"Suppose the Mother Were Jewish": Leo Pfeffer, the American Jewish Congress, and the Problem of Religious Protection Law

Abstract

"Suppose the Mother Were Jewish":Leo Pfeffer, the American Jewish Congress, and the Problem of Religious Protection Law1 Susan A. Glenn (bio) When the Executive Committee of the National Community Relations Advisory Council met in New York City in January 1956 to discuss issues of concern to the Jewish community, a heated debate erupted over the adoption of children born to women of one religious group by couples from a different religious group. Rabbi Israel Klavan, who represented the Orthodox Rabbinical Council, declared that any attempt to formulate a "Jewish position" would have to consider "the well-established principle of Jewish law that one who is born a Jew remains a Jew throughout his life." Constitutional law expert Leo Pfeffer (1909–1993), the American Jewish Congress's most formidable church-state litigator, replied that, "having been an Orthodox Jew throughout his life," he understood the importance of "the principle" that "a child born of a Jewish mother is, under traditional Jewish law, a Jew." However, cautioned Pfeffer, "the constitutional government of the United States, under which we all live, and under which our rights to observe and practice our respective religions are protected, is a secular government, without interest or concern for the religious laws to which its citizens may choose to adhere." It must be remembered, he added, that "the security of the Jewish group in its free practice of the Jewish faith rests upon the maintenance of this unconcern or indifference of government toward religion."2 This heated exchange was a continuing salvo in the American Jewish Congress's controversial mid-century campaign to challenge the constitutionality of laws and judicial practices that made it difficult and sometimes impossible for couples to adopt children born to mothers [End Page 467] whose religion differed from theirs. Pfeffer, whose personal devotion to Judaism was "intense and unshakable,"3 played a leading role in this campaign to loosen the grip of religious restrictions on adoption—a campaign, his Jewish critics charged, that would make it possible for Christians to adopt "Jewish-born" children. In the 1950s Pfeffer earned a reputation as what one political scientist called the "dominant individual force in managing the flow of church-state litigation" and the figure responsible for turning the American Jewish Congress into the nation's "unrivaled organizational force" in bringing First Amendment cases "up the judicial ladder to the Supreme Court."4 Another scholar described Pfeffer as the dominant force in the "entire universe" of church-state litigation, noting that he "advised, planned, rehearsed, helped, and argued more church-state cases than any other attorney of his generation."5 The scholarship on Leo Pfeffer focuses on his constitutional challenges to religion in the public schools, state aid to parochial schools, tax exemptions for churches and synagogues, and discriminatory Sunday closing laws. In this article, I examine an arena of Pfeffer's jurisprudence that has largely been ignored: his daring forays into the religious minefield of child adoption and custody law. Pfeffer singled out child adoption as the most challenging of all church-state issues. In his 1953 opus, Church, State, and Freedom, Pfeffer wrote: "Probably no problem in the area of the relationship of religion and state is more difficult of equitable solution than that arising out of the desire of a couple of one religious faith to adopt a child born into another faith."6 Religion was the most [End Page 468] litigated issue in child adoption in the 1950s. Both historically distinct from and analogous to later debates about the adoption and fostering of African American and Indigenous children, the contest over religion involved competing claims about whose children belonged where.7 Pfeffer theorized the problem when he depicted transreligious adoption as a highly competitive, "emotion-laden" struggle involving children, parents, communities, and religious groups all "striving for judicial recognition."8 By 1970, Pfeffer's decades-long campaign to change the laws governing adoption had borne fruit. But his fervent desire to see the Supreme Court declare that "prohibitory" adoption statutes and legal rulings that made religion (or lack thereof) the decisive factor in adoptions were unconstitutional under the Establishment and Free Exercise clauses was never realized.9 This article makes...