have gone too far in minority appeasement, opening up fissiparous tendencies and undermining national unity.” Varshney, “Contested Meanings,” 238. Parekh, Bhikhu has expressed similar concerns, worrying that the goal of uniformity “might become an unwitting instrument of avoidable disorder.” In “The Poverty of Indian Political Theory,” History of Political Thought 13 (1992): 535–60Google Scholar, esp. 540.

167. Douglas, From Marshall to Mukherjee, 316.

168. Chatterji, Secular Values for Secular India, 223.

169. Mahboob Ali Baig Bahadur, as quoted in Baird, Religion in Modern India, 404.

170. Sorabjee, Soli J., “Equality in the United States and India,” in Henkin, Louis and Rosenthal, Albert J., eds., Constitutionalism and Rights: The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990), 103Google Scholar.

171. State of Bombay v. Appa, at 87.

172. Ibid., at 95.

173. See Thakur, Ramesh, “Ayodyha and the Politics of India's Secularism,” Asian Survey 33 (1993): 645–64CrossRefGoogle Scholar, esp. 649.

174. In this extremely controversial case, the Supreme Court decided in favor of a Muslim woman, granting her maintenance from her divorced husband. Muslim personal law had not required this support, and the reaction among many Muslims was to condemn the Court for endangering Islam in India with the imposition of a uniform civil code. Prime Minister Rajiv Gandhi then supported legislation that effectively reversed the Court's decision. While this gained him support within the traditional Muslim community, it enraged women, progressive Muslims, secularists, and Hindu nationalists. For the latter, the government's response to Shah Bano became a rallying cry that was part of the climate that led seven years later to the destruction of the Babri Masid mosque by Hindu militants, who claimed that this temple in the city of Ayodya rested on the birthplace of the Hindu god, Lord Ram.

175. Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. S.C. 945, at 954 (1985).

176. Ibid., at 948.

177. Chandrachud's opinion recognizes this but concludes that it is not a sufficient response to the injustice in the system. “Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.” See Mohd. Ahmed Khan v. Shah Bano Begum, at 954. While the argument here may be taken as a plea to the legislature to relieve the courts of the burden of judicial activism, it is more likely that it was intended as an expression of frustration at the incremental pace of social reform.

178. This does not mean that, at least theoretically, there could come a time when this dual commitment could be better realized with the uniform codification of all law. But the Constitution-makers seemed aware of the fact that this was, at best, a very long term project. Krishna Prasad De cites the example of Turkey to illustrate by comparison how inadequate is an Indian commitment to secularism that maintains a system of personal laws. In Religious Freedom Under the Indian Constitution, 131. The contrast is useful in distinguishing what I would call reformist secularism from the ameliorative secularism that best captures the Indian situation. But it also seems to pass too quickly over critical differences between the two countries. Marcie J. Patton, for example, points out that the Kemalist reforms embraced by the Turkish Constitution denied recognition to those groups that were threatened by the secular national project in nation-building. See “Constitutionalism and Political Culture in Turkey,” in Franklin, Daniel P. and Baun, Michael J., eds., Political Culture and Constitutionalism: A Comparative Approach (Armonk, NY: M. E. Sharpe, 1995), 140Google Scholar. Perhaps this was possible in Turkey, but it is unimaginable as a solution for independent India. See also Yalman's, Nur consideration of “the cultural revolution in Turkey… as an early example of radical social and political reform in this hectic century.” In “On Secularism and its Critics: Notes on Turkey, India and Iran,” Contributions to Indian Sociology 25 (1991): 233–66CrossRefGoogle Scholar, esp. 241. Prasad's point about personal laws also fails to mention an important factual difference mentioned by Yalman. Turkey is a country which is 99 percent Muslim.

179. Kymlicka, Will, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989), 140Google Scholar.

180. Ibid., 175.

181. Tolerating intolerance would seem to be inevitable in any system that provides real autonomy for groups in the governance of their adherents. We have already seen with regard to governance in matters relating to religion that the secular constitution in the United States tolerates all sorts of departures from the norms associated with public law-making. However, with the partial exception of Native Americans, there is no autonomous rule-making authority conferred upon groups in matters of civil and criminal law. Formal equality takes precedence over a commitment to diversity that must entail some measure of infringement of individual rights. Kymlicka's argument is weakest in this regard. His advocacy of collective rights is premised on the assumption that the groups exercising these rights will abjure intolerance: “Supporting the intolerant character of a cultural community undermines the very reason we had to support cultural membership—that it allows for meaningful individual choice.” In ibid., 197. But if that is a reason for calling off the experiment in collective rights, it is hard to see where it would take hold. Surely Kymlicka's principle would deny a regime of personal laws in India, but even in the United States, where religious cultures are much “thinner,” the prospects for tolerance would doubtless be disqualifying.

182. Quoted in Hamburger, “Equality and Diversity,” 321.

183. Ibid., 299.

184. As one dissenter, Samuel Stillman, put it, “The authority by which he [i. e., the ‘magistrate’] acts he derives alike from all the people, [and] consequently he should exercise that authority equally for the benefit of all, without any respect to their different religious principles.…” Quoted in ibid., 342.

185. Ibid., 318.

186. Ibid., 350.

187. Donna Arzt has made the useful suggestion that the term “association” be employed to describe the relationship between religion and the state in Israel. Implying some-thing short of “establishment,” it entails regulation of, support for, and recognition (as in imprimatur) of religion. See Arzt, , “Religious Freedom In a Religious State: The Case of Israel In Comparative Constitutional Perspective,” Wisconsin International Law Journal 9 (1991): 1–67Google Scholar, esp. 32. Some Israeli scholars have also attempted to demonstrate the preferred position in Israeli practice of European Jews over Middle Eastern Jews, particularly in the fifties and sixties when modernization and the consolidation of the State were viewed as critical to the success of the Zionist project. See for example Cohen-Almagor, Raphael, “Cultural Pluralism and the Israeli Nation-Building Ideology,” International Journal of Middle Eastern Studies 27 (1995): 461–84CrossRefGoogle Scholar; and Smooha, Sammy, Israel: Pluralism and Conflict (Berkeley: University of California Press, 1978)Google Scholar.

188. There have been many empirical studies of Jewish religious commitment in Israel, all of which suggest that for the great majority of Israelis being Jewish plays an important role in their lives (in different ways) but is not a way of life. Many of these findings are included in Sobel, Zvi and Beit-Hallahmi, Benjamin, eds., Tradition, Innovation, Conflict: Jewishness and Judaism in Contemporary Israel (Albany: State University of New York Press, 1991)Google Scholar.

189. Section 7a to the Basic Law: The Knesset.

190. Ben, Shalom v.Central Elections Committee for the Twelfth Knesset, 43(4) P. D. 221 (1989), at 272Google Scholar. Very similar to these views of the observant Justice Elon are the following sentiments of the late secularist Labor party leader Yigal Allon: “It is necessary to declare it openly: Israel is a single-nationality Jewish State. The fact that an Arab minority lives within the country does not make it a multinational state. It only requires that the state grant equal citizenship to every citizen of the state, with no differences based on religion, race, or nationality.” Quoted in Lustick, Ian, Arabs in the Jewish State: Israel's Control of a National Minority (Austin: University of Texas Press, 1980), 65Google Scholar.

191. This of course is what happened to Meir Kahane and his anti-Arab Kach list. Unlike the judicial response to the PLP case, the Supreme Court unanimously upheld the removal of Kahane's party from the ballot for the 1988 elections (Neiman v. Chairman of Central Elections Committee, 42 P.D. IV 177, 1988). Most Jews in Israel found Kahane's ugly racist attacks on Arabs outrageous and offensive, and had no problem dissociating these views from their understanding of Judaism. But Kahane and his followers insistently maintained that his party's positions were the true expression of the Jewish faith and tradition. For them, in other words, the Basic Law denied them political and religious freedom. It should be noted, in this regard, that the Declaration's affirmation of democratic values itself has a specifically religious foundation, as it is “based on the precepts of liberty, justice and peace taught by the Hebrew prophets.” The Kahane case warrants comparison to some recent rulings by the Indian Supreme Court. On the basis of a stump speech in which the Hindu supremacist, Balasheb K. Thackeray, called Muslims “snakes,” this leader of the Shiv Sena Party was barred from forthcoming elections, a decision upheld by the Court. At the same time, however, the Court ruled that another politician's pledge to turn Maharashtrainto India's “first Hindu state” was not an offense under Indian law (“India Court Bars Hindu Nationalist From Ballot” p. A16, New York Times, December 12, 1995). What was forbidden was the conveying of a hostile attitude toward other faiths, not the expression of a politically subversive idea. Thus in both India and Israel you can run afoul of the law by voicing hatred toward communal groups, but in the former such expression does not implicate one in the illegal larger project of undermining democratic institutions.

192. In India, however, the complainants tend to be identified with Hindu revivalism, whereas in Israel the people who see themselves as victims tend to be associated with more secular and less nationalistic Jewish loyalties. Apropos this difference, and relevant to my subsequent discussion of personal law in Israel, Varshney has pointed out that Hindu nationalists insist that Muslims assimilate, rather than maintain their distinctiveness (“Contested Meanings,” 231). In contrast, Jewish religious nationalists are the most adamant of Israelis in opposing any move that might lead to the slightest integration of the Jewish and Muslim communities.

193. See in addition to Justice O'Connor's Establishment Clause formulation, the scholarly discussions by Shklar, American Citizenship; Karst, Kenneth, Belonging to America: Equal Citizenship and the Constitution (New Haven: Yale University Press, 1989)Google Scholar; and Spinner, Jeff, The Boundaries of Citizenship: Race, Ethnicity, and Nationality in the Liberal State (Baltimore: The Johns Hopkins Press, 1994)Google Scholar.

194. Smooha, Sammy, “Part of the Problem or Part of the Solution: National Security and the Arab Minority,” in Yaniv, Avner, ed., National Security and Democracy in Israel (Boulder, CO: Lynne Rienner Publishers, 1993), 108Google Scholar.

195. Peled, Yoav, “Ethnic Democracy and the Legal Constitution of Citizenship: Arabs: Citizens of the Jewish State,” American Political Science Review 86 (1992): 432–43CrossRefGoogle Scholar, esp. 435.

196. Ibid., 432.

197. Liebman and Don-Yehiya, Religion and Politics in Israel, 48. David Kretzmer suggests that the maintenance of the distinction between rights and privileges is at the root of the otherwise inexplicable Population Registry Law, which requires that all citizens of Israel be registered by “nation.” “Registration of ‘nation’ is irrelevant in determining the rights and obligations of citizens, but it strengthens the dichotomy between the state as the political framework of all its citizens, and the state as the particularistic nation-state of the Jewish people.” In The Legal Status of the Arabs in Israel, 44.

198. Hamburger, “Equality and Diversity,” 336.

199. See in this regard Eric Cohen's comparative analysis of citizenship, nationality, and religion in Israel and Thailand. His study tries to provide an explanation for the Thai polity's failure, in contrast to the mixed success in Israel, in achieving a harmonious solution to its Muslim minority problem. He finds that Judaism, as a political force in Israel, is mediated through the secular ideology of Zionism, leading to an attenuation in the conflict between the State and its Arab minority. See his “Citizenship, Nationality and Religion in Israel and Thailand,” in Kimmerling, Baruch, ed., The Israeli State and Society: Boundaries and Frontiers (Albany: State University Press of New York, 1989), 68Google Scholar. He wrote, “Even when symbols originating in Jewish religion were incorporated into the body of the central political symbols of the state, they were not perceived as religious, but as historical national symbols; their religious salience was low not only in the perception of the Jewish but also of the non-Jewish citizens” (p. 70). There are several reasons for the more violent history of the Thai government's relations with its Malay Muslim minority, but the one that is most relevant in this context is that Buddhism as a political presence has retained its religious significance, so that Muslims tend to perceive demands upon them as infringements upon their religion. According to Cohen, “The Thai-Malay conflict, like that between Israel and the Arabs, is essentially a national and political one; but in Thailand it is expressed in a religious idiom, which in Israel, at least for the time being, it is not. It is this religious dimension of the conflict that endows it with its violent character” (p. 87).

200. Ian Lustick has argued that a key to understanding the striking political quiescence of Israel's Arab minority (at least up to 1980) are the measures taken by the government to achieve religious fragmentation in the Arab community. He wrote, “The particular pro-grams implemented by the regime with respect to the religious segmentation of the Arab population were designed to preserve these identities and encourage their use as meaningful political categories. These efforts must be understood as part of a general desire to inhibit the emergence of ‘Arab’ as the most meaningful category of political identity and association for Israel's non-Jewish population“ (Arabs in the Jewish State, p. 133). In this sense, the laws of personal status, as well as their earlier incarnation in the millet system, can be understood as the logical extension of a system that in various ways commits itself to the special concerns of a dominant group.

201. This might fruitfully be contrasted with the early policies of the State regarding ethnic communities within the larger Jewish community. As Cohen-Almagor has shown, Israeli nation-building ideology emphasized the need to undermine cultural and traditional particularities in the interest of creating a new kind of Jewish person, the Sabra. See “Cultural Pluralism and the Israeli Nation-Building Ideology,” 466. Thus, the elimination (or at least major modification) of disparate communal experience was consistent with political aspirations, but characteristically only within the Jewish community.

202. Yosifof v. Attorney-General, 5 P.D. 481 (1951).

203. The case involved a statute passed under the mandate, a fact that does not under-mine its comparative value, since it presents an underlying theory for the law of personal status that also applies to laws enacted subsequent to 1948. The statute did not absolutely forbid polygamy for Jews, but required that “a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.” Thus the statute sought to bring the criminal law of the state into conformity with Jewish and Muslim law. Because of the different attitudes of the religions towards polygamy, the effect of the law was to make it much more difficult for Jews to engage in the practice.

204. Attorney-General, Yosifof v., in Goitein, E. David, Selected Judgments of the Supreme Court of Israel—Vol. I. 1948–1953 (Jerusalem: The Ministry of Justice, 1962), 185Google Scholar.

205. Yosifof v. Attorney General, at 184 (emphasis added).

206. Ibid., at 185.

207. Ibid., at 187.

208. Ibid., at 186.

209. Kymlicka, Liberalism, Community, and Culture, 211.

210. Yosifof v. Attorney-General, at 195.

211. Consider in this regard the following comment by a Druze Arab member of the Knesset: “Of all the Arabs in the Knesset today, I'm the one who noticed something in the abortion law. This law was passed by the Knesset and therefore must apply to all citizens of Israel, including the Arabs. But the law is drawn from the Halakha. I rose and said: Fellow members, I don't want this to become a precedent in Israeli legislation, that a law drawn from the Halakha is applied to Moslems and Druze.… There was once a law prohibiting polygamy, but that law was not drawn from the Halakha.” Quoted in Hareven, Alouph, ed., Every Sixth Israeli: Relations Between the Jewish Majority and the Arab Minority in Israel (Jerusalem: The Van Leer Foundation, 1983), 64Google Scholar. It is not surprising that an abortion statute passed by a predominantly Jewish legislature might have been inspired by Jewish law. It is also not surprising that this would be noticed by a member of a religious minority. The law's effect, however, is to cause this member to identify with an aggrieved national minority, the Arabs, thus displacing religion on to nationality in a manner that may call into question the legitimacy of the regime's fundamental distinction between rights and privileges. Maintaining abortion as an issue to be addressed within the separate religious domains of personal law might be morally problematic, but it can also be seen as serving the political purposes of the Jewish majority by minimizing the impact of religious nationalism. Thus it is significant that this Druze member of the Knesset specifically mentions the legal treatment of polygamy as less objectionable, because it was not derived from the Jewish law.

212. Quoted in Hamburger, “Equality and Diversity,” 366.

213. For some observers, too, they call into question the commitment of the polity to a secular constitution. For example, the Israeli constitutional scholar Amnon Rubinstein has written, “If religious freedom means not only the freedom to follow and observe one's religion, but also to be free from religion and religious rites, it exists in Israel only to a limited degree.” See “Law and Religion in Israel,” Israel Law Review 2 (1967): 380–415, esp. 414. Even more opposed is Gershon Weiler, whose objection extends to the whole concept of the personal laws: “The very idea of a personal status, something that attached to the individual citizen in addition to his status qua citizen, is in clear conflict with the idea of equality of citizens.” In Jewish Theocracy, 235. To see how these arguments connect to broader debates currently raging among political philosophers, see the collection of essays on multiculturalism and minority cultures in Kymlicka, The Rights of Minority Cultures.

214. Smooha, Israel: Pluralism and Conflict, 63.

215. It also bears at least a faint resemblance to the early American experience, in which establishmentarians and dissenters debated over the best way to deal with the issue of diversity. Establishment writers argued with vigor and persistence that religious divisions were a threat to social and political unity. See Hamburger, “Equality and Diversity,” 357. There is evidence, however, that constraints on religious pluralism are loosening somewhat. Thus, for example, it was recently announced that secular organizations specializing in pluralist education will receive State funds for the first time. Also, the Supreme Court has ruled that the State must allocate funds to the Reform and Conservative Movements from the Religious Ministry's budgets for Torah culture and education.

216. Chief Rabbi Isaac Nissim, as quoted in Abramov, Perpetual Dilemma, 360.

217. Quoted in ibid., 194 (emphasis added).

218. Melman, Yossi, The New Israelis: An Intimate View of a Changing People (New York: Birch Lane Press, 1992), 7Google Scholar.

219. Rogozinsky v. State of Israel, 26(1) P.D. 129, at 135 (1972).

220. Another way to approach this case would be to see its resolution as consistent with the more particularistic strand in the Declaration of Independence. Justice Berinson refers to the universalistic sentiments of the document and then indicates that they have no constitutional weight in negating the choices made by the legislative branch. But the choice made by the Knesset (to the extent that it reflected a principled determination) can itself be seen as drawing an inference from a particular reading of the Declaration's affirmation of the Jewishness of the State, and then applying it to the institution of marriage.

221. Arzt, “Religious Freedom in a Religious State,” p. 61.

222. The Israeli Supreme Court's use of the Declaration of Independence as a source for resolving constitutional questions has evolved over the years. The first Court, for example, said that the Declaration “contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal.” Zeev v. Gubernik, 1 P.D. 85, at 89, 1948. However, in recent years it has become a major source for judicial policy-making and judicial instruction in the principles of the polity. Indeed, judicial activism in Israel means pursuing the rights-oriented implications of the Declaration of Independence.

223. Shakdiel v. Minister of Religious Affairs, 42(11) P.D. 221, at 240 (1988).

224. Ibid., at 272.

225. Ibid., at 277.

226. Kiryas Joel v. Grumet, at 2488.

227. Montesquieu, The Spirit of the Laws, vol. I, 6.

228. Ibid., 294.

229. McGowan v. Maryland, at 575–76.

230. Ibid., at 564. A confidence matched a generation later by hisjurisprudential opposite, Justice Scalia, who wrote, “[C]ourts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Employment Division v. Smith, at 887.

231. See for example Cohen-Almagor, “Cultural Pluralism and the Israeli Nation-Building Ideology,” 465.

232. St. Xavier's College v. State of Gujarat, A.I.R. S.C., at 1433 (1974).

233. Lynch v. Donnelly, at 725.

234. Here it would be wise to follow the advice of Aristotle, , the father of comparative constitutionalism: “Politics has to consider which sort of constitution suits which sort of civic body. The attainment of the best constitution is likely to be impossible for the general run of states; and the good law-giver and the true statesman must therefore have their eyes open not only to what is the absolute best, but also to what is the best in relation to actual conditions.” In Politics (New York: Oxford University Press, 1962), 1288b 10Google Scholar. As applied to the law-givers in our three countries, they need to understand the limitations imposed on statesmanship by actual conditions, which means in this context remaining sensitive to the constraints that particular dimensions of nationhood place on the achievement of religious liberty. But they need to be aware of more than “what is the best in relation to actual conditions” (that is to say, they must be more than vulgar relativists); they must also be open to an evolving nationhood that is guided to some extent by examples of what is better, as well as examples of what is worse.

235. See Epstein, “Religious Liberty in the Welfare State,” 391.

236. The Federalist, no. 1, Lodge, Henry Cabot, ed., (New York: G. P. Putnam's Sons, 1888), 3Google Scholar.