Delivered on Oct. 15, 2003, at the national convention of the Freedom From Religion Foundation in Washington, D.C.
By Alan Dershowitz
Thank you so much. Dan Barker mentioned that I had written some books of fiction and nonfiction. Now, usually you can tell the difference. But one book is about the Book of Genesis, which I leave to you to determine whether it's a book of fiction or nonfiction.
What I'm going to do this afternoon is talk to you a little about our Founding Fathers--I wish I could say "and Mothers"--and their views not only of religion but separation of church and state. The views of many of our Founding Fathers, to take off on today's award, could be summarized as follows: the emperor has no clothes--but there is an emperor. That certainly was Jefferson's view. He strongly believed that you should only arrive at conclusions based on what you can see or what you could infer. And he saw God in nature. He saw Nature's God, who created a world, who set it in motion, who established rules for how the planets operate, and who endowed his creatures with certain unalienable rights, along with the power to reason. Then, according to Jefferson, his God of Nature stopped intervening and just watched the world make its own problems, solve its own problems, and create its own problems.
Jefferson's God didn't accept any prayers, didn't want churches, didn't want priests, ministers, rabbis or imams. Inconsistently, Jefferson then came to the conclusion that his god provided for an afterlife, not so much in the Christian or Jewish or Islamic tradition, to reward or punish belief in God. In fact, Jefferson himself said it was perfectly okay not to believe in God. He wrote to his 17-year-old nephew Peter Carr, saying if you don't believe in God, that's fine, if you do that's fine, it's your choice, and you don't even have to tell anybody.
But Jefferson's afterlife was a shrewd calculation, a way of encouraging people to do good deeds. My own doubts exist as to whether Jefferson himself believed in an afterlife, or whether in a kind of an elitist way he set it out in order to encourage others to act consistent with the possibility of an afterlife.
As he got older, he did write to many friends, saying he hoped to meet them in another place thereafter, but he wasn't so sure.
Neither was Paine. Paine provided some scientific arguments for an afterlife; they really seem embarrassing in retrospect. But the Jeffersonian concept was fairly widespread among the Deists of his day. People forget, too, that the Deism of 1776 was comparable to the atheism and agnosticism of today. The world views were really dualistic: those who believed in the intervening Christian God who accepted prayers, and those who believed in a God of Nature. There were virtually no atheists. I think the word "agnostic" hadn't even been coined at that point in time. Of course, Jefferson was accused of being an atheist because the God he believed in was not the Christian God, not the Jewish God, not the God of the bible.
As you probably know, Jefferson despised the bible, despised the Old Testament for being vengeful and the New Testament for being written by people who were writing--this is his word, I don't usually say it in mixed company--dung, was his term for what most of the New Testament was about. He was very critical of Paul for having turned a religion by Jesus into a religion about Jesus.
Now, of course, a literal empiricist, which Jefferson was not, could come precisely to the opposite conclusion that Jefferson came to. He could say, "I don't see any emperor, but I do see the clothes. I see the churches, they're grand, I see the well-dressed priests, I see a bible, but I don't see the emperor."
I'm reminded of the old joke about the religious person in the South. A skeptic says to him, "Do you believe in baptism?" And the religious person says, "Believe in it? I've seen it done!"
Now, that joke has a particular resonance in my family because my late father-in-law, a wonderful, wonderful man, was one of the only Jews who lived in a small town in St. Matthews, South Carolina. One day all of his friends went down to the river to be baptized, and there he was alone. The minister called him down, and somebody said, "But he's a Jew!" And the minister said, "Well, a little water won't hurt anybody." So my father-in-law saw baptism done to him, but he didn't necessarily believe it, and it didn't take.
There are, of course, not only limits to belief, there are limits to empiricism. Jefferson was in many ways a literal empiricist, and a limited empiricist. His empiricism not only led him to belief in God, but it also led him to a belief in the inherent inferiority of blacks. How did he come to that conclusion? Well, by "observation." He looked at his black slaves, and he came to the conclusion none of them had written poetry, none of them had written great prose, and he looked back in history, and he said that the Grecian Roman slaves, who were white, did write great poetry and great prose, therefore it follows that blacks are racially inferior and inherently so.
Well, of course, he was wrong! He was looking at very different conditions of slavery that were imposed upon the two different sets of people and he drew erroneous conclusions based on limited information and knowledge. To his credit, he said those are only tentative views and they would be subject to change. To his everlasting shame. He nonetheless came to the tentative conclusion that the racial differences were inherent and permanent.
By the way, interestingly enough, he said God was perfect and miracles didn't exist because only a bumbling God would have to first create the world and then fix it up by miracles, and God would only create a perfect world. Like so many other people who believe in God, he was prepared to credit God for all the good things in the world but never to blame God for any of the bad things. So he talked about African-American blacks as being racially inferior as a mistake of nature, but not as a mistake of God. Which reminds me, when that little boy Elin Gonzales was saved at sea, people said, "Oh, God saved him!" Nobody ever said, "God murdered his mother in the process." You only get God being given the benefit for the good, never the blame for the bad.
Now, this question about empiricism and faith has run throughout history. There's one other book which I command to your attention, As A Driven Leaf, written, interestingly enough, by a rabbi, many years ago. It tells a story that appears in the Talmud about a rabbi named Elisha who observes two children going after birds. One of them goes after a bird on the Sabbath, in violation of one of the commandments, and captures the baby bird without sending its mother bird away. The bible, as you know, commands that if you catch a bird you must send the mother bird away (interesting ethical principle that could be generalized). The boy violated those two precepts, both of which say that if you violate them, you will have a short and unpleasant life.
Then another child, shortly thereafter, waits until after the Sabbath, listens to his father, is ordered to go to the tree and catch the bird, sends the mother bird away, comes down and is bitten by a snake and dies. So Rabbi Elisha says, "I've seen empirically with my own eyes the words of the bible violated. There is no justice," he says, "there is no judge."
So you get a story in Jewish tradition of a rabbi turning atheist as the result of seeing injustice on earth. Of course, it being part of the religious Jewish tradition, there's a sequel. Rabbi Akiba, who's smarter than Rabbi Elisha, comes in and says, "Aha, you don't really understand, it's not a long life on this earth, it's a long life in the world to come." Of course, you can't quarrel with that because the brilliance of the afterlife is that it's invisible. You only get it if you believe in it. If you don't believe in it, you don't get it, ipso facto, there is no way of ever disproving it.
So this argument has obviously existed for thousands of years. Jefferson believed in natural law. I think that's also a flawed misperception of reality. There is natural law--it's the law of the jungle. It's the law in which the strong eat the weak. Sometimes the law of the jungle operates even in Las Vegas, Nevada, and the strong eat the trainer, or at least attack the trainer. We all hope that the trainer lives. But that's the law of the jungle. And to extrapolate from the law of the jungle, a kind of natural law that should govern human behavior, is clearly an example of the naturalistic fallacy. It just can't work.
You can learn from nature. You can learn that if you try to create celibate priests it won't work, because human nature simply is not celibate. You can learn that if you ban masturbation, you will create a generation of lawbreakers, not a generation of non-masturbators. When I was in yeshiva--Jewish elementary school--I was always told if I masturbated I would grow hair on the palm of my hands. I spent a lot of time checking on it. See, if they had been smart, they would have said if you masturbate, you will lose the hair on your head. That might very well have worked!
Jefferson, to his credit, also talked a lot about the pillow of ignorance, on which he sets his head to sleep every night. He was prepared to really have doubts about almost everything, and I think that essentially is the difference that we admire. There are those who are certain about everything, and those who are prepared to subject them to doubts. Though I think what he never doubted was the ultimate epistemology of his views, mainly that God could be proved by science. Of course, that is an enterprise doomed to failure. God is simply for most people that which is unexplainable, or that which you use to explain the unexplainable. As we explain more, God's role diminishes. If you subjected it to scientific inquiry it eventually disappears.
Or else you challenge science.
I don't know how many of you read The New York Times about three weeks ago, which reported that, according to recent polls, more Americans believe in the literal existence of the virgin birth than in evolution, indeed that 40% of nonChristians in America believe literally in the virgin birth. Very interesting poll. You find that theologians believe in the virgin birth literally probably to a lesser extent than most laypeople, because they've thought about it more. Obviously, they've looked at the history, and the history clearly shows that Christians didn't believe in the virgin birth until it became clear that in an effort to convert the Greeks they had to use a lot of Greek mythological symbols, including the virgin temples and virgin birth and all kinds of stories.
Virgins play an important part in religion, as you know. In the Muslim tradition, if you go out and kill a lot of Jews, you get to heaven and you get 72 virgins. Now, the reason Jews don't engage in as much terrorism is because in their tradition, if you kill Muslims, you get only one 72-year-old virgin. Now, as I get closer to the age of 72, I'm gonna start appreciating that more. . . .
Having said that, I think my message to you--and it's one that some of you may not accept--is this: I think our battle, and I think it's a collective battle that we wage, should not be with Jefferson's God, or indeed with any god. I don't think God or belief in God, whatever that entails, is something that creates enormous problems in society.
I think it's very important that we who consider ourselves secularists and skeptics, not in any way be intolerant of those who have personal beliefs in God. A belief in God can be a great source of relief, a great source of salvation, a great source of comfort to a great many people. Jefferson's God did not endanger our liberties. Jefferson's God did not try to impose anything on the rest of us. Jefferson's God was a god of choice, and belief in whom had no consequences at all. In fact, Jefferson said in one of his letters to Adams that judging a person on the basis of whether he believes in God is like judging a person based on whether he believes in Euclidean geometry.
There's no moral component to belief in God. Jefferson believed, unlike Joe Lieberman and unlike George Bush the First, that belief in God bears no relationship to one's moral values, none whatsoever. I think you can make the arguments empirically that beliefs in God are often negatively associated. In fact, my own belief, and I think a lot of moralists believe and even Maimonides, an 11th-century Jewish scholar, believed that if anybody does a good deed in order to get into heaven, the good deed doesn't count, that the good deed can only count to get into heaven if you do it for intrinsic rather than extrinsic reasons.
So in some ways, religion and morality are often incompatible because what religion does is create a series of sanctions and incentives and disincentives that we don't generally count as part of a moral calculus. The atheist who throws himself in front of a bus to save a child, with the full knowledge that that's the end of everything for him, deserves greater praise than the religious person who throws himself in front of a car to save a child knowing, believing strongly, that he will get a reward for it in the afterlife.
Even Thomas More understood that when he had his conversations on the eve of his own death. He talked about how he should never be praised for the decision to accept the edge of the sword, because in his belief system, he was simply making a cost-benefit analysis: three or four more years of life on earth as an old man, versus eternal salvation or eternal damnation. Why would anybody but an irrational fool choose the harsher penalty? I've always argued that somebody like, say, Thomas, either belongs in the pantheon of fundamentalist believers or in the pantheon of heroes. But you can't be in both. If you're a fundamentalist believer, you're not a hero, and if you're a hero, you're not a fundamentalist believer. So you have to make a choice. I mean, what do we want to honor him for? Today, churches honor him for both, and I think that's inconsistent. Now, in real life maybe he didn't know for sure, and so he was balancing heroism against some kind of threat or promise, but however you do the calibration, it's a zero-sum game in the end, and you can't get credit for all of that.
My own view is that belief in Jefferson's God is not the enemy of liberty, it's not the enemy of choice. Jefferson never tried to impose his God on anybody, Jefferson never attached any sanction, even a moral sanction, to disbelief. So I think it's a mistake, a tactical mistake for organizations like yours, which I admire, who are trying to protect us from religion and particularly from the abuses of religion, to take on more than we need to take on. I think it's enough to take on those institutions which pose the greatest dangers to our liberty, and those are, obviously, organized exclusivist religions, particularly those that believe there is only one right way, and want to either by subtle or overt means impose that right way on us.
Every organized religion, certainly every Western organized religion, has that view. Within Islam, it's a view of both territorial conquests and religious conquests. Within Christianity, some of the same views apply. Many people think Judaism is not that kind of religion 'cause Jews don't encourage conversion, but Jews do encourage proselytization within Judaism. Orthodox Jews and fundamentalist Jews don't believe that a Conservative or Reformed or Reconstrutionist or secular Jew is a real Jew or a good Jew. They insist that there is only one way, and that battle is fought out all over the world where Jews exist.
So it's almost impossible to find a religion, certainly a Western religion, that doesn't have imperialistic qualities to it, or singularity of rightness to it. I think those are the dangers that we have to really confront. Fundamentalist religion is an even greater danger along with religions that look to documents that purport to be the words of God which they have the key to interpret. But even nonfundamentalist religion, which have a kind of hierarchy of interpretation that allow an authoritative singular answer, pose those dangers as well.
I'm only stating what everybody in this room and most people in the world now know: the greatest danger the world faces today are fundamentalists with access to weapons of mass destruction. If this world is going to come to an end, it will be brought to an end by fundamentalists with access to weapons of mass destruction, particularly fundamentalists who believe deep in their souls that dying is only a means to another step. Fundamentalists in this country don't have access to nuclear weapons, but they do have access to something almost as substantial.
A justice of the United States Supreme Court named Antonin Scalia recently wrote that--and I think I'm quoting it exactly, pardon me if I have a word off, but it's not more than a word--"to Christians, to believing Christians, death is no big deal," he wrote, "and that's why," he said, "Christians favor the death penalty." We're seeing a movement in the death penalty, he argues, in post-Christian Europe, but in America, which is a Christian country, he believes we will never see an end to the death penalty.
I believe that anyone who thinks that death is no big deal does not belong in government. Anyone who believes that death is no big deal may belong in churches, may belong in religiously-oriented hospices, but the object of government is life in this world, life in the most literal sense of the word. A justice who proclaims his own belief that death is no big deal, and continues to sit in capital punishment cases, imposing capital punishment on people who think death is a big deal, it seems to me is acting in an irresponsible and un-American fashion.
So we have great dangers. We have great dangers about fundamentalists. I understand what the reference meant when somebody in the audience said "yes, we have a fundamentalist with weapons of mass destruction [George Bush]," but however one might interpret that, we do have a system of checks and balances in this country, though temporarily out of whack. I don't define the system of checks and balances narrowly. You're an important part of our system of checks and balances. The media are an important part of our system of checks and balances. Most importantly, as recently proved in California, the people are an important part of the system of checks and balances.
No American president, I think, would ever dream of saying or suggesting that it's permissible to use weapons of mass destruction in the hope and expectation that we will be rewarded in an afterlife for it. That's not the discourse, at least today in America. There are great dangers that the discourse could move in that direction, and that we can see other-worldly views being expressed. By the way, this is not a liberal/conservative issue. Probably the most religious president in modern times was Jimmy Carter. I think one probably can say Carter lived in a very positive way through his religious beliefs. I mean, he really lives the life of a true Christian in the tradition of Jesus, building houses, being a carpenter and doing these things. But when he was in office I don't think he used his Christianity, at least overtly, to establish foreign policy.
But I don't want to get into Democrat/Republican, liberal/conservative issues, because I think the issue of protection from religion is an issue that should transcend party. It's an issue that should transcend ideology. It's an issue that should transcend religion as well. I have friends and relatives who are deeply, deeply religious, who believe strongly in separation of church and state. Indeed, the man in America today who leads the campaign for separation of church and state is a reverend, Barry Lynn. He is a strong believer in the separation of church and state, as well as a strong believer in God. And far be it from us, I think, to in any way be intolerant of his religion.
I think the Ten Commandments is a perfect battleground on which to draw these distinctions between belief in a Nature's God or belief in any god or any equivalent of god or some god-like instrumentality. I tell you, I'm just not smart enough myself to know whether the universe is purposeless or whether the universe has a purpose, or whether in some cosmic way there may be some entity. I just don't know. If I had to bet my money, I know I would bet against it. But if I had to bet my life, I'm not so sure I'd be as certain.
My own views are agnostic leaning toward atheist, but not quite there, and yet, of course, I do go to synagogue on important Jewish holidays. I never believe in God in the synagogue, never, but I have on occasion caught myself believing in God lying out on the beach and looking at the stars, or watching my daughter being born, or on events like that. So I'm pretty soft on the atheist side myself.
But I want to focus for a few minutes on the Ten Commandments, because I think that really is a very important place to draw the battle lines. Almost nobody has read the Ten Commandments, certainly nobody who wants them up in the schools or in courthouses. People want to put up the ten bumperstickers or the ten Cliff Notes. The Ten Commandments themselves are 300 words long and they're very, very controversial and very complex. When's the last time you heard anybody quoting from the Ten Commandments that "I, the Lord, am a jealous God visiting the iniquity of the fathers upon the children unto the third and the fourth generation of them that hate me." I mean, you don't hear people quoting that part of the Ten Commandments. You don't hear people quoting the two parts of the Ten Commandments that talk about slaves: you have to rest your slaves on the sabbath and you shouldn't covet your neighbor's slaves.
How many times are we told that the adultery prohibition of the Ten Commandments is limited only to married women and not to married men, who are free to engage in adultery under the Ten Commandments as long as the mutual object is an unmarried woman? How many people tell us that the Ten Commandments is day-specific about which is the day of rest? It is the seventh day, not the first day. The reason for it is set out in the bible with great specificity.
How many people remind us that the Ten Commandments is a fundamentalist statement in violation of everything we know about empirical history? The commandment says, "For in six days the Lord made heaven, and earth, the sea, and all that in them is, and rested on the seventh day: wherefore the Lord blessed the sabbath day, and hallowed it." Not Sunday, Saturday. The Seventh-day Adventists had it right, the Jews had it right, the Christians have it wrong. The Christians amended the Ten Commandments, and they have a different reason for it. The reason Sunday is the day of rest for Christians is not because God rested on Sunday; they know he didn't. It was because Jesus was resurrected on Sunday. So not only has the provision been amended, the reason for the provision has been amended as well.
Then, of course, my favorite one: not only shalt thou not make any graven image--which I would think would apply to that two-ton monument that's been making the rounds and may end up in Congress--but, listen to this one: "or any likeness of any thing that is in heaven above"--sounds like the painting on top of the Sistine Chapel--"or that is on earth beneath, or that is in the water under the earth." I mean, we're going to be closing down the Washington museum and all the other museums! If you don't think that happens, just remember what the Taliban did in Afghanistan to the pre-Muslim statues, because they took these provisions fairly literally.
By the way, how do you take these provisions not literally? These are not open-ended. They're not like due process of law or equal protection. It says: do not have any graven image of anything that is in the heaven or in the earth. The Jesus fish is clearly a violation of the Ten Commandments, because the fish is a creature which is below.
I believe the Ten Commandments not only do not belong in courts and in schools, I don't think they belong in synagogues and churches, except as part of historical knowledge. I mean, the Ten Commandments did show progress. If you look at the Ten Commandments, compared to the code of Hammurabi, they do show some progress. For example, the bible calls for animal sacrifice. That sounds brutal and inhumane to us, but it's certainly better than what it replaced, human sacrifices. Human beings wrote those ridiculous prohibitions in the bible against homosexuality and against many other things which we have now come to believe do not carry with them any degree of moral opproprium. Most reasonable church leaders understand that, but many of their followers do not.
I never like to leave without having a substitution, and I've said in print that we shouldn't have the Ten Commandments because I think we can do better, we can write much better commandments. So I want to propose to you Ten Commandments for Political Discourse that I think we ought to substitute for the ten that are now almost 3,000 years old, according to tradition.
1. Do not claim God is a member of your party, or that God is on your side of an issue.
2. Do not publicly proclaim your own religious devotion, affiliation and practices, or attack those of your opponents.
3. Do not denounce those who differ with you about the proper role of religion in public life; that's anti-religious or intolerant of religion.
4. Do not surround your political campaign with religious trappings or symbols.
5. Honor and respect the diversity of this country, recalling that many Americans came to these shores to escape tyranny of enforced religious uniformity, and more recently, enforced anti-religious uniformity.
6. Do not seek the support of religious leaders who impose religious obligations on members of their faith to support or oppose particular candidates.
7. Do not accuse those who reject formal religion of immorality. Recall that some of the nation's greatest leaders did not accept formal religion.
8. Do not equate morality and religion. Although some great moral teachers were religious, some great moral sinners also acted in the name of religion.
9. When there are political as well as religious dimensions to an issue, focus on the political ones during the campaign.
10. Remember that every belief is in a minority somewhere and act as if your belief were the least popular.
The Talmud was written about 1,500 years ago by a very diverse group of rabbis, some of whom were fundamentalist, some of whom were on the secular side. It tells about one particular class--this is my favorite one--that a rabbi was teaching, in property law. The question was over who owns a valuable bird found outside of someone's house. The rabbi says, "The law is simple. If it's found more than 40 yards outside the house, it belongs to the person who found it. If it's found within 40 yards of the house, it belongs to the person in front of whose house it was found."
The young student Jeremiah said, "Ah, but Rabbi, what if one foot of the bird is outside of 40 yards and one foot of the bird is inside of 40 yards?" The Talmud says that for asking that kind of question, Jeremiah was thrown out of the yeshiva.
I love that story because I went to yeshiva, and I would always ask those kinds of questions. And my rabbis would always throw me out. They would say they were the kinds of questions that only a klutz would ask.
I'm now in the middle of my 40th year of teaching in Harvard Law School, and in those 40 years it has become clear to me that almost every hard question has one foot of the bird on one side of the line, and one foot of the bird on the other. What I think we have to all teach and understand is mutual tolerance toward each other, the widest diversity of views, continuation of a system of checks and balances in which one group checks the excesses of the other group. So with the promise from me that no matter what kind of questions you ask me, you will not be thrown out of this house of study, let me welcome your questions on any subject. Thank you very much.
Quesiton: Why is the separation of church and state referred to as an experiment?
It is an experiment, and it's an experiment that looks like it's failing in some ways, in the sense that Jefferson wrote. Close to the 50th anniversary celebration of the signing of the Declaration of Independence--you know Jefferson died on that date--but just before, he wrote a final letter to the people who were planning the celebration. He said his health didn't permit him to come, but he wrote that his object in writing the Declaration was to free Americans from the chains of religious intolerance that had destroyed Europe. His views were that this would be the first country in which there would be complete equality, without regard to anybody's view on God, membership in a particular religion, membership of a particular church. As you know, on his own gravesite he doesn't even mention he was the president of the United States. It records that he was author of the Declaration, author of the statute on religious freedom--which is the first statute in the world ever to grant religious freedom to atheists--and founder of the University of Virginia.
There was a common theme: The University of Virginia was the first university in the world, which was regarded as a pariah among educational church leaders in this country for over a hundred years. Jefferson's books were not allowed in the Philadelphia library and he was regarded as a pariah because he was deemed such a secularist. We are now the most religious Western country in the world, and it's not even a close question. It's we and then there's an enormous gulf, and then there's everybody else.
I think the reason religion has done so well in the marketplace of ideas in this country is because we have separation of church and state. Separation of church and state has served tremendously to benefit the churches and less, I think, to benefit secularists. This is why it's so absurd to see some of these really stupid people on the religious right not understanding that when it's not broke, you don't fix it. They're trying to bring down a wall that has served their interests so well. One of the reasons that the wall serves their interests so well is because in most other countries, when you don't like the government, you have to turn against religion.
Jefferson was born an Anglican. What was the Anglican Church? It was the Church of England that was oppressing America. So if you didn't like the English government--and the King in those days was the defender of the faith--then you had to turn against religion. The French Revolution turned against church and state at the same time.
In this country when you turn against the state, you don't necessarily have to turn against religion, and you don't have to blame religion for the foibles of the state. So I think in that respect the experiment is a partial success, partial failure. Notwithstanding that, we have to fight to preserve religious freedom. The fight to preserve religious freedom never stays won. You can never heave a sigh of relief. You can never ever sit back and say, "We've won that battle." It never stays won. That's why your job, and that's why the concept of freedom from religion, is more important than any other right in the Constitution. Why? Because freedom from religion entails freedom of religion. It entails freedom of conscience, it entails freedom of speech and freedom of assembly.
Freedom from religion doesn't mean that you are obliged not to have religion, it means you are free from having religion imposed on you in the public sphere, free from having to take an oath of religion, free from having to say "under God" in the Pledge of Allegiance, free not to have to listen to Senates and Houses and Supreme Courts hypocritically opened with claims to God, which lead to what happened in Alabama. That Chief Justice, by the way, is known by his judicial colleagues as Necessity Moore. There's a principle in law that necessity knows no law, and neither does Judge Moore know any law.
I have to mention one thing that I left out of my talk about the Ten Commandments, about the part that says, "I'll blame the children for the sins of the father." The next commandment is "Honor thy father and thy mother." My 13-year-old daughter, who's in the room today, when I was going over this with her, said, "Daddy, those two commandments are absolutely inconsistent. How can you honor your father and your mother when you know that if they do bad things, it's going to be blamed on you, your children and your grandchildren?" So I want to thank her today for a brilliant insight, that's very much both in the Jewish tradition from which we come, and the inquiring tradition from which we all come. The most important thing is asking hard questions--and one thing my daughter really does well is asking hard questions. I'm not going to tell you some of the other ones she asks. Too embarrassing to me, so we'll just stop on that one.
I just lost a Ten Commandment case at the appeals level. The decision established something that I think is very wrong, and a lot of attorneys I talked to said is very wrong. It's the first time ever that historical significance was used to undermine the Constitution and to ignore the intent and purpose of this plaque.
The bench is always going to be heavily weighed toward the ideological right. One side, the Republicans, picks ideologically; the other side, Democrats, picks without regard to ideology in a way that you expect the surrogate will be ideology--assuming that more blacks, women, Latinos, will be more interested in issues of liberty, and that just doesn't turn out to be the case, particularly on religion. So you get an ideologically-swayed court. . . .
The Ten Commandments, of course, is not only a symbol of religion, it's a symbol of a particularistic religion, and a religion that has the words in it, "Thou shalt have no other god before me." That is unAmerican! We want people to have other gods or no gods or different gods.
In the wake of 9/11, what is your view on Islam and its teachings?
It's very complex. Christianity is a "religion of love," "turn the other cheek," and yet look at the violent history of Christianity. The Crusades, the Inquisition, murder in the name of Jesus. Jesus was a great man, I think. Jefferson loved Jesus as a person. He didn't love Christ, he didn't think he existed. But he loved Jesus. In fact, in my book I described Jesus as the first reformed rabbi. Basically he rejected the ritualistic aspect of Judaism and tried to introduce ethical precepts. By the way, very much in the tradition of some of the prophets, and some of the rabbis like Rabbi Hillel, he was part of a tradition of moving toward a more tolerant, more open, more ethical religion.
One of the problems is there's never been a reformation in Islam, and there's no Conservative, Reform, Reconstructionist or secular strain, to speak of, of Islam. Islam tends to be, today, completely in the hands of the most ultra-orthodox people, who are intolerant of women's rights, intolerant of gay rights, intolerant of much progress.
There was a period of Islamic life when there was great tolerance, the golden age of Islam, more mathematics and many other things. Islam thrived on reading the Greek literature. Today, that's not the case. I don't think you can blame an entire religion, obviously. I think there are more fundamentalists per capita among Muslims than probably any other religion in the world today, but there are fundamentalists among Christians and Jews, too. Fundamentalist Jews tend to sit in their yeshivas and learn. When occasionally somebody gets hold of a gun, he kills the Prime Minister of Israel, or he goes and murders 29 Arabs in prayer.
So give a fundamentalist a gun and I don't care what his religion is, or give Christians the power to force their Christianity by the state, and they're going to act terribly. People say, if you look at the text of the Jewish religion, it's probably the most violent of all the three major faiths. You know, "vengeance is mine," "kill the people of Amelikite," "destroy all the people here." But over history they just haven't done that. Why? They haven't had access to the guns. They haven't been powerful. Now that they are, we'll see, obviously, in my view, a mixed picture. But reasonable people can have different views on that.
Nobody gets a different view on the Crusades, I don't think, and you can't have different views on the Inquistion, and you can't have different views on the Turkish massacre of Armenians, which people forget was a religiously-based, Muslim massacre of Christians. In some parts of Africa today, we have the slaughtering of Christians, and not only Christians but people who are non-Muslim. That's the definition of a Christian in many parts of Africa today, somebody who is not a Muslim. Then they have the Sunnis and the Shiites at each others' throats, too.
I don't think you can blame the entire religion, but I think it's also false to believe that religion has nothing to do with it at all. If you listen to the tapes of what is on Palestinian television after every Friday in mosques all over the state, and you hear these horrible, blood-curdling speeches about killing people, you get into the habit of killing people. You can't ignore the role that some Islamic fundamentalists play in implementing violence.
Thank you very much.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. A graduate of Brooklyn College and Yale Law School, he has been called "the best-known criminal lawyer in the world." He is author of 18 works of nonfiction and fiction and has prominently debated representatives of the Religious Right.