Civil liberties lawyer Burt Neuborne said June 12 that a changing Supreme Court will require many Jewish groups to modify their strong resistance to policies they think erode the wall between church and state.

But while those groups may be willing to accept Supreme Court rulings that allow “symbolic” encroachment on the Establishment Clause, Neuborne urged them to remain firm in their opposition to policies that impose “political obligations” on Jews and other minority religions.

“I want to suggest there is a point where we should be upset and a point where we should not be upset,” said Neuborne, legal director of the Brennan Center for Justice at New York University, at a panel discussion at the Leon & Toby Cooperman JCC, Ross Family Campus, West Orange. The event was cosponsored by the Anti-Defamation League’s New Jersey region and the Community Relations Committee of United Jewish Communities of MetroWest NJ.

Neuborne, a former legal director of the American Civil Liberties Union, followed two fellow panelists — Sammie Moshenberg, director of Washington operations for the National Council of Jewish Women, and Nathan Diament, director of the Institute for Public Affairs at the Orthodox Union — who offered contrasting Jewish perspectives on church and state.

Neuborne spoke of an “enormous shift” in power with the retirement of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist and the recent appointments of Chief Justice John Roberts and Associate Justice Samuel Alito. Those justices will accelerate a trend on the court to accept, for example, religious displays on public property during the winter holiday season. “As long as the Jews get to put up theirs, the Muslims get to put up theirs, the atheists get to put up something there, too, while it may violate the Establishment Clause technically,” said Neuborne, “it seems to me…we should not be upset at the point where religion is fundamentally symbolic.”

“On the other hand,” he said, “when people want to use their religious ideas as the justification for imposing political obligations on someone else, that’s when the Establishment Clause has to kick in.

“When somebody says, ‘You can’t have stem cell research because it’s against my religion,’ then you’ve crossed the line. When somebody says, ‘You can’t marry,’ then you’ve crossed the line. In the Jewish community we want to maintain the differences between symbolism and power.”

Neuborne argued that “to suggest what we do in the public square is open for religious debate is to create a situation in this country where it is impossible to compromise and impossible to reason.”

“The moment I say, ‘God tells me there should be an environmental policy’ or ‘God tells me we shouldn’t have gay marriage’ or ‘God tells me stem cell research is wrong’ — at that point you can’t decide that issue anymore in a democracy. Democracy doesn’t work,” said Neuborne.

Replacing secular debate with politicized religion “will lead us down a road we will come to regret,” he said.

Leading off the forum, Moshenberg said the First Amendment laid down a strict line in defense of the Establishment Clause.

“As Jews, we know what it means to have rights and liberties stripped away and what it means to subordinate our religious practices and beliefs in a society that imposes another religion through laws and public policies,” she said.

Moshenberg contended that the lines separating church and state “are not only being redrawn but erased.”

“In all too many communities, religion is dictating school curriculum,” she said, with “right-wing advocacy campaigns replacing science.” She cited school districts that seek to include “intelligent design” in their science classes.

But, she said, “the stakes are higher” in the area of sex education, where federally funded abstinence-only courses pose public health concerns “with medically inaccurate information about birth control and sexually transmitted diseases. These programs are the result of a religious agenda seeking to impose one religious viewpoint about human sexuality on all students, even at the expense of their health and safety.”

Following Moshenberg, Diament, whose organization is often at odds with NCJW on church-state issues, said he was generally supportive of greater latitude for religious practice as espoused by the Bush administration.

“It took some time for Jews to get there, but we have arrived at a place where we are not a tolerated minority,” said Diament. “We are really very much full and equal citizens. If you look at things through that lens, our values are best served by a religiously pluralistic public square.

“There are some who want no religious voice in the public square,” he added. “They think the mere expression of a religiously based argument or value system offends if not the letter of the Constitution, the spirit.”

He also defended bringing religious perspectives to bear on public policy issues, such as the debate over federal funding of embryonic stem cell research. The OU, for example, cited its understanding of traditional Jewish values to support federal funding for such research (a position at odds with the Bush administration and many evangelical Christian groups).

“People know it’s a moral issue, and one of the sources that people normally look to for moral guidance is religion,” Diament said. “It shouldn’t be that you look at religion X and that automatically dictates what the public policy results should be. But that should certainly be part of the discussion.”

Diament also said the current political climate has enabled Israeli Prime Minister Ehud Olmert and the State of Israel itself to win broad public support at the White House and in the halls of Congress, despite the power of Muslim states in the Middle East. “Decades ago they might have just cut us loose, cut loose the Jewish people or at least minimized us so as not to be in the face of these anti-American forces,” said Diament.

Following the forum, CRC director Lori Price Abrams said, “Jews have traditionally had a very successful place in American society because of the guarantees in the Constitution, and yet, jurisprudence in these areas has changed a lot. We have to start thinking about whether our community institutions ought to be taking advantage of opportunities for faith-based funding. The community does not have a consensus view on that. So it is important that we grapple with these issues and try to forge consensus where we can.”