Justice Explores Rebbe’s View on Religion and State

Anash.org Exclusive: During the Living Legacy Event in Washington D.C., The Hon. Marcus Solomon, Justice of the Supreme Court of Western Australia, delivered an in-depth presentation on the Rebbe’s view of religion and state. Read the full address here.

By Anash.org writer

The separation of Religion and State is one of the bedrocks of the United States constitution, and considered a vital component of religious freedom in America. But did the Rebbe believe it to be a positive feature?

During the recent Living Legacy Event in Washington D.C., organized and hosted by American Friends of Lubavitch headed by Rabbi Levi Shemtov, The Hon. Marcus Solomon, Justice of the Supreme Court of Western Australia, together with other Chassidic scholars, delivered presentation at the Library of Congress, discussing different aspects of the Rebbe’s life and teaching.

Justice Solomon, the first rabbi to serve as a Supreme Court justice in Australia, and a graduate of Tomchei Tmimim, addressed the Rebbe’s views on the separation of Religion and State. He closely examined a number of events and the Rebbe’s responses to build a picture of a vision that was, in his words, “brazen” and “extraordinary”.

Anash.org is proud to present the full address, as transcribed by Justice Solomon himself.

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Living Legacy Conference
30 March 2022
Library of Congress
Washington DC

The Hon. Marcus Solomon
Justice of the Supreme Court of Western Australia

In the words of the 1980’s hit, I  come from  a land down under.  And within the that distant continent my hometown is the city of Perth, with a population of some 2 million people and the capital of the vast state of Western Australia which is almost twice the size of Alaska and accounts for about a third of the whole of Australia. Western Australia is largely desert, but houses some of the world’s most bountiful deposits of natural resources; iron ore, gold, gas, petroleum, and a range of other commodities.

In my experience, it is never appealing to begin a speech intended to espouse the greatness of someone else, by talking about oneself.  But on this, occasion please indulge me briefly, because, although personal, I can think of no more effective way to convey the depth of  feeling and the breadth of admiration for the vision and the leadership of the man that this conference celebrates, Rabbi Menachem Mendel Schneerson, the Rebbe.

I am a Rabbi and graduate of the central Chabad Rabbinical School in Brooklyn. I am also a judge of the Supreme Court of Western Australia. But let me first disclose, that in every respect, those two paths of my life are remarkably conventional and frankly, it seems to me, each in isolation, quite uninteresting. It is the combination that appears to inspire some interest – a combination which I believe would not likely have happened without the radical vision of Rabbi Schneerson.

I am a Rabbi, a product of the Chabad educational system that flourished under the leadership of the Rebbe.  In that respect I walked a very well-trodden path;  Chabad high school in Melbourne Australia, two years in the Chabad rabbinical school in Melbourne, a year in the central Chabad rabbinical school in Kfar  Chabad Israel then a couple of years in New York where I had the distinct privilege of studying in the institution at 770 Eastern Parkway that operated in the immediate  proximity of the Rebbe’s very tangible and dominant presence. I returned to Perth and began to teach Judaic Studies at the local Jewish day school and provided adult education for the well-established Jewish community.  I then assisted with the opening of a Chabad House to service the Jewish community.

While teaching I was encouraged to begin university studies, initially part time. Eventually I was accepted into law school. I graduated and began at a law firm where I became a partner some years later. I then moved to what, under the English system, is called the independent bar where I practiced as a barrister, or advocate – essentially a trial and appellate lawyer.  After some years I was appointed to the position that is known in the English legal system as a ‘Queens Counsel’, or in those jurisdictions less enamoured of Her Majesty’s undemocratic ascension, a ‘Senior Counsel’.  It is generally from those ranks that judges are appointed to the superior courts in Australia, the Supreme Court of each of the 6 states. In August last year I was appointed a justice of the Supreme Court of Western Australia.

I remain a practicing rabbi.  In particular, I continue to teach both adults and school students in the evenings and on weekends and I lead a shule within the Perth Jewish community.

One of the questions I am most frequently asked, and the issue that seems to excite some interest, is the manner in which my two worlds intersect.

And that is the issue I wish to address. Because I think at least one answer to that question lies in the appreciation of Rabbi Schneerson’s capacity for insight, and for teaching others to reach beyond conventional thinking in  one of the many remarkable contributions that the Rebbe made, not only to the Jewish world, but to the global community of the 20^th century and beyond. 

Let me begin with the obvious. The Rebbe was, in many respects,  a classical product, albeit a preeminent one, of traditional European Jewry.

No one here requires a tutorial on the horrific persecution that Europe’s Jews endured for centuries.  Nor do we need reminding that Jewish civilisation in Europe met its murderous and horrific end in one of the darkest episodes of human history.

In the centuries prior to its vile destruction, Jewish civilisation in Europe had flourished with a rich creativity.  But it was, of necessity, largely insular and inwardly focussed.  Judaism’s wider message to the world of a higher purpose to humanity, of faith and a spiritual dimension to public life and in the public sphere, of ethical monotheism, could hardly penetrate the ghetto walls.  And invariably, the persecuted and marginalised Jewish psyche evolved into an oppositional ‘us vs them’ mentality, the excluded Jew, and the establishment gentile. 

It is well to remember that it was into that civilisation that the Rebbe was born, and it was in that civilisation that that the Rebbe was educated and raised well into his adult life. And it was from that inferno that the Rebbe escaped to this country, leaving behind many of his own family who perished at the hands of evil tormentors.

There is no doubt either that it was precisely that history of persecution and exclusion that informed the conventional wisdom of the Jewish community here in the United States, and indeed elsewhere.  That conventional wisdom was, and for many remains, that the Jewish community ought to be the fiercest advocate of the separation of church and state.  The Jewish community has understandably  been a champion of the expansive enforcement of the constitutional embodiment of church/state separation – known as the  Establishment Cause, bequeathed to this nation  by James Maddison. 

Now this is not a lecture on American constitutional law, a subject on which I am no expert at all.  But a few brief observations are pertinent.

I will make reference to a number of decisions, but for today’s purposes, perhaps the most relevant is the decision of the United States Supreme Court in 1989: County of Allegheny -v American Civil Liberties Union Greater Pittsburgh Chapter.  The case concerned the constitutionality of two recurring holiday displays.  One was a creche depicting the Christian Nativity scene placed on the Grand Staircase of the Allegheny County Courthouse, which was acknowledged to be the main, most beautiful, and most public part of the courthouse.  The creche was provided by a Catholic organisation. 

The second holiday display challenged in the case was an 18-foot menorah, provided by Chabad, erected just outside the City-County Building on public display right next to the City’s 45-foot decorated Christmas tree.  The menorah was owned by Chabad but was stored, erected, and removed each year by the City, at the City’s expense.

The Establishment Clause was of course the central focus of the case.

In the words of Justice Harry Blackmun of the Supreme Court, ‘this Nation is heir to a history and tradition of religious diversity, and precisely because of the religious diversity that is this nation’s heritage, the Founders added to the Constitution a Bill of Rights the very first words of which declare: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”….. No government official in the United States may violate these fundamental constitutional rights regarding matters of conscience’.

As many in this room will appreciate there has been a vast and robust consideration of the Establishment Clause in the courts of the United States. In the well-known decision of Lemon v Kurtzman the Supreme Court focussed on three tests to determine whether a government practice violates the Establishment Clause: if a law or a government practice is to be permissible, it must have a secular purpose, it must not advance nor inhibit religion in its primary effect and it must not foster an excessive entanglement with religion.

Put slightly differently by Justice Blackmun: the government may not promote or affiliate itself with any religious doctrine or organisation; may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution and may not involve itself too deeply in such an institution’s affairs.

Jews have for good reason long been the cheerleaders of the Establishment Clause.

The conventional wisdom of the Jewish community in its passionate pursuit of the enforcement of the Establishment Clause was compelling to those even faintly familiar with the events of Jewish history in Europe and elsewhere.

A feature of the Jewish community’s concern was the focus that evolved in the Supreme Court on what it called the ‘endorsement’ by government of religion. That is, government cannot be seen, by its laws or by its practice, to be endorsing any religion.  As Justice Sandra Day O’Connor explained in words that resonate hauntingly with the Jewish historical experience: “If government is to be neutral in matters of religion, rather than showing either favouritism or disapproval towards citizens based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.”

Or, in the words of the Supreme Court in the Grand Rapids case in 1985 in which the Court struck down government education programs in Grand Rapids Michigan that employed parochial school teachers: “the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denomination as an endorsement, and by the non-adherents as a disapproval, of their individual religious choices”.

It is not difficult to understand why the Jewish community would be zealous proponents of such an approach.  Jews have long had good reason to view with fear and suspicion the promulgation of religious practice in the public sphere.

As many here know, it is the endorsement test that in large measure gave rise to the many cases regarding religious symbols in the public sphere – most famously, menorahs, Christmas trees and nativity scenes or crèches.

The mainstream Jewish community’s position was perhaps best illustrated in the case of the American Jewish Congress v City of Chicago in 1987 where the establishment Jewish  community sued the city of Chicago for the display of a nativity scene in City Hall for the 1985-86 holiday season.  As Justice Frank Easterbrook explained in his colourful and powerful dissent, state compulsion of religion had spawned a long history of persecution in Europe: His Honour observed that the mixture of government and religion ‘has been the source of oppression in many nations; and ours was founded in part by those fleeing the religious policies of other governments’.  His Honour went on to observe: ‘The establishments of Europe and the states were riddled with compulsion: compulsion to pay  church taxes, compulsion to attend Church, compulsion to accept the tenets of the chosen creed, test oaths, and disqualifications for office’.

The Jewish community through the American Jewish Congress was successful before the seventh circuit United States Court of Appeals and the nativity scene was held to be unconstitutional. Conventional American Jewish thinking prevailed.

In view of that history one asks rhetorically, what right-minded Jew, would not be a zealous scrutineer of the Establishment Clause?

Well, permit me to answer that question.  The man who rejected the conventional and perfectly understandable stance of the Jewish  community was a man who himself was a product of European Jewry – the very community that for centuries had suffered so horrifically from the failure to separate the exercise of state power from religious doctrine, and a man and whose own world and family had been the brutalised victims of state discrimination against his religious community. 

That man was of course Rabbi Menachem Mendel Schneerson who repudiated the pervasive Jewish consensus, and actively sought to empower and encourage the expression and the voice of religious faith in the public sphere. 

That begs two questions.

First, what is it in fact that the Rebbe did?

And secondly, and perhaps more intriguingly, how could a man who so personally and vividly witnessed the consequences of the breakdown in the division between Church and State, become a champion of the dilution of this apparently sacred principle?

First, what did the Rebbe do? 

Well, the answer in truth is probably many things. But I wish to make reference to the two that I believe are best known.

As early as the 1960’s the Rebbe was an outspoken advocate of the introduction of what was known as the Regents prayer  into public schools – not a Jewish prayer but an entirely non-denominational moment of acknowledgment of G-d’s providence, to be recited in all public schools at the beginning of each day.  The measure was held by the Supreme Court to be unconstitutional.

Perhaps more famously and more recently, the Rebbe spearheaded the very public Menora lightings which have become synonymous with Chabad’s proud and public expression of religious faith. It was this unapologetic intrusion into the public space which led to the Supreme Court decision in  County of Allegheny -v American Civil Liberties Union Greater Pittsburgh Chapter in which Chabad’s menorah, although acknowledged to be a religious symbol, was held to be constitutional because of its situational context, while the neighbouring nativity scene was held to be unconstitutional!  Here is not the place to explain the complexity of that paradox.  Suffice to say, that was one of many cases in which the display of Jewish and other religious symbols in the public sphere was challenged.

The Rebbe’s campaign was largely successful.  Public menorah lightings are now ubiquitous not only in the United States but throughout the world, almost invariably accompanied by civic leaders including heads of State.

But the conventional Jewish view has not evaporated.

Only some years ago, a prominent leader of the American Jewish community, a Reform Rabbi bemoaned publicly in the Jewish press:

“Chabad has not only challenged a broad American-Jewish consensus on church-state separation, but has done so in a brazen, in-your-face way; its public menorah lightings, often seen as representing the larger Jewish community, grate on liberal Jewish sensibilities.”

Yes, the Rebbe was brazen. And as loving in his outreach as he was, he was untroubled by the prospect of grating on liberal sensibilities if he believed there was something important at stake.

Which only serves to sharpen the question – why?

In my respectful view the answer is both clear and frankly startling.

The Rebbe’s focus was not only the Jewish people – but humanity, which in accordance with the Biblical tradition, was created in the image of G-d.

And this is the extraordinary thing:  The Rebbe was more concerned with the threat to humanity of rampant materialism, of the corrosion of community through a G-dless individualism, than he was concerned by the threat to the Jewish people from a government’s benign endorsement of religious symbols and principles. The Rebbe perceived a far greater danger to society in supressing the expression of faith from the public sphere than in giving a public civic voice to religious belief.

Let us pause to ponder this remarkable phenomenon: Here was a man whose family, community and civilisation were annihilated by a continent that had exemplified the sickening consequences of the failure to separate Church and State. Yet his sight pierced beyond that horror to see the divinity within humanity such that he promulgated a global vision, beyond the plight of his own people.  It was a vision that beheld a more pressing threat – the disempowering  and marginalisation of those who, without coercion, seek to elevate society with a public call to appreciating G-d’s providence and humanity’s sacred role as having been created in G-d’s image.   For the Rebbe, that was the surest, indeed perhaps the only way, to seek to create a less selfish, a less materialistic, a less brutal, and a better, more G-dly world. 

And in that, the Rebbe was projecting anew the message of Judaism for humanity, for the global community. It was a message of spiritual empowerment that transcended the ‘us and them’, “Gentile against Jew” of his native Europe: a message that the aspiration for the spiritual, for the G-dly,  may, indeed must, legitimately find its expression in the public space.  For the Rebbe, the exclusion of that voice from the public sphere was, in our time, the more grave threat to society’s moral compass.

Indeed, some have observed that the Rebbe’s theology went further.  In his work Social Vision, sociologist, Professor Philip Wexler suggests that the Rebbe merged Chabad’s own history of religious persecution, followed by refuge, and flourishing in America – along with Chabad’s theosophical ideology – with the national-origin story of the United States. On this basis Wexler contends that the Rebbe charted a vision for the collective mission of the nation in direct parallel with Chabad’s own mission, and with explicit ramifications for a range of policy issues.  Professor Wexler refers to the Rebbe’s notion of America as the new centre of global geopolitics and economics, and his notion of the divine mission that this special status signals.

But we need not go as far as Wexler’s thesis to be moved by the Rebbe’s vision.

There were many responses to the great evil that befell the Jewish people in the first half of the 20 century.  Many sadly abandoned their Jewish identity, some quickly and deliberately, others subtly and gradually over 2 or 3 generations as they gradually adopted the seductive materialism and secularism of their new environments.  Many others were inspired to turn to the necessary empowerment of the Jewish people through the miraculous rebirth of Jewish nationhood and sovereignty in the land of Israel, the ancient homeland of the Jewish people.  Still others rebuilt traditional Jewish life in their new homes, sometimes, as we see in this country, flourishing, self-contained Jewish communities living intense religious lives without ghetto walls but inwardly focussed to rebuild that which was destroyed.

The Rebbe’s response was in its time unique and unconventional.  It was not limited to political empowerment or the rebuilding of religious communities, vital though those endeavours were.  The Rebbe’s primary  vision audaciously rejected the rational and understandable position of the established Jewish community which perceived the separation of Church and State as sacrosanct.

The Rebbe’s vision and message was  to respond to humanity’s most evil hour by empowering the public expression of faith, empowering the public and brazen expression of the goodness of humanity created b’tzelem Elokim, in the image of G-d and to call brazenly and publicly for a less selfish, a more just, a more kind, a more G-dly world; or in the words of the Hebrew prayer recited 3 times a day l’taken olam b’malchut shadai – to heal the world with the sovereignty of the Almighty. 

And in the Rebbe’s vision, even for those whose conscience could not reconcile with a religious faith, there remained great value in encouraging the public expression of the sanctity and divinity of humankind as a means of fostering a kinder more caring world.

Tragically, the world does not appear to be heading in that direction as we meet together today.  That is all the more reason to give ear to the Rebbe’s message that the real threat to humanity lies not in the expression of faith in the public sphere, but on the contrary, in society’s loss of belief in the divinity that lies within us all that mandates mutual respect and responsibility. Perhaps indeed we need more public  and brazen symbols that call attention to that message.

And so much less significantly – back to my story in an obscure and far-flung corner of the globe, on the western edge of a sparsely populated continent way down under.

When I finished my law degree I turned to the Rebbe for advice because I did not think I could really do anything for the Jewish people or the world by pursuing  a law career.  I was torn by the desire to go back full time into the field of Jewish education.

The Rebbe’s answer is as obvious now as it was clear then: do both! And the Rebbe extended his blessing that I would meet with success in both endeavours.  The fulfilment of that blessing is a story for another day. The more important thing is this.

For the Rebbe this was not a mutually exclusive choice between secular and religious alternatives. For the Rebbe, there was no such bifurcation of roles or purpose. There was no brick wall between Church and State.  On the contrary, this was an opportunity to pursue both, to demonstrate the compatibility of the undiluted expression of religious faith at the highest levels of a contemporary professional environment. In short, the Rebbe was calling on me together with many thousands of others, to be part of his vision – to empower the expression and the practice of faith in the most public sphere of the modern democratic society in which I lived;  and in that way, to be part of rebuilding a better humanity in the century following humanity’s most disgraceful descent.

And that is the Rebbe’s answer to those who are intrigued by the intersection of the two spheres in which I operate.  There is no intersection as such, because there are no conflicting or even separate paths or identities – there is simply a duty on each one of us, in  the public environment in which we find ourselves, to demonstrate the compatibility  of our public expression of faith with our civic and public lives.  And by that unashamed demonstration, to strive for a fairer, more just, and more G-dly world.

 And so it is my very great and humbling honour with these few observations to join in the acknowledgement of one of the most courageous visionaries of our time, to whom I owe so much personally and whose elevating vision has uplifted us all in both our private,  but most especially in our public lives, as we strive in whatever way we can for a better world.