The Harvard College description failed to disclose the enormous efforts that Harvard undertook to assure a certain kind of uniformity in its student body over time. Harvard (like other Ivy League colleges) always has given great weight to genealogy—whether the applicant’s parents or other family members attended Harvard. Since Harvard’s past students were anything but diverse, this “grandfather policy” guarantees a good deal of homogeneity over the generations of Harvard College classes, as well as homogeneity in a large part of any given class.28
Justice Blackmun doubted there was much difference between the Davis and Harvard programs, commenting that the “cynical” may say that “under a program such as Harvard’s one may accomplish covertly what Davis concedes it does openly.”29 Justice Powell did not dispute this. His answer seemed to be that even if both programs produce the same result, the Davis program—because of its explicit acknowledgment of racial quotas—“will be viewed as inherently unfair by the public generally as well as by applicants for admission,”30 whereas the Harvard program—with its vague consideration of many unquantified factors—will not be as grating to the public or to its unsuccessful applicants.
But there is one way in which the Harvard system was, perhaps, less fair than the Davis one. In order to receive special consideration under the discredited Davis program, an applicant had to be both individually disadvantaged and a member of a specified racial minority. Under the approved Harvard program, the applicant’s race alone “may tip the balance” in his favor even if he is the scion of a wealthy and powerful family who attended the best schools and personally experienced almost none of the trauma of racial discrimination.31 (Indeed, some applicants seek a double preference: as a disadvantaged black and as an advantaged offspring of a Harvard alumnus.) The Harvard program approved by Justice Powell had the effect of preferring the wealthy and black applicant, for example, over the poor and disadvantaged black or white applicant. In practice, Harvard probably made more turn on race alone than did Davis. But it did it with typical Harvard class: low-key, muted, and without displaying too much exposed skin. Moreover, the history of Harvard’s use of “geographic distribution” as a subterfuge for religious quotas32 left lingering doubts about the bona fides of its alleged quest for diversity33—at least at the time of the Bakke decision.
Once the Supreme Court decided to leave admissions decisions largely to the discretion of university committees, the role of the courts began to diminish considerably. Indeed, it is not even clear how much impact Supreme Court decisions have ever actually had on admissions practices. Just as the life of the law has been experience rather than logic,34 so too has the life of universities been influenced far more by experience than by legal logic. Experience has demonstrated that race-specific affirmative action has worked. It has made classrooms more diverse, class discussions more interesting, and graduates more representative of the population at large. It has accomplished these positive results at a cost—namely, the postponement of fulfilling Martin Luther King’s dream of a color-blind society. Race consciousness in affirmative action has made a difference in our society.35 As with so many other important issues, there is no free lunch.
Turning the Ben Shahn Lithograph
During the height of the civil rights movement, I bought a Ben Shahn lithograph showing a white hand lifting up a black hand, with the Hebrew and English words for “Do not stand idly by the blood of your neighbor.” It hung in our home for many years, until one day my son Jamin turned it on its side, so it showed the two hands, side by side, helping each other equally.
It has been suggested by several justices, judges, academics, and commentators that the constitutional permissibility of taking race into account in admissions decisions should be limited to a certain number of years—say twenty-five. It should be regarded as a temporary, emergency measure, and not become a fixed part of our constitutional jurisprudence.36 As I write these words, the Supreme Court has ruled that for a race-specific affirmative action program to pass constitutional muster, the state university must show “that its plan is narrowly tailored to achieve” the kind of diversity that encompasses a “broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”37 The High Court thus left open the broad issue of how much weight a state university may accord race in its admission process. Whichever way the Supreme Court ultimately decides this issue, the die has been cast. As with other areas of the law, experience will prevail, affirmative action will continue, race will remain a significant factor, and the issue will continue to divide people of goodwill.
The ironic reality is that affirmative action, even with race consciousness, has moved us closer to a color-blind society in which the race of a candidate, an applicant, or even a spouse matters less today than it ever did before. I think Martin Luther King would approve of the direction in which our society is moving, though we have long, long roads still to travel.
21
THE CRUMBLING WALL BETWEEN CHURCH AND STATE
Attempts to Christianize America
The “equal protection clause” of our Constitution1 is not the sole mechanism to secure equality. The clauses that require separation of church and state were designed, at least in part, to assure religious equality. History has demonstrated that when one religion is the officially established one—or when religious tests are required for office-holders—adherents to other faiths or to no faith become second-class citizens. The United States was the first nation in history to prohibit the establishment of religion or religious tests. It is no accident that it was also the first nation in which Jews were regarded, in theory if not always in practice, as first-class citizens.
My first memory of being aware of the separation of church and state goes back to the 1950s, when the words “under God” were being added to the Pledge of Allegiance.2 The yeshiva teachers I studied under were very patriotic. We recited the pledge at assemblies, and some teachers made us say it every day in class.
Most kids hate change, so when the two words “under God” were added to the pledge, there was some grumbling—not because of the content of the words, but just because it was different from the way we always had done it.
I remember thinking about the meaning of the two new words. Under which God? Under whose God? Is there only one God that all Americans can pledge allegiance to, or are there different gods that different religions worship? What about the Trinity? Is Jesus God? And what is that thing the Catholic kids call “the Holy Ghost”? Are Jews even supposed to say the word “God” (we were always taught to spell it G-d)? Is Allah the same god as Elohim?3 What about Jehovah—the name we were absolutely prohibited from pronouncing?
These were precisely the sort of theological questions we were not supposed to be thinking about. We were supposed to do and not do—go to shul, don’t eat shrimp—and to ask our rabbi what to think about such esoteric issues. He knew the religiously correct answer. Yet the addition of the two words to the pledge forced me not only to think about them, but to try to place them in the context of my own role as a young Orthodox Jewish skeptic in a largely Christian America. Our school taught us that even though America was a majority Christian country, George Washington, in his famous letter to the congregants of the Touro Synagogue in Newport, had assured Jewish Americans that in this new republic “it is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.”4 Here, all Americans “possess alike liberty of conscience and immunities of citizenship” because our government “gives to bigotry no sanction, to persecution no assistance.”5
These powerful words, written by the father of our country, were displayed on the bulletin board of our yeshiva as if they constituted the Magna Carta for American Jews.6
Yet we saw bigotry all around us. We knew that no Jew had ever been elected president of the country. At the time, no Jew had ever been the head
of a major corporation7 or university.8 We knew that there were quotas limiting the number of Jews at most Ivy League colleges.9 Still, we believed that this was a land of opportunity and that we could do anything, within certain limits, and that even these limits were narrowing, though not yet disappearing.
I knew that our Constitution said some things about religion. In our yeshiva we learned mostly about the First Amendment’s protection of freedom of religion. But when I started to read a little more about the Constitution, I quickly learned that there were three references to religion. The first, in the body of the Constitution, declared that “no religious test shall ever be required” for holding office in the United States.10 I wondered then, why hasn’t there been a Jewish president? And why was there only one “Jewish seat” on the Supreme Court? It sure seemed to me as if religious tests were being applied, which made me think about the difference between the law as written and as practiced.
I also discovered that the First Amendment, in addition to guaranteeing freedom of religion, had an awkwardly phrased guarantee: “Congress shall make no law respecting an establishment of religion.”11 At the time there were two words I didn’t understand. What did “respecting” mean in this instance? I had always used it to suggest a positive attitude—respect—toward others. Clearly it had a different meaning in the First Amendment, something more akin to “regarding.” Second, what did the word “establishment” mean? I had no idea, and so I began to do some research, which led me to discover the longest word in the English language—antidisestablishmentarianism. This referred to those who were against the disestablishment of the Church of England as the official national church. But I was still unclear exactly what it meant to “establish” a religion. The answer was anything but simple—the meaning of the term is still not completely clear to me after sixty years of thinking, writing, and teaching about it.12
So there was an upside for me in the words “under God” being added to the Pledge of Allegiance. It not only got me thinking; it got me arguing with my friends and even with some of my teachers, an argument that goes on to this day.
The downside, which was evident to me even back then, was that whatever the words prohibiting an “establishment of religion” meant, they seemed incompatible with compelling every schoolboy and -girl to declare his or her belief in God inserted into the pledge by Congress. So, although I believed in God (or more likely never thought about any alternative), I decided never to say the words. I continued to recite the old pledge, confident that it was I, and not those who amended the pledge, who was being patriotic and faithful to the meaning of the Constitution. I guess I was an early Originalist in that regard, since my reading suggested to me that Jefferson and Madison would not have approved of making young kids declare a belief in God.13
Flashing forward a generation, my oldest son, Elon, had a similar epiphany in 1971, when my family moved to California for a year. We enrolled our kids in a Palo Alto public school and ten-year-old Elon got into trouble for refusing to recite the words “under God.” When he came home from school, I asked him how come he had just noticed the words, since his elementary school in Cambridge required periodic recitations of the pledge. He told me that we were at war in Vietnam and he thought the words—pronounced with a Boston accent—were “under guard.” It was only a California teacher writing the words on the blackboard that revealed to him that he was being required to take a pledge that included God. By this time the Supreme Court had ruled that a religious objector could not be required to recite the pledge, because, as the justices put it:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can … force citizens to confess by word or act their faith.14
Elon was excused from saying the words for the remainder of the year.
Elon suffered no adverse consequences from his religious dissent, but the same cannot be said for Susan Shapiro, a seventeen-year-old high school senior in the Boston area. When she exercised her right not to participate in the pledge, her teacher said it was as if someone had spit on the Star of David. She was called names by fellow students and told to “go back to Israel.” (She was born in America).15 I agreed to represent her, and after we threatened to bring a lawsuit,16 we got the school to permit her not to participate in the pledge and to inform the students that she was within her rights.17
A few years later I became involved in a highly publicized case involving the right of a criminal defendant not to be discriminated against on account of his religion, even though he himself was accused of using his religion to defraud coreligionists. The case involved television evangelist Jim Bakker, who was married to Tammy Faye Bakker. I was retained to argue his sentencing appeal, following his conviction for defrauding PTL (“Praise the Lord” and “People That Love”) Club Lifetime Partners who had paid for homes in Heritage U.S.A.—a Christian family retreat—but were never able to live in them. The government had accused Bakker of overselling thousands of “partnerships” and using the millions of dollars he raised “to support a lavish lifestyle.” The result was that “the overwhelming majority of the partners never received the lodging benefits Bakker promised them.”18
After a lengthy and emotional trial, Bakker was convicted by a jury. The judge sentenced him to forty-five years in prison. In imposing that lengthy sentence, the judge—the Honorable Robert Potter, known around the courthouse as “Maximum Bob”—made an invidious comparison between Bakker and himself in terms of their “religion”: “Those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests.”19
Bakker wrote me a long handwritten letter from prison imploring me to join his appellate team and save him from a lifetime of imprisonment. There was not enough time before the appellate brief had to be filed for me to take over the entire appeal, but I was particularly appalled by the length of the sentence and the religious basis the judge seemed to give for imposing it. I agreed therefore to brief and argue the sentencing issue on the appeal (a team of Texas lawyers had been retained long before to argue against the conviction) and the New York Times reported:
He was to handle only a small part of Mr. Bakker’s appeal, concerning the 45-year sentence meted out by Judge Robert D. Potter. Mr. Dershowitz insisted he would remain in the background.
But that, it turned out, was a bit like George Steinbrenner’s saying “Yogi Berra is my manager for the rest of the year.” In October, when the Bakker appeal was argued, it was around Mr. Dershowitz that everyone clustered.…
Even his co-counsel, two Texans schooled in a tradition of great oratory, were dazzled by what they saw in court. “It was kind of like watching a terrific maestro in front of an orchestra,” Mr. Ervin said. Mr. Wice called the performance “mesmerizing” and added: “He looks like a schlep, wearing suits he could have bought in Filene’s Basement.… But the judges hung on every word he had to say and bought what he was selling.”
We waited several months for the decision. When it was finally released, the court of appeals ruled that the conviction was valid but the forty-five-year sentence was not. In vacating the sentence, the court established a powerful precedent against a judge using his own religious beliefs as a factor in determining the degree of punishment:
Courts … cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.20
They remanded the sentencing to a “different district judge to ensure that the ends of due process are achieved.”21
This was precisely the result we had asked for: resentencing by a judge other than Maximum Bob, who surely would have imposed the same sentence again, this time without referring to his religion. The new judge eventually reduced the sentence to eight years, and Bakker was released after serving a bit more than four years—quite a reduction from the forty-five years originally imposed by Maximum Bob.22
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Following our victory, Tammy Faye Bakker gushed that I had single-handedly restored her faith in lawyers, and she declared the judicial ruling “a great victory for Christianity.” I responded that “the fact that a Jewish lawyer helped bring that about must show that it was a great victory for all Americans.” She said that one of her “biggest desires now is to meet [Alan]…. He’s our kind of people.”23
Eventually, I did meet her. She kissed and hugged me and repeatedly blessed me in the name of Jesus, in the process transferring so much of her makeup to my face that it took me several minutes and some hard scrubbing to remove it.
Several weeks later, I received a gift in the mail from Tammy Faye. It was a Passover Haggadah—the prayer book that is read at the Seder. We have a large collection of Haggadahs, some dating back hundreds of years, many with beautiful illustrations of the Passover story. At our ecumenical Seder, which usually includes several dozen guests of all religions, we distribute the different Haggadahs among the participants, and each one reads a passage in the English translation. I try to make the passage selected relevant to each guest’s background. I purposely gave the Bakker Haggadah to a friend who reads very expressively and who focuses more on his delivery than on the content. He began to read about the reasons we eat matzo on Passover.
This is the bread of affliction that the people of Israel had to eat when they fled from Egypt.
So far so good. But then, it went on to describe why matzo has small holes:
The holes in the matzo represent the wounds on the body of our Savior, Jesus Christ, who in his body was punctured during his crucifixion.
Not in the traditional Jewish Haggadah! Tammy Faye had sent me a Christian Evangelical knockoff of the Haggadah designed for use at Seders conducted by Jews for Jesus. I had perused it before distributing it to my friend to recite, so I knew what it contained. We all had a great chuckle.
Taking the Stand Page 51
