“Do As I Say, Not As I Do” is my item on Noah Feldman for the Wall Street Journal. The article centers on Noah Feldman’s latest book, “Divided by God,” and the seeming incongruity among his book’s thesis that religious displays should be allowed on public grounds and his pro bono defense of the borough of Tenafly, NJ, against Orthodox Jews who wanted to keep an eruv they’d raised.
Value-Added Blogging:
- Third Circuit’s decision.
- Becket Fund amicus.
- ACLU amicus.
- Orthodox Union amicus.
If I’d been doing a good job of keeping up with blogging over the past week, I’d already have posted a summary of my interview with Noah Feldman. Since I haven’t, here it is now:
Feldman actually doesn’t feel Roy Moore’s granite monument should’ve continued to stand, though not for Establishment Clause reasons: “from a constitutional standpoint, his case is not sort of the standard case…his block was problematic because the other judges on his court didn’t want him to put it up there.” But as to privately-funded monuments on public space in general (where other monuments are allowed and no religious preference occurs), he said “I don’t think there’s any constitutional problem with them,” citing the principle of “no money, no coercion” which he asserts was the founders’ premier concern in articulating their specific wording of the First Amendment.
But isn’t providing land equivalent to providing money? “the fungibility of land and money is inaccurate,” he said, asserting that such an amount of funding would be considered “de minimis” and that “you have to draw the line somewhere, and I think this is a legitimate place to draw that line.”
How does Tenafly cohere with that theory? “What I argued in the Tenafly case was that where there is a neutral, generally-applicable law in place,” and that the First Amendment does not, therefore, come into play. “The municipality has the right, if it wants to, to issue an exemption,” he said, though such an exemption would probably have been challenged by the ACLU.
As to his defeat, he noted “the Third Circuit is holding, that if you can show…that it failed to enforce completely” the neutrally-applicable law (such failures noted in the decision included signs from local churches and addresses of residents), that the text of the law is irrelevant. “That position there is a pretty different” one than that maintained in Supreme Court precedents, he asserted, though the Supreme Court did deny certiorari to the borough’s appeal. “There were thousands and thousands of tickets issued…it was enforced all the time,” Feldman declared.
How much of the argument in the conclusion of your book is a First Amendment take – it seems to be mostly political? “It’s primarily a political argument…the headline for the legal position is no money, no support…there is also, very much a political argument.” As to the proper place of religious symbols or use of government funding, he said “For much of our history, that’s not been a constitutional question…you have a level of case law…[but moreso] you have a layer of the way most citizens interact with and understand the constitution…that’s definitely, primarily what I focused on.”
But his argument doesn’t rely on any convincing legal interpretation for the courts to utilize — is he basically just hoping that those advocating against religious symbols and for government funding of religious institutions will simply abandon their victories in favor of his approach? “I hope it’s not that solipsistic,” he responded. “On both sides, they’re losing fights that they should be most concerned about,” he said, noting that “evangelicals are very concerned with their money going to support religions they hate,” a reality that is very much asserted by indiscriminate faith-based funding. Meanwhile, “secularists should be much firmer in toeing the line against” the funding that “basically amounts to a public political fight about who’s going to get the advantage in religion.”
“When it comes to the secularists, what I’m telling them is” that, in contrast to their “very laudable goal” of using the Establishment Clause to make sure that all citizens feel equally included, “we’ve had the effect of marginalizing people” who want to express their faith more publicly than they’ve been allowed.
“I’m asking both sides to rethink their political positions in light of what they say are their own values.”
But isn’t government funding of religious organizations only towards the secular ends of the organizations (such as charity, or the non-religious studies in their private schools)? I brought in the example of a story from last year, about Agudath Israel’s effort to avoid a law requiring them, as recipients of New York City funding, to provide equal benefits to same-sex partners of employees. That case, he said, “helps to show you the totally illusory nature of these distinctions…the Agudah is upset that the government money comes with strings attached…the religious groups want to say, no no no, we want to get the money, but we don’t want the government to set conditions…you’re in for a penny, you’re in for a pound…that’s why religious organizations in the U.S. have traditionally succeeded in developing private funding…it’s a basic free market.”
But the government still succeeds in having its strings attached to the money, so isn’t it win-win? “If you think that it’s no problem for the government to set conditions for religious organizations,” he responded.
Lastly, what of Feldman’s peculiar religious identity? “No sociologist looking at my practice today would call me Orthodox,” he said, though he wouldn’t self-identify as “I find myself tremendously unsatisfied with the denominational lines in Judaism.”
Finally: please note Alan Wolfe’s spot-on analysis which notes that Feldman’s political assessment leaves much to be desired.

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