Equal Funding as Equal Standing: The Orthodox Jewish Advocacy Project

Aug 21

FROM THE ARCHIVES

Michael A. Helfand

Michael A. Helfand is the Brenden Mann Foundation Chair in Law and Religion at Pepperdine Caruso School of Law; Visiting Professor at Yale Law School; Senior Legal Advisor to the Teach Coalition; and a Senior Fellow of the Kogod Research Center at the Shalom Hartman Institute of North America.

In late March 1961, Rabbi Moshe Sherer sat before the House of Representatives’ Committee on Education and Labor, which was holding hearings on newly proposed legislation that would, among other provisions, allocate federal funds to private schools, including religious schools. Sherer, then executive vice president of Agudath Israel, argued in favor of such funding—a position at odds with the consensus of American Jewish institutions at that time. “We deplore,” Sherer asserted, “that an incorrect image has been foisted upon the American public of the Jewish position on this issue.” The committee heard testimony and accepted statements from a range of interested parties—local politicians, religious leaders, school administrators, and union representatives. But in the lore of American Jewish communal life, Sherer’s testimony was more than an opinion. It marked a watershed moment in the history of Jewish advocacy. To Sherer’s mind, Jewish “parents should not be unduly penalized for practicing the exercise of their free choice, implicit in the American way of life, to educate their children in accordance with their religious conscience.” For that reason, he made the historic decision to “respectfully request that federal aid to parochial schools be included in any Government program of school support.”[1]

Sherer’s testimony that day has become an origin story of sorts for American Orthodox Jewish political advocacy, recounted and retold innumerable times. Indeed, the very next day, the New York Times ran a front-page story about the hearings, including not only excerpts from Sherer’s testimony, but also his picture. Sherer’s testimony was highlighted in his Times obituary when he died in 1998, and it remains posted on Agudath Israel’s website. The story is often told with an additional, perhaps apocryphal scene: a governmental official, seeing a religious Jew standing in line with those waiting to testify in support of the legislation, immediately suggested to Sherer he was in the wrong line—to which Sherer triumphantly responded, “No, I’m standing in the correct line.”

That government official’s surprise, mythical or not, reflects the fact Sherer’s testimony was indeed a departure from the consensus shared by other Jewish communal organizations. In advocating for government support of religious schools, Sherer introduced not only a new set of pragmatic priorities for Jewish political advocacy, but also a new set of principles for American Jewish citizenship. According to his view, excluding religion from government funding wasn’t a problem simply because it hurt the bottom line of Jewish schools; it was a problem because that sort of exclusion constituted a form of discrimination, telling members of the Jewish community that government benefits were beyond their reach because of their faith. And in so doing, such exclusions undermined American Jews’ equal standing as citizens. Over time, Sherer’s stance has evolved into a distinctly Orthodox form of Jewish political advocacy in the United States—one that sees the fight for equal access to government funding as not just about the pragmatics of resources, but also about the principles of citizenship.

I. The Separationist Faith of American Jews

When Jewish legal advocacy came into its own in mid-20th century America, it largely reflected the organized Jewish community’s commitment to what historian David Dallin has called the “separationist faith”—that is, the idea that “Jewish survival and freedom are most secure where the wall separating religion and state is strongest and least secure where government and religion are intertwined.”[2] Given their relatively limited ability at that time to press their agenda in the legislative arena, Jewish institutions including the American Jewish Congress and American Jewish Committee increasingly turned to the courts, both by directly supporting litigation and by filing third-party amicus briefs designed to remind the court of the ways its decision in a case will impact parties other than those named. Indeed, as political scientist Gregg Ivers has chronicled, from 1969 to 1989, Jewish communal institutions filed more amicus briefs before the Supreme Court in church-state cases than any other faith community in the United States,[3] frequently focusing on the First Amendment’s directive against the “establishment” of religion. In the words of historian Naomi W. Cohen, American Jewish communal leaders felt that “the establishment clause, broadly interpreted, was the shortest route to both religious freedom and religious equality,” serving as an essential constitutional protection since Jews continued to navigate life as a religious minority in a predominantly Christian country. [4]

No advocate played a greater role in this separationist agenda than Leo Pfeffer. Born in Hungary as the son of an Orthodox rabbi, Pfeffer was the primary architect of 20th-century Establishment Clause jurisprudence. Serving in a variety of positions for the famed Commission on Law and Social Action of the American Jewish Congress, he led the charge within the Jewish community and beyond to advance an “absolutist” agenda when it came to the separation of church and state; to his mind, “Caesar was not to meddle in the affairs of God, either to hurt him or to help him.”[5] In articulating the affinity of the Jewish community for this position, Pfeffer was careful to emphasize that he could not “in good conscience ascribe to Judaism the source, in any substantial extent, of the American principle of religious freedom and what we call the separation of church and state.” However, what was clear to Pfeffer was that “American Judaism… embraced that principle passionately, loyally, and faithfully” and that it was “perhaps the most vigorous, articulate, and unyielding champion of that principle of separation of church and state and religious freedom.” The reason was simple:

We would be less than human, and we are not, or we would be more than human, we are not that either, if we did not feel a great debt of gratitude towards a system which, after almost two thousand years of persecution, has given us a real haven and a real equality. And it is therefore hardly surprising that we should accept that system as God-created and God-given and as the ideal of the good community. [6]

The early—and most dramatic—interventions of this absolutist Jewish approach to church-state controversies came in the context of cases addressing the constitutionality of prayer in public school. In the 1948 Supreme Court case McCollum v. Board of Education, Pfeffer authored one of the earliest and most memorable amicus briefs on behalf of the American Jewish community, arguing to the Supreme Court that the Champaign, Illinois “released time” program—whereby public school students received off-time for religious instruction—was unconstitutional: “As Americans and as spokesmen for religious bodies, lay and clerical, we therefore deem any breach in the wall separating church and state as jeopardizing the political and religious freedoms that wall was intended to protect.”[7]

Subsequent filings hit on similar themes. For example, in the 1962 Supreme Court case Engel v. Vitale, an amicus brief representing much of the Jewish community (again authored by Pfeffer) argued that reciting the New York Board of Regents’ prayer in public school violated the First Amendment. The brief emphasized the longstanding view of various Jewish organizations “that the absolute separation of church and state is the surest guaranty of religious liberty and has proved of inestimable value both to religion and to the community generally.”

In these early years, there were some detractors from the Jewish consensus: There were individual critics, such as Will Herberg, Milton Himmelfarb, and—for good measure—the Lubavitcher Rebbe, who argued that by relegating religion to the margins of public life, an absolutist attitude toward separation of church and state in schools undermined the interest of religious parents. In addition, some communal organizations viewed the aggressive litigation strategy pressed by Pfeffer and the American Jewish Congress as misguided; to their mind, a minority religious community ought to challenge overarching Christian norms through legislative negotiations instead of direct confrontation in the courts. But, notwithstanding these critiques and concerns, the institutions of American Judaism remained, by and large, unified around the view that American Jewish life would best flourish in a legal environment of absolute separation of church and state and, in particular, that prayer in public school violated this separation.

II. From Prayer in Public School to Funding of Private Schools

Looking back, one can see why challenging prayer in public school served as a rallying cry for American Jews. For Jews attending public school to be pressured into participating in government-sponsored Christian prayers would not only violate their religious freedom but undermine their political equality. Almost by definition, it would entail either some degree of religious coercion or a message that religious minorities did not stand on equal political footing with the Christian majority.

But as the Supreme Court increasingly addressed the constitutionality of government programs providing funding to nonpublic schools, the stakes—at least as a matter of principle—changed dramatically. As historian Jonathan Sarna has noted, “prayer in the public schools clearly disadvantaged Jews and could be fought on the basis of Jewish group interests as well as minority rights.” By contrast, “state aid to parochial schools was offered to Christian and Jewish schools alike.”[8]

With the number of school funding cases before the Court proliferating in the late 1960s and early 1970s, the American Jewish consensus remained wary, fearing that state support for religious schools would ultimately become an opening for state support or imposition of Christianity more broadly. Thus, when it came to New York loaning textbooks to religious schools, Pennsylvania and Rhode Island supplementing the salaries paid to general studies teachers, or the federal government providing nonpublic schools with construction grants,[9] Pfeffer pressed the claims of absolute separationism. Challenging these forms of nonpublic school funding, he authored amicus briefs on behalf of the Anti-Defamation League, the American Jewish Committee, and the American Jewish Congress,[10] arguing that such funding was “a form of aid to religious institutions, bringing in its train the evils that the constitutional guarantee of separation of church and state was designed to prevent.”[11] And when, in 1961, the House of Representatives’ Committee on Education and Labor held the aforementioned hearings on newly proposed legislation that would allocate funds to private schools, including religious schools, Pfeffer testified that doing so would undermine the separation of church and state; to his mind, “the struggle for the separation of church and state in the United States has, in large measure, been a struggle against taxation for religious purposes,” and funding programs ran counter to such a principle even if “it is done on an equal basis without favoring one religion over others.” [12]

III. Funding Jewish Day Schools as a Fight Against Discrimination

It is with respect to the funding of private schools and the possibility of including Jewish schools on the same terms as their secular counterparts that Orthodox Jewish advocates began developing a new argument based on a different set of principles, challenging the existing consensus within the organized Jewish community.

To be sure, this new argument did not challenge the principle of church-state separation in toto, and Orthodox advocacy remained committed to separation of church and state. Instead, Orthodox Jewish institutions began objecting to church-state absolutism, and its attendant demand that government exclude religious schools from federally funded school programs available to other private schools. Such exclusion, they argued, is religious discrimination and should be prohibited.

That Orthodox Jewish advocacy would begin with a push to include religious schools in government funding programs is far from surprising. Though according to some estimates there were only 39 Jewish private schools in the United States in 1951, by 1964, there were 139. By the 1970s, Jewish day schools had become so central to Orthodox Jewish life that Rabbi Norman Lamm, one of the great rabbinic leaders of American Orthodoxy, described them in one of his published sermons as “the only real guarantee of survival of Jewish life in this country.” But the growth of the Jewish private school network also increased financial pressure on the community; budgets by the early 1960s totaled over $10 million.[13] In short, exclusion from government dollars would add to the challenges facing a growing network of underfunded Jewish schools.

That said, the values and principles that drove this funding agenda within the Orthodox Jewish community went beyond pragmatism. At their core, such calls for including religious schools in government funding programs were grounded in principles of equal standing and equal citizenship. Sherer, in his testimony, did highlight the budgetary struggles of Jewish day schools, noting that they “labor under the pall of constant financial crises.” The bulk of his testimony, however, pressed for an inclusive approach to government funding on the basis of “American ideals”: “It is our view that to deny these taxpaying American citizens of the orthodox Jewish faith the benefit of their taxes in order to help defray the large expense of maintaining the Jewish parochial school system for their children… is a discrimination which is not in accordance with basic American ideals.” On this account, the denial of government funding to religious schools was wrong not because of the financial impact, but because it harmed religious citizens due to their faith, which Sherer described as discrimination.

Sherer continued to reiterate this point. Expressing appreciation for the government’s efforts to provide funding for all schools in 1965, Sherer noted, “The new education bill, by bestowing its benefits upon the disadvantaged religious-school children along with their public school counterparts, serves to remove the cherem which doctrinaire devotees of Church-State separation have sought to place on religious school students.” Sherer’s characterization of church-state absolutism as imposing a cherem—the Jewish legal equivalent of excommunication—makes sense precisely because he believed excluding religion from government funding was not, first and foremost, a financial issue: “It is this principle of recognition accorded to the Yeshiva student, over and above any immediate financial advantages, which makes the President’s education bill a document of major importance to the Jewish community.”[14] To Sherer, inclusion in the benefits afforded all other citizens provided religious individuals and communities with such recognition; by contrast, exclusion placed them outside the political community, casting religious institutions into the political equivalent of a cherem—the kind of punishment reserved for those worthy of moral and ethical opprobrium. These stakes—equal standing and citizenship—provided the primary motivations behind this new focus among Orthodox advocates.

To be sure, in the early 1960s, many Orthodox leaders still expressed strong reluctance in breaking with mainstream American Jewish institutions and advocating that religious institutions should be included in generally available school funding programs. For example, Rabbi Joseph Lookstein delivered a sermon to his Upper East Side Orthodox synagogue, Kehillat Jeshurun, in April 1961, shortly after Sherer’s congressional testimony. Keenly aware of the desperate need to secure additional funding for Jewish schools, Lookstein conceded that “it would be a godsend if the Government would help us, but I would not accept such aid.” Advancing arguments for strict separation, Lookstein contended that, "When religion in one way or another becomes associated with the state, one religion inevitably becomes dominant, and history shows it ultimately becomes tyrannical, until it is swept away by a greater tyranny—the state.”

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Along similar lines, in May 1961, Charles Weinberg, President of the Rabbinical Council of America—the umbrella organization for American Orthodox rabbis—delivered an address to the Union of Orthodox Jewish Congregations of America where “[h]e pleaded for the application of ‘the democratic principle of self-taxation, which had made it possible for our community to flourish without the problems of government supervision or control.’” In his view, the best way to address questions of government funding for Jewish educational institutions was not through appeals for government funding, but through the “application of the ancient Jewish principle of ‘taking care of our own.’”

Nevertheless, by the mid-1960s, Orthodox Jewish advocacy coalesced around the principles articulated by Sherer. In 1965, members of the Orthodox Jewish community formed the National Jewish Commission on Law and Public Affairs or, as it came to be known, COLPA, to “support aid to parochial schools and to defend the rights and interests of Orthodox Jews on other church-state matters.”[15] In 1967, COLPA held a conference titled “Governmental Aid to Parochial Schools—How Far?” with 60 Orthodox Jewish leaders and COLPA members in attendance to set the organization’s agenda, which focused primarily on government aid to schools and protecting the rights of shomer Shabbat employees. With respect to the latter, founder Marvin Schick highlighted the need to “promote equitable employment opportunities for Orthodox Jews” given that “every year,” there were “as many as several thousand discriminatory acts in New York City alone.” With respect to the former, Schick provided a memorable description of COLPA’s break from the rest of the mainstream Jewish community in advocating for government funding to parochial schools, with little good to say about the legacy institutions of American Jewish advocacy:

The bulk of the organized and articulate Jewish community, robot-like invoked the holiness and oneness of the First Amendment and proclaimed their opposition to any “breach in the wall separating church and state.” This idol worship however did not paralyze the thought processes of Orthodox leaders who were… beginning to have ideas that it might be a good thing for the state to do something which might help the Hebrew Day Schools.[16]

Nathan Lewin—one of the best-known attorneys within COLPA—characterized his disagreement with the mainstream American Jewish community’s opposition to government funding as follows: “But, say the separationists, religion is different; it is the subject of the first clause of the First Amendment. What they overlook is the second half of that clause, which protects religion against invidious discriminations… The state is not being ‘neutral’—as the Court has said time and again it must be—when it says, ‘We will fund all kinds of education except religious education.’”[17]

Representing the institutions of American Orthodoxy, COLPA produced amicus briefs reflecting this emphasis, repeatedly casting the exclusion of religion from government funding as a form of unconstitutional religious discrimination. For example, in 1967, COLPA filed a brief before the Supreme Court in Board of Education v. Allen on behalf of key Orthodox institutions, including the National Council of Young Israel, the Rabbinical Council of America, Torah Umesorah, and the Orthodox Union. The case concerned New York’s textbook loan program, benefitting both public and private schools, including religious schools, which COLPA argued was constitutional. In describing its interest in the case, COLPA pressed hard on its mission of combatting discrimination against the Orthodox Jewish community:

The National Jewish Commission on Law and Public Affairs is a voluntary association organized to combat all forms of religious prejudice and discrimination and to represent the position of the Orthodox Jewish community on matters of public concern. The Commission is deeply committed to the preservation of constitutional rights for all Americans, and in particular to the principles of the First Amendment, in the belief that thereby Americans of the Jewish faith, in common with all Americans, will enjoy the blessings of liberty.

Excluding religious schools from New York’s program, COLPA argued, would constitute a violation of these underlying principles: “We submit that to disqualify parochial school students from governmental benefits made available to all students—public and non-public—would constitute religious discrimination.”

Similar themes emerged from COLPA’s brief filed three years later, again on behalf of the central institutions of American Orthodoxy, in the 1971 Supreme Court case Lemon v. Kurtzman. In this case, the Supreme Court famously considered the constitutionality of state programs that reimbursed private schools for the salaries of their general studies teachers. In its brief, COLPA again emphasized its mission “to combat all forms of religious prejudice and discrimination and to represent the position of the Orthodox Jewish Community in matters of public concern.” The centerpiece of COLPA’s argument was once again laser-focused on the discriminatory consequences of excluding religious institutions from otherwise available government funding programs: “to ban such assistance under the guise of maintaining the wall between Church and State is simply to discriminate, in violation of the Free Exercise Clause, against those whose religious convictions require them to provide a rigorous program of religious training for their children.”

In sum, the awakening of Orthodox advocacy in the 1960s was, no doubt, driven in large part by emerging questions as to whether government could provide funding for religious schools on equal terms with other private schools. The pragmatic needs of an expanding Jewish day school network played a large role in galvanizing this effort. But at the center of Orthodox legal advocacy in these years lay a more fundamental concern: Orthodox Jews ought to be able to partake in the benefits of citizenship on equal terms with all other citizens. To deny funding to those with a deep commitment to religious education not only depleted day school budgets but undermined the equal standing and citizenship of Orthodox Jews. It was, in a word, discrimination.

IV. Conclusion: Reclaiming the Story of Orthodox Jewish Advocacy

A lot has changed since those early years of Orthodox Jewish advocacy. Then, the Supreme Court, in decision after decision, struck down programs that provided benefits to religious schools—even if on equal terms—as unconstitutional breaches in the wall of separation between church and state. And so, Orthodox advocacy went, by and large, unheeded.

In more recent decades, however, the Supreme Court has, slowly but surely, returned to neutrality as the organizing principle around government funding. In the early years of the 21st century, the Supreme Court upheld funding programs that included religious schools, so long as the program treated religion neutrally, providing them with access to the same benefits as other similarly situated private schools.[18] And in even more recent years, the Supreme Court has struck down government funding programs that exclude religion. In its 2017 decision Trinity Lutheran v. Comer, the Court explained the stakes of these sorts of exclusions as follows: “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”[19] The Court has reiterated this point twice more since.[20]

While it may be true that the Court’s doctrine has changed, Orthodox advocacy has, by and large, remained the same. Consider, for example, recent amicus briefs filed by the Orthodox Union (OU) in funding cases.[21] In its 2017 brief on Trinity Lutheran v. Comer, the OU once again emphasized the discrimination theme, harkening back to the advocacy of the early 1960s. In its view, these sorts of exclusions, “with all their discriminatory history and perilous consequences—persist, serving as an unconstitutional obstacle that singles out religious institutions and exposes them to unwarranted hazards. The price of religious membership cannot and should not be exposure to the health, safety and security dangers of the 21st century.” And in its 2022 brief in Carson v. Makin, the OU again highlighted this same argument about the pervasiveness of discrimination in government funding programs: “The Orthodox Union is concerned that if the decision below is permitted to stand, it would perpetuate discrimination against minority faiths, and license the greatest discrimination against faiths such as Orthodox Judaism that observe religious rules and rituals in nearly every facet of everyday life.”

Notwithstanding this decades-long continuity, the core values underlying Orthodoxy’s advocacy for equal funding—anti-discrimination and equal citizenship—have often been ignored. Instead, the thrust of such advocacy is often misdescribed, in the form of characterizations that lionize separationists as advancing “principled” arguments against government funding, while describing Orthodox advocates as advancing “pragmatic” arguments in favor. Sarna has described the growing divide in the 1960s over the funding question as follows:

The debate, which began in earnest in the 1960s, pitted advocates of principle, who felt that any breach in the “wall of separation” would affect America and its Jews adversely, against proponents of pragmatism, who argued for an accommodationist policy benefiting Jewish day schools, interfaith relations, and American education as a whole.[22]

As Sarna notes, there has always been a strong streak of pragmatism in advocacy supporting the inclusion of religious schools in government funding programs. But to describe such efforts as “pragmatic,” to the apparent exclusion of principle, erases one of the longstanding commitments driving Orthodox efforts to be included in government funding programs.

More current misdescriptions focus on a different point. Law professor Noah Feldman, in analyzing recent changes in the Court’s doctrine with respect to church and state, has characterized Orthodox Jewish support for the inclusion of religion in government funding programs as follows: “[T]his divergent position grew from the Orthodox alignment with Protestant evangelicals and conservative Catholics on a wide range of issues, from gay rights to family values to (some) foreign policy.”[23] There may be a variety of reasons to see recent Orthodox advocacy, on a range of issues, as moving closer in alignment to Conservative Christianity. But the idea that Orthodoxy’s “divergent position” with respect to government funding indicates a new alignment with Protestant evangelicals and conservative Christians on a range of late 20th-century social issues is historically incorrect. Maybe worse, it erases the core aspirations of Orthodox advocacy that have spanned nearly 70 years: to protect the equal standing of American Jews in the broader political system.

Of course, there have long been reasons to challenge the views of Orthodox advocacy. Indeed, that is precisely why Pfeffer’s arguments for absolute separation still have extraordinary purchase, even if the Supreme Court no longer tracks them. But characterizing Orthodox advocacy, in its search for equal standing, as merely a Johnny-come-lately to the game, trying to cozy up to Christian conservatives, denies the values that have long stood at the heart of its political identity and that spawned its advocacy institutions.

In this way, continued debates within the Jewish community over the appropriate degree of separation between church and state amount to principled clashes going to the heart of American Jewish identity. Both visions of church and state—one that demands absolute separation and another that requires a commitment to neutrality—draw from different visions of the appropriate space for religious pluralism in the public square. To that end, American Orthodoxy’s advocacy for inclusion in government funding was not simply a pragmatic approach for supporting a growing day school system, but a commitment to neutrality as a value that granted them equal standing as citizens.

To tell the story of Orthodox Jewish advocacy for equal funding is to reclaim its political identity. It is a reminder that the stakes of ongoing litigation over funding are not just about the dollars; what is at stake is a fundamental commitment to the principle that the benefits of citizenship should be denied to no one simply because of who they are and what they believe—a commitment to what Moshe Sherer described decades ago as the “principle of recognition.” It is the quintessential story about the values animating the political identity of a minority community, seeking—like so many others—its place in the American public square.

Endnotes

[1] Federal Assistance to States: Hearings on H.R. 4970 and Related Bills, Part 2, Before the General Subcomm. on Education of the House Comm. on Education and Labor, 87th Cong. 974 (1961) (statement of Rabbi Moshe Sherer, Executive Vice President of Agudath Israel).

[2] David G. Dalin, “Introduction,” in American Jews & the Separationist Faith: The New Debate on Religion in Public Life (Washington, D.C.: Ethics and Public Policy Center, 1993), 1.

[3] Gregg Ivers, “Religious Organizations as Constitutional Litigants,” Polity 25, no. 2 (Winter 1992): 255–57.

[4] Naomi W. Cohen, Jews in Christian America: The Pursuit of Religious Equality (New York: Oxford University Press, 1992), 130.

[5] Gregg Ivers, To Build A Wall: American Jews and the Separation of Church and State (Charlottesville: University Press of Virginia, 1995), 149.

[6] Leo Pfeffer, “Church and State,” Princeton Seminary Bulletin 53, no. 2 (October 1959), 39.

[7] Brief for Synagogue Council of America and National Community Relations Advisory Council as Amici Curiae Supporting Appellant at 2, McCollum, 333 U.S. 203 (No. 90), 1947 WL 44388.

[8] Jonathan D. Sarna, American Jews and Church-State Relations: The Search for "Equal Footing" (New York: American Jewish Committee, Institute of Human Relations, 1989), 27.

[9] Board of Educ. v. Allen, 392 U.S. 236 (1968); Lemon v. Kurtzman, 403 U.S. 602 (1971); and Tilton v. Richardson, 403 U.S. 672 (1971), respectively.

[10] In Tilton v. Richardson, Pfeffer directly represented the appellants.

[11] Brief of American Jewish Committee et. al as Amici Curiae Supporting Appellant at 2, Board of Educ. v. Allen, 392 U.S. 236 (No. 660), 1968 WL 112879.

[12] Federal Assistance to States: Hearings on H.R. 4970 and Related Bills, Part 2, Before the General Subcomm. on Education of the House Comm. on Education and Labor, 87th Cong. 964 (1961).

[13] Statistics on the history of day school growth are from Ari Y. Kelman and Janet Bordelon, “The Political Economy of Day Schools,” American Jewish History 102, no. 1 (2018), 66.

[14] Morris Sherer, “The Great Society and Aid to Religious Schools,” Jewish Observer 2, no. 4 (January 1965)

[15] David G. Dalin, “Jewish Critics of Separationism,” in Jews and the American Public Square: Debating Religion and Republic, Alan Mittelman, Robert Licht, and Jonathan D. Sarna, eds. (Lanham: Towman & Littlefield Publishers, 2002), 298.

[16] Marvin Schick, “The National Jewish Commission on Law and Public Affairs,” in Government Aid to Parochial Schools—How Far?, ed. Marvin Schick(New York: COLPA, 1967), 8.

[17] Nathan Lewin, “‘Government Financing’ and the Establishment Clause,” in Government Aid, 51.

[18] Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

[19] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

[20] Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246 (2020); Carson v. Makin, 142 S. Ct. 1987 (2022).

[21] In the interest of full disclosure, I am one of the authors of these briefs.

[22] Sarna, American Jews and Church-State Relations, 27.

[23] Noah Feldman, “On the Separation of Yeshiva and State,” Jewish Review of Books 13, no. 1 (Spring 2022).