George Washington’s letter to the Jews of Newport — with its famous promise of a government that to “bigotry gives no sanction, to persecution no assistance” — is so familiar to us as to be almost invisible. But it took a powerful dissent by Justice Elena Kagan to remind us how a historical artifact remains a living document.
The U.S. Supreme Court disappointed many Jewish groups this week by ruling — in Town of Greece v. Galloway — that a town board in upstate New York may continue to begin its meetings with a prayer. Opponents argued that the prayer was unconstitutional because — with a preponderance of local Christian clergy — the prayers favored one religion over another, in violation of the Establishment Clause. Justice Anthony Kennedy, writing for the 5-4 majority, said such prayer is a civic tradition and remains constitutional so long as its organizers do not intentionally exclude other faiths or promote proselytization. Groups like the American Jewish Committee disagreed, saying citizens are less concerned with the government’s good intentions than they are with negative outcomes.
But it was Kagan who put a particular Jewish spin on her dissent. She cited the 1790 exchange between Washington and Moses Seixas, a lay leader of the Newport Jewish community. She noted a “startling and transformative” appeal by Seixas, embraced by Washington, which urged a government that grants “immunities of citizenship” to the Christian and the Jew alike, and makes them “equal parts” of the whole country. “For me,” wrote Kagan, “that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”
Washington agreed that it wasn’t enough not to persecute religious minorities — they must be made “equal parts” of the whole country. Kagan’s dissent is a celebration of that “remarkable guarantee.”