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Michael A. Helfand: Church, State, and Jewish Education

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SUMMARY

This series is sponsored by Ari and Danielle Schwartz in memory of Danielle’s grandfather, Mr. Baruch Mappa, Baruch Ben Asher Zelig HaLevi.

In this episode of the 18Forty Podcast, we speak to Michael A. Helfand, a Pepperdine Law professor specializing in religious liberty, about the meaning of the First Amendment as it relates to the funding of religious schools.

With education so deeply essential to the modern Jewish community, we are confronted with the high cost of private schooling. In America, is the government able to step in and help? Should it?

  • Why doesn’t the government fully fund religious schools?
  • What is the “Lemon test”?
  • Does “separation of the church and state” mean the government cannot support any religious institution, or only that it must support all religious institutions equally?

Tune in to hear a conversation about the history and status of religious schools in American law.
Interview begins at 9:58.

Professor Michael Helfand is an expert on religious law and religious liberty. A frequent author and lecturer, his work considers how U.S. law treats religious law, custom and practice, focusing on the intersection of private law and religion in contexts such as religious arbitration, religious contracts and religious torts. He is currently an associate professor at Pepperdine University School of Law and co-director of Pepperdine University’s Diane and Guilford Glazer Institute for Jewish Studies. He received his J.D. from Yale Law School and his Ph.D. in Political Science from Yale University. Professor Helfand is an executive board member of the Beth Din of America, where he serves as a consultant on the enforceability of rabbinical arbitration agreements and awards in U.S. courts.
References:
The New American Judaism by Jack Wertheimer
Remembering Rabbi Norman Lamm” by Michael A. Helfand
To Build a Wall by Gregg Ivers
Religion and State in the American Jewish Experience by Jonathan D. Sarna and David G. Dalin

David Bashevkin

One quick announcement is that 18Forty is finally moving into some actual live events. We have our first 18Forty live event on February 23 in the Upper West Side at Stand Up NY. Where I will be in conversation with the amazing comedian, always a favorite, Modi. It’s going to be a serious conversation about comedy. Again that’s February 23, it begins at 7 p.m.—doors open and the formal show will start at 8. General admission is 25 dollars, and VIP is 39 dollars. You can find out more at 18Forty.org/Modi. We really hope to see you there. 

Hello and welcome to the 18Forty Podcast where each month we explore a different topic, balancing modern sensibilities with traditional sensitivities to give you new approaches to timeless Jewish ideas. I’m your host, David Bashevkin, and this month we are exploring the state of Jewish education. This podcast is part of a larger exploration of those big juicy Jewish ideas. So be sure to check out 18Forty.org where you can also find videos, articles, and recommended readings. This series was sponsored by Ari and Danielle Schwartz in memory of their grandfather, Mr. Baruch Mappa , Baruch Ben Asher Zelig Halevi. An incredible individual, one of the few survivors of the Łódź ghetto in Poland. Together with his wife, he established a beautiful, prosperous, frum family here in America. 

A while back in 18Forty a listener suggested a potential guest and it was a fabulous suggestion. It was a guest who I believe lived in Lakewood, New Jersey, and said that he read a book by professor Jack Wertheimer called The New American Judaism and he recommended it and I think I read it on the air and I said I hadn’t read it but I really did want to invite him on and this past Shabbos for those of you who may know or may peak at my Twitter account , no worries if you don’t of course, but I try to read I book I say every Shabbos. Lord knows I don’t actually finish a book every Shabbos much to the haters; chagrin. People go, “There’s no way you actually finished that over Shabbos.” No, I don’t actually finish it every Shabbos but I try over the course of the week to finish it. I don’t finish it every time but this past Shabbos, a different 18Forty listener, my dear friend Mark Trencher who we have had on. A former 18Forty guest, who does amazing research, statistics and data in the Jewish community actually sent me a copy of the book to read over Shabbos which is exactly what I read. I’ll be honest, there were no mind-blowing insights in the book. Jack Wertheimer, who I believe is a sociologist at JTS, the Conservative seminary, to me what it really confirmed was the ability to analyze the Jewish community from a place of neutrality. You know, I think, God willing we will speak about this when we talk about denominations but it’s hard to weigh in when you are entrenched or within the Orthodox community. I always have hesitation to weigh in on the community other than my own. I don’t feel appropriate or that it is my place, though I do hope we will do a series on it relatively soon. I feel like our very conception of this model of Judaism , this tripartite denomination broken down is becoming increasingly relevant and increasingly understood. But there is one thing that jumped out at me in the book and that is where he discusses what really sets Orthodox Jews apart. And I don’t believe he is Orthodox himself, which I think gives it a great deal of credibility, which is why the first person who recommended the book to me, this listener in Lakewood, said there is something very inspiring. I did find it quite inspiring,  of what so to speak, the Orthodox community has built in America. He says it very plainly and I want to read what he writes over here “but engaging in prescribed religious practices is not the only trait that sets Orthodox Jews apart, in the aggregate, they are also far more knowledgeable about the minutiae of Jewish practice and the basics of their religion. For a good many non-Orthodox Jews, Judaism is shrouded in mystery. It is a foreign way of behaving and being. The great advantage Orthodox Jews have over most of their non-Orthodox counterparts is their relatively high level of Judaic literacy. Rather than rely upon osmosis, imitation, or some vague form of familial transition, Orthodox Jews have invested heavily to ensure their members acquire the skills and knowledge to live out their religious lives. The Jewish day school movement is overwhelmingly an Orthodox phenomenon and its education mission is reinforced by summer camps, youth groups, other informal vehicles and eventually by gap year study in Israel. To be sure, not every Orthodox Jew is a Talmud scholar”—he’s absolutely right, probably myself included—“but the vast majority of orthodox males have been exposed to the study of Judaism’s major religious texts such as the Hebrew Bible, Talmud and codes of law. And though females are given a different type of Jewish education in some sects of the Orthodox community, they too are exposed.” 

I read this and I captured this and shared it on this thread where I kind of picked up highlights of the book. I wrote the secret to the success of the orthodox community is not such a secret; education. Education, education , education. And that we have built this has not been always such an easy battle and the battle god for bid is not with the non-Orthodox movement. The battle began with parents and being able to plead with your parents as to why this is necessary. Those are my own grandparents, my father’s parents, my mother’s parents as I mentioned were the ones who set up the Talmud Torah in Portland, Maine but even making this case was very difficult. They said who could have guessed that this would be the lynchpin that really transformed the narrative of Judaism, particularly in the United States. I think, by and large, what we have built is absolutely extraordinary. But I believe, by and large, we’ve begun to take advantage of what we built. The battles to build, fund, to create the day school movement that I believe in many ways has been the source of vitality for all American Jews because I think the graduates of these schools affect all of American Jewry. It’s not just the Orthodox community. All boats are lifted with the tide of what Jewish education has done to transform American Jewry. But increasingly now, we take it for granted and increasingly now in conversations, Jewish education goes hand and hand with the frustrations, and I think the word frustrations is too small for the suffering of families who it is very difficult to pay for this. It is nearly impossible to afford your kid a Jewish education. If this is in fact the secret sauce of what keeps our community literate, educated, and involved in Jewish life then it needs to be for everybody. That is why I thought it was so important to really do a deep dive, to help people understand kind of the back end of why this is so particularly complicated in the United States. 

Why can’t the government just fund our schools? Kind of a short answer is separation of church and state. It’s actually quite complicated how this has changed on both the federal and state level. I believe that if education is the source of Jewish engagement then our engagement with the project of Jewish education itself is also going to be a product of our education about this issue. We need to understand what are the barriers, what are the difficulties, what are the fights going on. There is nobody on planet earth that I find is a better explainer of  some of the legal mysteries, the fights, and the battles, that have shaped the current landscape of the advocacy that is done on behalf of Jewish education. And that is my dearest friend, that I really do say this, he’s a mentor, professor Michael Avi Helfand. 

He is really more than a professor to me, he sat on my dissertation committee so I think there is a fancy word for this, an uber-doctor. He is the person among a panel of others, who gave me that stamp. I don’t use my rabbi doctor card really often at all. Someone can do a study of children of medical doctors, and how confident are they using the title doctor when they introduce themselves? I am not confident at all, but I’m glad that it is done and I never would have finished without Avi’s guidance, help, and direction. He’s become really one of my closest friends with whom we discuss these primary issues. What I call him always is he is the educator in chief of the Jewish community when it comes to legal battles that involve religious liberty, religious freedom. One of the things that I admire most about him is he is really one of the most avowed centrists I have ever met. He really just calls balls and strikes in the community and reading his op-ed’s, whether they are in The Wall Street Journal or in First Things. He writes about some of the most contentious battles in the Jewish community but with such level headed balls and strikes with a substantive legal analysis. I always look forward to the way that he breaks down issues and that’s exactly what I had him do on the issue of Jewish education in the United States. So if legal matters don’t interest you, then this episode is going to be an absolute doozy. But if you want more informed conversations about what is the landscape , what can we do and why are we here at this current battle so to speak for Jewish day schools, there is nobody better than professor Avi Helfand. So without further ado it is my absolute pleasure to introduce our conversation with Professor Avi Helfand. 

I don’t even know the origin story of how we know each other, but we know each other quite well. It is my pleasure to introduce and I really mean this Dr. Avi Michael Helfand.

Dr. Helfand: 

So first of all it’s Michael Avi Helfand. Michael Avigdor so we don’t know each other that well. David, I’m a little bit upset right now. 

David Bashevkin:

That’s not true. I want to say off the bat, we do go way back.  The first time I met you, I called you Michael throughout the entire conversation till the very end ,when you said you can really call me Avi. 

Dr. Helfand: 

Well I only let my friends call me Avi and I was sizing you up 

David Bashevkin: 

And at the end, I guess I won. I passed the test. I really owe a great deal of gratitude to you for two reasons. The more simple reason is, you sat on my dissertation committee.

Dr. Helfand: 

That was a pleasure for me. What do you mean?

David Bashevkin: 

I don’t think ever sitting on a dissertation committee is a pleasure, but we worked a great deal with one another. But number two, I think more than anyone else, somebody with a lens to my maybe like intellectual/professional anxiety. You have that window like I feel like so many of our conversations begin and end with like: How are you doing? How are you doing buddy?

Dr. Helfand: 

You’re looking great this evening first of all. And second of all in all fairness, most of the time when I’m calling you it’s like oh am I doing this right ? Like I’m about to write something or do something and like it’s not quite right. Like remember that Rabbi Lamm article that I wrote for Tablet

David Bashevkin: 

I absolutely do.

Dr. Helfand

And there was something wrong with it. I couldn’t figure it out and you looked at it for three seconds and you’re like, that last paragraph is junk. If you pull it out it’s going to be great and I think it was . 

David Bashevkin: 

I appreciate it and I’m having you here to have a conversation over a topic, I don’t think is anxiety inducing. Something that you are deeply involved in. Both in your position as a legal scholar, somebody who’s done work, you’re now the associate dean at … did I mess this up already? 

Dr. Helfand: 

Yeah you did. Don’t worry about it. I was associate Dean then Vice Dean at Pepperdine Caruso School of Law. I stepped down on August 1 because administration of law schools is.. 

David Bashevkin:

Not so fun. 

Dr. Helfand: 

No. Who wants to do that. Not me. 

David Bashevkin: 

You’ve been a guest lecturer at Yale Law School. 

Dr. Helfand: 

I’m a visiting professor at Yale Law School. And Oscar M. Ruebhausen Distinguished Fellow distinguished fellow for throwing around title why not?  

David Bashevkin: 

But more than anything else you have done the actual work in cases involving educational funding from the government for Jewish schools and really have become deeply enmeshed in that. I guess I wanted to start this conversation, with like painting the scene at a Shabbos table. Shabbos afternoon people are sitting around and the conversation invariably begins to turn to the tuition crisis. People are paying so much money for schooling and you hear a number of different plans like how we’re gonna solve this. But one person says, why don’t we just get the government to pay for our secular education , why don’t we get them to pay for our math teachers , our biology teachers for all of that.  Somebody else will, I’m just gonna take the whole thing as a tax write off and see what the government can do about it. There seems to be like the great hope of the Jewish community is that the government could step in and begin to fund Jewish education. It is extremely costly for families. I believe it is actually reshaping the landscape of what it means to be affiliated, usually to provide your kids with a Jewish education. I want to begin with where does the story begin of government funding for schools and why has this not been successful in the past and has anything changed since then ?

Dr. Helfand:

Yeah I mean, you can start the story in a lot of places. I’m going do my best to do it chronologically.  I say much of the story starts in the 19th century. In the 19th century, you had public schools which were heavily influenced and dominated by American Protestantism. They were considered like an institution cut from the cloth of American Protestantism and during that time period in the 19th century what you had was a deep skepticism of various religious minorities in particular, Catholics. And so first it was a fellow named James Blaine who tried to make it happen on the federal level in congress to have something now called the Blaine amendment where they prohibited funds from going to religious schools, any funding from going to religious schools and that didn’t work as a federal law, he didn’t get enough votes. 

David Bashevkin: 

He tried to pass as a law on the federal law.

Dr. Helfand: 

Tried to get legislation and it didn’t happen. And he was asked to try to discriminate against Catholics. The history is pretty strong about this. There’s a lot to talk about here. There are some people who wonder a little bit about the history but I think what I’m describing to you is conventional history. Sufficiently conventional in that it’s been mentioned in Supreme Court cases. So when the federal government couldn’t enact this law, they didn’t have the votes so a lot of states did it, they called them mini Blaine amendments and you know for over half the states around the country they actually have laws on the books that say different versions of it , no money to religious schools, no money to religious institutions and no money directly or indirectly to religious institutions. And that’s like the 19th century story that really lurks in the background of everything we’re going to talk about. Let’s leave that aside.

I’ll come back to that later but it’s important in terms of the chronology. In the 20th century. What you had is really the rise of the establishment clause. The principle in the First Amendment that there needs to be some degree of separation between church and state that is written in our Constitution. Congress shall make no law, respecting the establishment of religion, that’s the establishment clause, or prohibiting the free exercise thereof—that’s the free exercise clause. The one that gives us religious liberty. So like the first 16 words of the first amendment have those two principles. On the one hand, separation of church and state and on the other hand, the requirement of some degree of religious liberty.

David Bashevkin: 

That you could be able to practice the religion of your choice.

Dr. Helfand: 

Yeah. Yes, that’s a big question: Does it mean practice or not? In the late 19th century they thought it just meant believing things. There’s a long history there and I look forward to our next podcast where we will talk about that.  I know you want to hear about the Employment Division v. Smith. But on the separation of church and state side , so in the 20th century, this is where you really start having a lot of cases trying to figure out what does it mean to have church and state be separate? In fact a lot of this litigation is pressed by the American Jewish community deeply concerned that if there weren’t some degree of separation between church and state it would be a problem for religious minorities. Think like prayer in public schools, when you have lots of Jewish kids going to public school and the idea that they would be forced, coerced, subjected to a requirement or an inducement to pray to God that isn’t theirs, you can see why is an American Jew the principle of separation of church and state in some areas was really important. 

David Bashevkin:

Yeah I mean. It’s interesting. It’s so obvious to us now that we should not have prayer in public schools . It happens to be both of my parents grew up saying, I believe, the “Lord’s Prayer” in public school but when that case came , I believe a lot of the briefs that were submitted to the court from Jewish organizations actually supported the continuation of prayer in public school.

Dr. Helfand: 

Well so this is itself divided, see the main arms of American Judaism. We usually talk in terms of the big three : the American Jewish Congress , the American Jewish committee and the Anti-Defamation League. All pressed hard both in terms of funding some litigation and in supporting another way through amicus briefs, third-party briefs. 

David Bashevkin: 

An amicus brief. What an interesting term! What does that mean?

Dr. Helfand : 

Amicus brief means friend of the court. So normally litigation is between a and b and sometimes c is just sitting around and is seeing what’s going on. Get it, c. 

David Bashevkin 

Oh cute. 

Dr Helfand: 

C is watching what is going on and C she says I want to file a brief because the stakes of litigation between a and b really impact me in an important and unique way. And I have some stuff I want to tell the court so it knows about it when it decides this case. Amicus briefs. 

David Bashevkin: 

That’s singular?

Dr. Helfand : 

You can have amici. That’s like lots of people, lots of different people, signing an amicus brief. 

David Bashevkin: 

I’m going to tell you two things. You’re the person who taught me the correct pronunciation of amici.

Dr. Helfand : 

What do you think it was before hand? 

David Bashevkin: 

I’m nearly sure I thought it was amicay but number 2, I find it to be the most adorable Latin word that I know.

Dr Helfand:

How many Latin words do you know? 

David Bashevkin: 

I know like 10. Maybe just less than the amount of Yiddish that I know. But Amici to me sounds like a very cute pet name. Like a lawyer should name like a pet monkey, a ferret.

Dr. Helfand 

I don’t think this is going to resonate with anyone. Your listeners are thinking what is wrong with this guy. 

David Bashevkin: 

No. They know me by now. People were submitting and the original battle. Where are we now, the 1960s?

Dr. Helfand: 

Yes ‘50s, ‘60s.

David Bashevkin: 

Was over prayer in public schools.

Dr. Helfand: 

I think that’s the one that’s easiest for people to understand like you can see the challenge especially for American Jews and why American Jews were so sensitive to this issue . When it came originally to church and state , questions of church and state , no faith community in the 50s and 60s and 70s filed more of these amicus briefs in church state questions than American Jews and we are a minority. There are not a ton of us and you would think that somebody else would carry the mantle of most amicus briefs but it was American Jews, who were really pushing this hard. In ways that were complicated that made people think we were secularists,  that we were aligned with the communists. I mean this is a complicated time to be pushing these issues and that was core to American Judaism, its identity and it’s commitments. You know the challenge is with like separation of church and state it’s a fuzzy principle it’s like you might be able to see it and see why it makes sense to you . When it comes to questions of like prayer in public school. But it also gets filtered into questions of government funding of religion. And when you get to the 60s and then the 70s, the supreme court starts to render in multiple decisions pushing back on the idea that the government is allowed to fund religious institutions. 

David Bashevkin: 

Where was the first battleground for this? 

Dr. Helfand: 

I would probably say I don’t know. First it’s most associated with a decision called Lemon v Kurzman . People often talk about the Lemon test. 

David Bashevkin: 

What was that case about? 

Dr Helfand: 

The question of whether or not you could provide funding to religious schools for general studies teachers. Actually, off the top my head, I don’t remember what subject they were teaching. I think it was Pennsylvania and Rhode Island. If I’m wrong about the states,  you could ask my sister-in-law Denah, who edits this podcast. 

David Bashevkin: 

That was going ro be revealed at the very end. There is a little bit of nepotism involved, that the editor of this podcast is your sister-in-law. 

Dr. Helfand: 

That’s why it took you three years to invite me. So there you had general studies teachers. And the Supreme Court said you can’t provide government funding to offset some of the cost of these general studies teachers because that would violate separation of church and state, specifically the establishment clause. This concept, this principle, that the establishment clause represents a separation of church and state. 

David Bashevkin: 

And they came up with this principle of how do we evaluate when it is ok and not ok to provide funding. What exactly is that test ?

Dr. Helfand: 

Well let’s focus on one prong that I think will actually be the most useful part. Cord to the lemon test or to the third prong (there are three prongs) is this notion of entanglement. This idea that when government and religious institutions start doing business with each other in certain ways, the idea that the government is going to provide funding. It’s likely to have its funding used in order to do religious stuff to advance religion. And this started to worry the Supreme Court. Later on people wonder what entanglement is all about. Justice Sandra Day O’Connor famously understood it in terms of endorsement, that really the idea of entanglement,  the problem that we’re getting at is, when government does that, it looks like it’s endorsing religion and making non-religious citizens feel like second class citizens.  You can see how like even here the concepts are a bit fuzzy. 

David Bashevkin: 

They are but you’ve been in the workplace and I’m thinking like entanglement like a workplace relationship. There’s a boss who like there’s an entanglement with somebody in the office and then will make other people uncomfortable because now they’re entangled with one another. Like is he gonna get preferential treatment, is he going to get treated worse , is she favored now or is he favored now and there’s the sense that like if two entities that are supposed to be separate. supposed to have certain boundaries with one another becoming entangled with one another, it’s going to lead to an improper relationship. Not just between them but between everybody else in the office so to speak , the other institutions, all the other religions in this case or the other non religions.

Dr. Helfand: 

That was really Justice O’Connor’s contribution which in many ways it’s very attractive to me to think about in terms of endorsement and the way in which the non-adherence would feel like second class political citizens. And that’s what the establishment clause was meant to prevent. So that’s the idea that you get in the ‘60s and ‘70s and even the early ‘80s. The idea there is, that we really should not have any aid going from government to religious institutions. Under that rule, this is religious institutions is Jewish day schools, they want money. You are on your own, absolutely not, now what is interesting is as you know, even if you look at this history ,which I find endlessly fascinating, it’s true that in the 60s 70s and early 80s this is where the Supreme Court is and this is where most of American Judaism is pushing for these kinds of decisions. It is not where American Orthodox Judaism. 

David Bashevkin: 

Where are American Orthodox Jews right now?  Meaning most of American Jewry,  the big three that you mentioned  ADL, AJC and I’m missing one. 

Dr. Helfand 

AJC also, American Jewish Congress and American Jewish committee. I don’t know why they did that. 

David Bashevkin: 

That’s why we picked 18Forty. We didn’t use any acronym, you are going to step on someone else’s acronym. Nobody has picked 18Forty. I wonder why, but the basic feeling in American Jewry is this is a good idea, we should be totally separate. Because thinking about using prayer in public schools is a test because we don’t want the government telling us what to do. But Orthodox Jews kind of broke from the pact in the 70s, 60s. How and why did they break from the pact? 

Dr. Helfand:

So you got to try to put yourself in a mindset of like 1960s. 1960s, American Orthodox Judaism . People thought it was on his last breath and it wasn’t gonna survive and it didn’t have really its on arms of advocacy. It was part of the AJC and the ADL like it was just a piece of the puzzle and so it didn’t have its own voice. And where it started to get its own voice was on this issue of equal funding. Meaning, think about your average government funding program. Let’s take a nice one, historic preservation grants. Let’s imagine something happened relatively recently. New Jersey says we are going to allocate $10 million dollars to historic preservation grants and here are the criteria: 

David Bashevkin:

The money that you can use to restore or preserve some major institution building or whatever. 

Dr. Helfand:

Yeah, whatever criteria you want. You need to be super duper old and like super duper important and here’s like a 12-part test to figure out the answer. So they allocate ten million dollars and when you do that and think about it, if you are really under this kind of kind of rubric that you’re thinking about in terms of like no money ever but what you’re saying is even though you qualify under the terms of the funding program,  you’re old, you’re important. But because, imagine your religious institutions , your church, we are still not going to give you the money that was the commitment, that was the proposition of these cases of no funding to religious institutions. 

David Bashevkin: 

If you are a synagogue,  if you’re a church, we don’t care if you qualify. We’re not gonna give you money to preserve your building or rebuild it or whatever because there is a separation between church and state and you are excluded from this funding. Were there cases that allowed that exclusion? 

Dr. Helfand: 

There’s some minor cases around books and buses in odds and ends but the cases in the 70s start to push back against. The reason why I mentioned the structure of the problems is because we’re not talking about instances where the religious institution doesn’t qualify. You don’t need separation of church and state then right cause you didn’t qualify so you don’t get the money. 

David Bashevkin:

We’re not preserving lighthouses or your dog house in your backyard . We don’t care how old it is. 

Dr. Helfand: 

So what we’re saying is even though the secular terms , the secular objective of the funding program, you qualify and you still don’t get the money. That’s what Orthodoxy fought back against. They said if our institution qualifies, whatever the secular terms are of the funding program whether it’s historic preservation grants or money to educational institutions, to schools, we should get the money and equal terms with every institution like us. And from their vantage point excluding Jewish schools , excluding religious institutions, that’s not an issue of separation of church and state,  they viewed it as religious discrimination. You can see how you can view the same government move to say no money to the religious institutions, the chumra so to speak on the establishment clause, the stringency of like extra separation of church and state when pushed too far, starts to look like a kula of religious discrimination. We are being more lenient, we are allowing actual religious discrimination. 

David Bashevkin: 

Who led this battle charge? Who deserves the credit in history for noticing this and saying this is becoming problematic ?

Dr. Helfand: 

The first source that comes to mind is testimony that Moshe Sherer who then led the Agudah gave before Congress in 1961. 

David Bashevkin: 

You know my father was his doctor briefly 

Dr. Helfand: 

Yes. He mentioned that in the testimony! 

David Bashevkin: 

I appreciate that. They were very very close and he was a name constantly spoken about in our home. 

Dr. Helfand: 

So he got up in front of Congress and he said: You are used to American Jews coming here and telling you, they’re completely pro separation of church and state. I want you to understand that all American Jews don’t think that. Orthodox Jews don’t think that and we think it’s a problem. We think the government should be funding on equal terms, not more, but not less the other similarly situated institutions and failure to do so is discrimination. I think that’s really 1961 Moshe Sherer. 

David Bashevkin: 

That’s 1961. More than 50 years ago.

Dr. Helfand: 

Yes. This has been a long standing commitment. In fact, it’s around this issue it galvanizes parts of the American Orthodox Jewish community and they start to build their own advocacy arms.  They realize that institutions of American Jewish advocacy don’t represent the way they view the world and their interests . I mention both of those. Both their needs and their values and I think both pieces are important. 

David Bashevkin: 

This is now in the 60s and 70s. There is still a tiny minority. Is this the status quo for 50 years ? 60 years? 

Dr. Helfand: 

You continue to have this sort of fight. Supreme Court cases are saying more and more separation of church and state. American Orthodoxy still pushing ;60s and ;70s saying no this is discrimination. Other places where you find like the sermons of Rabbi Lamm. I always say like, I would love if my rabbi was talking about the First Amendment from the pulpit like once every 10 weeks. I think everyone else would think that would be super boring but for me it would be really interesting. 

David Bashevkin: 

Front row, fully locked

Dr. Helfand: 

Absolutely amazing. Rabbi Lamm talks about the first amendment so many times. He has all these metaphors like he’s critical of the rest of American Judaism. He talks about how like they traded the first commandment for the First Amendment, there more committed to like the wall of separation than the Western wall. 

David Bashevkin: 

He has all these like smart, clever play on words. He was a master. 

Dr. Helfand: 

He was the best. I can read his words all day. He was absolutely incredible.

David Bashevkin: 

You’ve had some nice play on words yourself , maybe we will get to those. My all time favorites. 

Dr. Helfand: 

I know your all time favorite , you just want me to say goose and ganny. 

David Bashevkin: 

I do want you to say that but we’ll get there later from your famous Wall Street journal op Ed. But moving forward So Rabbi Lamm.

Dr. Helfand: 

You get it in sermons, you get it in like testimony before Congress and then you get the formation of Culpa- the National Jewish commission on law and public affairs. And there some of the people like Marvin Schick who really pushed the agenda of Culpa and then subsequently Matt Lewin. People who saw this and said we need our own advocacy arms that really tried to push through amicus briefs before the court to have a different voice for Judaism. 

David Bashevkin: 

Was Marvin Schick a trained lawyer? All I know about him was his paid op-ed’s that he would take out space in the Jewish week and write his own op-ed there. It fascinated me. Do you remember that?

Dr. Helfand: 

Yes but we go back to some of the stuff he wrote in the ‘60s. I mean he foresaw like 80 percent of the stuff we are dealing with. Just when they formed Culpa and he understood what the problems were and where the funding issues were and he talks about where much of the orthodox advocacy in the 60s like they thought they would deal with the funding issue but so much of it it ended up being litigation about helping Jews keep Shabbos which continues to be a problem to this very day. 

David Bashevkin: 

For sure 

Dr. Helfand: 

Everything in his diagnosis of what orthodox advocacy needed to look like in the 60s rings as true today as it did then. I’m mesmerized by so much of what he wrote and put out there. 

David Bashevkin: 

He passed away fairly recently. 

Dr. Helfand 

You see him building with others, Moshe Sherer and others. Advocacy, litigation, strategy, sermons, that it’s not just part in what’s in law and politics but also part of what we hear in shul. The idea being that excluding religion from government funding programs. Forget about the dollars even. That kind discrimination meant that Jews were less than when it came to citizenship. We couldn’t be equal citizens because our institutions, even when they qualified for government funding, they weren’t going to get it because, at least in my view, outsized view of the separation of church and state. That’s kind of the state of play, I want to say, up until 2000. State of play, courts kind of against, slowly but surely creeping up and changing a little bit. Orthodox advocacy pushing , other forms more progressive arms of Judaism still saying no we need more and more separation of church and state. 

David Bashevkin:

When do things begin to change?

Dr. Helfand

2000, you start getting opinions from the Supreme Court where they move away from this idea. Even earlier I should say, but like really solidifying in like 2000, 2001, 2002. 

David Bashevkin: 

Is there a specific case?

Dr Helfand: 

I’ve had Mitchell v. Helmes in mind. I’ve had Zellman v. Simmons-Harris, cases about vouchers or related to vouchers . Where the court starts to say, you know government funding for religious institutions isn’t a problem so long as we’re committed to the principle of neutrality. Think about endorsement, that’s a way to think about it. If you think the problem is you don’t want people to feel like a second class citizen you can imagine the following rejoinder. Nobody thinks we’re privileging religion if we’re giving the same amount to everyone . And that’s what the Supreme Court starts to push, they start to say you know what if governments want to they can treat religious institutions neutrally and if like institutions they’re all getting 10 bucks send 10 bucks to the church, send 10 bucks to the Jewish day school that is OK and it gets authorized in this case Zelman v. Simmons-Harris in terms of vouchers in the state of Ohio so that’s like the first big move or change in 2000. This creates like a little bit of a puzzle and brings us back to the 19th century because like yeah you’re allowed to treat religion equally like you would with any other similar institution. But remember I said to you like half the state of his rules on books no money, ever to religious stuff.

David Bashevkin 

On the state level. 

Dr. Helfand: 

On the state level exactly. So great, the first amendment says you can and the states say yeah. But we have rules to say we won’t and then the question is will wait a minute if you’re allowed to give them money does withholding it look like religious discrimination ? think about that for a second right I mean there’s nothing preventing you anymore why aren’t you giving the religious school the money you might say oh separation of church and state but the Supreme Court said no that’s not a problem anymore you can do it now so now it’s like a question if I’m not giving it well it’s not because of the first amendment. 

David Bashevkin: 

Is there still money being withheld on the state level from these old mini Blaine amendments? 

Dr. Helfand:

All over the place . Tons of laws on the books everywhere , tons of state laws. Not even written in terms of the state constitution but written into various legislation . It says if you’re a sectarian institution you need not apply . Sectarian means religious. Some people viewed it as a codeword for anti-Catholic but OK fine . So this becomes a question in the early 2000s. Can states still exclude religion even though they’re allowed to include them? 

David Bashevkin: 

Is there a breaking point where the Supreme Court kind of like says it explicitly, that this is a problem? 

Dr. Helfand : 

In 2004 you get this fun little case,  Locke vs Davey. You got this guy named Joshua Davey. Jokes on everyone else , he eventually became a lawyer. I was talking to a friend of mine last night who told me that he was in his church and state class at Harvard law school and he was sitting near him. He was asked to recount the story of this case, which is hilarious. You’ll see why in a second. So Joshua Davey applies for this scholarship , I think it was called like a promise keeper scholarship in the state of Washington. I think it works something like this. If you did pretty well in high school and you are of relatively low socioeconomic status you get a scholarship. The problem is you can’t get the scholarship if you want to pursue a degree in devotional theology. That’s kind of how it worked.

David Bashevkin: 

That would exclude some religious universities right? 

Dr. Helfand: 

Yeah. So this guy Joshua Davey was like I want to pursue a degree in devotional theology and he’s told he can’t keep his scholarship. 

David Bashevkin: 

And he won it fair and square. 

Dr. Helfand: 

Correct. Based on the terms of the scholarship he should get the scholarship. So he takes this case all the way to the Supreme Court. He says they are discriminating against me. The Supreme Court says you lose because ultimately we have this long history and tradition of like not funding people going into I guess like a equivalent to the rabbinate.  People learning to become pastor and clergy etc. 

David Bashevkin: 

The government is not going to subsidize your religious journey.

Dr. Helfand: 

Not just religious journey but like specifically like religious leaders, pastors, clergy. It goes back to the beginning of the founding. The idea that tax dollars would support the clergy which was viewed as a real problem. And instead the Supreme Court kind of describes what they call, play in the joints that’s kind of the principle that articulates. 

David Bashevkin: 

That’s the language they use?

Dr. Helfand: 

Yeah. This is like the thing. Play in the joints.

David Bashevkin: 

What a clumsy phrase. 

Dr. Helfand: 

It’s actually kind of catchy. The idea is, just because the establishment clause doesn’t prohibit something doesn’t mean automatically you should view it as religious discrimination. There’s something in between the two, something that like it’s not prohibited but states if you want to you can still exclude religion. Play in the joints. And that’s what they say, if you say that Washington here in this case given the concerns that they have, this isn’t religious discrimination, this is just a concern about this notion about separation of church and state. Even though they would be allowed to give the money. And everybody thinks this is the end, meaning 2004 The Supreme Court spoke. Neutrality is the term, the principal driving separation of church and state and even though that’s the case states can give the money, they don’t have to. So over half the states that have these kind of mini Blaine amendments, New York’s got one,  New Jersey’s got one . Places where it might be particularly relevant for Jewish day schools . Everyone thinks, that’s it. So 2017 rolls around, the state of Missouri unveils this environmental program and it goes something like this: evidently nonprofits are building stuff where they need tires I don’t know why but they need tires. 

David Bashevkin 

Tires like for cars?

Dr. Helfand: 

Yeah like you will learn, not just for cars but we typically associate these tires with cars. They are like here’s the deal: If you are a non-profit and you need tires for some sort of building project, if you use recycled tires we will give you a grant to offset the cost of those tires . And so, lots of nonprofits file to try to get. They want recycled tires and this Trinity Lutheran Church and school in Missouri they also apply. They want to build a new playground and they want to do a new bouncy bouncy, you know what I’m talking about? the black stuff that the kids jump on in a playground. No?  

David Bashevkin: 

Bouncy bouncy? 

Dr. Helfand: 

And you know and if you fall , you don’t hurt yourself so badly.

David Bashevkin: 

They aren’t the exact color, they are multicolor in a playground. It’s like the cushioning. 

Dr. Helfand: 

Yes, the cushioning. I think of it as black, maybe around here you have very fancy bouncy bouncy.

David Bashevkin: 

Yes, it’s like multicolored. 

Dr. Helfand: 

Yeah sounds great. I’m so glad that you have multicolored. So they apply and they get a letter that says you would have qualified to get this grant everything was in perfect order but because you are a religious institution and the Missouri state constitution says no money going directly or indirectly to religious school therefore you cannot. It was like completely clear as to what the issue was. So trinity lutheran file suit,  they say this is religious discrimination and they go up and they go up, they go all the way up to the Supreme Court. 

David Bashevkin: 

And what’s this case called? 

Dr. Helfand: 

It’s called Trinity Lutheran v. Comer. 

David Bashevkin: 

Comer is state clerk?

Dr. Helfand: 

No, it was someone in the state. I’m not sure which official it was. 

David Bashevkin: 

He’s a dude, but he got his name on the Supreme Court case. That’s always fun, no? Is it a badge of honor to get your name on a Supreme Court case? do people want that? 

Dr Helfand :

I don’t know, maybe. Definitely not if you lose. I mean who wants to be a loser … 

David Bashevkin: 

It’s kind of my brand but ok. They are excluded from the tire funding?

Dr. Helfand:

Yes, so they can’t get the tire funding. They go up to the Supreme Court and makethis argument that it’s religious discrimination and the State of Missouri says back.

David Bashevkin: 

Play in the joints 

Dr. Helfand: 

Play in the joints, exactly. Locke v. Davie. We already decided this kind of case, what’s the issue? Yes we are allowed to give them the money because it would be neutral, we would be treating everyone the same. 

David Bashevkin:

But this is a dangerous game. 

Dr. Helfand:

This is something where we get to be a little bit more expansive in saying, we have this law in the books and we think we want church and state to be more separate than us constitutionally required . And here, Supreme Court in 2017 says actually we’re going to side with Trinity Lutheran, we think you have to give them the funding. This is religious discrimination. Now you’re asking yourself, what happens to 2004, Locke v Davey? How did this case become different? So in 2017, the Supreme Court says something a little bit funky and it says here’s the deal , the reason why Trinity Lutheran wins is because they were discriminated against because of who they are as an institution. They are institutional status. Joshua Davey, he was excluded because he wanted to use the money for something religious. So you can’t say you’re a religious institution so therefore you are out but you can say you are gonna use it for something religious, that a state is allowed to say we are not giving you the money to use for something religious.

David Bashevkin: 

And this distinction is known as? 

Dr. Helfand: 

The status/use decision. 

David Bashevkin: 

It sounds extraordinarily Talmudic. Are you coming on a particular side of whether or not learning gemara can actually help you on the LSAT? Are you weighing in on that right now? 

Dr. Helfand:

I’m definitely not weighing in on that. I look forward to our next podcast where we speak about how gemara does and doesn’t help you in law school. That would be a fun one. 

David Bashevkin: 

But they make this status use decision. If it’s discrimination based on status then it is no good. If it’s discrimination based on use then good to go, Locke v. Davey, play in the joint. 

Dr. Helfand: 

David, you know you sound, you are pretty much a lawyer now. 

David Bashevkin: 

Oh I’m very. But you did something about this distinction. We are like so deep in the weeds now but the reason why I want to do this, I want to explain is because I feel like there is so much ignorance when people talk about these issues. I mean tell me if I’m wrong, you are an Orthodox Jew, you are deeply involved in constitutional issues. You would say your area of expertise is how do you describe it?

Dr. Helfand: 

Law and religion, not getting along. 

David Bashevkin: 

So you probably get a lot of this like Shabbos table banter and to me we are just mired and ignorance. We don’t know the history of these things or how they have come to evolve, what interests they are protecting on both sides. Both religious interests and state interests. Both of which, every American Jew should be invested in protecting properly. You’ve witnessed such ignorance.

Dr. Helfand 

So to me , I’m deeply passionate about this stuff, I care quite a lot about it. I feel like it’s part of my American Jewish identity to care about these issues. These issues have been central to who we have been as American Jews, as a people. It’s been one of the most important issues of advocacy over time , it’s where orthodox Jewish advocacy was born. I am an Orthodox Jew and I care deeply about how my community evolved in terms of its relationship with to government, what ifs expectations are , what it’s responsibilities are and the idea that very in this issue of whether or not we should get funding on equal terms is not only a desire to get dollars but was also an aspiration that we should be equal citizens under the law. The idea that just because of our religious commitments, we wouldn’t get funding is another way of saying at least to me, what I hear when I hear those words is it means that because of what I believe I do not have the same relationship with my government that every other citizen gets to have. 

David Bashevkin: 

And this issue, this distinction we are now still in 2017, we are in Lutheran Church case, they are fighting to get their tires, it’s a hard thing to be passionate about but here we are. And the court comes out with the status use distinction. Is this where the story ends because that distinction is very marking because one of the most fascinating things that I have ever read from you was talking about how status use distinction, distinguishing between the status of the institution – we are a religious institution vs how are you using it – are you using it religiously almost works against the Jewish community. 

Dr. Helfand: 

Yeah. I think there are a lot of constitutional distinctions like where the Supreme Court draws a line in the constitutional sand and it makes sense if your experience of religion is like this privatized Protestant view of how religion works but it doesn’t resonate if your religious experience is through conduct, through action. I would even say that as an Orthodox Jew, engaging in activities that most of the world views as secular and we view it as religious.

David Bashevkin 

What’s an example of this where you see the status use decision break down in the Jewish lens that you’re coming at ?

Dr. Helfand: 

I think you know this like my favorite example of this is and where it came to me was, we were doing construction during covid and because we are who we are, we lived through the construction like my house has no walls and if feels a little bit loony. You all know the deal, it’s covid and I’ve got at that point a 2-year-old, 3-year-old, I don’t even know how old my kids are at this point.

David Bashevkin: 

Forgetting your kids age was like the sign of— 

Dr. Helfand: 

Age, name, and she’s like walking through a construction zone. Like I think she is going to end up in the concrete. While this is all going on I’m like I want to build a deck, I want a little nice outdoor space on top where I could go hang out. Have you been?

David Bashevkin: 

I’ve been on your deck. I think I’ve eaten a fair amount of cheese on your deck.

Dr. Helfand: 

I didn’t want to bring that up. But ok that’s good. One of the things that I didn’t know halachically was a matter of Jewish law, that if you have a deck that’s on top of living space, it is obligated under Jewish rules regarding building fence around a roof. 

David Bashevkin: 

What’s known as a ma’akeh.

Dr. Helfand: 

Yes, a ma’akeh. I now have to build, I’m halachically obligated. Obligated under Jewish law to build a fence around this deck. We might as well do a shoutout here, I actually first consulted with my father and then Rabbi Ari Zahtz who is here in Teaneck.

David Bashevkin: 

Married to Michal Gelibter. A great friend of the family. 

Dr. Helfand: 

Oh that’s good. So Ari is an old friend from high school, college, a chavrusa. I called him up and I’m like I need to do this and when do I make the blessing? The bracha on the ma’akeh?

David Bashevkin: 

There’s a blessing on it?

Dr. Helfand:

Oh yes this whole thing is amazing. So yes, there I am and he kind of walks me through like you do at the beginning , when you build it at the end. And I have to do part. 

David Bashevkin: 

The blessing is probably only made once a year like out of all of Jewry , how many people are building a ma’akeh?

Dr. Helfand: 

I don’t know, he seemed up to date. Rabbi Zahtz is always up to date. So I go out there and I have to participate in it. My contractor actually his forman, gives me his nail gun and I’m firing, this is a terrible idea if you understand, I’m firing nail guns into the wood of my ma’akeh, my fence and there it is . It strikes me as I’m doing this, this is something my contractor Edmond was going to do. He thinks this is hilarious. He took a video, he finds it so interesting. 

David Bashevkin: 

Because you are building it yourself to fulfill this commandment. 

Dr. Helfand: 

He’s probably also laughing at me trying to accomplish this, there’s like recoil from the nail gun and I’m like flying back and taking a video of me making a blessing , putting on the family whatsapp, everything that you do. It strikes me that for him this is just like the normal thing he does everyday but to me this is a religious activity, that I’m making a blessing on. 

David Bashevkin: 

Then it dawns upon you that status/use distinction. Imagine a state law that gives funding for renovations. You can give for status, you can’t exclude based on status but you can exclude for use. Let’s say you use this funding to.

Dr. Helfand: 

Imagine we get funding for a building or whatever it is; think about any state funding for a building and think about a state that says, state constitution prohibits providing funding to religious institutions or  religious schools or whatever it may be. That means in any situation where it’s allowed to prohibit, it must prohibit. So what are we saying right now? We are going to give you funding for the building and we have all this building code stuff that you need to make sure health and safety when you build the building but we will now have to as a matter of state law exclude all money for the fence to protect people from falling off , because you as an Orthodox Jew view that as religious and now it’s religious use. Like is this really where the law is at? Any time that we as Jews are engaged in a religious activity that everyone else thinks is secular. The states that have this rule, must exclude it . Think about covid vaccines for a second , the Orthodox Union, I do lots of advocacy with the Orthodox Union. I did advocacy in trinity Lutheran, we’ve filed a brief in some of the subsequent cases that we’ve talked about we’ve filed briefs. And we make this point  in a 2022 brief. Think about covid vaccines , the OU was of the opinion, Rabbi Mordechai Willig, came out and said he thinks there is a mitzvah , commandment to take a vaccine. Now wait a minute, if there are public private partnerships in states regarding vaccines because Orthodox Jews view it as a religious use now the state can’t fund it?

David Bashevkin: 

So the boundaries, the partitions , we talk about church and state , we think about these neat little categories which is probably a little bit of Christian categorization. You have your church and you have your home and therefore never the two shall meet. There is a way to divide between the church and the state. But the problem is when the church especially in Jewish life permeates all of your behaviors to  cordon off use becomes much trickier. Now is this distinction still on the books? 

Dr. Helfand: 

So 2022 comes along and there is this other case Carson v. Makin, lovely case, it’s in the state of Maine. Maine has over half its school districts don’t have a public high school. So what do you do if you live in one of those school districts? Maine has this rule that says if you live in one of those school districts, you can go to a private school and we will provide tuition for it. It’s their tuition-assistance program. That’s how Maine worked because it wasn’t providing with the public school. But from 1980 and on it introduced a rule that said however, if the school you choose is a sectarian school, a religious school then that school can’t get the funding . And they have been fighting this for years.

David Bashevkin: 

Who’s they?

Dr. Helfand: 

Lots of parents have been filing suit saying it’s religious discrimination. And they kept on losing these parents in federal court. But in 2022 this ends up in front of the Supreme Court and the Supreme Court in 2022 says hold on , we think this religious discrimination to exclude religious schools, it’s just like Trinity Lutheran. Now here’s the interesting thing , one of the things that Maine said that a lower federal court bought was no this isn’t discrimination based on religious status, it’s being used for religion in these schools. And therefore this is religious use and even under Trinity Lutheran , this is religious use and we are allowed to discriminate. The Supreme Court said this distinction doesn’t work because I can almost always re-describe religious use as religious status and back and forth. You can see even in the school context they said no money to sectarian schools, sounds like it’s religious status right? But they said no it really means not religious schools but schools that use money for religious purposes. We can play this game all day. It’s not a good distinction. It’s one that is easily open to manipulation. So the Supreme Court now says no matter what it is, religious status, religious use, it cannot be the case that you exclude  religion or religious institutions from a government funding program. There are programs out there for institutions generally, private institutions, government doesn’t have to fund private institutions but once it does, it can’t say: except for religious institutions. 

David Bashevkin: 

And all of these state laws that are now in existence  could really be deemed unconstitutional because if they are singling out institutions just based on their religious status or use because now the distinction is ridiculous and not relevant anymore , you could potentially bring lawsuits and say we deserve this funding as well. 

Dr. Helfand: 

That’s right . I have the pleasure. I run a religious liberty clinic where students at Pepperdine school of law, participate in a clinic where they get to practice as lawyers. I think we will bring one of these lawsuits in the coming month. In fact by the time.

David Bashevkin: 

This airs. This is likely.

Dr, Helfand: 

Decent chance we will have already filed suit 

David Bashevkin:

You think these lawsuits are going to make the news?

Dr. Helfand: 

Could be. One of the things that makes the news is usually about things that make it to the Supreme Court. To me , these things are so obvious what the outcome is now. 

David Bashevkin: 

Really it’s so obvious to you?

Dr. Helfand:

I don’t see how given the current state of law given Supreme Court precedence you can have state laws that say except for religion that’s just religious discrimination prohibited by the first amendment. I have the pleasure of working with the Becket Fund for Religious Liberty on the lawsuit that will probably bring out in California. In California right now this is something that drives me insane. There is something called being a non-public school which doesn’t mean what you think it means. It’s a school that is capable to providing needs for public school kids and it can provide services to special needs kids under services where the public schools are not able to do so. If there is a certain circumstance where the public schools can’t do it and the private school, the non-public school takes over and is able to provide services for a kid that really needs a lot of services, the tuition dollars go from the public schools to the private schools. It makes sense, right, because the public school can’t do its job so it goes to the private school. The rule is right now that you can’t be a non-public school if you are a religious school. And this drives me nuts, I mean I got to know some of the special needs parents in the area and like you listen to what they are going through and it’s awful and terrible and the idea that there would be a school out there that could provide services for a kid. 

David Bashevkin: 

For their children. But the only reason they are not able to get these services. 

Dr. Helfand: 

And the public school can’t do it and the private school can do it but they need resources to make it happen. The idea that everything can work except we have this rule you are a religious school so like you are out of the picture. It infuriates me to no end and our goal is to file suit and say listen you have to stop doing this. If the school can provide these types of services , stop excluding religious institutions that can provide the secular benefit, I want to emphasize that , the secular benefit of providing for the needs of a child with an IEP, a child with an individual educational program , if you can provide and help a child in these sort of circumstances , the idea that antiquated views of church and state will prevent that from happening , I mean I can get pretty worked up about this stuff. 

David Bashevkin: 

Let me ask you, zoom out because I have a whole another topic and we’ve been talking for a while already. People who criticize you know you mentioned working with the Becket Fund . There is some suspicion, hesitation that people see in the orthodox world cozying up with causes that may be the evangelical world, the religious world that we have been co-opted by Christian values that is concern number one that I’ve heard. Concern number two is that the whole turn of the Supreme Court really came through a Trump-elected court and I think of all the people I know, I hate talking politics, I absolutely hate it. One of the most avowed centrists that I know, happen to be you and I really mean it as the highest praise but there are people that look with a great deal of suspicion at the Supreme Court and I’m curious for you, do you feel like Supreme Court decisions should be met with an asterisk like we got this decision on steroids but we have to make note of the fast that this was the Trump Supreme Court and I think my last question, these are all cousins, not the same. Do you think it’s dangerous for the Orthodox community to have a transactional relationship with government that so much of our efforts is to secure dollars? 

Dr. Helfand: 

Luckily you’ve put together 3 questions that are very simple so the answers are yes, no, and—in all seriousness maybe I want to start at the end. Litigation around equal funding to be treated on equal terms is every other institution of a similar class, whether it’s to satisfy secular government interests. I want to say one every faith community, every community and every interest group advocates for benefits that they think are the interest of their community. This is something The framers long understood, they wanted ambition to counteract ambition but that ultimately in some way, the idea that interest groups would advocate for themselves, there’s nothing as problematic about that. 

David Bashevkin: 

It’s not nefarious to have self-interest. 

Dr. Helfand: 

I don’t think so.

David Bashevkin: 

It’s almost by design. It’s not a bug of democracy to advocate for your self-interests. 

Dr. Helfand: 

That’s right I don’t personally buy into that. 

David Bashevkin: 

And you’ve heard such accusations? 

Dr. Helfand: 

All the time. I want to say more than that in this particular context, even if there was zero dollars at stake in these cases, I think it’s not surprising that this is where American Orthodox advocacy was born. It was born out of the idea that having access to the same benefits and responsibilities but benefits that are available to every other American citizen should be available to of us and to our institutions and any time we are short a cent on that, it’s not that we need to care about the dollar as much as we have a right to care about our equal standing and that the access to benefits on the same terms as every other American citizen is about our fight for equal citizenship in the United States. So I push back hard on the idea that this sort of litigation, what we’ve been talking about in this context, is transactional. I want to say one, it’s not clear to me that pressing your interests is a problem and two, I actually think there is a core value to push back against discrimination, subordination that comes when we think it’s okay to say, yes everyone but the religious folks. 

David Bashevkin: 

And what would you say about that last point, the asterisk around the Supreme Court, you hang out in legal circles. I’m sure you’ve heard people who look at the Supreme Court with an asterisk . I’m curious for you- is that a factor? You’ve heard the asterisk, do you use the asterisk?

Dr. Helfand: 

To me , when I read opinions, when I read anything, I assume the authors of opinions, the people who write and say are acting in good faith. I don’t ascribe nefarious motives to the people who are expressing a view and explaining why they have that view. I would like to think that’s my disposition in any part of my life. When the Supreme Court issues an opinion, I read the opinion like anything else. There’s justifications and the arguments look like law to me. And to me I just evaluate the arguments on the merit , sometimes I agree and sometimes I disagree. I think the asterisk you are pointing to is people think: and therefore it’s no longer law, it’s politics all the way down. That’s not my view, to me it all looks like law and sometimes I agree and sometimes I disagree and vehemently so on either side of the ledger but I don’t see things going on that make me think that this is a different kind of enterprise that is going on now. And I would say I spend a lot of my life when Supreme Court decisions come out just writing something to try to explain what the arguments are because I think you are right. Most of the time this gets digested as like politics all the way down. He did this me because this is what he is, this person did this because this is who she is and to me it’s lazy and we should engage the arguments and assume good faith and try to look to see if we agree or disagree with what’s going on. So to me it looks all the same even if as I agree and disagree with stuff but that’s how it always is. There are legal arguments that we think are better and worse based on a variety of factors and methodology so I don’t buy that at all. I want to say one last thing. Your first question of like cozying you, I hate that so much.

David Bashevkin: 

Tell me why you hate it, you’ve heard it ? I’m not the first person to say it right?

Dr. Helfand:

I’ve heard it and why not we are here. A person I have a tremendous amount of respect for professor Noah Feldman, responded to an article I wrote in Jewish review of books, kind of  describing this entire push for government dollars as part of a larger picture of Orthodox Jews and orthodox lawyers and me , cozying up to evangelicals. Cozying up to a conservative Christian Right and I find it , I should be honest, I find it offensive. The reason why I find it offensive is because, this advocacy is our story. It’s not someone else’s story. This is like in the 1960 like this is how we began to understand what the values where that were essential to an agenda of Orthodox advocacy. That it was important to us both to find our institutions and to be treated like other American citizens and we thought the other arms of American Judaism were not representing those values so we struck out on our own and said we are going to build the infrastructure to make these points 

David Bashevkin: 

We didn’t jump on to the Christian Evangelical bandwagon. 

Dr. Helfand: 

Yeah this is us. This is who we are and what we believe in . This is our perception of how American Orthodoxy went from a denomination in the 1960s that was small and relatively weak— 

David Bashevkin: 

Powerless right?

Dr. Helfand? 

Yeah and subject to discrimination when it came to like observing Shabbat , the Sabbath, and had a hard time getting jobs and had a hard time getting into hotels. All of these things that American orthodoxy experienced in the 50s and 60s. We said no we are going to fight right back and we think equal citizenship is a core proposition of that. Whether it was getting a job, whether it was getting government funding , we are entitled to all of that and to re-describe that as someone else’s story that we are just jumping on to is to deny us American Orthodox Jews who we are. And so I reject it with every fiber of what I do. I spend a lot of time on Orthodox Jewish advocacy and I think it’s the wrong story to tell. I think the right story to tell , the one that’s sensitive, accurate, really talks about how we created who we are in this country and have become really we have an agenda that’s serious, thoughtful and protects a particular way of life. 

David Bashevkin: 

And the values of this country frankly. 

Dr. Helfand: 

Yeah and I think to deny that is to do violence to who we are. That’s really what it comes down to. 

David Bashevkin: 

Have you noticed there has been a turning of the tides? It’s not exclusively the orthodox  community. Coalitions have also reached out to others that have joined. Solomon Shechters who are involved in advocating for these. It’s begun to affect not just exclusively the Orthodox world. I’m curious , even the coalitions who come. Is it just black hats and yarmulkes?

Dr. Helfand: 

I don’t think so. I think on the funding issue people kind of see a straight line as to this religious discrimination argument. You know you can have different views on it by the way. I want to be crystal clear, to be continually committed to separation of church and state and say governments should not be providing this funding isn’t completely principled position that has an incredible amount of integrity and has a long history to it. And it’s perfectly fine to say the Supreme Court is getting all these cases wrong. I have no objection to that and the institutions of American Judaism that continue to press that argument are being principled and true to who they are. No issues, but more and more institutions are beginning  to see this as this religious discrimination question and I do think that as a result when it comes to this type of advocacy you do see more institutions jumping on what I would say is the Orthodox bandwagon. The one that we built in the ‘60s.

David Bashevkin: 

We spoke a great deal about funding and it sounds like there are some very exciting developments in where this is headed. But I want to turn to a subject that I found is almost one of the hardest subjects to discuss publicly because the intensity of opinion on both sides is so difficult to navigate which is why I specifically wanted you to talk about this because I’ve really said as not only as a point of affection but of real admiration that you are the educator-in-chief when it comes to legal issues related to religion and the larger Jewish community. 

Dr. Helfand: 

I need to tell you I’ve changed one of my fancy football names to educator-in-chief. 

David Bashevkin: 

Did you really?

Dr. Helfand: 

Yeah.

David Bashevkin 

Some of the pristine and the shine on that term kind of left and it’s now the name for a fancy football team but be it as it may, you really do call balls and strikes on this issue and there is this issue that is royally not just the Jewish community but as you become a national issue and that is educational standards particularly in Hasidic schools, within yeshivas and the question of what should the position of a Jew like myself . I was raised in a school that had a very fine secular and Jewish education . I can’t really speak to what goes on in Hasidic schools, I definitely hear and deeply sensitive to people who feel they were not given an adequate education but the question is what is the role of government in ensuring that all schools are giving an adequate education whether they are religious or not religious. I guess this issue kind of spiraled because of the very intense coverage , this has gotten from The New York Times which has written several articles , really focused and narrowed in on the Hasidic community . I’m curious as a legal scholar before we get into the parameters of the case, are you familiar with those New York Times articles?

Dr. Helfand: 

I have definitely given them a read. 

David Bashevkin: 

Do you think they are missing pieces? When you read them , you read everything with kind of a legal lens so what are you thinking when you are reading an article that is focused on the level of education in Hasidic schools?

Dr. Helfand: 

Listen when I read something like that , I’m a little of a dad driven guy so I’m trying to figure out how the numbers work and what is going on, there are things about it that are more clear and things about it that are less clear. I mean, listen, there is no question that this is an issue of major concern. I become immediately attuned to this issue of like how is this supposed to be working and I’m a legal scholar so my brain immediately goes to the law. 

David Bashevkin: 

Let’s go there. Let’s start with the principles. We began with the separation of church and state: Why don’t I say that I have the right of free exercise, let me run my school the way I wan . I will run a school in my backyard, I will run a school in my home. Why does the government have the right to tell any school what they should or shouldn’t be teaching ?

Dr. Helfand: 

A couple things. When it comes to the first amendment questions of religious liberty , I should have the religious right to teach whatever I want to my kids. First of all the idea that me teaching my kids sounds like terribly scary , probably more for them than for me. But more seriously, religious liberty, the idea that I have to exercise my religion, doesn’t cover something like this. Meaning, religious basics are government has the right to enforce a law, at least under current Supreme Court doctrine that is neutral and generally applicable. That doesn’t target religion in any way and applies across the board. So if the government wants to enact a rule that applies equally to everybody , same principle that we were talking about on the other side of the ledger, neutrality, the government has a right to say at least when it comes to the first amendment , religious liberty to say , we are not going after religion, we are not targeting religion. Every child in the state of New York or whatever state it may be has to satisfy certain educational criteria.

David Bashevkin: 

Is there a classic example of this? A rule that some people felt was infringing on their religious right but the government was like this is general, it applies to everyone in the same way . What is like the vintage, classic case where the government asserted its right to make such laws, even if it has some effects to the detriments of religious communities.

Dr. Helfand: 

You basically have been baiting me into talking about employment division v Smith. I can’t believe this has been one big sham. So the Supreme Court announced this interpretation of the First Amendment in 1990 the case Employment Division v. Smith. It’s a lovely case where you have these two folks Al Smith and Galen Black. And Al and Galen, their employer finds out that they have been ingesting peyote.

David Bashevkin: 

As one does.

Dr Helfand: 

I used to say in class as one does, smoking peyote. I don’t know anything about drugs. 

David Bashevkin: 

You don’t smoke peyote?

Dr. Helfand:

Definitely not. You ingest it. It’s like a cactus. I had a student in a class correct me, you know when you’re looking at a student in a class and they know more about this topic than you know and you’re like oh boy. Ok so I’ve got articles out there when I talk about smoking peyote. Evidently it’s all nonsense. Now of course , Al and Galen had the worst job in the world to have been discovered by their employer.

David Bashevkin: 

What’s the worst job in the world for someone who is ingesting peyote? A school bus driver? 

Dr. Helfand: 

This is fun. I usually ask this question when I’m teaching the case, I usually get airplane pilots or something like that. NASA. 

David Bashevkin: 

What’s the worst job to have if you are ingesting peyote for religious reasons?

Dr. Helfand: 

The number one is , which is what Al and Galen were, they were actually counselors in a drug rehab center. 

David Bashevkin: 

Not a good job. 

Dr. Helfand: 

Not a good job if you’re going to be popping the shrooms. So they get terminated which is perfectly fine. Private employers are allowed to terminate them for this person, it’s not religious discrimination and it’s not covered by title 7. We will talk about title 7 another time. Ok great, so what they do is they go to get unemployment benefits which seems fair. This is in the state of Oregon. They say we need unemployment benefits and the state of Oregon says why were you terminated and they need to tell the embarrassing story. State of Oregon says you were terminated for cause. You screwed up so you don’t get any money and they said wait a minute, we weren’t terminated for cause. The reason why we are ingesting peyote is because it’s part of our Native American church practice. That’s part of the service, we ingest peyote. I always think about this. Like imagine this is± 

David Bashevkin: 

That’s what is in my head right now. What service, I mean it’s kind of like purim, I think some people have adopted this as a stringency in their own life that they ingest something before they step into synagogue. 

Dr. Helfand: 

Just think about what sermons would sound like. Ok good, here’s the point. This goes back to the Supreme Court and the Supreme Court ends up filing against Al and Galen, even though they say we did this for religious reasons, not for cause and you’re now denying us a government benefit because we engaged in a religious practice. Supreme Court says no. This is a rule that is applied across the board. It is neutral and generically applicable. We apply it to everybody . We have the same rules for everyone. We are not targeting religion , guys we get it , it sucks for you but you are not getting unemployment benefits. And that’s kind of where the Supreme Court announces this rule so that’s the rule that applies now, still today. 

David Bashevkin: 

General, applies to everybody

Dr. Helfand: 

Neutral and generally applicable. 

David Bashevkin. 

We have the right to make rules even if some of these communities—

Dr. Helfand: 

Are going to be negatively impacted. Step one if you’re doing a religious liberty analysis is this law neutral and generally applicable and there is a strong argument that it is. I want to say that in the litigation here there have been some plaintiffs that have filed suit. They have made a religious liberty argument . I don’t think that is where the main action is. The main action when it comes to school stuff is the 14th Amendment which actually protects parents and gives them the right to control the upbringing of their children. It’s derived from , a lot of things are derived from the 14th Amendment. When the 14th Amendment says “nor shall any state deprive any person of life, liberty or property without due process of law,” you know the question is what is the liberty interest that is going on in that sentence. This has been interpreted to  cover lots of different  issues. This is what is at stake when it comes to abortion, this is what is at stake when it comes to a whole host of what we call substantive due process issues. Contraception has been a issue before the Supreme Court on—

David Bashevkin:

I have the right to control my own life and not the state interfering on my private affairs. 

Dr. Helfand: 

That’s right. There’s some concept of liberty that’s going on over here. Some fundamental right that I have here and here the Supreme Court has said for over a century, parents have a right on this basis to control the upbringing of their children. 

David Bashevkin: 

Over a century. Is there an original founding case on this?

Dr. Helfand: 

The two big cases are Pierce v. Society of Sisters and Meyer v. Nebraska. Two twin cases from the early 20th century where the Supreme Court says , now I’m getting nervous that the first case is actually 1925 so it’s a little bit under a century I think. 

David Bashevkin: 

No that’s ok , we’ll give you a pass on that.

Dr. Helfand 

The point being, this is like tried-and-true rule. There is some right to control the upbringing of your children. Now it’s not unlimited but you have some right. This came up in some of the covid cases where some of the parents filed suit. Parents said you can’t force our kids to be on Zoom. We have a right to have them have in-person education. Now again, this all went back to the 14th Amendment. So parents have the right to control the upbringing of their children now the issue is it is not unlimited so any case where we will be talking about parents want to do the following with their kids and the state wants to do something else the core issue is going to be a 14th Amendment issue. Now, how do we decide what the limits are of this? So the typical way you would do this is you would say is there some sort of Constitutional problem here on the front end like is there a restriction going on and if the state is imposing some sort of regulation that the parents don’t want to abide by then you in theory have a 14th Amendment right. Here’s the thing, that right can be overridden if the government needs to do it for some sort of compelling government interest. 

David Bashevkin: 

Meaning it’s to everyone , they can’t just single out religious schools ? 

Dr. Helfand: 

They can’t single out religious schools , that’s true but like in the NY case they are not doing that or at least not in the way that I think it’s sufficiently obvious to trigger first amendment considerations. Again some people would disagree with me on that and say 

David Bashevkin: 

They are whistling in that direction.

Dr. Helfand: 

There are other ways that you can satisfy these requirements and the only schools that don’t satisfy these requirements end up being religious schools and that starts to look like targeting religion. To me the argument is a little too complicated and I don’t think it wins the day. But there are people that make that argument so we should give it a little bit of air time. But the 14th amendment argument , listen , parents don’t want to do it. They say that’s not how I want to control the upbringing of their kids. The states says no , we have a variety of requirements basic for english, math , history , science , you have got to learn that and in NY there is actually a whole long list like 8 other things that they require schools to do. 

David Bashevkin: 

But we have a compelling interest that we want the citizens of this state to get a basic education. 

Dr. Helfand: 

Yeah. I think this is where the rubber meets the road. This is how the 14th amendment analysis works and in the NY case I think it should be the same. We should run it through the same analysis we would run anything else through. There’s probably a 14th amendment issue here because parents want to do something else. I think though we have to start to articulate more clearly , when we say the government has to be able, have an obligation the authority to require every kid in their jurisdiction to get an education . I think we have to ask why?When we say yes you have a 14th amendment right but there is some super duper important reason why the state needs to override that right we need to say why? We can’t say say I don’t think the goverment has a right to require basic education. Why does the government need to require basic education and to me if you read Supreme Court case law, there are 2 primary reasons why that is true. The first is economic self sufficiency. This is a compelling government interest that the government has a compelling interest even if it has to tell a parent we know you want to do something else but we need to make sure that your kid learns certain stuff whatever that may be, that may change from year to year.

David Bashevkin: 

It’s so funny it sounds like a parent . It’s the parent vs the state. Usually it’s like your father how are you going to earn a living son, and where did the Supreme Court articulate that , that there’s a state interest to make sure that it’s citizens can earn a living. 

Dr. Helfand: 

One of the places it talks about it is in Brown v board of education. There desegregation, one of the reasons it describes education as so important is because of the vital role it plays in terms of economic self sufficiency. I think that may be actually the first place you get an articulation. Over the years there have been others that reiterate that. 

David Bashevkin: 

Fascinating so the first state interest is economic self sufficiency so then you have to ask yourself well ok we got it. You need to make sure everyone is economically self sufficient and then you should look at all the rules and all the requirements that the state has and ask yourself do these advance economic self sufficiency or and maybe I’ll use language from some NY cases , is this the least intrusive way to make sure every kid is economically self sufficient. Which means like this is something really important and you should try to infringe on the parents 14th amendment right as little as possible. That’s the basic idea. We call this strict scrutiny. That’s the basic idea.

David Bashevkin: 

Because there’s this other interest that parents have this basic autonomy to raise their kids as they want vs this State interest of making sure people are economically self sufficient. Let’s override that parent interest as little as possible . That is strict scrutiny. 

Dr. Helfand: 

Yes that’s right. What’s the least restrictive way to get to this government interest or least intrusive way to make sure this happens? That’s one . The other one that comes up a lot in Supreme Court opinions is making sure that citizens are prepared to be civically engaged. 

David Bashevkin: 

Civically engaged?

Dr. Helfand:

The idea that they should be informed enough to be able to study the issues and vote. Even to serve in the armed forces , I think that’s also in Brown v. Board of Education. The reference to the armed forces. Ways in which we play roles of citizens to be involved. All the things that we need to be able to do. Those are like the two core, at least in my mind, compelling government interests . Why the government needs to be able to have certain educational standards and again they should be as least intrusive as possible. 

David Bashevkin: 

Strict scrutiny. 

Dr. Helfand: 

Strict scrutiny. And that’s the question. I mean if you want to look at this case and ask how should this work legally, you should ask yourself: Is the set of rules that New York has currently? Are they necessary in order to accomplish these two objectives?

David Bashevkin: 

Number one are they tailored to make sure that the product of these schools will be economically self sufficient and that the requirements are geared toward that and number two that there is articulated within this len of strict scrutiny that they aren’t just willy-nilly, my favorite adjective from Rabbi Soloveichik, overriding this 14th Amendment which remains in place. 

Dr. Helfand: 

Economic self sufficiency, civic engagement and are they necessary to accomplish those goals. And you know, here you would want to sit down with a list and see what you think. I probably have views that things like math, science, English, history are probably necessary for economic self sufficiency and civic engagement. We can possibly fight about the details like do we need to know. You can see how 

David Bashevkin: 

Correct. It gets very nitty-gritty when you are parsing through every requirement which is coming on the state level to make sure that it is in line with these compelling state interests. So it can gauge economic self sufficiency and has that real strict scrutiny to make sure that they are not undermining that 14th amendment. I’m curious for you , in the seat that you are because you are engaged with many of the advocates involved with this issue. Why do you think this has provoked such engagement and intensity on both sides of this issue? 

Dr. Helfand: 

The stakes are super high.

David Bashevkin: 

What are the stakes here?

Dr. Helfand: 

On the one hand I think it’s long been true that the capacity to provide a religious education , a robust religious education , one that is deep and long that you get in a lot of orthodox communities is essential and vital to the way of life of Orthodox Jews. And certainly, certain Hasidic communities and that without it, the likelihood of these communities would be able to pass their traditions on to the next generation is in danger. What could be more important to a parent, I feel this all the time like you want to pass this down to your children. 

David Bashevkin: 

This is why we are here. 

Dr. Helfand: 

Yes and if someone threatens that, now everything is in danger. On the flip side you have people who leave these communities and have pressed their claims hard and said listen we get what our parents want us to do. But from their perspective this isn’t about you. We have a right to get trained and be economically self sufficient and civically engaged. You know we want to be part of the American story also and like if we can’t make a buck and we can’t figure out what we think about questions of voting and other important issues, you are taking something away from us that we are entitled to as Americans and you shouldn’t be able to make that choice for us. These are weighty issues. 

David Bashevkin: 

Do you do remain optimistic for the law’s capacity to navigate these two competing concerns?

Dr. Helfand: 

Oh god. I like to be optimistic generally, about the law I worry when the temperature gets very high it’s very hard to walk in and say hey yo we get the idea, can we kind of go through this list and see what you really need that gets hard to do and certainly when you put politics into it 

David Bashevkin: 

This inevitably, you’d admit, does involve politics. 

Dr. Helfand:

A lot of politics A lot of the requirements for sure the ancillary requirements that are enacted by legislature as we said at the outset like different groups that elect officials have different interests of what should be required.  I’m going to give an example like I have no issue with people wanting a particular requirement but there is a provision of the education law that says that if a school fails to teach about the Irish potato famine, it’s held against them in evaluating whether or not they have provided an education that is substantially equivalent. That’s the language that’s in statute 3204. Substantially equivalent to what’s provided in public schools, that’s what’s required of private schools education. The Irish potato famine is a big deal , a million people died, it’s a major issue in European history and I think it’s essential that every child should learn it. Do I want to say that I’m going to close down a school that fails to teach about the Irish potato famine ?

David Bashevkin: 

Does it rise the level of strict scrutiny where we need to enforce this in every single school and that’s where you have these competing interests sitting down and parsing through these laws one by one making sure they rise to that level.

Dr. Helfand: 

Yeah it’s very important to a particular community whose history is capturing the Irish potato famine and so you understand why people advocate for this provision in the education law.

David Bashevkin: 

It would almost be the equivalent, and you never like making comparisons about the Jewish community and the Holocaust.

Dr. Helfand: 

In fact the Holocaust is in the same provision of the education law. There are three in there. Irish potato famine, Holocaust, and slavery. 

David Bashevkin 

So before we start po pooing—

Dr. Helfand: 

So if you’re with me on the Irish potato famine , what do you think about the Holocaust? This gets super touchy and you have a legislature with constituents trying to figure out what we will put on the list. You can see how this is hard to educate, to build a curriculum based on politics and you can see how that might lend itself over time, even if not today but in the future. Lend itself to bureaucratic overreach in ways that might be concerning. 

David Bashevkin: 

If our statewide curriculums are the product of legislators who are beholden to their constituents and let’s say it changes, let’s say they add things that are clearly in violation and clearly beyond the rules of strict scrutiny, you can end up with requirements that are really undermining potentially the 14th Amendment in the future. Even if now this list you don’t see anything egregious, there are concerns about the future. 

Dr. Helfand: 

Yeah. If somebody handed me a pen and said fix this, I would say  yeah let’s sit down and really think deeply about what is really necessary that every child in the state of New York gets an education where they are economically self sufficient and they have the capacity for civic engagement. I think that’s super important. I personally think that we as citizens, as government, have an obligation to make that happen. And then let’s try to figure out how to do it. The legal process, litigation combined with like jockeying with legislature, I’m not sure I’m optimistic about our likelihood of getting there in a way that’s got the right fit. 

David Bashevkin: 

And remaining faithful to the underlying government interests that require it and not eventually undermining that principle of the 14th Amendment that allows parents to have that. Meaning it could without the proper provisions and guardrails so to speak, it could eventually undermine a lot of people’s interests. I have reasons to be nervous now and I have reasons to be nervous in the future , yet at the same time I don’t want to give up on those two what I think are compelling interests. What I take to be a real problem is the government gave up on its obligation, which I believe has the authority to enforce , its obligation to make sure every child could be self sufficient and civically engaged. This is tough, you talk about trying to be in the middle of some of this stuff and what does it mean to be a centrist over here , especially in a legal environment where like culture wars and all this stuff. Just heat and noise . I feel like I’m this guy in the corner with a pad and paddle, everything is fine, I really hope there is a way to make that possible . That we can really try to protect as much as possible the capacity of parents to pass down their faith to the next generation and at the same time remain committed to these two underlying principles. 

David Bashevkin: 

Well there are certainly some schools that are doing it extraordinarily well, I think I’m the product of one and the fact that possibility exists , to me gives great reason to be optimistic that there is a way to reconcile these 2 competing ideals. 

Dr. Helfand: 

Well if you are going to be optimistic, I’ll be optimistic as well . I’m fine with that.

David Bashevkin: 

I identify with you a lot on this because I feel like we sometimes find ourselves in environments among people who—are the word is not extremists—but very partisan and passionate about certain issues and I by temperament and also by ideology am somewhat of a centrist . I like understanding both sides of an issue. I sometimes get accused, usually angrily, like you’re both-sides-ing an issue. My response is usually guilty as charged. I believe these issues have two sides. It’s very hard to get pigeonholed into one specific corner when there is so much complexity around an issue. 

Dr. Helfand: 

Maybe, you can be the both-sides-er–in–chief.

David Bashevkin: 

You’ll be the educator in chief and I’ll be the both-sides-er–in–chief. But you’ve been in such rooms where you don’t fully align. Politics thrive on slogans, on bite sized. Not simplicity in the sense that it’s wrong but something that can bite size and sway the masses and I think where legal scholars thrive and where I feel most comfortable is a lot of these nuance-y distinctions that are very hard to sell to the masses and hard to build coalitions around because they are not as easy to explain, they are not as easy to transmit. The fact that you’re able to do that  with the groups that you work with so admirably and with so much integrity is something that I find quite moving and really an example for us all. 

Dr. Helfand: 

Thank you for the eulogy at the end I think that was great. I’ll say the people I find to be the best authors and best explainers  are people who can convey the proportions of an issue 

David Bashevkin: 

What do you mean by that?

Dr. Helfand: 

Like when  I write something I wanna explain how right and how wrong something is. Nothing’s ever like completely right or completely wrong or like like how much. Is this a 70/30 case or an 80/20 case ? I want to understand. Is this argument likely to win even though there is some merit to the other argument and as you say alot of writing especially about cultural issues is like either this is completely right or that is completely right. You can have a strong view and be an 80/20 person but if you can’t find a way even in expressing your 80 how to give oxygen to the 20 to explain what is going on, I think ultimately it flattens issues and when I am reading someone, I don’t understand enough to really feel like I am engaged as to what is going on. 

David Bashevkin: 

Exactly. That’s why I have trouble with a lot of media depictions of these cultural wars and that’s why I gravitate towards you don’t write enough, I always push you to write more but I gravitate to your articles because you do that. I know what you meant, you give the proportions, you don’t both-sides it but you kind of explain what are the issues driving each side and I think most of these. There’s a reason why it went to the Supreme Court, there’s a reason why there’s so many people fighting over these issues. 

Dr. Helfand: 

It’s a real law. It’s a real legal issue here , it’s not just politics all the way down. And like I may think it’s 80/20 but at least if I describe the 20 well to you, you may come back and say listen your an idiot, that 20 is actually 60 or 70 and at least you have the resources to say why you think I’m wrong and I should arm every person, I think every person should arm every person when they are making an argument in favor of a particular legal or policy issue, you should arm your critics to understand why you might be wrong. Otherwise, your flattening issues, you’re engaging in pure advocacy. We all want to get smarter and make other people smarter, that’s the goal.

David Bashevkin: 

Avi Helfand I cannot thank you enough for your time. I always end my interviews with more rapid fire questions , if you’ll indulge me for one more moment. What is a book you would recommend for someone that wants to better understand constitutional issues as they relate to religion. Aside from the actual constitution but where religion and constitutional issues bud heads , how they are resolved, how they are navigated. Could be a textbook, hopefully not one that’s too expensive but what book would you recommend on this topic ?

Dr. Helfand:

I’ll tell you, I don’t want to give you one that talks about actual church and state for American Jews given the nature of our conversation. A book by Gregg Ivers, it’s called To Build a Wall where he talks about how it is that American Judaism engaged on these issues when it came to church and state. It had a massive impact on how I think about these issues. Just seeing his telling of the history of it , to really understand where we come from. 

David Bashevkin: 

Gregg Ivers To Build a Wall. My next question, and we have had a lot of listeners say maybe we should switch up our questions, because we have too many Ph.Ds. You did a Ph.D in a topic that every time you tell me I forget almost instantaneously. It’s that memorable.

Dr. Helfand:

I think you actually fall asleep in the middle of me telling you the title. 

David Bashevkin: 

What was the title?

Dr. Helfand: 

I’m not going to do it again. 

David Bashevkin: 

But if someone gave you a great deal of money to go back to school and earn a second Ph.D, what do you think the subject and title of your dissertation would be?

Dr. Helfand: 

Can I go for something else? 

David Bashevkin: 

Absolutely. 

Dr. Helfand: 

I want an MBA. 

David Bashevkin: 

Why I’m so curious?

Dr. Helfand : 

I’m increasingly interested in how our constitutions work and function like the operations of it and I think ultimately like questions of how we make our institutions better. I think there’s a lot of issues that maybe an MBA can help with. Is that so terrible?

David Bashevkin: 

No. I love that. My final question: I’m always curious about people’s sleep patterns. What time do you wake up in the morning and what time do you go to sleep at night?

Dr. Helfand:

I have no pattern. 

David Bashevkin: 

You’re a life in chaos like myself. 

Dr. Helfand

I’m a complete life in chaos. This semester I’m commuting back and forth to Yale to teach so like I don’t even know where I am most of the time. I don’t even know the time zone. I thought we were doing this podcast 3 hours earlier.

David Bashevkin:

You texted me in the middle of everything , I’m going to be late , I’m busy from 5:30-7:30.  And I said we are scheduled for 8:30 . And you said I had this in my calendar for 5:30. 

Dr. Helfand: 

Pacific time. Who knew?

David Bashevkin: 

Avi Helfand. Thank you so much for your time today.

Dr. Helfand: 

David , great hanging out as always. 

David Bashevkin: 

There is a fantastic book that I want to recommend for those that are really fascinated with how religion and state issues have really shaped the American Jewish community , it is a book called Religion and State in the American Jewish Experience pretty self explanatory title. It is written by both Jonathan Sarna and David Gallen. It’s a fantastic history of the battles to find equal footing in America and I think this is still playing out when it comes to the role of education, how education has really shaped the community itself. This goes back to the very founding of the United States there is a famous letter that sits actually , if you ever visit the office of the president of Yeshiva University, president Ari Berman, right outside of his office there is a letter that was written in 1818 by Thomas Jefferson to Mordechai Manual Noah. It is owned by Yeshiva University by the museum and in that letter Thomas Jefferson writes to  Mordecai Manuel Noah, the key to finding equal footing in our community is robust educational institutions . When people see Jews and the Jewish community, educating their kids, growing up In a way with a substantive secular and religious. He’s talking about achievements in the sciences and math. It’s going to change not just the landscape of the Jewish community but the entire American Jewish experience. And this is almost the founding struggle of not just the Jewish community but the American project itself . In any struggle it can be easy to become disappointed and disillusioned that we are not all the way there, that the toll and the cost of education weighs on so many families and there is a letter that is quite moving. It was written by Rav Yitzchak Hutner who was the rosh Yeshiva in Chaim Berlin and he wrote it to Rav Moshe Sherer who was the head of Agudas Yisroel and really led the early charge for advocacy on the government level to ensure the Jewish community was being looked at properly with equality and equity by the United States government. He suffered a really great loss in court over one of these battles related to Jewish education and funding and Rav Hutner sent him a very beautiful letter in the aftermath and this is written in the biography of Rav Moshe Sherer which is a fascinating len to some of the legal battles and advocacy in general that was published by artscroll written by Yonason Rosenbloom. Another former 18Forty guest. And this is what Rav Hutner wrote to Rabbi Scherer and I find it so moving and I’d like to share it with you right now. It’s a little bit of Yiddish , don’t worry I promise you I’ll translate it “after this disappointing loss in court nish..” my Yiddish is atrocious. Rav Hutner wrote there are three rules when it comes to working on behalf of the general Jewish community. “Nish bzaren, nish farnatermern and nisht velen oyst ferelin.” Terrible Yiddish, I’m sorry that you even had to listen to that. He said if you work on behalf of the Jewish community don’t get angry, don’t get tired and don’t be obsessed with prevailing. Rav Hutner pointed out that Avraham, when he sacrificed his son Yitzchak at the Akeidah, it did not detract one iota from the merit that accrued to him from the fact that he didn’t actually go through with it. He was stopped at the altar. But Akeidas Yitzchak, that sacrifice is known as the sacrifice that has shaped the Jewish community through the generations, keneses Yisroel and Rav Hutner said, “A mentch darftun nisht often” we are commanded to do, not to accomplish . I think part of that is look, we don’t have the ability to have the transformation to make it easier on families that we hope for, we will keep on working towards this but with the understanding that as a community we can’t get angry, we can’t get tired and we can’t be obsessed with prevailing. We have to understand so long as we are headed in the right direction with the sensitivities and commitment for Jewish education for all knowing this is the one reservoir that protects and preserves not just the continuity but the engagement of the current generation and god willing we won’t just be doing but eventually we will prevail as well. 

So thank you so much for listening and once again thank you so much to Ari and Danielle Schwartz for sponsoring this series in honor of Danielle’s grandfather , Mr. Baruch Mappa , Baruch Ben Asher Zelig Halevi , thank you so much. 

This episode was edited by our dear friend Denah Emerson. If you enjoyed this episode or any of our episodes, please subscribe, rate, review, tell your friends about it. You can also donate at 18forty.org/donate. It really helps us reach new listeners and continue putting out great content. You can also leave us a voicemail with feedback or questions that we may play on a future episode and . That number is (917) 720-5629. Once again, that number is (917) 720-5629 . If you’d like to learn more about this topic or some of the other great ones we’ve covered in the past, be sure to check out 18forty.org. That’s the number one eight, followed by the word forty, F-O-R-T-Y.org, where you can also find videos, articles, and recommended readings. Be sure to sign up and thank you so much for listening. Stay curious my friends.